IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 9, 2008

STATE OF TENNESSEE v. DEVON WIGGINS

Direct Appeal from the Circuit Court for Dyer County

No. C06-248 Russell Lee Moore, Jr., Judge

No. W2007-01734-CCA-R3-CD - Filed May 15, 2009

A Dyer County Circuit Court jury convicted the appellant, Devon Wiggins, of two counts of selling

one-half gram or more of cocaine within a drug-free school zone, and the trial court sentenced him

to twenty-five years for each conviction to be served concurrently with each other but consecutively

to prior sentences. The trial court also ordered the appellant to pay a five-thousand-dollar fine for

each conviction. On appeal, the appellant contends that (1) Tennessee Code Annotated section 39-

17-432 (2005) violates due process and resulted in his receiving an excessive sentence; (2) the

evidence is insufficient to support the convictions; (3) the trial court erred by denying his motion for

a bifurcated trial; (4) the trial court erred by refusing to instruct the jury on the sale of a counterfeit

substance; (5) the trial court erred by failing to instruct the jury on facilitation as a lesser included

offense; (6) the trial court erred by not recusing itself; (7) the prosecutor’s closing statement was

improper; and (8) the cumulative effect of the errors warrants a reversal of his convictions. Based

upon the record and the parties’ briefs, we affirm the judgments of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed. 

NORMA MCGEE OGLE,J., delivered the opinion of the court, in whichALAN E.GLENN and CAMILLE

R. MCMULLEN, JJ., joined.

H. Tod Taylor, Dyersburg, Tennessee, for the appellant, Devon Wiggins. 

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

C. Phillip Bivens, District Attorney General; and Lance Webb, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background
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Kim Pierce testified at trial that she acted as a confidential informant for the police and

bought crack cocaine from the appellant, whom she knew as “DD,” three times. The first drug buy

occurred on December 21, 2005. On that date, the police met with Pierce in her apartment at the

corner of Sampson and College Streets in Dyersburg. Pierce called the appellant’s cellular telephone

number and told him to “bring me fifty.” The police recorded Pierce’s call to the appellant, and the

State played the audiotape for the jury. Pierce said the police officers searched her, affixed a wire

transmitter to her body, and gave her fifty dollars. When the appellant arrived, Pierce walked

downstairs from her apartment and outside to the appellant’s dark-colored Pontiac Grand Am. She

gave him fifty dollars, and he gave her rock cocaine in a baggie. Pierce walked back upstairs to her

apartment and gave the cocaine to the police. 

Pierce testified that the second drug buy occurred on January 18, 2006. She telephoned the

appellant and spoke with someone named “Tasha.” She told Tasha that she wanted “[e]ighty,” and

Tasha told her, “He’s on his way right now.” The police tape recorded Pierce’s call, and the State

played the audiotape for the jury. Pierce said the police searched her and gave her eighty dollars.

Twenty or thirty minutes later, the appellant had not arrived with the cocaine, so Pierce telephoned

again and spoke with him. Shortly thereafter, the appellant arrived in front of Pierce’s apartment

driving a green Thunderbird, and Tasha was with him. Pierce went downstairs and gave him the

money in exchange for crack cocaine. She returned to her apartment and gave the cocaine to the

police. 

Pierce testified that the third drug buy occurred on January 25, 2006. Pierce telephoned the

appellant and told him she wanted “[e]ighty.” The appellant told her, “All right.” The police tape

recorded Pierce’s call to the appellant, and the State played the audiotape for the jury. Pierce said

the police searched her, attached a wire transmitter to her body, and gave her eighty dollars. She

went downstairs and gave the money to the appellant, who was driving a maroon Dodge Neon.

Pierce stated that the police paid her seventy dollars as compensation for her participation in each

drug buy and that she was going to receive one hundred dollars for testifying in court. She

acknowledged that she had multiple prior convictions for misdemeanor theft.

On cross-examination, Pierce testified that she used to smoke crack cocaine but that she had

been “clean” for one year. She stated that she had known the appellant for eight years and that she

previously had sex with him in exchange for crack cocaine. At the end of 2005, Pierce approached

the police about becoming a confidential informant. She acknowledged that she used two different

telephone numbers to contact the appellant. However, she said she was unaware that one of the

phone numbers which she used to contact the appellant on January 18, 2006, belonged to Tasha

Akins. She said that although the telephone may have been registered to Akins, the phone actually

belonged to the appellant. She acknowledged that in addition to her prior convictions for

misdemeanor theft, she had prior convictions for criminal impersonation, attempted theft, and failure

to appear. She also acknowledged that a charge for felony theft was pending against her. 

