State of Tennessee v. Javier C. Perez

06/21/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 29, 2022 Session

STATE OF TENNESSEE v. JAVIER C. PEREZ

Appeal from the Criminal Court for Washington County

No. 43889 Stacy L. Street, Judge

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No. E2021-00475-CCA-R3-CD

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A Washington County Criminal Court convicted the Appellant, Javier C. Perez, of

possessing .5 grams or more of methamphetamine, a Schedule II controlled substance, with

the intent to sell, a Class B felony. See Tenn. Code Ann. § 39-17-434. The trial court

sentenced the Appellant to eight years of incarceration in the Tennessee Department of

Correction. On appeal, the Appellant raises the following issues for review: (1) whether

the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by

instructing the jury pursuant to Tennessee Code Annotated section 39-17-419 that they

could infer the intent to sell based upon the amount of drugs possessed; (3) whether the

trial court erred in denying the Appellant’s motion for mistrial after Officer Curtis testified

regarding “drug mules”; (4) whether the trial court committed plain error by allowing the

State to “vouch against the Appellant’s credibility in its closing arguments”; and (5)

whether the trial court erred in denying the Appellant’s motion for new trial based on newly

discovered evidence. Upon review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Brian D. Wilson, Franklin, Tennessee (on appeal); and William Francisco, Johnson City,

Tennessee (at trial), for the Appellant, Javier C. Perez.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney

General; Kenneth Baldwin, District Attorney General; and Justin Irick, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The Washington County Grand Jury indicted the Appellant for possession of .5

grams or more of methamphetamine with the intent to sell. The charges stemmed from an

incident in March 2018 when Officer James Curtis with the Johnson City Police

Department went to the Appellant’s motel room in response to a 911 call reporting an

attempted break-in. While at the motel room, Officer Curtis searched the Appellant’s coat

and discovered the drugs.

At trial, Officer Curtis testified that he was working the night shift on March 4,

2018, when he was dispatched to room 202 of the Quality Inn on South Roan Street in

Johnson City. The occupant of the room, who was later identified as the Appellant, had

called 911 and reported that someone was trying to break into his room and possibly rob

him. Upon his arrival at the scene, Officer Curtis did not observe any commotion around

the room and did not see any damage to the room’s door or window. Officer Curtis, who

was wearing a uniform, announced that he was a police officer and knocked on the door

several times. The Appellant “cracked open” the door “then immediately slammed [it]

shut.” After Officer Curtis “beat[] on the door a little harder,” the Appellant opened the

door.

Officer Curtis said that when he “first made contact” with the Appellant, he did not

know whether the Appellant was a victim or a suspect in the robbery. Therefore, the first

thing Officer Curtis did was ask if he could pat-down the Appellant. The Appellant agreed,

and Officer Curtis did not find any weapons during the pat-down. Immediately prior to the

pat-down, the Appellant had removed his coat and put it on the bed, which Officer Curtis

thought was “a little weird.”

Officer Curtis spoke with the Appellant, and the Appellant said that he was the

occupant of the room. The Appellant told Officer Curtis that someone had “beat on the

door,” that “some kind of scuffle . . . happened inside the room,” and that he called 911

after the person left. Officer Curtis was unable to find evidence to corroborate any of the

Appellant’s claims. Officer Curtis asked the Appellant to exit the room, and Officer Curtis

quickly searched the room to ensure it was empty.

After the search of the room, Officer Curtis asked if he could search the Appellant’s

coat, and the Appellant agreed. In one of the coat pockets, Officer Curtis found a bag

containing twenty-three grams, almost an ounce, of methamphetamine. Officer Curtis

asked the Appellant to identify the substance, and the Appellant said it was “[m]eth.” The

Appellant agreed that the methamphetamine belonged to him.

Officer Curtis said that he had been an officer for eight years, that he had attended

four or five narcotics training classes which lasted forty hours each, and that he was either

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associated with or lead officer on “[h]undreds, maybe thousands” of cases involving

methamphetamine. Officer Curtis stated that, based upon his training and experience, an

individual would not typically possess twenty-three grams of methamphetamine for

personal use. He explained that a “heavy user” would, at most, use one or two grams of

methamphetamine per day and that a user normally would carry “a half a gram to two

grams, depending on how much they use a day.” Officer Curtis opined that for a heavy

user, twenty-three grams of methamphetamine would be enough for one month and that

typically a person in possession of twenty-three grams of methamphetamine was selling or

distributing it. Officer Curtis said that the people he met who used methamphetamine

frequently also sold methamphetamine. Accordingly, Officer Curtis concluded that the

Appellant was selling or distributing the methamphetamine.

