IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 6, 2020 Session

STATE OF TENNESSEE v. MADARYL DEWAYNE HAMPTON

Appeal from the Circuit Court for Madison County

No. 18-739 Donald H. Allen, Judge

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No. W2019-01551-CCA-R3-CD

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The Defendant-Appellant, Madaryl Hampton, was indicted by the Madison County Grand 

Jury with multiple counts of drug and weapon related offenses, all stemming from a single 

encounter with the Jackson Police Department (JPD). These counts were severed into two 

trials, one dealing with the drug related offenses and the other the weapon related offenses.

In the first trial, the Defendant was convicted of two counts of simple possession of 

marijuana. In his second trial, the Defendant was convicted of four counts of being a felon 

in possession of a weapon. The trial court merged each of these counts and sentenced the 

Defendant as a Range II offender to twenty years’ imprisonment for the weapon offenses 

to be served consecutively to eleven months and twenty-nine days’ imprisonment for the 

possession of marijuana convictions. While the issues presented in this appeal as of right 

involve facts from the Defendant’s first trial, the Defendant challenges only the felon in 

possession of a weapon convictions in arguing that: (1) the trial court committed plain error 

in allowing the State to admit evidence that the Defendant was in possession of marijuana, 

digital scales, and cash; (2) the trial court committed plain error in allowing the State to 

comment on the credibility of the Defendant and the witnesses during closing arguments; 

and (3) the evidence is insufficient to sustain the Defendant’s convictions. Following our 

review, we affirm the judgments of the trial court. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Jessica F. Butler, Assistant Public Defender-Appellate Division, Franklin, Tennessee, for 

the Defendant-Appellant, Madaryl Dewayne Hampton. 

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant 

Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

07/12/2021
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OPINION

Because it will be relevant to the disposition of the issues raised in this appeal, it is 

necessary to detail the Defendant’s indictments in full and to explain how they were 

disposed of in this case. In his first trial, although the Defendant was charged with 

alternative counts of possession of marijuana with intent to sell or deliver in counts one 

and two, he was convicted of the lesser-included offenses of simple possession of 

marijuana. He was also acquitted of unlawful possession of a firearm with intent to go 

armed during the commission of a dangerous offense (possession of marijuana with intent 

to sell/deliver) in counts three and four. Counts five through ten, alternative charges of 

unlawful possession of a firearm during the commission of a dangerous felony (possession 

of marijuana with intent to sell/deliver) as well as unlawful possession of a firearm during 

the commission of a dangerous felony (possession of marijuana with intent to sell/deliver) 

by a previously convicted felon and count fifteen, tampering with evidence, were dismissed 

by the State. The record does not contain a transcript detailing the reasoning supporting 

the severance of the offenses or the respective parties’ position on the action taken by the 

trial court in doing so. At sentencing in the instant case, however, the trial court noted that 

it had previously severed the counts herein from the above listed counts because it “was 

appropriate that a jury who was trying to determine whether or not [the Defendant] was in 

possession of marijuana with intent to sell or deliver, whether or not he was in possession 

of a firearm during the commission of a dangerous felony . . . those charges should be tried 

separately from the charges where he was actually indicted for being a convicted felon in 

possession of a firearm.” 

In regard to the remaining convicted felon in possession of a firearm offenses in 

counts eleven through fourteen, the following proof was adduced at the Defendant’s May 

9, 2019 trial. JPD Officer Terry Troutt testified that he arrested the Defendant for being a 

felon in possession of a firearm on January 20, 2018. He responded to an apartment 

complex at 216 Roosevelt Parkway around 8:50 that night, and, even though it was dark 

outside when he arrived, he said that the apartment complex was “well-lit.” He described 

the area as a “high crime area.” Officer Troutt responded to the apartment complex that 

night because he “had been given information about an individual with a warrant.” 

Although he could not remember the name of the person who had a warrant, he had a 

description and a picture of the person who was the subject of the warrant. He testified 

that, when he arrived at the apartment complex, he was in a marked JPD patrol vehicle, 

and an officer whom he was training accompanied him.