Officer Todd Thayer of the Dyersburg Police Department testified that he met with Kim

Pierce on December 21, 2005, and that she told the police she could buy drugs from “DD.” The
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police told her to buy fifty dollars worth of cocaine, and Pierce telephoned the appellant. After the

phone call, the police searched her. During the search, the police checked Pierce’s pockets and

patted her down. Pierce also had to take off her shoes and pull out her shirt and bra to make sure

nothing fell out. The police attached a wire transmitter to her body and gave her fifty dollars. The

officers parked down the street from Pierce’s apartment and listened to the drug buy. They also tried

to videotape the transaction but could not because it took place at night. Officer Thayer saw Pierce

leave her apartment and walk to the driver’s side of a car. Officer Thayer said he thought the car was

a light-colored Pontiac Grand Am. Pierce went back inside; called the officers; and told them, “It’s

done.” The officers went into her apartment, and she gave them the crack cocaine. Officer Thayer

put the cocaine in a small bag and searched Pierce again. Although Pierce did not know the

appellant’s real name, Officer Thayer knew through his work at the police department that “DD” was

the appellant. Moreover, officers showed Pierce a photographic array, and she identified the

appellant as “DD.”

Officer Thayer testified that he also worked with Pierce on January 25, 2006, and that they

went through the same procedure as they did on December 21. The police gave Pierce eighty dollars

to buy drugs, and the appellant arrived at the apartment in a red Dodge Neon. Pierce went outside,

made contact with the appellant, and came back upstairs to her apartment. Officer Thayer saw the

appellant driving the Neon and videotaped the transaction. The State played the videotape for the

jury. Officer Thayer said Pierce bought cocaine from the appellant and gave it to the police. Officer

Thayer put the cocaine in a small bag and searched Pierce again. He said that Pierce was paid

seventy dollars for her participation in each drug buy and that she was paid fifty dollars for appearing

in court. He stated that her payment for appearing in court did not depend on the outcome of the

trial. 

Officer Thayer testified that the police department often had to use people with prior

convictions as confidential informants because they knew drug dealers. He acknowledged that First

Methodist Church, located at the corner of Sampson and College Streets, operated a daycare and

preschool. Officer Thayer stated that the police used a measuring wheel at crime scene

investigations and that the measuring wheel had a counter on it. He stated that in order to use the

wheel, a person had to reset it to zero, put it on the ground, and walk with it. As the person walked,

the wheel turned and “clicked off” the counter. He said that although no one had ever shown him

how to use the measuring wheel, it was “pretty much self-explanatory,” and he acknowledged that

the police department accepted the wheel as reliable. Officer Thayer stated that he used the

measuring wheel to measure the distance from the corner of College and Sampson Streets to the

preschool’s front door and that the distance was eight hundred eighty-eight feet. Using a different

route, Investigator Jeff Box from the public defender’s office measured the distance from the

location of the drug deals to the curb of the preschool. The distance was eight hundred seventy feet.

On cross-examination, Officer Thayer testified that Pierce was in the car with police officers

on December 21, 2005, when she telephoned the appellant. After she called him, she went back into

her apartment to wait for the appellant to arrive, and the officers did not search her home. The

officers could not strip search Pierce because she was female. He stated that he did not know where
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or when the police department purchased the measuring wheel, that he had never read any

instructions on how to use the wheel, that he had never seen anyone calibrate it, and that he did not

know its rate of error. He acknowledged that he did not know if the wheel measured accurately.

Investigator Thomas Langford of the Dyersburg Police Department testified that he was

involved in the drug buy on January 18, 2001. On that date, officers met with Pierce in her home,

and Investigator Langford asked Pierce to buy eighty dollars worth of cocaine. Pierce telephoned

the appellant, and Investigator Langford recorded their conversation. After the phone call,

Investigator Langford searched Pierce’s person for money or controlled substances and wired her

with an electronic transmitter. Investigator Langford waited at the window with a video recorder and

saw the appellant arrive driving a green Thunderbird. The State played the videotape for the jury.

Investigator Langford said Pierce went downstairs to the street, conducted the transaction, and

returned to her apartment. Pierce gave the drugs to the officers, and the officers searched her again.

The police paid Pierce seventy or eighty dollars for her work that day. Investigator Langford stated

that the amount of her pay was not affected by the outcome of any trials.

