FILED

September 29, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00294

)

Appellee, )

)

) MCMINN COUNTY

VS. )

) HON. CARROLL L. ROSS,

GLEN PORTER, ) JUDGE

)

Appellant. ) (Sale of Cocaine)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF MCMINN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

C. MICHAEL ROBBINS PAUL G. SUMMERS

46 North Third Street Attorney General and Reporter

Suite 719

Memphis, TN 38103 TODD R. KELLEY

(On Appeal) Assistant Attorney General

425 Fifth Avenue North

CHARLES M. CORN Nashville, TN 37243

District Public Defender

JERRY N. ESTES

THOMAS E. KIMBALL District Attorney General

Assistant Public Defender Washington Avenue

110 1⁄2 Washington Avenue Athens, TN 37303

Athens, TN 37303

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 While the transcript of the proceedings reflects that the jury returned a verdict of

guilty of sale of more than .5 grams of schedule II cocaine, which is a Class B felony, the

Judgment indicates that the Defendant was found guilty of sale of less than .5 grams of

cocaine, which is a Class C felony. The Defendant was sentenced to ten years, which is the

maximum sentence for a Class C felony under Range II, multiple offender, but which is below

the minimum for a Class B felony under Range II. While this discrepancy does not affect the

analysis of the issues presented, the case must be remanded for clarification of the record.

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OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant, Glen Porter, was indicted for the unlawful

sale of more than .5 grams of cocaine and for possession with the intent to sell

more than .5 grams of cocaine, in violation of Tennessee Code Annotated § 39-

17-417. A McMinn County jury found the Defendant guilty of the offense of sale

of more than .5 grams of schedule II cocaine, though the Judgment reflects a

conviction for the sale of less than .5 grams of schedule II cocaine.1 The jury

then found the Defendant not guilty of possession with the intent to sell more than

.5 grams of cocaine, but convicted the Defendant of the lesser included offense

of simple possession of cocaine. The Defendant presents three issues for

review: (1) whether the evidence is sufficient to sustain the convictions; (2)

whether the trial judge erred by denying the Defendant’s request for a

continuance; and (3) whether the trial judge erred by permitting improper

argument by the prosecution. We find these issues to be without merit and affirm

the judgm ent of the trial court.

In August of 1997, Special Agent James Richardson of the Alcohol

Beverage Commission was contacted by Detective Bill Matthews of the Athens

Police Department about drug problems occurring in Athens, Tennessee. On

August 29, 1997, Richardson received $100.00 from Detective Matthews, which
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he was to use to attempt to purchase crack cocaine from any willing seller on

Kilgore Street in Athens. Richardson drove to Kilgore Street and observed the

Defendant sitting on the front porch at 520 Kilgore Street. Richardson pointed to

the Defendant, who approached the vehicle and said, “What you need?”

Richardson replied, “Can you do m e a hundred?”, which he explained meant a

hundred dollars of crack cocaine. The Defendant then told Richardson to drive

around the block, which he did. When he returned, Richardson exchanged the

$100.00 for five pieces of what he believed to be crack cocaine. Richardson

turned the substance over to the TBI crime lab, which identified it as .6 grams of

cocaine base, or crack cocaine. 

Richardson was equipped with an audio tape recorder during this

transaction, but due to damage to the recorder, only a portion of the transaction

was recorded. While Richardson’s voice is clearly heard on the tape, the other

person is just making noises which the prosecution described in closing argument

as “kind of grunting.” Richardson says on the tape that he is going to attempt to

buy drugs from a black m ale called “Bink”; then at trial he identified the

Defendant, Glen Porter, as the individual called “Bink” from whom he purchased

the drugs. 

