# FILED
May 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9810-CC-00311 Appellee ) ) HARDEMAN COUNTY vs. ) ) Hon. Jon Kerry Blackwood, Judge ROBERT CRISP, JR., ) ) (Delivery o

f cocaine less than .5 gra ms) Appellant )
For the Appellant : For the Appellee : Karen T. Fleet Paul G. Summers Attorney at Law Attorney General and Repor ter P. O. Box 401 Bolivar, TN 38008 Patricia C. Kussmann Assistant Attorney Gener al (ON APPEAL) Criminal Justice Div ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Linda Sesson Taylor Nashville, TN 37243-0493 Attorney at Law 423 North Highland Av enue P. O. Box 1671 Elizabeth T. Rice Jackson, TN 38302 District Attorney General (AT TRIAL) Jerry W. Norwood Asst. District Attor

ney General Hardeman County Courthouse Bolivar, TN 38008

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant also raises as an issue that the senten ce imposed is excessive. However, he concedes, in h is brief, that “if, in fact,the appell ant had committed thi s crime, thi s sentence would not i n any manner be excessive .” Accordi ngly, we need not address t his issue her ein.
2 Kenne th Jone s testified at trial tha t the reside nce wa s either 21 5 or 219 Margin Street. On cross-examination, he stated t hat the house may have been at 319 Margi n Street and he could not be more defi nite wi thout hi s fieldnotes. 2 OPINION
The appellant, Robert Cris p, Jr., was convi cted of one count of delivery of cocaine less than .5 grams , a class C felony, in the Hardeman County Circuit Court. The trial court imposed a senten ce of three years in the Dep artment of Correction, to serve thirty day

s with the remainder on pr obation. In this appeal as of ri ght, the appellant argues: I. Newly disc overed evid ence exist s which, if presente d, would ha ve resulted in a different judgment at trial; and II. The evidence is insuffici ent to support the jury v erdict. 1

We affirm the judgment of conviction and sentence enter ed by the trial court.

Background
Kenneth Jones, an investigator with the Milan P olice Department, was assigned to assist the Bol ivar Police Department in the surveillance of drug activities in the city of Bolivar

during the period betw een July 1997 and January 1998. On July 15, 1997, Kenneth Jones met with Bolivar Police Officer Mike Jones at which time a Cadillac outfitted w ith a “pin hole camera” w as provided for the undercov er operation. Kenneth Jones then proceeded to a residence located at 219 Margin Street, Bolivar w

here he would attempt to purc hase crack cocaine. 23 Three rocks of crack cocain e for fort y doll ars. 3 Outside the residence at 219 M argin Street, Kenneth Jones observed a man, later identified as co-defendant R ickey Bowles, sta nding outside the residence

. Kenneth Jones asked the man if he could get “three for four.” 3 Co-defendant Bowles informed Kenneth Jones that they would have to go inside the house and talk to the “main man.” Jones parked the Cadillac in the driveway and acc ompanied Bowles into the house.
Inside the residence, the appel lant emerged from a room in the back of the house. Again, Kenneth Jones ask ed to purchase fifty dollars of crack cocaine. The appellant and Bowles then di scussed whether they had seen Jones before. Apparently, satisfied regarding Kenneth Jones’ identi ty, the appellant and Bowles agreed to complete the transac tion and Bowles deliv

ered three rocks of what w as later identified to be .3 gr ams of crack cocaine to Officer Jones . Kenneth Jones then left the residence and rendez voused with Mike J ones, at which time the controlled substance was transferred to an evidence e nvelope.
The appellant was indicted i n January 1998, following the conclusion of the undercover drug operation in Bolivar. At the appellant’s subsequent tr ial, on May 18, 1998, Officer Kenneth Jones testified that, although he had never met the appellant until the day of the dr ug transaction, he recog nized the appellant from prior photographs he had r eviewed. He expl ained that, before the undercover operation began, Mike Jones showed him photographs of ind ividuals to determine whether he had previous ly made controlled buy s from any of these persons. Kenneth Jones testified that he w as “100 percent positiv e” that the appellant was the individual in the hous e that took his money in ex change for cocaine.