On cross-examination, Investigator Langford acknowledged that a person would have been

unable to see the drug transaction from the back door of the First Methodist Church, and he stated

that he did not measure the distance from Pierce’s apartment to the church. He said he did not make

Pierce take off her bra when he searched her but made her “[s]hake it out.” He also did not feel her

breasts, pubic area, or buttocks during the search. Pierce told Investigator Langford the telephone

number that she used to contact the appellant, but Investigator Langford did not watch her dial the

number. He acknowledged that one-third to one-half of the green Thunderbird’s windshield was

darkly tinted and stated that he did not know if a passenger was in the car with the appellant. He

acknowledged that as a result of an incident that occurred on March 22, 2006, Latasha Akins was

charged with selling a Schedule II controlled substance within a school zone. 

Investigator Mark Reynolds of the Dyersburg Police Department testified that he delivered

the evidence recovered in this case to the Tennessee Bureau of Investigation (TBI) Laboratory. On

cross-examination, he acknowledged that on March 22, 2006, Paul Isom and Michael Nance were

indicted with Latasha Akins for selling cocaine within a school zone.

TBI Special Agent Dana Parmenter testified as an expert in forensic chemistry that she

analyzed the evidence in this case. Color tests on substances received by the Dyersburg police on

December 21, 2005, January 18, 2006, and January 25, 2006, were positive for cocaine. Agent

Parmenter also performed analysis on the evidence using a mass spectrometer. She explained that

“you put the [evidence] sample in the instrument, you get a [graph] printout, you compare that

printout to a known standard [graph] for cocaine and if they match exactly you know the sample

contains cocaine.” She stated that the results from the mass spectrometer showed the evidence from

the three drug buys was cocaine. The cocaine purchased on December 21, 2005, weighed 0.51

grams; the cocaine purchased on January 18, 2006, weighed 0.8 grams; and the cocaine purchased

on January 25, 2006, weighed 1.3 grams. 
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On cross-examination, Agent Parmenter testified that she weighed the drugs on April 7,

2006, and that the scales had been calibrated on April 5, 2006. She stated that the mass spectrometer

analysis produced a graph for each piece of evidence and that she visually compared the graphs to

the standard graph for pure cocaine. All of the graphs “had the same peaks” as the standard graph.

She stated that she did not know the rate of error for the mass spectrometer and that, to her

knowledge, it did not have a rate of error. Although the appellant had been charged with selling

one-half gram or more of cocaine in a school zone on December 21, 2005 (count one), January 18,

2006 (count two), and January 25, 2006 (count three), the jury acquitted him of count one and found

him guilty of counts two and three. 

II. Analysis

A. Drug-Free School Zone Act

The appellant contends that Tennessee Code Annotated section 39-17-432, the Drug-Free

School Zone Act (DFSZA), is unconstitutional because it violates due process. Specifically, he

contends that subsection (b)(3) is vague and contradicts subsections (b)(1) and (c). In a related issue,

he contends that because subsection (b)(3) supersedes subsection (c), he received an excessive

sentence. The State contends that the appellant has waived the constitutionality issue and that, in

any event, the statute is not unconstitutional and the appellant did not receive an excessive sentence.

We conclude that the appellant is not entitled to relief.

In a pretrial motion, the appellant argued that Tennessee Code Annotated section 39-17-432

was unconstitutional because subsection (b)(1) stated that a violation of the DFSZA required

punishment one classification higher than normally provided for such a violation, but subsection

(b)(3) stated that a violation within certain school zones, such as the zone of a preschool, “shall not

be subject to additional incarceration as a result of this subsection (b).” Thus, he contended the

statute was unconstitutional because it was contradictoryand “so vague, indefinite and uncertain that

persons must speculate as to its meaning.” 

At a hearing on the motion, the State conceded that while the statute was “poorly worded,”

it was not unconstitutional. The State acknowledged that because the school zone at issue in this

case was a preschool, subsection (b)(3) prohibited punishing the appellant’s violation, typically a

Class B felony, as a Class A felony. However, the State argued that if the jury convicted the

appellant, he still would have to serve the entire minimum sentence in the range in confinement as

required by subsection (c). The trial court found no merit to the appellant’s constitutionality claim

and denied his motion. After the jury convicted the appellant, the trial court held a sentencing

hearing. The trial court sentenced the appellant as a Range III, persistent offender to twenty-five

years, the midpoint in the range for a Class B felony, for each conviction. See Tenn. Code Ann. §

40-35-112(c)(2). On appeal, the appellant maintains that the DFSZA is unconstitutional because

subsections (b)(1) and (b)(3) contradict each other and because subsections (b)(3) and (c) contradict

each other. In a related argument, he also contends that subsection (b)(3) supercedes subsection (c)

and, therefore, he cannot be required to serve the entire minimum sentence in the range as required
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by subsection (c). We disagree with the appellant’s arguments.