Officer Curtis did not find any luggage or personal belongings in the room. He also

did not find cash, baggies, scales, drug ledgers, pipes, lighters, straws, syringes, or other

paraphernalia on the Appellant or inside the room that would indicate whether the

methamphetamine was for sale or personal use. Officer Curtis said that even if he had

found paraphernalia for drug use, the large amount of methamphetamine would have led

him to believe the Appellant possessed the drugs with the intent to sell. Officer Curtis said

that the Quality Inn was “a high drug trafficking area” and that the police would sometimes

“be out there every night. Every night we worked.”

Officer Curtis estimated that a gram of methamphetamine usually cost eighty dollars

and that an “eight ball,” or three grams, of methamphetamine usually cost $250 to $300.

He estimated that the street value of twenty-three grams of methamphetamine was between

$2,000 and $2,300. Officer Curtis asked the Appellant if he was employed. Officer Curtis

thought the Appellant said he was employed but could not recall where the Appellant said

he worked. Officer Curtis further recalled that the Appellant lived in Johnson City.

On cross-examination, Officer Curtis acknowledged that he did not question the

Appellant further after the Appellant admitted the drugs belonged to him and that he called

911. Officer Curtis explained that a narcotics investigator arrived, that the Appellant was

advised of his Miranda rights, and that the Appellant “lawyered up.” Officer Curtis

conceded that the only indicator of a “trafficking operation” was the large amount of drugs.

Officer Curtis acknowledged that the Appellant did not have multiple cellular telephones

and that the police found no evidence of drug trafficking on the Appellant’s cellular

telephone.

On redirect examination, Officer Curtis was asked if he were familiar with the term

“drug mule.” Officer Curtis explained that a “drug mule” was “a transporter” who picked

up narcotics from one dealer and delivered them to another dealer, such as from a “high

level supplier” to a “street level dealer.” In other words, “a drug mule” was a “middle

man” who was paid upon delivery, which “constitute[d] a resale of that product.” Officer

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Curtis surmised that if the Appellant were a middle man, he may have had no cash because

the “altercation” at the Quality Inn had interfered with his ability to “drop . . . the dope

off,” and he had not been paid. Additionally, a middle man would have had no need to

divide the drugs into separate bags. On recross-examination, Officer Curtis acknowledged

that the Appellant may have spent all of his money buying the methamphetamine.

On further redirect-examination, Officer Curtis conceded that if the Appellant were

a middle man, he would have had to communicate with a dealer. Officer Curtis further

conceded that the police found no evidence of drug trafficking on the Appellant’s cellular

telephone. He explained, however, that drug mules usually communicated with dealers

“face-to-face” instead of by cellular telephones so nothing could be “traced back” to the

dealer.

Alyssa Turin testified that she worked in the forensic chemistry unit of the

Tennessee Bureau of Investigation’s (TBI) crime laboratory. The trial court allowed Turin

to testify as an expert witness. Turin said that she analyzed the substance recovered from

the Appellant and determined that it was 21.05 grams of methamphetamine.

Stephanie Ann Bitner testified for the defense. Bitner stated that on March 5, 2018,

she was working as a licensed practical nurse (LPN) in the Washington County Detention

Center. Bitner said that when the Appellant was admitted as a new inmate after his arrest,

she completed a screening form. Bitner had no independent recollection of the Appellant

and had to restrict her testimony to the information on the form. Bitner agreed that one of

the questions on the form “ask[ed] whether the inmate appeared to be under the influence

of any drugs or alcohol or withdrawing from drugs or alcohol” and that “[i]t’s marked yes.”

She also agreed that she “would’ve obtained that information from [the Appellant] on

March 5th.” The form reflected that the Appellant told Bitner that he had been using

methamphetamine regularly for six months and that he had also been using cocaine.

On cross-examination, Bitner explained that she filled out the form based upon the

Appellant’s verbal responses. She agreed that the first question on the form asked her to

report anything she observed that made her believe the Appellant was under the influence.

The response on the form reflected she had observed that the Appellant was “[j]ittery,

nervous.” She stated that people “coming off” methamphetamine usually looked jittery

and nervous; however, she acknowledged that someone who had just been arrested could

be nervous and jittery regardless of whether he was under the influence of a narcotic.

Bitner conceded that she did not drug test the Appellant.

The Appellant1 testified that at the time of his arrest, he worked in construction and

earned approximately $1,500 per week. The week before his arrest, he had been unable to

1

The Appellant testified through an interpreter.