Officer Mike Jones testified that he recovered the contraband from Kenneth Jones immediately after the controlled buy transaction. He sealed the evidence in4 The record indi cates that co-defendant Bowl es pled guil ty to this off

ense May 22, 1998.
5 Although t he appellant was not rel ated to Rickey Bowles, he expl ained that he was the guardian over

Bowles’ soci al securi ty di sability check and t hat he furni shed Bowles wit h a home becau se Bow les had n o where else to go

. 4 an envelope and personally delivered the substance to the TBI Crime Labo ratory in Jackson. Mike Jones als o explained that, in accor dance with his departmental policies, the name of the undercov er officer, Kenneth Jones, was not placed on the evidence envelope in order to protect h is identi ty.
Prior to trial, the appel lant provided notice of his intent to rely upon an ali bi defense. At trial, he presented s everal witnesses in support of this defense. Monica Woods, the appellant’s first cousin , testified that, on July 15,1997, she and the appellant traveled to the casinos in Tunica, Miss issippi. Specifically, she stated that they had left Bolivar at approximately 8:15 that morning and did not return unt il 2:00 the next morning. Woods explained that she was certain of the date because she had just received her child support check, w hich she receives on the fifteenth of each month, and she cashed the check be fore leaving for the casin o. The appellant’s co-defendant, Rickey Bowles, whose trial date was pending, also testified for the appellant. 4 Bowles related that he w as never in the presence o f the appellant on July 15, 1997. F ollowing this stat

ement, Bowles then invok ed his Fifth Amendment privilege against self-incrimination to all further questions.
The appellant took the stand in his own defense. He explained that he owned three houses, 219 Mar gin, 662 Mitchell, and on e on Rogers Street. The houses were left to him as part of his inheritance. Although he owned the h ouses, the appellant maintained that he did not live at any of the properties. He testified that co-defendant Bowles and Laray Buntyn lived at the residence at 219 Margin Street. 5 He added that many people often stay ed at that residence, “the house was open all the time.” The appellant testified that he was in Tunic a, Mississippi on the date the alleged drug tr ansaction occurred.5 Based upon this evidence, the jury found the appellant gui lty of delivery o f less than .5 grams of cocaine.

I. Newly Discover

ed Evidence On September 9, 1998, a hearing w as held on the appellant’s motion for new trial. The appellant’s motio n relied, in part, on new ly discovered ev

idence, i.e. , the sworn statement of Laray Charles Buntyn. Buntyn’s affidavit related that, on July 15, 1997, he resided with R ickey Bowles at 219 Margin Street, Boliv ar. At that time, his sole means of support was the sale of illegal controlled substances. He conceded that it was he, r ather than the appellant, who along with Rickey Bowles sold crack cocaine to the u ndercover officer. He further asserted that the appellant was not at the residence at 219 Margin Street w

hen the transaction occurred.On the date of the trial, May 18,1998, Buntyn, a juvenil e, stated that he was incarcerated at the Nashv ille Preparatory Sc

hool and, thus, was unable to testify for the appellant.
The appellant contends that the sworn statemen t of Laray Buntyn “is so material that a different result w ould follow in that it goes beyond mere impeaching testimony and in fact does ex onerate the defendant.” According ly, he argues that the trial court erred in denying his motion for new trial on the grounds of newly discovered evidence.
In seeking a new tri al based on newly dis covered evidence, a cr iminal defendant must establish (1) reas onable diligence in attempti ng to discover the evidence; (2) the materiality of the evidence; and (3) that the evidence would likely change the result of the trial

. State v. Meade , 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996) (citi ng State v. Nichols , 877 S.W .2d 722, 737 (T enn. 1994) (citi ng State v. Goswick , 656 S.W.2d 355, 358-360 (Tenn. 1983))). If the defendant fails to show6

that he a nd/or hi s attor ney ex ercised reason able dil igence in the pr ocureme nt of a witness at the orig inal trial, the trial court may properly deny a motion for new tri al based on newly discov ered evidence. See State v. Gentry , No. 02C01-9708-CC00304 (Tenn . Crim. App. at Ja ckson, Sept. 14 , 1998) (citing Hawkins v. State , 417 S.W.2d 774 (Tenn. 1967)). Moreover, the trial court is afforded broad discretion in deciding whether to g rant or deny a motion for new trial based on newly

discovered evidence and its decisi on will not be over turned on appeal absent a clear ab use of discretion. See State v. Walker , 910 S.W.2d 381, 395 (Tenn. 1995), cert. denied , -- U.S. --, 117 S.Ct. 88 (1996).
The appellant maintains that (1) he and his attorne y exercised reasonable diligence in the search for evidence in preparation of the case, (2) he and his counsel had no pre-trial k nowledge of such new ev idence; and (3) the facts contained in the affidavit of the w itness Buntyn had not been communic ated to the accused prior to trial.Despite these assertions , we conclude that the proof fail s to support the appellant’s ex ercise of reasonable dilig ence in discovering the statement of Laray Buntyn.