“Due process requires that a statute provide ‘fair warning’ and prohibits holding an individual

criminally liable for conduct that a person of common intelligence would not have reasonably

understood to be proscribed.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001) (citing Grayned

v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294 (1972)). “A statute is void for vagueness if it is

so vague, indefinite, and uncertain that persons must speculate as to its meaning, and if it fails to give

a person of ordinary intelligence fair notice that his or her conduct is forbidden by the statute.” State

v. Whaley, 982 S.W.2d 346, 348 (Tenn. Crim. App. 1997). “The vagueness doctrine does not

invalidate every statute which a reviewing court believes could have been drafted with greater

precision.” State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). This court has a duty to “adopt a

construction which will sustain a statute and avoid constitutional conflict if its recitation permits

such a construction.” Id. at 592. We review issues of statutory construction de novo. State v.

Goodman, 90 S.W.3d 557, 563-64 (Tenn. 2002).

As charged in the indictment, Tennessee Code Annotated section 39-17-417(a)(3) makes it

unlawful for a person knowingly to sell a controlled substance. If a person sells one-half gram or

more of cocaine, a Schedule II controlled substance, the offense is a Class B felony. See Tenn. Code

Ann. §§ 39-17-417(c)(1), -408(b)(4). Prior to 2005, Tennessee Code Annotated section 39-17-432

provided in relevant part as follows:

(a) It is the intent of this section to create Drug-Free School Zones for

the purpose of providing all students in this state an environment in

which they can learn without the distractions and dangers that are

incident to the occurrence of drug activity in or around school

facilities. The enhanced and mandatoryminimum sentences required

by this section for drug offenses occurring in a Drug-Free School

Zone are necessary to serve as a deterrent to such unacceptable

conduct.

(b) A violation of § 39-17-417 . . . that occurs on the grounds

or facilities of any school or within one thousand feet (1,000') of the

real property that comprises a public or private elementary school,

middle school or secondary school shall be punished one (1)

classification higher than is provided in § 39-17-417(b)-(i) for such

violation.

(c) Notwithstanding any other provision of law or the sentence

imposed by the court to the contrary, a defendant sentenced for a

violation of subsection (b) shall be required to serve at least the

minimum sentence for such defendant’s appropriate range of

sentence. Any sentence reduction credits such defendant may be

eligible for or earn shall not operate to permit or allow the release of
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such defendant prior to the full service of such minimum sentence.

In 2005, the legislature amended the DFSZA to read, in pertinent part, as follows:

(a) It is the intent of this section to create Drug-Free Zones for

the purpose of providing vulnerable persons in this state an

environment in which they can learn, play and enjoy themselves

without the distractions and dangers that are incident to the

occurrence of illegal drug activities. The enhanced and mandatory

minimum sentences required by this section for drug offenses

occurring in a Drug-Free Zone are necessary to serve as a deterrent to

such unacceptable conduct. 

(b)(1) A violation of § 39-17-417, or a conspiracy to violate

the section, that occurs on the grounds or facilities of any school or

within one thousand feet (1,000') of the real property that comprises

a public or private elementary school, middle school, secondary

school, preschool, child care agency, or public library, recreational

center or park shall be punished one (1) classification higher than is

provided in § 39-17-417(b)-(i) for such violation. 

(2) In addition to any other penalty imposed by this section,

a person convicted of violating this subsection (b) shall also be

subject to the following:

. . . .

(D) Upon conviction of a Class B felony, a fine of not

more than sixty thousand dollars ($60,000); and

(E) Upon conviction of a Class A felony, a fine of not

more than one hundred thousand dollars ($100,000).

(3) A person convicted of violating this subsection (b), who

is within the prohibited zone of a preschool, childcare center, public

library, recreational center or park shall not be subject to additional

incarceration as a result of this subsection (b) but shall be subject to

the additional fines imposed by this section. 

(c) Notwithstanding any other provision of law or the sentence

imposed by the court to the contrary, a defendant sentenced for a

violation of subsection (b) shall be required to serve at least the

minimum sentence forthe defendant’s appropriate range of sentence.
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Any sentence reduction credits the defendant may be eligible for or

earn shall not operate to permit or allow the release of the defendant

prior to full service of the minimum sentence.

Tenn. Code Ann. § 39-17-432 (2005). The DFSZA is not a separate offense but is only intended to

enhance penalties for violations of the Drug Control Act. State v. Smith, 48 S.W.3d 159, 167 (Tenn.

Crim. App. 2000).