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work every day because of rain and snow and had started consuming alcohol and drugs.

For five days prior to his arrest, the Appellant drank beer and used drugs at his house. After

he ran out of drugs, he became “paranoid” around other people and went to the motel.

While at the motel, he bought twenty-eight grams of methamphetamine for $500.

Afterward, he drank beer and used a “rolled-up” bill to “snort” some of the

methamphetamine in his room. The Appellant said that he had been at the motel for only

fifteen minutes before the police arrived.

The Appellant acknowledged that he did not open the door for Officer Curtis

immediately. He said that he was “paranoid” because he had not slept and had been

drinking and using drugs for five days prior to his arrest; therefore, he did not know whether

the person knocking on the door was an officer or someone who wanted to attack him.

The Appellant maintained that he bought twenty-eight grams of methamphetamine

for personal use. He explained that he had “no problem consuming” three grams or more

of methamphetamine as long as he drank alcohol at the same time. On a prior occasion, he

almost needed hospitalization because of his drug and alcohol use, and he was “very close”

to needing hospitalization on the day of his arrest.

On cross-examination, the Appellant said that he knew the cost of

methamphetamine because he had been “using it for a long time” and that Officer Curtis

“had no idea . . . about” the street value of methamphetamine. The Appellant said that he

bought the methamphetamine “[f]rom a friend,” but he refused to disclose the friend’s

name. The Appellant said that he had planned to use all of the methamphetamine and that

he did not want to sell or share the methamphetamine. He explained that he had bought a

large quantity of drugs because he was “paranoid” and did not want to have to buy more

later. The Appellant checked into the motel using the name of the friend who took him to

the motel, but he refused to reveal the friend’s name.

The Appellant said that he made a telephone call to arrange to buy the

methamphetamine, and he was told to go to the Quality Inn’s parking lot. While in the

parking lot, he bought twenty-eight grams of methamphetamine. Afterward, the Appellant

went to his room and “snorted” three grams using a rolled-up “money bill.” The Appellant

said that his life would be at risk if he revealed the seller’s name. The Appellant asserted

that he had never sold methamphetamine. The Appellant stated that he started using

methamphetamine a “few years ago when I was diagnosed with a disease that wouldn’t

allow me to live long.” He had not used it previously and “got hooked.” The Appellant

said that he could use as much as half an ounce of methamphetamine in one day if he were

with “a third person,” such as a friend or an ex-girlfriend.

The Appellant said that on the night of his arrest, his ex-girlfriend tried to get into

his room. He did not open the door because he was “too paranoid” and was “hearing

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voices.” The Appellant stated that he did not “know how it was that I end[ed] up calling

the police. I was [in] such state that I called them knowing that I had the drug.”

The State called Officer Curtis as a rebuttal witness. Officer Curtis said that the

Appellant’s motel room was “[v]ery small” and had one bedroom and an adjoining

bathroom. Officer Curtis and the Appellant were “[f]ace to face” when they spoke and

when Officer Curtis conducted the pat-down of the Appellant. Officer Curtis did not smell

any alcohol on the Appellant and did not see any empty alcohol bottles in the room.

Moreover, the Appellant did not say that he had been consuming alcohol.

Officer Curtis said that the Appellant claimed he did not know who was trying to

break into his room but that the Appellant gave descriptions of the people. At the time of

trial, Officer Curtis did not recall the descriptions, but he knew that no one in the motel’s

parking lot or on the property matched the descriptions. Officer Curtis knew the Appellant

said a man was involved but could not recall if the Appellant said a woman was involved.

Based upon the foregoing proof, the jury found the Appellant guilty of possessing

.5 grams or more of methamphetamine with the intent to sell. The trial court sentenced the

Appellant to eight years in the Tennessee Department of Correction.

On appeal, the Appellant raises the following issues for review: (1) whether the

evidence was sufficient to sustain his conviction; (2) whether the trial court erred by

instructing the jury pursuant to Tennessee Code Annotated section 39-17-419 that they

could infer the intent to sell based upon the amount of drugs possessed; (3) whether the

trial court erred in denying the Appellant’s motion for mistrial after Officer Curtis testified

regarding “drug mules”; (4) whether the trial court committed plain error by allowing the

State to “vouch against the Appellant’s credibility in its closing arguments”; and (5)

whether the trial court erred in denying the Appellant’s motion for new trial based on newly

discovered evidence.

II. Analysis

A. Sufficiency of the Evidence

The Appellant challenges the sufficiency of the evidence sustaining his conviction.