After the purchase, Detective Gary Miller with the McMinn County Sheriff’s

Department, Detective Bill Matthews with the Athens Police Department, and

another officer named Daniel Denton approached the residence at 520 Kilgore

Street. Detective Miller stated that three people were on the front porch when

they approached. The Defendant was sitting in a chair on the right side of the

porch. Detective Miller secured the Defendant, searched him, and removed
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money found on him. Beside the Defendant’s foot Miller found a small fuse

container which contained a substance Miller believed to be cocaine. Miller also

saw a bucket next to the Defendant which contained a small container with a

substance believed to be cocaine inside. After the Defendant was secured, Miller

turned the evidence and money over to Detective Matthews.

Detective Matthews testified that before the purchase, he drove through the

area and saw the Defendant on the porch, then reported to Richardson that it

looked like Bink, or the Defendant, was the one working on that date. While

Richardson was purchasing the cocaine, Matthews was in another car with Gary

Miller and Daniel Denton. Matthews did not see the Defendant walk over to

Richardson’s car, but he did see the Defendant walk away from the car, walk over

to the porch, and bend over. He did not see anything after this because he had

to keep driving around. After the purchase, he approached the house with Gary

Miller and Daniel Denton. While Miller secured the Defendant and Denton

secured an individual walking up towards the porch, Matthews secured two

individuals who were standing out in the yard. Once everyone was secured,

Miller showed Matthews the cocaine he had found next to the Defendant in a

bucket and beside the Defendant’s foot in a fuse container. He also gave

Matthews a roll of money which he had taken from the Defendant. The roll of

money consisted of three hundred and some odd dollars. Matthews stated that

he had given Agent Richardson five twenties at the beginning of the transaction

and that he had recorded the serial numbers of those five twenties. He found five

twenties with serial numbers that matched those he had recorded in the roll of

money. The substances believed to be cocaine were turned over to the TBI
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crime lab, which found the substances together to be 2.7 grams of cocaine base,

or crack cocaine.

The only witness for the defense was the Defendant. He testified that he

went to Paul Moss’s home at 520 Kilgore Street between 10:00 and 10:30 on the

morning of August 29 to discuss painting Moss’s house. Two other people were

at the house besides Paul Moss. The Defendant never saw Richardson drive up

to the house, and he did not go out to any automobiles. He knows what crack

cocaine is, but he did not handle any while he was there. After he had been

there a while, three or four police officers came up to the house and searched all

the people who were there. The police took money from the Defendant, which

the Defendant said was money he had been saving from working. He had this

money in his pocket on Friday because he was going to pay his parole fees and

probation fees the following Tuesday, when he saw his officer. The Defendant

saw the officers pull something out of a bucket, but he did not know who it

belonged to or what it was. He did not see the fuse container. He said the

bucket was on the porch because people had been washing Moss’s cars in the

past, but no one was washing cars on that day. 

The Defendant said he is known by the names Brody and Glen, but he was

known by the name Bink about thirty years ago. In asserting that he did not sell

any cocaine to Richardson, the Defendant stated,

you didn’t hear my voice on the tape or nothing. Evidently, if I had,

he had purchased anything to me, looks like you could hear my

voice saying something to him. I didn’t just go give him nothing and

just leave. Quite naturally, if I sold him anything I’d be looking for

something. I’d have some kind of conversation with him.
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He claimed that there was no way marked money could have been found on him

unless someone planted it. When asked if he had an opinion about why the

officers would lie about him, the Defendant responded, “Yes, sir, one, for the

simple reason Mr. Matthews back in ‘90 when I first . . . went to the penitentiary,

he stopped me 12 or 13 consecutive times harassing me, but he never found any

drugs on me, and that continued. That’s why I, why I think so and why he’s gave

him my name in the first place.”

SUFFICIENCY OF THE EVIDENCE

Tennessee Rule of Appellate Procedure 13(e) prescribes that

“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evidence is insufficient to support the findings by the trier of fact of

guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). Evidence is sufficient

if, after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Cazes, 875 S.W .2d 253, 259 (Tenn. 1994). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn. 1977)); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Holt v.