Initially, we note that the State contends for the first time on appeal that the appellant waived

any issue regarding the constitutionality of the statute because he failed to provide notice to the

Attorney General as required by Tennessee Code Annotated section 29-14-107(b) and Rule 24.04,

Tennessee Rules of Civil Procedure. However, Tennessee Code Annotated section 29-14-107(b)

requires notice to the attorney general when the constitutional validity of a general state law is

challenged in a declaratory judgment action. Tennessee Rule of Civil Procedure 24.04 requires

notice to the attorney general when the constitutional validityof a state statute is challenged in a civil

action. The Tennessee Rules of Civil Procedure generally do not apply to criminal cases. See Alley

v. State, 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994). Neither the statute nor the rule is applicable

in this case. Therefore, notification was not required. 

Turning to the appellant’s claim, we recognize that this court previously has held that the

DFSZA is not overbroad or vague and, therefore, does not violate principles of due process

guaranteed by the Fourteenth Amendment to the United States Constitution and article 1, section 8

of the Tennessee Constitution. Smith, 48 S.W.3d at 164-68; State v. Jenkins, 15 S.W.3d 914, 917-

18 (Tenn. Crim. App. 1999). However, as noted by the appellant, we have not considered a

constitutional challenge to the Act since the 2005 amendment. Like the previous version of the Act,

the current version provides that a defendant “shall be punished one (1) classification higher than

is provided in section 39-17-417(b)-(I) for such violation.” Tenn. Code Ann. § 39-17-432(b)(1).

In other words, a defendant convicted of selling one-half gram or more of cocaine, ordinarily a Class

B felony, would be punished for a Class A felony if the defendant sold the drug within one thousand

feet of a school. However, subsection (b)(3) of the amended Act specifically exempts certain

schools, such as preschools, from the higher classification in subsection (b)(1). While we agree with

the State that the statute is “poorly worded,” the subsections are not contradictory or vague, and the

exemption in subsection (b)(3) made the appellant subject only to the period of incarceration for a

Class B felony.

The appellant also contends that subsections (b)(3) and (c) are contradictory and violate due

process because subsection (b)(3) in the 2005 amendment exempts a defendant convicted of selling

drugs within certain school zones from “additional incarceration” while subsection (c), which

remained unchanged from the previous version of the Act, mandates additional incarceration by

requiring a defendant to serve the entire minimum sentence in the range. In a related argument, he

also contends that subsection (b)(3) supercedes subsection (c) and prohibits him from serving his

entire minimum sentence in the range in confinement. 
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Again, we disagree with the appellant’s contentions. Subsection (b)(3) states that a defendant

shall not be subjected to additional incarceration “as a result of this subsection (b) but shall be

subject to the additional fine imposed by this section.” Tenn. Code Ann. § 39-17-417(b)(3). When

amending the statute, the legislature could have specified in subsection (b)(3) that a defendant also

would not be required to serve the minimum punishment in the range as required by subsection (c).

The fact that the legislature failed to apply the exemption to subsection (c) demonstrates to us that

although the legislature did not intend for defendants who sell drugs within certain school zones to

be sentenced in a higher range of punishment, it intended for all of them to at least serve the entire

minimum sentence in the appropriate range. Subsections (b)(3) and (c) are not contradictory, and

subsection (b)(3) does not supercede subsection (c). The appellant is not entitled to relief.

B. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions because

the State failed to prove that the substances tested by the TBI were cocaine. Specifically, he argues

that Agent Parmenter “irrationally” testified that no differences existed between the standard cocaine

graph and the graphs created by the mass spectrometer when such differences clearly existed. He

also contends that the State failed to prove that the distance between the crimes and the preschool

was less than one thousand feet. In support of his argument, he notes that Officer Thayer testified

that he did not know when the police department acquired the measuring wheel, that he never read

any instructions for proper use of the wheel, and that he did not know if the wheel was ever

calibrated. We conclude that the appellant is not entitled to relief.

When an appellant challenges the sufficiency of the convicting evidence, the standard for

review by an appellate court is “whether, after viewing 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, 99 S. Ct. 2781, 2789 (1979); Tenn. R.

App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value

to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the

trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or

reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial

evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal

with one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

As stated previously, Tennessee Code Annotated section 39-17-417(a)(3) prohibits a person

from knowingly selling a controlled substance, such as cocaine. If a person sells one-half gram or

more of cocaine, the offense is a Class B felony. See Tenn. Code Ann. § 39-17-417(c)(1).

Furthermore, the DFSZA creates a “buffer zone” of one thousand feet around schools. See Tenn.

Code Ann. § 39-17-432(b)(1). 
According to the appendix, the appellant compiled the photocopies of the trial exhibits pursuant to Rule 1

28, Tennessee Rules of Appellate Procedure. Rule 28 “allow[s] an appellant to file an appendix containing relevant

portions of a record. However, the documents filed in an appendix must also be included in the record.” State v.