On appeal, a jury conviction removes the presumption of the Appellant’s innocence and

replaces it with one of guilt, so that the Appellant carries the burden of demonstrating to

this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The Appellant must establish that no reasonable trier of

fact could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

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Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

The guilt of a defendant, including any fact required to be proven, may be predicated

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

circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.

App. 1999). Even though convictions may be established by different forms of evidence,

the standard of review for the sufficiency of that evidence is the same whether the

conviction is based upon direct or circumstantial evidence. See State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011).

The Appellant was charged with possessing .5 grams or more of methamphetamine

with the intent to sell. See Tenn. Code Ann. §§ 39-17-434(a)(3), (e)(1); 39-17-417(c)(1).

As our supreme court has stated, “intent can rarely be shown by direct proof and must,

necessarily, be shown by circumstantial evidence.” Hall v. State, 490 S.W.2d 495, 496

(Tenn. 1973). Notably, Tennessee Code Annotated section 39-17-419 provides that “[i]t

may be inferred from the amount of a controlled substance . . . , along with other relevant

facts surrounding the arrest, that the controlled substance or substances were possessed

with the purpose of selling or otherwise dispensing.” Our case law has established “other

relevant facts” that may give rise to an inference of intent to sell include the absence of

drug paraphernalia, the presence of a large amount of cash, the manner of packaging of the

drugs, and the street value of the drugs. See State v. Belew, 348 S.W.3d 186, 191 (Tenn.

Crim. App. 2005) (citing State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999));

see also State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (concluding that the

absence of drug paraphernalia and the manner of packaging of drugs supported an inference

of intent to sell); State v. Matthews, 805 S.W.2d 776, 782 (Tenn. Crim. App. 1990)

(concluding that testimony concerning the amount and the street value of the drugs was

admissible to prove the defendant’s intent).

On appeal, the Appellant contends that the State adduced no facts other than the

amount of methamphetamine to support the inference that the Appellant possessed the

drugs with the intent to sell and that the proof was therefore insufficient to sustain his

conviction. In support of this contention, the Appellant cites Belew, in which this court

held that a trier of fact may not infer intent based solely on the amount of the controlled

substance but must also consider other relevant facts surrounding the arrest. 348 S.W.3d

at 191. The State responds that Belew is distinguishable from the instant case because

“other relevant facts surrounding the arrest” supported the Appellant’s conviction for

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possession of .5 grams or more of methamphetamine with the intent to sell. We agree with

the State.

In the light most favorable to the State, the proof adduced at trial revealed that after

the Appellant called 911 to report that someone was trying to break into his motel room,

Officer Curtis went to the room but saw no signs of an attempted break-in. Officer Curtis

was wearing his uniform and identified himself as a police officer, but the Appellant

initially was reluctant to let the officer into the room. The Appellant eventually allowed

Officer Curtis into the room, and Officer Curtis quickly searched the room to ensure no

one else was inside. Because Officer Curtis was not sure if the Appellant was a victim or

a suspect, he obtained permission to search the Appellant. He found no weapons on the

Appellant during a pat-down. However, inside one of the pockets of the coat the Appellant

had taken off and put on the bed prior to the pat-down, Officer Curtis found a plastic bag

containing a substance that was later confirmed to be 21.05 grams of methamphetamine.

The Appellant acknowledged the drugs belonged to him. Officer Curtis said that such a

large amount was not typically for personal use only. He explained that a “heavy user”

would, at most, use one to two grams of methamphetamine per day and that the amount

found in the Appellant’s coat indicated that it was for selling or distributing purposes. The

police did not find any cash or paraphernalia indicating that the methamphetamine was for

personal use during the search. The Appellant had no personal belongings or luggage in

the room. Officer Curtis noted that the Quality Inn was in “a high drug trafficking area”

and that sometimes the police “would be out there every night.” Officer Curtis estimated

that a gram of methamphetamine cost eighty dollars, that three grams of methamphetamine

usually cost $250 to $300, and that the street value of twenty-three grams of

methamphetamine was between $2,000 and $2,300.

The Appellant contends that although no paraphernalia for personal use was

discovered, he had snorted methamphetamine using a rolled-up bill and that he was “high”

at the time of his arrest, which supported his contention that he possessed the drugs for

personal use. The Appellant also notes that although the lack of personal effects in the

room supported the State’s contention that he possessed the methamphetamine with the

intent to sell, it also supported his contention that he was using the methamphetamine.

However, these complaints are essentially challenges to the credibility of the State’s

witnesses and proof. We note that determining the credibility of witnesses is within the

purview of the trier of fact. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App.