State, 357 S.W.2d 57, 61 (Tenn. 1962).
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In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate

inferences that may be drawn therefrom .” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury verdict or trial court judgment. Tuggle, 639 S.W.2d at 914.

To be guilty of the sale of a controlled substance, one must knowingly sell

the controlled substance. Tenn. Code Ann. § 39-17-417(a)(3). The evidence in

this case overwhelmingly shows that the Defendant sold $100.00 worth of crack

cocaine, which was determined to be .6 grams of crack cocaine, to Special Agent

Richardson. Therefore, the evidence supports a finding that the Defendant is

guilty of the sale of more than .5 grams of a schedule II controlled substance, and

it also supports a finding that the Defendant is guilty of the lesser included

offense of the sale of less than .5 grams of a schedule II controlled substance.

Richardson identified the Defendant in court as the person from whom he

purchased the cocaine, and $100.00 in five marked twenty dollar bills was

removed from the Defendant when he was searched. The Defendant points out

that Richardson did not describe the denominations of the $100.00 he received

from Detective Matthews and that the money removed from the Defendant was

not described as an amount certain or in any particular denominations. He then

argues, “This leaves the proof establishing that a certain five twenty dollar bills

were given to Richardson by Matthews, and later those same five twenty dollar

bills were returned to Matthews by Miller. It is the rankest of speculation to
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conclude that in the interim between these two events it was the same five twenty

dollar bills that were being handled only by the defendant.” Instead of being the

“rankest of speculation,” it is the most reasonable inference that these same five

twenty dollar bills were given to the Defendant by Richardson in exchange for

crack cocaine, then removed from the Defendant by Detective Miller, who turned

them over to Detective Matthews. Certainly, this is sufficient evidence that the

Defendant is guilty of selling crack cocaine to Richardson.

The Defendant also argues that the evidence is insufficient because the

voice on the audio tape was not identified as the Defendant’s. He asserts that

he denied the voice on the tape was his and that the denial was unrefuted.

However, there is no clear voice to be heard on the tape. Regardless of whether

the voice on the tape was identified, Richardson identified the Defendant as the

person who sold him the drugs, and the marked money from the drug purchase

was found on the Defendant. This is more than sufficient evidence that the

Defendant is guilty of the sale of a controlled substance. Therefore, this issue

has no merit. 

To be guilty of simple possession of a controlled substance, one must

knowingly possess the controlled substance. Tenn. Code Ann. § 39-17-418(a).

 Possession may be actual or constructive. State v. Brown, 823 S.W.2d 576, 579

(Tenn. Crim. App. 1991); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.

App. 1987); State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981).

Constructive possession occurs when a person knowingly has “‘the power and

the intention at a given time to exercise dominion and control over an object,

either directly or through others.’” Williams, 623 S.W.2d at 125 (quoting United
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States v. Craig, 522 F.2d 29 (6th Cir. 1975)). “‘In essence, constructive

possession is the ability to reduce an object to actual possession.’” Id. (quoting

United States v. Martinez, 588 F.2d 495 (5th Cir. 1979)). In this case, cocaine

totaling 2.7 grams was found in a fuse container by the Defendant’s foot and in

a plastic container in a bucket beside the Defendant on the porch. Detective

Matthews saw the Defendant walk away from Richardson’s car, walk over to the

porch, and bend over, though he did not see what the Defendant was doing when

he bent over. Based on this evidence, a reasonable juror could conclude that the

Defendant had the ability to reduce the cocaine to actual possession, thus the

evidence was sufficient to convict the Defendant of possession of cocaine. 

DENIAL OF CONTINUANCE

The Defendant asserts that the trial judge abused his discretion in denying

his motion for a continuance. On the day of trial, the Defendant asked the trial

court to continue the case because the tape of the preliminary hearing was

missing. While defense counsel was not present at the preliminary hearing, he

argued that the Defendant recalled one of the officers testifying at the preliminary

hearing that there was a videotape of the drug sale, that now the officer denied

there ever being a videotape, and that he needed a continuance to attempt to find

the preliminary hearing tape. The trial judge commented that “normally we

haven’t been having any videotapes” in these types of cases, and that “it would

be extremely rare if there was one.” He stated that the officer was present to

testify as to whether there was a videotape, then denied the motion for a

continuance. 
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The granting or denial of a continuance is left to the sound discretion of the

trial judge, and that decision “will not be disturbed in the absence of a clear

showing of gross abuse of his discretion to the prejudice of the defendant.”

Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973) (citations omitted);

see also State v. Meeks, 876 S.W.2d 121, 130 (Tenn. Crim. App. 1993). “A

reversal will be ordered on account of denial of a continuance only if the appellate

court is convinced that the complaining party did not have a fair trial and that a

different result would or might reasonably have been reached had there been a

different disposition of the application for a continuance.” Baxter, 503 S.W.2d at

230.

The Defendant argues that the denial of a continuance was an abuse of

discretion because it foreclosed even the possibility of an investigation to

determine whether the preliminary hearing tape could be found and whether the

tape contained information which could be used in cross-examining the officers.

He also asserts that the trial judge abused his discretion by denying the

continuance because he did not believe a videotape existed. The Defendant

does not, however, show how he may have been prejudiced because of the

denial of the continuance. Therefore, the denial of the continuance is not

reversible error, regardless of whether it was an abuse of discretion.

The loss of a preliminary hearing tape, in and of itself, is not prejudicial

error. While Rule 5.1(a) of the Tennessee Rules of Criminal Procedure requires

that preliminary hearing proceedings “be preserved by electronic recording or its

equivalent” and “be made available for listening to by the defendant or

defendant’s counsel to the end that they may be apprised of the evidence
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introduced upon the preliminary exam ination,” failure to preserve that preliminary

hearing may be harmless error. State v. Butts, 640 S.W.2d 37, 38 (Tenn. Crim.

App. 1982); see also State v. Carter, 970 S.W.2d 509, 511-12 (Tenn. Crim. App.

1997); State v. Bohanan, 745 S.W .2d 892, 896 (Tenn. Crim. App. 1987). 

The Defendant has made no showing of how the missing preliminary

hearing tape actually harmed him. Instead, he simply alleges in his brief that if

he had been allowed more time, the preliminary hearing tape might have been

found, and it might have revealed that an officer testified at that hearing that there

was a videotape of the drug transaction. He then argues that if this were the

case, he could have used the testimony to cross-examine the officer during trial.

This list of “ifs” and “mights” does not demonstrate that a different result would

or might reasonably have been reached had there been a continuance. The

evidence against the Defendant was very strong, and there is no way of

determining whether any impeaching testimony existed without the preliminary

hearing tape. The Defendant had time to search for the tape while preparing his

motion for a new trial, and he could have presented evidence of prejudice at the

hearing on the motion for a new trial if he had in fact found the tape and it

revealed testimony about a videotape. Because the Defendant made no showing

of prejudice, the denial of a continuance is not reversible error.

IMPROPER ARGUMENT BY PROSECUTION

During closing argument, the prosecutor made the following statement,

which the Defendant asserts was improper argument:

Folks, Mr. Kimball has asked you to consider that these

officers are lying. . . . But let m e tell you why this conspiracy theory

that they’ve got, why you can’t even consider it as evidence.
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They’ve introduced not one ounce of evidence that there’s a

conspiracy theory against Glen Porter. I mean did you hear any

evidence about how officers are conspiring against Glen Porter or

are conspiring against drug dealers in this town?

Defense counsel objected to this statement on the ground that the prosecution

was shifting the burden of proof, but the trial court overruled the objection. The

prosecutor then later argued,

I can promise you that Bill Matthews had no reason to plant

fake money on Glen Porter. I can promise you that Bill Matthews

had no reason to plant crack cocaine on Glen Porter that wasn’t his,

that just coincidentally happened to be next to him while he

coincidentally happened to have marked money on him, and

coincidentally happened to have $300.00 in cash on him sitting next

to crack cocaine. Where do you think that cash came from? What

do you think he had really been doing that day? How do you think

he really got that $300.00? He was selling crack cocaine.