Kenneth Shane Story, No. M2005-02281-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 621, *14 (Nashville, Aug. 9,

2006) (citation omitted).

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The appellant contends that the evidence is insufficient to support the convictions because

Agent Parmenter’s testimony that the graphs generated by the mass spectrometer for the substances

in this case did not differ from the standard graph generated for pure cocaine was incorrect.

Although the graphs in question were admitted into evidence at trial, they were not included in the

record on appeal. In fact, the only exhibit included in the appellate record is the appellant’s

presentence report. It is the appellant’s duty to prepare a record which conveys a fair, accurate, and

complete record on appeal to enable meaningful appellate review. See Tenn. R. App. P. 24(a)

(providing that the record on appeal shall consist of the original exhibits filed in the trial court). The

appellant created an “APPENDIX TO APPELLANT’S BRIEF,” containing various photocopies of

trial exhibits, including photocopies of photographs, Agent Parmenter’s forensic chemistry reports,

and the graphs generated by the mass spectrometer. However, “appendices to briefs do not constitute

evidence to be considered in the review of a case.” Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.

App. 1985). Without the graphs introduced into evidence at trial, we are unable to address the 1

appellant’s argument. The issue has been waived.

The appellant also contends that the State failed to prove that he sold the cocaine within one

thousand feet of the preschool. Officer Thayer testified that he used a measuring wheel to measure

the distance between the location of the drug transactions and the preschool at First Methodist

Church and that the distance was eight hundred eighty-eight feet. He also testified that an

investigator from the public defender’s office measured the distance, using a slightly different route,

and that the distance was eight hundred seventy feet. The defense questioned Officer Thayer about

his training to use the wheel and the wheel’s calibration. The fact that the wheel was not calibrated

goes to the weight and credibility of the evidence. See State v. Sean Rogers, No. 9-95-50, 1996 Ohio

App. LEXIS 1715, at **9-10 (3d App. Dist., Apr. 24, 1996) (stating that “fact that the roll-a-wheel

used to measure the distance was not calibrated . . . goes to the weight or credibility the jury may

wish to assign to the evidence”). The jury obviously concluded that the State had demonstrated the

drug transactions occurred within one thousand feet of the preschool. The evidence is sufficient to

support the convictions.

C. Bifurcated Trial

The appellant contends that the trial court, by denying his motion for a bifurcated trial,

prevented him from presenting a defense. The State contends that the trial court properly denied the

appellant’s motion. We conclude that the appellant has waived this issue. 

The record reflects that prior to trial, the appellant filed notice of intent to use an entrapment

defense. According to the appellant’s brief, he also filed a motion in limine, requesting that the trial

court bifurcate his trial. The appellant claims that a bifurcated trial was warranted 
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to allow the defendant, if convicted of sale of cocaine, to present his

prior criminal record regarding drugs to show that he had not in the

past sold drugs in a school zone and had no propensity to do so and

thus, support an entrapment defense as to the issue of sale of

contraband in a school zone.

Although the appellant included a copy of the motion in the appendix to his brief, he failed to include

in the appellate record the motion; a transcript of the motion hearing, if any; or the trial court’s ruling

on the motion. See Tenn. R. App. P. 24(a), (b). Moreover, as noted by the State, the appellant failed

to cite to any authority regarding bifurcation or to support his position that a bifurcated trial denied

him his constitutional right to present a defense. The appellant responds that he failed to cite to any

authority because “this fact pattern is novel” and there is no case law directly on point. However,

bifurcation itself is not novel. Moreover, although there may be no case law directly on point in this

state, this court often turns to other jurisdictions for persuasive authority. See, e.g., State v. Denton,

938 S.W.2d 373, 377 (Tenn. 1996). The issue has been waived. 

D. Counterfeit Controlled Substance Instruction

The appellant contends that the trial court erred by failing to instruct the jury on the sale of

a counterfeit controlled substance. He argues that the evidence justifies the instruction because a

comparison of the standard cocaine graph with the graphs generated by the mass spectrometer

reveals that the substances in this case were not cocaine. The State contends that the trial court did

not err by failing to give the instruction because the sale of a counterfeit controlled substance is not

a lesser included offense of the sale of a controlled substance and because the evidence did not

warrant the instruction. We conclude that the trial court did not err by failing to instruct the jury on

the sale of a counterfeit controlled substance.

“It is the duty of a trial judge to give a complete charge of the law applicable to the facts of

a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). In other words, “a defendant has a

constitutional right to a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249

(Tenn. 1990). Generally, the trial court must instruct the jury on the rules of law applicable to the

issues that are fairly raised by the evidence adduced at trial. State v. Townes, 56 S.W.3d 30, 36

(Tenn. Crim. App. 2000), overruled on other grounds by State v. Terry, 118 S.W.3d 355 (Tenn.