Officer Troutt saw a group of five to ten people standing around when he arrived, 

but he was not able to make out any of their faces at that time. He saw the Defendant, who 

he believed matched the description of the person that he was looking for, but he could not 
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see his face clearly at that time. Officer Troutt followed the Defendant to get a closer look 

at him, but he said that he had not activated his blue lights or drawn his weapon at that 

point. He also did not “give[] any commands” to the Defendant or any of the individuals 

standing in the group. As Officer Troutt approached the Defendant, the Defendant began 

walking faster, and Officer Troutt lost sight of the Defendant as he rounded the corner of 

the “D” building. Officer Troutt went around the other side of the building, and he caught 

up with the Defendant on the “south side” of the “E” building. He stated that he had still 

not seen the Defendant’s face at that point, but he said that the Defendant was wearing 

“bulky coveralls.” As Officer Troutt “closed the distance” between himself and the 

Defendant, he said he still had not issued any commands to the Defendant and the 

Defendant had not looked back at him.”

Officer Troutt saw the Defendant walking on the sidewalk, which was surrounded 

by a grassy area. He testified that he could see this area because it was well-lit, and he did 

not see anything in that area when he “reestablished contact with [the Defendant].” At that 

point, Officer Troutt saw the Defendant moving his arms “as if he was . . . inside his jacket 

getting something from the front of his body[,]” which made him believe that the Defendant 

was “retrieving an item” from his jacket. Officer Troutt then saw the Defendant make a 

“throwing motion” to the front with his right arm, and he identified the item thrown as a 

black handgun. He agreed that he observed the gun “travel through the air and onto the 

ground.” He said that the gun landed in the grassy area near the streetlight and that the 

ground was wet and muddy that night. Officer Troutt stated that the Defendant also threw 

a clear plastic bag to his left side, and he suspected that the bag contained marijuana. Based 

on these observations, Officer Troutt detained the Defendant and placed him under arrest, 

at which point he saw the Defendant’s face and realized that the Defendant was not the 

subject of the arrest warrant.

After he arrested the Defendant, Officer Troutt searched the area and found the 

handgun and bag of marijuana where he saw the Defendant throw these items. Officer 

Kenneth Shell photographed these items and testified that he used the flash on the camera 

to illuminate them. Officer Troutt confirmed that one of the photographs of the firearm 

showed that it was covered with wet mud, which was consistent with the weather 

conditions that night. Officer Troutt also identified the firearm that he recovered, as well 

as the magazine and the ammunition, all of which were admitted as exhibits at trial. He 

stated that the firearm was loaded when it was recovered, and it had five rounds in it.

Officer Troutt also searched the Defendant at the scene and recovered $470 from his 

person, which was broken down into one $100 bill, fifteen $20 bills, five $10 bills, and 

four $5 bills. A set of black digital scales was recovered from the Defendant when he was 

searched at the jail, and Officer Troutt stated that there was marijuana residue on the scales.

Officer Troutt photographed these items, and they were entered into evidence. After 

collecting all of the evidence, Officer Troutt researched the Defendant’s criminal history 
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and determined that the Defendant was a convicted felon, and, therefore, not able to legally 

possess a firearm. The parties stipulated to the following: “[O]n the day that [the 

Defendant] was arrested, January 20 of 2018, he did on each of the counts of the indictment 

have a prior felony conviction that qualifies as a felony conviction for attempted use of 

force, violence, or a deadly weapon.”

On cross-examination, Officer Troutt stated that the apartment complex that he 

reported to was sometimes referred to as “Parkway East,” and he said that he patrolled that 

area frequently at that time. He received the tip about the person he was searching for from 

a confidential informant. He did not know the Defendant before that night. He agreed that 

if someone is not wanted by the police, he or she was free to walk away from a police 

officer. Officer Troutt could not remember if the Defendant was talking on his cell phone 

when he arrived. He agreed that the area could “potentially get pretty dark” and that he 

could not see the Defendant clearly because of how far away he was from him. Defense 

counsel refreshed Officer Troutt’s memory of his testimony from a prior hearing, in which 

he said that he could see clearly that night, but he clarified that he could not see the 

Defendant’s facial features. He said that the Defendant matched the description of the 

person he was looking for in build and in the type of clothing that he was wearing. Officer 

Troutt also agreed that he testified in a prior hearing that the Defendant looked back at him 

when Officer Troutt arrived at the scene. He stated that he did not have a body camera on 

that night, and he agreed that the Defendant never ran away from him. 

Officer Troutt said that another officer was in the area when he saw the Defendant 

throw the firearm. He stated that he never called out to the Defendant or identified himself 

as police when he was following the Defendant. He believed that the Defendant was 

wearing coveralls based on the “bulkiness” of his clothing. He stated that the Defendant 

was the only person who he arrested at the scene that night. He agreed that the Defendant’s 

“female friend” showed up at some point that night and that the Defendant may have called 

her at some point. He could not recall whether the Defendant was wearing gloves. On 

redirect examination, he said that he was “positive that [he] saw [the Defendant] throw [the 

firearm and the plastic bag] down on the ground.” He also said that he could clearly see 

those items on the ground. Finally, Officer Troutt said there was no one else in the area at 

the time he arrested the Defendant.

