### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 25, 2001 Sessi

on

STATE OF TENNESSEE v. LISA WHITE

Direct Appeal from the Criminal Court for Monroe County

No. 98-232 R. Steven Bebb, Judge

No. E2000-01865-CCA-R3-CD July 27, 2001

The appellant, Li

s a White, a/k/ a Lisa Croft, appeals her conviction for aggrava ted robbery. On appeal, the appellant challenges the sufficiency of the evide nce and alleges she was prejudiced by allegedly improper remarks by the prosecutor during open ing argument s. After a th orough review of the record, this Court disagrees and affirms the appellant’s conviction.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.
Steven B. Ward, Madisonville, Tennessee, for appellant, Lisa White.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney , AssistantAttorney Ge

neral; Jerry N. Estes, District Attorney General; and Chalmers Thompson,Assistant District Attorney, for appellee, State of Tennessee.

OPINION

FACTS

On Jul y 1, 1 998 , un derc ove r TBI agen t Do yl e Lewis m et with the appellant in Monroe County to purc hase c ocaine. Agent Lewis had previously purchased cocaine from the appellant. After arriving at the appellant’s home, Agent L ewis waited on the

porch while

the appellant spoke to someone on the phone. The appellant then informed Agent Lewis that they would go meet her supplier in order to purchase the cocaine. The appellant then led Agent Lewis, who was unfamiliar with Monroe County, on

a circular, indirect route, eventually directing Agent L ewis to stop on a desolat e road nex t to a dense and overgrown

w oo ded area. Aft er stoppin g, Robert Ham pton emerged from the woo ds wearing a bulletproof

vest andl atex gloves and brandishing a shotgun. Mr. Hampton directed every one out-2-

of the car and

pointed the gun at Agent Lewis. Mr. Hampton then directed the appellant to search Agent Lewis. Eventually, the appellant took $2,000 from Agent Lew is, and she and Mr. Hampton fledinto the woods after instructing Agent Lewi s that the cocaine

could be found in a

milk jug just down the road. As Lewis was leaving the scene he looked for the milk jug but did not see one. On July 5, 1998, the appellant was arrested at her home. She gave two sta tements to police acknowledging participation in a drug deal, but deny ing any knowledge of Mr

. Hampton’s plan to rob Agent Le

wis. On September 23, 1998, the appellant was indicted on one count of aggravated robbery

. On March22, 2000, the appe llant was convict ed of aggravated robbery . On June 28, 2000, the trial court overruled the appellant’s motion for new trial, and notice of appeal was filed on July 27, 2000.

SUFFICIENCY OF THE EVIDENCE In her first issue, the appellant contends that the evidence produced by the State at trial i s ins uff ici ent to s upp ort a con vic tio n fo r agg rava ted rob bery. When an appellant challenges the sufficiency of the evidenc e, this Cour t does not r eweigh

or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdi ct approved by the tria

l judg e accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is ent itled to the strong est legitimate vi

ew of the evidenc

e and all legitimate or reasonable inferences which may be dra wn therefrom. Bigbee , 885 S.W.2d at 803; Harris , 839 S.W.2d at 75. This Co urt will not disturb a

verdict of guilt

due to the sufficiency

of the evidenceunless the defendant demonstrates that the facts contained

in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational

trier of fact to

find the accused guilty

beyond a re

asonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly

, it is the appellate

court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of

fact to have foun

d the essential ele

ments of the offense bey

ond a reasonable

doubt. Tenn. R. App. P. 13(e); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). The appellant contends that the State presented no evidence from which a rational trier of fact could find that she had knowledge of an intent by Mr. Hampton to rob Agent Lewis. The a ppellant contends that she was in the wrong place at the wrong time, and that she had no intent other than to participate

i n a sale of cocaine. While the evidence of guilt in this case is not overwhelming, we cannot say that the evidence preponderates in the appellant' s favor. The jury was provided

ample evidence t

o infer that the a

ppellant was not jus

tan unwilling pawn of Mr. Hampton in the aggravated robbery . First, she led Agent Lewis to the deserted area whereMr. Hampton lay

in wait. She phy sically took the money from Agent L ewis, and after the commission of the robb er y, the appellant and Mr. Hampton fled together. Additionally , the appellant admitted in her second statement to police that Mr. Hampton had been a close friend since childhood and that the two were dating. The jury had the

opportunity

to hear the audio

recording of the robbery that was made fr om the surveillance equipment that Agent Lewis was wearing. The jury was able to listen to the appellant’s voice and decide if Mr. Hampton’s action s frightened, surprised, or intimidated the appellant. The jury rejected the defense’s theory of the case.-3-

Viewed in the light most fa

vorable to the state, the facts contained in the record and the inferences w hic h may be drawn therefrom are sufficient, as a ma tter of law, for a rational trier of fact to find the appella

nt guilty be

yond a rea

sonable doubt. Brewer , 932 at 19. Accordingly, the judgment of the trial court is affirmed. IMPROPER ARGUMENT The appellant next asserts that she was prejudiced by the improper argument of t h e prosecutor

during opening arguments. The relevant portion of the trial trans

cript reads as f

ollows: They were both

charged. Bobby

Hampton has plead

[sic] guilty. Y

our task today

is to decide whether Lisa White, a/k/a Lisa Croft, and Ibelieve she also g oes by L isa Kiser, is guilty or not guilty.