2000). The evidence presented by the State was sufficient for the jury to find that the

Appellant possessed the drugs with the intent to sell. We may not now reconsider the

credibility assessment. See State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000).

Although the proof was not overwhelming, the State presented sufficient facts, such as

Officer Curtis’ testimony regarding the cost of methamphetamine, the amount of

methamphetamine used by a typical user, the amount of methamphetamine possessed by

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the Appellant, and the lack of drug paraphernalia, to allow the jury to infer that the

Appellant possessed .5 grams or more of methamphetamine with the intent to sell.

B. Jury Instructions

Within the sufficiency of the evidence complaint, the Appellant argues that the proof

was insufficient “for the trial court to instruct the jury to infer his intent based on the

amount of drugs.” Initially, we note that the Appellant did not object to the trial court’s

instruction regarding the inference,2 thereby waiving the issue. See Tenn. R. App. P. 36(a);

State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008) (“The failure to make a

contemporaneous objection constitute[s] waiver of the issue on appeal.”). Thus, the

Appellant is entitled to relief only in the event of plain error.

Tennessee Rule of Appellate Procedure 36(b) provides that “[w]hen necessary to do

substantial justice, [this] court may consider an error that has affected the substantial rights

of a party at any time, even though the error was not raised in the motion for a new trial or

assigned as error on appeal.” See also Tenn. R. Evid. 103(d); State v. Smith, 24 S.W.3d

274, 283 (Tenn. 2000); State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.

1994). We may only consider an issue as plain error when all five of the following factors

are met:

a) the record must clearly establish what occurred in the trial

court; b) a clear and unequivocal rule of law must have been

breached; c) a substantial right of the accused must have been

adversely affected; d) the accused did not waive the issue for

tactical reasons; and e) consideration of the error is “necessary

to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for

determining plain error). Furthermore, the “plain error must be of such a great magnitude

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal

quotation marks omitted) (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir.

1988)).

It is well-settled that a defendant has a constitutional right to a complete and correct

charge of the law, so that each issue of fact raised by the evidence will be submitted to the

jury on proper instructions. State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011). This

2

The trial court’s instruction mirrored the instruction in the Tennessee pattern jury instructions.

See T.P.I.-Crim. 31.04.

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court “must review the entire [jury] charge and only invalidate it if, when read as a whole,

it fails to fairly submit the legal issues or misleads the jury as to the applicable law.” State

v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). A charge resulting in prejudicial

error is one that fails to fairly submit the legal issues to the jury or misleads the jury about

the applicable law. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

As we stated earlier, our code provides that “[i]t may be inferred from the amount

of a controlled substance . . . , along with other relevant facts surrounding the arrest, that

the controlled substance or substances were possessed with the purpose of selling or

otherwise dispensing.” Tenn. Code Ann. § 39-17-419. Therefore, the instruction given by

the trial court was a correct statement of the law. See State v. Eugene Bernard Cuddy, III,

No. E2014-01724-CCA-R3-CD, 2015 WL 7428621, at *8 (Tenn. Crim. App. at Knoxville,

Nov. 23, 2015).

The Appellant argues, however, that the facts did not support the instruction because

no facts other than the amount of drugs supported the inference. However, as we concluded

earlier, other facts supported the inference that the Appellant possessed the

methamphetamine with the intent to sell, such as Officer Curtis’ testimony regarding the

cost of methamphetamine, the amount of methamphetamine used by a typical user, the

amount of methamphetamine possessed by the Appellant, and the lack of drug

paraphernalia. Therefore, the jury instruction was warranted. We conclude that the

Appellant is not entitled to plain error relief.

C. Motion for Mistrial

The Appellant contends that the trial court should have granted his motion for a

mistrial after Officer Curtis testified about “drug mules” and speculated that likely was the

Appellant’s role. The Appellant maintains that the officer’s testimony “went beyond the

scope of the indictment and was so unfairly prejudicial that it affected the outcome of the

trial.” The Appellant also contends that Officer Curtis’ testimony regarding drug mules

and “middle men” related to the delivery of drugs, not a sale, which created a fatal variance

in the indictment and the proof. The State responds that Officer Curtis’ testimony did not

create a variance between the indicted conduct and the proof, noting that Officer Curtis

testified that a drug mule usually received payment upon delivery of the narcotics, which

would constitute a sale. We agree with the State.

During redirect examination, the State asked if Officer Curtis had “ever heard the

term drug mule,” and Officer Curtis responded that he had. Defense counsel objected,

arguing that the “line of questioning is going into distribute” and that the Appellant was

charged with possession with intent to sell, not possession with intent to distribute. The

State responded that “any time a drug mule distributes, they go from one dealer to the next.