2003). In determining whether jury instructions are erroneous, this court must review the charge in

its entirety and invalidate the charge only 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. Vann, 976 S.W.2d 93, 101 (Tenn. 1998).

The appellant argues that the trial court should have instructed the jury on the sale of a

counterfeit controlled substance because the graphs introduced into evidence at trial show that the

substances alleged to have been sold were not cocaine. However, as noted previously, the appellant

failed to include the graphs in the record on appeal. In any event, the appellant was not indicted for

the sale of a counterfeit controlled substance, and he acknowledges that it is not a lesser included

offense of the charged offense, sale of a controlled substance. Therefore, the trial court did not err
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by failing to give the instruction to the jury. 

E. Facilitation Instruction

The appellant also contends that the trial court erred by failing to instruct the jury on

facilitation as a lesser included offense of the charged offenses. The State contends that the appellant

waived the issue because he did not request a facilitation instruction at trial and failed to raise the

issue in his motion for new trial. The State also argues that the trial court’s failure to instruct on

facilitation does not rise to the level of plain error because the evidence established that the appellant

sold crack cocaine to Kim Pierce and, therefore, consideration of the error is not necessary to do

substantial justice. We agree that the appellant has waived the issue and that he is not entitled to

plain error relief.

As noted by the State, the appellant failed to request a facilitation instruction at trial.

Tennessee Code Annotated section 40-18-110(c) provides that a party’s failure to request in writing

an instruction on a lesser included offense results in a waiver of the issue on appeal. Furthermore,

our supreme court has concluded that “the waiver of a lesser-included offense for purposes of

plenary appellate review is constitutionally permissible.” State v. Page, 184 S.W.3d 223, 230 (Tenn.

2006). Nevertheless, the court stated that appellate courts may review the issue under the plain error

doctrine. Id. at 230. 

Tennessee Rule of Criminal Procedure 52(b) provides that this court may address “[a]n error

which has affected the substantial rights of an accused . . . at any time, even though not raised in the

motion for a new trial . . . where necessary to do substantial justice.” See also Tenn. R. Evid. 103(d).

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 (quoting United States v. Kerley, 838 F.2d

932, 937 (7th Cir. 1988)). “In applying the lesser-included offense doctrine, three questions arise:

(1) whether an offense is a lesser-included offense; (2) whether the evidence supports a

lesser-included offense instruction; and (3) whether an instructional error is harmless.” State v.

Allen, 69 S.W.3d 181, 187 (Tenn. 2002). 

Facilitation is a lesser included offense of the charged offenses under the Burns test, part

(c)(1). See State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). We must now determine whether
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the evidence supports an instruction on facilitation. Facilitation of a felony occurs when a defendant

knows that “another intends to commit a specific felony” and “knowingly furnishes substantial

assistance” in committing that felony. Tenn. Code Ann. § 39-11-403(a) (also directing that the

facilitating defendant is one who lacks “the intent required for criminal responsibility”). The

evidence in the record before us shows that on January 18, 2006, Kim Pierce telephoned the

appellant. She spoke with Tasha and told Tasha that she wanted to buy eighty dollars worth of crack

cocaine. Tasha told Pierce that the appellant was on his way. When the appellant did not arrive in

a timely manner, Pierce telephoned again and spoke with him. The appellant arrived in a green

Thunderbird, and Investigator Langford saw Pierce approach the appellant’s car and give him eighty

dollars in exchange for crack cocaine. On January 25, 2006, Pierce telephoned the appellant, spoke

with him, and told him that she wanted to buy another eighty dollars worth of crack cocaine. Officer

Thayer witnessed the appellant arrive driving a red Dodge Neon. He saw Pierce approach the

appellant’s car and saw Pierce give the money to the appellant in exchange for cocaine. Although

the defense theorized that the appellant merely delivered the drugs to Pierce for Tasha, “[t]he

evidence, not the theories of the parties, controls whether an instruction is required.” Allen, 69

S.W.3d at 188. Based on the evidence in the record for our review, we conclude that the proof did

not support an instruction on facilitation. 

 

F. Improper Closing Statement

The appellant claims that the prosecutor made an improper statement during closing

arguments. The appellant acknowledges that while the prosecutor’s comment does not constitute

reversible error, the comment, along with the other errors that occurred, warrants a reversal of his

convictions. The State contends that the prosecutor’s comment, while improper, was not prejudicial.

We conclude that the appellant is not entitled to relief.