The Defendant, age 42, testified that he had a prior criminal history consisting of 

convictions of aggravated burglary and passing worthless checks. He agreed that he was 

outside the Parkway East Apartment Complex on the night of the offense with 10 or more 

other men. He said that he lived approximately 30 to 40 yards away from his arrest 

location. Before the police arrived, the Defendant received a phone call from his wife, 

answered his phone, and began to walk away from the crowd. While he was walking away, 

one of the other men yelled the police were pulling into the parking lot and the crowd of 
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men scattered. The Defendant said he did not run away because he had no reason to do so. 

The Defendant testified that he noticed an officer following him. The Defendant said that 

after walking some distance and around several buildings, the officer told the Defendant to 

“Stop. You got a warrant. Get off your phone.’” The Defendant eventually complied. He 

testified that after the officers determined that he was not the person with the arrest warrant 

and that he did not have any outstanding warrants, the officers went to look “generally [in 

the] grassy area” because one of the officers said the Defendant may have thrown 

something. The Defendant implied that he did not walk by the area the officers were 

searching, and he was not arrested in the area where the gun and marijuana were found. 

The Defendant denied throwing a gun or marijuana to the ground and claimed the officer 

mistook his phone for a gun. The Defendant theorized the gun belonged to and was thrown 

by one of the other men in the crowd as they were running from the police. He insisted 

that had he thrown the gun to the ground his fingerprints would have been on it because he 

was not wearing gloves that night.

Based on the above proof, the jury convicted the Defendant, as charged, of four 

counts of being a convicted felon in possession of a firearm. At a later hearing, the trial 

court merged each count and imposed a sentence of twenty-four years’ imprisonment. 

Following an unsuccessful motion for new trial challenging the sufficiency of the evidence 

only, the Defendant filed a timely notice of appeal. His case is now properly before this 

court for review. 

ANALYSIS

I. Admissibility of Evidence. The Defendant argues the trial court committed plain 

error in admitting evidence that, “at the time of his arrest, the Defendant was in possession 

of marijuana, digital scales, and cash—evidence that was both clearly irrelevant and highly 

prejudicial.” He insists the State unfairly capitalized on this evidence in closing argument, 

confused the jury, and transformed the trial into a “highly inflammatory diatribe about 

whether [the Defendant] was involved in the sale of drugs.” The Defendant argues further 

that the use of this evidence rendered the trial court’s earlier decision to sever the drug and 

gun charges effectively meaningless. In response, the State contends the Defendant is not 

entitled to plain error relief because he has failed to establish that introduction of “the 

complained-of evidence breached a clear and unequivocal rule of law.” The State points 

out that the Defendant is arguing that the trial court violated Tenn. Rule of Evid. 402, which 

provides that evidence is deemed inadmissible if it is not relevant. The State argues that 

the complained-of evidence, the marijuana, scales, and cash, made the Defendant’s 

possession of the gun more probable than not under Rule 402 of the Tennessee Rules of 

Evidence. 

The Defendant concedes that he failed to object to the admission of this evidence at 

trial and failed to include this issue in his motion for new trial. Accordingly, our review is 
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limited to plain error. Tenn. R. App. P. 36(a), (e). Under the plain error doctrine, “[w]hen 

necessary to do substantial justice, an appellate court may consider an error that has 

affected the substantial rights of a party at any time, even though the error was not raised 

in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P. 36(b). In

order for this court to find plain error,

(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. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). “It is the accused’s burden to persuade an appellate 

court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355 

(Tenn. 2007) (citing U.S. v. Olano, 507 U.S. 725, 734 (1993)). “[T]he presence of all five 

factors must be established by the record before this Court will recognize the existence of 

plain error, and complete consideration of all the factors is not necessary when it is clear 

from the record that at least one of the factors cannot be established.” Smith, 24 S.W.3d 

at 283. We evaluate the Defendant’s claims of error with these principles in mind.

As an initial matter, we are neither satisfied that the record has clearly established 

what occurred in the trial court nor convinced that the Defendant has not waived this issue 

for tactical reasons. Although the Defendant insists “there was no conceivable tactical 

advantage to be gained by allowing the State to base its case on irrelevant evidence, nor 

was there any advantage to allowing the State to malign [the Defendant] with baseless 

claims of unproven criminal conduct,” this statement largely ignores the fact that all of the 

Defendant’s drug and firearm related offenses stem from the same criminal episode and 

were originally charged in a single indictment. See Tenn. R. Crim. P. 8(a)(2); Tenn. R. 