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. . . And he don’t work for free. They get paid upon delivery. . . . That is resale.” The

trial court agreed to give the State “a little leeway.”

Officer Curtis explained that a “drug mule” was a “middle man” who transported

narcotics from a “high level supplier” to a “street level dealer.” Therefore, as the middle

man, the Appellant did not need to divide the drugs into different plastic baggies because

he would be paid upon delivery, which would “constitute a resale of that product.” Officer

Curtis surmised that the Appellant’s lack of cash indicated that he had not yet been paid

because the “altercation” at the Quality Inn had interfered with his ability to “drop . . . the

dope off.”

On recross-examination, Officer Curtis acknowledged that the Appellant could have

spent all of his money to buy the methamphetamine. Officer Curtis further acknowledged

that the police found no evidence of drug trafficking on the Appellant’s cellular telephone.

On further redirect-examination, Officer Curtis said that from his training and experience,

drug mules and their suppliers usually communicated “face-to-face” instead of cellular

telephones because “[t]hey don’t want anything that can be traced back to the supplier.”

At the conclusion of Officer Curtis’ testimony, defense counsel moved for a mistrial

“[a]s a result of the objection that [the] defense made on the line of questioning about a

middle man, and a mule going to an element of an offense that is not accused in the

indictment.” Defense counsel argued that the proof related to possession of

methamphetamine with the intent to deliver, not the indicted offense of possession of

methamphetamine with the intent to sell, and that the jury would “not be able to let go of

that.” The State responded that the officer’s testimony reflected that “a drug mule does

[resell] his product.” The trial court found that Officer Curtis’ testimony helped explain

why the Appellant had such a large amount of drugs but did not have drug paraphernalia

such as baggies or scales in his possession. The trial court explained that if the Appellant

were “a middle man in the truest sense of the word, if he’s taking it to someone else[,] it is

being resold to someone and money would exchange. I know of no case law that says

differently.” Accordingly, the trial court denied the motion for mistrial. The Appellant

challenges this ruling.

A mistrial should be declared in criminal cases only in the event that a manifest

necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim.

App. 1991). In other words, a mistrial is an appropriate remedy when a trial cannot

continue or a miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d

365, 370 (Tenn. Crim. App. 1994). The decision to grant a mistrial lies within the sound

discretion of the trial court, and this court will not interfere with the exercise of that

discretion absent clear abuse appearing on the face of the record. See State v. Hall, 976

S.W.2d 121, 147 (Tenn. 1998) (citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)).

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Moreover, the burden of establishing the necessity for mistrial lies with the party seeking

it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

The indictment charged the Appellant with possession of .5 grams or more of

methamphetamine with the intent to sell. A “[s]ale” has been defined as “a bargained for,

offer and acceptance and an actual or constructive transfer or delivery of the substance.”

State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App. 2002). “One who accepts payment

in exchange for property is involved in a sale.” Id. at 511 (citations omitted). The

Appellant contends that Officer Curtis’ testimony related to the possession of drugs with

the intent to deliver. Tennessee Code Annotated section 39-17-402(6) provides that

“‘[d]eliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from one

person to another of a controlled substance, whether or not there is an agency

relationship[.]”

The Appellant’s complaints regarding whether a variance existed between the proof

and the indictment are without merit. “A variance between an indictment . . . and the

evidence presented at trial is not fatal unless it is both material and prejudicial.” State v.

Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000); see also State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984). A variance is not material when substantial correspondence exists

between the proof and the indictment. See Shropshire, 45 S.W.3d 71. As the trial court

found, nothing in Officer Curtis’ disputed testimony constituted a material variance from

the indictment. Officer Curtis’ testimony supported the State’s theory of why the Appellant

had such a large amount of methamphetamine but did not have any baggies, scales, or cash.

His testimony also explained that as the middle man, the Appellant would receive the

money for the drugs from the buyer. The Appellant failed to meet his burden of

establishing the necessity of a mistrial.

D. Closing Argument

Finally, the Appellant contends that the trial court erred when it allowed the State

to “vouch against” the Appellant’s credibility in its closing arguments. However, the

Appellant acknowledges that he did not object to the State’s closing arguments. Generally,

a defendant’s failure “to proffer contemporaneous objections to the challenged remarks”

waives the issue on appeal. State v. Robinson, 146 S.W.3d 469, 518 (Tenn. 2004); see

Tenn. R. App. P. 36(a). Nevertheless, the Appellant requests that we review the issue for

plain error. Tenn. R. App. P. 36(b); see State v. Hawkins, 519 S.W.3d 1, 49 (Tenn. 2017);

Adkisson, 899 S.W.2d at 641-42; Smith, 24 S.W.3d at 283.