In order to show reasonabl e diligence, the defendant must demonst rate that neither he nor his counsel had knowledge of the alleged newly discovered evidence prior to trial. See Meade , 942 S.W .2d at 566 (citin g Jones v. State , 452 S.W.2d 365, 367 (Tenn. 1970)). First , the “Notice of Alibi” fil ed by the appellant identified Laray Buntyn as a witness to establish the defense of al ibi. Second, minimal diligence in the pre paration of the ca se would ha ve required trial coun sel to have investigated the identi

ty of the second person inv olved in the drug tran saction. Finally, Buntyn st

ated in his affidavit that the appel lant contacted him prior to t rial and that he and the appellant discus sed the appellant’s pending t rial, although they “just couldn’t talk on th e phone like we really wanted to.” There is nothi ng in the record to indicate that the appellant attempted to procure Buntyn’s presence at trial;7

the mere fact that Buntyn was incarcerated at the time of the tr ial did not prevent Buntyn from testifying. See Tenn. Code Ann. § 40-21-305 (1997).

We conclude that the trial court correc tly denied the appellant’s motion. There is no competent proof before us to es tablish that the appellant ex ercised reasonable diligence in searching for the evidenc e prior to trial. Acc

ordingly, the tria l court did not abuse its discretion by denying the motion for new trial. This issue is without merit.

II. Sufficiency of the Evidence In his final issue, the appell ant asserts that the eviden ce presented at trial was not sufficient to support a conviction for the deliv ery of less than .5 grams of cocaine beyond a reasonable doubt. In support of this issue, the appellant attacks the credibility of Officer K enneth Jones, the only eyew itness to the undercover drug transaction. Specifically, he argues that (1) Kenneth Jones admitted to drinking beer at the time he arriv ed at the residence at 219 Marg in Street; (2) Kenneth Jones testified that the residence in which he purchased the cr ack cocaine was 215, 219 or 319 Margin Street; (3) Kenneth Jones was not identified as a person in the chain of custody on the sealed evi dence envelope; and (4) the appe llant was not identified on the videotape of the transacti on. Additionally, the appel lant refers to contradictions between th e State’s proof and the proof presented by the defense.
The record offers explanation to the appellant’s specific attack s on Officer Kenneth Jones. First, Officer J ones testified that, while working undercov er, he often would have a few sip s of beer in order to “blend i n” in an attempt to look and act the part of a “crack head.” He stated that he was in no way impaired or intoxicated at the time of the unde rcover transaction. Second, Officer Jones explained that he could not r emember the exact address of the tr ansaction without8

the aid of his field notes. Third, the absence of Officer Jones’ identity on the evidence envelope wa

s in conformance with underc over narcotics proced ure of the Bolivar Police Department. Finally, Officer Jones testified that the “pin hole ” camera was located inside the Cadillac . Obviously, the camera would not have been abl e to video-record the transaction occ urring inside the house

.
Essentially, the appell ant's argument rests on hi s attack of the credibility of Officer Kenneth Jones. A guilty verdict, approved by

the trial judge, accr

edits the testimony of the witnesses for the State and resolves any conflicts in the evidence favorably to the State's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn.1978). It is not the duty of this c ourt to revisit qu estions of witness credi bility on appeal, that function being within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993); State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn.Crim. App.199 0). The ju ry has the a uthority, as the trie r of fact , to belie ve or disbe lieve the testimony of any witness. In the case sub judice , the jury chose to accr edit the te st im on y o

f Ken ne th Jo ne s a nd re je ct th e a li bi pr

es en te d by t he

defe ns e. We decline the appellant’s invitation to overturn his conviction by making a choice different from that of the jury.
Moreover, the appellant h as failed to show that the ev idence presented was insufficient for any rational trier of fact to f ind the essential elements of this offe nse beyond a reasonable doubt. Tenn. R . App. P. 13(e). First,there is no dispute as to the substance and quantity of the sale. Moreover, Officer Kenn eth Jones positively identified the appellant and his co-defe ndant as the two individuals that sold him three rocks of crack cocaine on July 15, 1997. Tenn. Code Ann. § 39-17-417(a)(2), (c)(2) (1997). Acc

ordingly, this is

sue is without merit.9 Finding the issues rai sed by the appellant to be w ithout merit, we affirm the judgment of conviction and se ntence entered by the trial court.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JOSEPH M. TIPT ON, Judge

____________________________________ L. T. LAFFERTY, Judge