Crim. P. 8, Advisory Comm’n Comment; State v. Johnson, 342 S.W.3d 468, 473 (Tenn. 

2011). Accordingly, central to the Defendant’s argument on this issue is the severance in 

this case. This is problematic for several reasons. First, as we have previously noted, other 

than a comment by the trial court during sentencing, the record does not contain the 

circumstances surrounding the severance of the offenses. Secondly, given the posture of 

this case, we must presume the Defendant acceded to the severance, and we are not inclined 

to allow him to exploit that decision now on appeal. Tenn. R. Crim. P. 14(b)(2) (noting 

that in cases of mandatory joinder, when the defendant asks for a severance prior to trial, 

“the court shall grant a severance of offenses ... when the court finds a severance 

appropriate to promote a fair determination of the defendant’s guilt or innocence of each 

offense.”). Thirdly, while the Defendant implies that the trial court’s severance of his cases

somehow served as a bar to the admissibility of the complained of evidence, we disagree. 
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This Court has previously held that while not required, “the better procedure where, as 

here, the defendant is charged with offenses involving the use of violence and force and 

also charged with the status offense of unlawful possession of a firearm for having a similar 

prior felony conviction would be to bifurcate the proceedings and address the unlawful 

possession of a firearm charge separately.” State v. Foust, 482 S.W.3d 20, 46-47 (Tenn. 

Crim. App. 2015) (internal citations omitted); State v. Anthony Olivo, No. W2019-00530-

CCA-R3-CD, 2020 WL 2510533, at *7 (Tenn. Crim. App. May 15, 2020), appeal 

denied (Sept. 21, 2020) (affirming trial court’s denial of bifurcation because prior drugrelated felonies were dissimilar to the offenses on trial and the defendant was permitted to 

stipulate that he had been convicted of drug-related felonies and that he had been made 

aware it would be a felony to possess a firearm). Similarly, although not entirely clear 

from the record, we believe the purpose of bifurcation or severance in this case was to 

avoid any prejudice stemming from the Defendant’s prior felony convictions. 

Accordingly, the trial court’s action in bifurcating the offenses did not equate to a 

determination under Rules 401, 402, or 404(b) regarding the admissibility of other 

evidence. 

In any case, the Defendant insists “the use of irrelevant evidence violated a clear 

and unequivocal rule of law and substantially prejudiced [his] right to a fair trial.” He 

specifically argues that the admission of the testimony from Officer Troutt concerning the 

marijuana, digital scales, and cash was not relevant under Rules 401, 402, and 404(b) of 

the Tennessee Rules of Evidence. In resolving this issue, we recognize that upon 

considering the admissibility of evidence, the trial court must first determine whether the 

proffered evidence is relevant. State v. James, 81 S.W.3d 751, 757 (Tenn. 2002); State v. 

Sims, No. E2018-01268-CCA-R3-CD, 2020 WL 5088737, at *6 (Tenn. Crim. App. Aug. 

28, 2020), appeal denied (Feb. 4, 2021). Relevant evidence is defined as “evidence having 

any tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence.” Tenn. 

R. Evid. 401. “In other words, ‘evidence is relevant if it helps the trier of fact resolve an 

issue of fact.’” James, 81 S.W. 3d at 757 (quoting Neil P. Cohen, et al., Tennessee Law of 

Evidence § 4.01[4], at 4-8 (4th ed. 2000)). Generally, relevant evidence is admissible, 

while irrelevant evidence is inadmissible. Tenn. R. Evid. 402. However, relevant evidence 

may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury. Tenn. R. Evid. 403. “Rule 403 is 

a rule of admissibility, and it places a heavy burden on the party seeking to exclude the 

evidence.” James, 81 S.W.3d at 757. 

Here, the Defendant stipulated to his status as a convicted felon; thus, the primary 

issue to be resolved by the jury was whether the Defendant was in possession of the firearm. 