The Appellant specifically complains about the following statements made during

the State’s closing arguments:

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You should not believe [the Appellant]. He has given

you multiple reasons not to believe him.

....

[The Appellant] tells you that it was his ex-girlfriend

who he won’t identify that was trying to break in to his hotel

room. But when the police went out there that night his story

to them was, “I don’t know who it was. Here’s a description

of what they look like.” The officer testifies that he described

one of them as a male. You did not hear that coming out of

[the Appellant’s] mouth today. He is deceiving you.

During the State’s rebuttal closing argument, the State said, “[The Appellant] may

be addicted to a lot of things or a few things, but for sure the truth ain’t one of them.” The

State also said, “I mean, we’ve got him charged with possessing to sale [sic] meth, and here

he is trying to sell you this ridiculous story that he’s got this much meth for personal use

when it makes no sense at all.”

Regarding prosecutorial misconduct during closing arguments, it is well-established

that closing argument is an important tool for both parties during a trial; thus, counsel is

generally given wide latitude during closing argument, and the trial court is granted wide

discretion in controlling closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-

78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must be temperate, based

upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise

improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial

misconduct” that can occur during closing argument: (1) intentionally misleading or

misstating the evidence; (2) expressing a personal belief or opinion as to the truth or falsity

of the evidence or defendant’s guilt; (3) making statements calculated to inflame the

passions or prejudices of the jury; (4) injecting broader issues than the guilt or innocence

of the accused; and (5) intentionally referring to or arguing facts outside the record that are

not matters of common public knowledge. “In determining whether statements made in

closing argument constitute reversible error, it is necessary to determine whether the

statements were improper and, if so, whether the impropriety affected the verdict.” State

v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

We note that the record clearly established what occurred in the trial court and that

nothing suggests the Appellant waived the issue for tactical reasons. Generally, “a lawyer

should not assert his or her personal opinion as to the credibility of a witness, or as to the

accused’s guilt or innocence.” State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App.

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1999) (citing State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989)). This court has stated

that “it is rarely to the benefit or to the dignity of the state to characterize the defendant as

‘a liar,’ even if the proof supports such a conclusion”; however, the State “has every right

to question the veracity of the defendant’s claims so long as it is in conjunction with

evidence appearing in the record and the reasonable inferences which might be drawn

therefrom.” State v. Jody Sweat, No. E2000-02472-CCA-R3-CD, 2001 WL 1134604, at

*9 (Tenn. Crim. App. at Knoxville, Sept. 26, 2001).

In the instant case, the State’s remarks clearly were questioning the veracity of the

Appellant’s claims. While the State’s comments could have been more artfully made, they

did not prejudice the jury against the Appellant. Accordingly, we conclude that the

Appellant is not entitled to plain error relief on this basis.

E. Motion for New Trial

The Appellant contends that the trial court erred in denying his motion for new trial

after he presented newly discovered evidence which contradicted a portion of Officer

Curtis’ testimony. The Appellant asserts that the newly discovered evidence was material

and likely to change the outcome of the trial.

At the hearing on the motion for new trial, defense counsel submitted an affidavit

with accompanying records from Nikki Dugger of the Johnson City Police Department.

The records, which defense counsel referred to as a “crimemapping” analysis, reflected

that during the time period of January 1, 2018, through March 5, 2018, four reports of drug

activity near the Quality Inn were received. The “crimemapping” analysis revealed no

drug arrests were made at the Quality Inn during the two months prior to March 4, 2018.

The Appellant contended that the “crimemapping” analysis was unavailable to the defense

during trial. The State conceded that the “crimemapping” analysis “constitute[d] new

evidence that was not admitted during the trial.”

In response to the defense’s evidence, the State called Sergeant Jeff Legault with

the Johnson City Police Department’s narcotics unit. Sergeant Legault testified that in

March 2018, he was an investigator with the narcotics unit. In his role as an investigator,

Sergeant Legault was familiar with the Quality Inn because of information from informants

and “general knowledge that there’s a lot of drug activity that goes on there.” He said that

“like some other local hotels around there, it just – it’s kind of a mainstay for people to

come in and deal out of hotel rooms.” Sergeant Legault had been to the Quality Inn

“several times to observe, to watch to see what’s going on.” He explained that

occasionally, tips led the police to watch certain rooms or certain cars at the motel. On

other occasions, Sergeant Legault surveilled the motel because he knew drug activity was

taking place there. He stated that it was “common practice” for the police to go to the

Quality Inn several times a day to, at a minimum, perform extra patrols through the parking

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lot for “crime, high crime, drugs, . . . robberies . . . , [and] overdoses . . . .” Sergeant Legault

said that each day, a daily activity log was sent to all officers via email which would reflect

“if someone’s been checked at the Quality Inn, if there’s been an arrest at the Quality Inn,

if there’s been a report taken at the Quality Inn.”