The appellant contends that due to the weak nature of the case against her, the prosecutor’s statement regarding Mr . Hampton’s guilty plea was extremely pre judicial and warrants reversal of her conviction. We cannot agree. In Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), the court listed five factors to be considered in assessing the prejudicial eff ect of an imprope

r argument:. 1. The conduct compl

ained of viewed i

n context and in ligh

t of the facts and circumstances of the case. 2. The curative measures undertaken by the court and the pr osecution. 3. The intent of the prosecutor in making the improper statement. 4. The cumulative effect of the improper conduct and any other errors in the record. 5. The relative strength or weakness of the case.

The Court first looks at t he improper state

ment in the c ontex t of th e case as a wh ole. In applyingthe basic principle that the improper statement must be taken in context and weighed i n terms of the facts and circumstances of each case the courts have considere d whether the remarks

werelengthy or repeated, or whether the statement wa s single or isolated. Judge , 539 S.W.2d at 344. The prosecutor is an a

dvocate, and is e

ntitled to pursue his

role with thoroug hness and vigor, and while the prosecutor’s statement was inappropriate, it did not, in the cont ext of the entire tr

ial, prejudice the appellant. See Id

. Mr. Hampton’s guilty plea was mentioned only

once during the trial. Mr. Hampton’s plea

was not a point of empha sis for the prosec

ution and seemed to

be mentioned out of

carelessness. Also, the appellant never denied any of the facts surrounding the robbery. Her sole def ense was that she was unaware of

any intent to

commit the robbery. The fact that Mr. Hampton previously pled guilty to the offense in question was cons istent wi th the appellant’s argument that she had no kno wle dge o f Mr . Ha mpt on’ s in ten t to com mit the rob bery.

The secondfactor to be weighed is the curative measures undertaken by the court and by the prosecution. A trial court's ruling sustaining the defendant's objection to the improper remark anda contemporaneous instruction to the jury may cure any prejudice to the defendant and make an
error harmle ss as a matter of law. Gaston v. State , 506 S.W.2d 802 (Tenn. Crim. App. 1973); French v. State , 489 S.W.2d 57 (Tenn. Crim. App. 1972); Cantrell v. State , 3 Tenn. Crim. App. 434, 463 S.W.2d 145 (1970) ; Dishman v. State , 3 Tenn. Crim App. 725, 460 S.W.2d 855 (1970).1 This lack of an appropriate contemporaneous objection provides

suffi cient basis to deem this issue w aived, nevertheless we have de cided to a ddress the m erits

. See Tenn. R. App. P . 36(a); State v. Gregory , 862 S.W.2d 574 (Tenn. Crim. App. 1993).

-4- However, an improper

statement by the prosecutor made during argument may constitute rever

sible error despite curative instructions by the trial court. Judge , 539 S.W.2d at 345. In the current cas

e, no objection wa

s made by the

defense, and, th

us, no curative instruction

was given. 1 However, the trial judge did admonish the prosecutor outside the presence of the jury andno further refe

rence to the gu

ilty plea was made. This tactic avoided unnecessarily drawing the jury’sattention to the improper argument. Furthermore, dur ing his jury

charge, the t rial judge properly informed the jury that arguments by the attorneys are not evidence and should not be given the weight of testimony admitted into evidence. The third factor involves examination of the prosecutor's inten t in making the improper statement. While the prosecutor’s intent may have been to associate the app ellantwith her codefendant,

it cannot be said that the prosecutor acted in bad faith. Give n the theory

of defense presented by the appellant, the guilt of Mr. Hampton was not a point of contention. The prosecutor’s statement was careless, but it is likely that he c onsidered Mr. Hampton’s guilt immaterial when

cou ple d wi th t he ap pel lan t’s defe nse str ate gy. Fourth, the cumulative effect of the improper arguments and any other errors in the record must be considered. As stated above, the improper argument in the present case was a brief, isolated incident. After

a review of the record, we find there are no other errors in the record that, combined with the improper a

rgument, warr

ant reversal. Fin all y, the relative weakness or strength of the case must be considered in light of the improper argument. As we have previously stated, the pros ecution’s case for robbe

ry was not a particularly

strong one. Ho wever, in light of the defense strategy in this case, we find that the statement made by the prosecutor

did not affect

the jury’s determination of guilt. The prosecutor’s sta tem ent did not con sis t of anyt hin g inc ons ist ent wit h th e app ell ant ’s d efen se s tra tegy. Applying the reasonable doubt standard requ ire d by Harrington v. State , 215 Tenn. 338, 385 S.W.2d 758 (1965), we find that the impro per st atement by the prosecution did not prejudice the defendant and w

e affirm the judg

ment of the trial c

ourt. CONCLUSION In consideration of the foregoing and the record as a whole, the judgment of the trial court is AFFIRMED.

___________________________________ JERRY L. SMITH, JUDGE