 During the State’s closing argument, the prosecutor referred to defense counsel’s crossexamination of Agent Parmenter and stated that defense counsel’s “trying to confuse you with some

numbers.” Defense counsel objected, and the trial court sustained the objection. The prosecutor

apologized, and the State’s closing argument resumed.

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). “The prosecution is not

permitted to reflect unfavorably upon defense counsel orthe trial tactics employed during the course

of the trial.” State v. Garner Dwight Padgett, No. M2003-00542-CCA-R3-CD, 2004 Tenn. Crim.

App. LEXIS 938, at *34 (Nashville, Oct. 21, 2004). 

“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
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affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In

connection with this issue, we must examine the following factors:

(1) the conduct complained of viewed in context and in light of the

facts and circumstances of the case[;]

(2) the curative measures undertaken by the court and the

prosecution[;]

(3) the intent of the prosecutor in making the statement[;]

(4) the cumulative effect of the improper conduct and any other errors

in the record[; and]

(5) the relative strength or weakness of the case. 

Id. at 368 (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

Turning to the instant case, the prosecutor’s comment was brief, and there is no evidence he

intended to unduly prejudice the appellant by his remarks. Moreover, although the trial court gave

no curative instruction to the jury, the appellant did not ask for an instruction. We have found no

other errors, and, based upon the record on appeal, the State’s case was strong. Therefore, we

conclude that the appellant is not entitled to relief. 

G. Recusal

Next, the appellant claims that the trial court erred by failing to recuse itself from the case

because the trial judge was a member of the First Methodist Church. The appellant alleges that the

trial judge, therefore, had “inside information regarding crucial evidence in this cause” that required

him to recuse himself sua sponte. The State argues that the appellant waived this issue because he

failed to object pretrial or at trial and that, in any event, nothing in the record indicates that the trial

judge had any personal knowledge about the disputed facts, that his impartiality was questionable,

or that he exhibited any personal bias or prejudice. We conclude that the appellant is not entitled

to relief.

The appellant first raised this issue in his motion for new trial. At the hearing on the motion,

the trial judge stated, “I am a member of First Methodist Church. This offense was not an offense

against the church. I really see no reason for me to recuse myself and no request was made and I see

no prejudice at all.” The appellant argues on appeal that recusal was necessary because the judge

made immediate rulings in favor of the State without requiring the State to lay the proper

foundations. As an example, he contends that during Officer Thayer’s direct testimony, the trial

court allowed Officer Thayer to testify, over the appellant’s objection and without any foundation,

about his personal knowledge that the church operated a preschool or daycare.
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“A judge shall disqualify himself . . . in a proceeding in which the judge’s impartiality might

reasonably be questioned.” Tenn. Sup. Ct. R. 10, Canon 3E(1). “[A] trial judge should grant a

recusal whenever the judge has any doubts about his or her ability to preside impartially.” Alley v.

State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). However, recusal also is necessary “when a

person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge,

would find a reasonable basis for questioning the judge’s impartiality.” Id. This objective standard

“‘takes into account that disqualification is required if there is an appearance of partiality to the

reasonable observer, and it precludes a judge from avoiding recusal merely by avowing his or her

impartiality.’” State v. Conway, 77 S.W.3d 213, 225 (Tenn. Crim. App. 2001) (quoting State v.

Connors, 995 S.W.2d 146, 149 (Tenn. Crim. App. 1998)); see also State v. Schiefelbein, 230 S.W.3d

88, 136-37 (Tenn. Crim. App. 2007). “Adverse rulings by a trial court are not usually sufficient

grounds to establish bias.” Alley, 882 S.W.2d at 821. The “issue to be determined is not the

propriety of the judicial conduct of the trial judge, but whether he committed an error which resulted

in an unjust disposition of the case.” State v. Hurley, 876 S.W.2d 57, 64 (Tenn. 1993); State v.

Boggs, 932 S.W.2d 467, 472 (Tenn. Crim. App. 1996). A trial judge’s refusal to grant a motion to

recuse will be reviewed under an abuse of discretion standard. State v. Raspberry, 875 S.W.2d 678,

681 (Tenn. Crim. App. 1993).

 The record does not reveal when the appellant learned about the judge’s being a member

of the church. Although the appellant first raised the issue in his motion for new trial, he does not

allege that he learned about the judge’s potential conflict after the trial. The failure to file a motion

to recuse prior to trial waives the issue. See Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim.

App. 1997). In any event, we have carefully reviewed the trial transcript and nothing indicates that

the trial court was biased against the appellant. Therefore, he is not entitled to relief. 

H. Cumulative Errors

Finally, the appellant contends that the cumulative effect of the errors in this case warrants

a reversal of his convictions. We find no merit to this claim.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

___________________________________ 

NORMA McGEE OGLE, JUDGE