On cross-examination, Sergeant Legault acknowledged that he had not brought to

court any specific surveillance reports regarding the Quality Inn during March 2018 or the

ninety days leading up to March 4, 2018, because the prosecutor “said not to worry about

it.” Sergeant Legault had no recollection of any specific activity that occurred at the

Quality Inn during that time frame. However, he recalled that he had “bought quite a bit

of narcotics from the Quality Inn” based upon informants’ tips. He explained that “[a] drug

investigation doesn’t necessarily lead to one arrest. We do an investigation just like

everybody else. There’s going to be several cases, several buys, several other things so not

necessarily right at that time would there be a report.” He said, “I don’t know the dates but

I can say I have purchased narcotics from the Quality Inn.” Sergeant Legault said that the

police made a report if an arrest was made but not for just an extra patrol.

The trial court found that the evidence had some materiality as far as Officer Curtis’

credibility, specifically concerning his testimony about the Quality Inn being a high crime

area. The trial court stated that Officer Curtis’ demeanor at trial had been “flippant” and

that he had a “poor attitude,” noting that the officer had a pair of sunglasses pushed on top

of his head and that he had chewed gum during his testimony until he was instructed to

discard it. The trial court stated that defense counsel had thoroughly and effectively cross-

examined Officer Curtis. Although the trial court was “not overly impressed with [Officer

Curtis’] demeanor and his actions in the courtroom,” the court said, “[N]othing that I’ve

seen, nor does the new evidence cause me to question the credibility as to what happened

that night.”

The decision to grant or deny a new trial on the basis of newly discovered evidence

rests within the sound discretion of the trial court. State v. Goswick, 656 S.W.2d 355, 358

(Tenn. 1983); State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). The trial

court’s exercise of its discretion is dependent upon (1) whether the defendant was

reasonably diligent in attempting to discover the evidence; (2) whether the newly

discovered evidence is material; and (3) whether the evidence would likely have changed

the result of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (appendix);

State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993). Generally, “[a] new trial will not

be granted on newly discovered evidence where it appears that such new evidence can have

no other effect than to discredit the testimony of a witness at the original trial, contradict a

witness’ statements or impeach a witness . . . .” State v. Rogers, 703 S.W.2d 166, 169

(Tenn. Crim. App. 1985). However, this general rule will yield if the impeaching evidence

“is so crucial to the defendant’s guilt or innocence that its admission will probably result

in an acquittal.” Singleton, 853 S.W.2d at 496. Obviously, when a verdict is already one

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of questionable validity, even newly discovered evidence of relatively minor importance

may be sufficient to create the requisite probability of acquittal. Id.

Our review reveals that the State conceded that the newly discovered evidence was

not available to the Appellant at the time of trial. We question this concession, noting that

the information was only a compilation of reported crimes which occurred prior to the

instant offense. Nevertheless, even assuming that the Appellant was reasonably diligent in

obtaining the evidence and that the materiality of the new evidence was apparent, we, like

the trial court, conclude that the evidence was not likely to change the result at trial.

At trial, the following colloquy occurred:

[The State:] Is the Quality Inn Hotel a high drug trafficking

area?

[Officer Curtis:] Absolutely.

[The State:] How often are you out there in regards to drug

activity, narcotics activity?

[Officer Curtis:] There’s times we could be out there every

night. Every night we worked.

The Appellant contends that because the evidence reflects that no drug arrests

occurred at the Quality Inn in the ninety-day period prior to the Appellant’s arrest and that

the police did not make any reports regarding drug activity, the evidence thereby

contradicts Officer Curtis’ testimony. We note, however, that Officer Curtis did not testify

that the police made any arrests during the specific time frame. Further, Sergeant Legault

testified at the motion for new trial hearing that the police often patrolled around the

Quality Inn during that time frame because of crime, including drug activity, but that the

police did not make reports regarding patrols. Therefore, the evidence did not contradict

Officer Curtis’ testimony. We agree with the trial court that the evidence did not warrant

relief.

III. Conclusion

We affirm the judgment of the trial court.

_________________________________

NORMA MCGEE OGLE, JUDGE

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