The Defendant did not object to this argument at trial, but now argues that it was

improper.

In determining whether statements made during closing argument

constitute reversible error, it is necessary to determine whether the statem ents

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

State v. Sutton, 562 S.W .2d 820, 823 (Tenn. 1978); Harrington v. State, 385

S.W.2d 758, 759 (1965). Closing argument is a valuable privilege for all parties,

and trial courts give the parties wide latitude in their arguments to the jury. State

v. Cauthern, 967 S.W .2d 726, 737 (Tenn. 1998); Sutton, 562 S.W.2d at 823.

Appellate courts will not interfere with a trial court’s discretion in controlling

argument of counsel unless there has been an abuse of that discretion. State v.

Pulliam, 950 S.W.2d 360, 368 (Tenn. Crim. App. 1996).

 
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While the parties are given wide latitude in their closing arguments, those

arguments are not without limitation. They “must be temperate, must be

predicated on evidence introduced during the trial of the case, and must be

pertinent to the issues being tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn.

1976). A prosecutor may make an argument to the jury when that argument is

supported by evidence introduced at trial and may state an ultimate conclusion

which would necessarily follow from the testimony of the prosecution witnesses.

State v. Brown, 836 S.W.2d 530, 552 (Tenn. 1992) (citing State v. Beasley, 536

S.W.2d 328, 330 (Tenn. 1976)). A prosecutor may also argue that its proof is

unrefuted or uncontradicted. See State v. Rice, 638 S.W.2d 424, 427 (Tenn.

Crim. App. 1982). A prosecutor may not, however, place his or her own

credibility before the jury by stating his or her own opinions of the Defendant or

the evidence. See Judge v. State, 539 S.W.2d 340, 345 (Tenn. Crim. App.

1976).

The Defendant complains that the prosecution improperly argued that he

had presented no proof in support of his theory of the case and that this was an

attempt to shift the burden of proof. The prosecution did address the Defendant’s

theory of the case by stating, “But let me tell you why this conspiracy theory that

they’ve got, why you can’t even consider it as evidence. They’ve introduced not

one ounce of evidence that there’s a conspiracy theory against Glen Porter. I

mean did you hear any evidence about how officers are conspiring against Glen

Porter or are conspiring against drug dealers in this town?” The Defendant

objected to this comment at trial, but the trial court overruled the objection. The

comment was in response to argument by defense counsel and was a comment

on the evidence. The effect of the statement was to argue that the State’s case
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was uncontradicted by any evidence of a police conspiracy to frame the

Defendant. Such an argument was proper, and it was not error to allow it.

The Defendant also complains that the prosecutor improperly argued that

the proof clearly showed the marked $100.00 used for the drug buy was found

in the Defendant’s possession and that the prosecutor improperly inserted his

personal opinion into the argument. Though he raises these issues on appeal,

he did not contemporaneously object to the argument when it was being made.

Since he failed to object during the argument, the issue is waived. State v. Little,

854 S.W.2d 643, 651 (Tenn. Crim. App. 1992); Tenn. R. App. P. 36(a). Even so,

the statement that the marked $100.00 was found in the Defendant’s possession

was a proper argument based on the State’s case, and even though the

prosecutor improperly inserted his personal opinion into the argument by

“promising” the jury that the police had no reason to plant money or drugs on the

Defendant, we conclude that those statements did not affect the verdict. The

evidence against the Defendant was overwhelming. 

Having found all the Defendant’s issues to lack merit, the judgment of the

trial court is affirmed in all respects. The case is remanded, however, for

clarification of whether the judgment of conviction should have been for the sale

of more than .5 grams of a controlled substance or the sale of less than .5 grams

of a controlled substance. 

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

JOE G. RILEY, JUDGE