We agree with the State’s argument that the marijuana was admissible because it was 

thrown close in time to the firearm and gave credence to their theory that the Defendant
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similarly possessed the firearm. Accordingly, because testimony about the Defendant 

throwing a bag of marijuana immediately after or close in time to when the Defendant was 

observed to throw the firearm aided the trier of fact in resolving whether he in fact 

possessed the firearm, we conclude that it was relevant. As for the cash and digital scales,

which were recovered at a much later time, given the overwhelming proof of the 

Defendant’s guilt on the narrow question of possession, that admission of the complained 

of evidence was harmless. Because the Defendant has failed to establish a either a breach 

of a clear and unequivocal rule of law or any error adversely effecting a substantial right, 

he is not entitled to relief under the plain error doctrine. 

II. Closing Argument. The Defendant argues the trial court committed plain error 

in allowing the State to tell the jury five separate times that the officer’s testimony was 

“credible” and that the Defendant’s was “incredible.” In response, the State contends that 

the Defendant failed to object during closing argument and has failed to establish plain 

error relief. We agree with the State. 

Once again, the Defendant concedes that he failed to object to these comments in 

closing argument. Accordingly, as in the above issue, our review is for plain error. Tenn. 

R. App. P. 36(b); State v. Pack, 421 S.W.3d 629, 648 (Tenn. Crim. App. 2013) (holding 

that because the defendant failed to make a contemporaneous objection during closing 

arguments, he not only had to establish that the comments were improper but also that they 

constituted plain error). It is well recognized that a defendant’s failure to object to a 

prosecutor’s comments during closing argument rarely results in a reversal of the 

conviction. See United States v. Smith, 508 F.3d 861, 864 (8th Cir. 2007).

Prosecutorial misconduct does not constitute reversible error absent a showing that 

it has affected the outcome of the trial to the prejudice of the defendant. State v. Bane, 57 

S.W.3d 411, 425 (Tenn. 2001) (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). As 

applicable to this case, this court has recognized that it is improper conduct for the 

prosecutor to express his or her personal belief or opinion as to the truth or falsity of any 

testimony or evidence or the guilt of the defendant. See State v. Thornton, 10 S.W.3d 229, 

235 (Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 

1978); Tenn. Code of Prof’l Responsibility DR 7-106(c)(4); State v. Goltz, 111 S.W.3d 1, 

6 (Tenn. Crim. App. 2003) (citing AM. BAR ASS’N, STANDARDS RELATING TO THE 

PROSECUTION FUNCTION AND THE DEFENSE FUNCTION §§ 5.8-5.9 COMMENTARY (ABA

PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, APPROVED DRAFT 1971)). Whether a 

statement qualifies as misconduct often depends upon the specific terminology used. 

Thornton, 10 S.W.3d at 235 (citing United States v. Stulga, 584 F.2d 142, 147 (6th 

Cir.1978) (stating “The use of the words ‘submit’ are not the equivalent of expressing an 

opinion.”)).
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In order to be entitled to relief on appeal, the defendant must “show that the 

argument of the prosecutor was so inflammatory or the conduct so improper that it affected 

the verdict to his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App.

1996). This court must consider the following factors when determining whether the 

argument of the prosecutor was so inflammatory or improper to negatively affect the 

verdict: 

(1) the conduct complained of viewed in the 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 improper 

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

errors in the record; and (5) the relative strength and weakness of the case.

State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (citations omitted).

As an initial matter, we note that the record clearly establishes what occurred in the 

trial court. Both parties’ closing arguments were transcribed and included in the record on 

appeal. The Defendant complains of the prosecutor making the following statements

during his closing argument: 

(1) Let’s go over what that proof was. Officer Troutt took the stand. You 

saw [Officer Troutt] testify and answer questions about [sic], and I would 

submit to you that his testimony was credible.

(2) He got behind the building with him from behind, saw him, and he saw 

him throw those items down. At that point, it becomes a different ballgame. 

He’s seen somebody commit a crime. See[n] them in possession of illegal 

items. So, his testimony is credible. He has no reason to lie.

(3) But there’s several other reasons why Mr. Hampton’s testimony is 

completely incredible. First of all, unlike Officer Troutt and Officer Shell, 

who are credible witnesses, who have no reason to lie about this, who have 

no ill will towards Mr. Hampton, who were just doing their jobs as police 

officers; Mr. Hampton is not a credible witness. 

(4) Lastly, Mr. Hampton’s story is incredible because when he was arrested 

and searched, and he admitted to this, he had a large amount of currency in 

multiple small denominations on his person, as well as a digital scale with 

marijuana residue on it inside—on his person. Think about that.
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(5) Ladies and gentlemen of the jury, Mr. Hampton’s version of these facts 

is absolutely preposterous. The officers’ testimony was credible.

The Defendant relies on State v. James Thomas, Jr., No. M2014-00972-CCA-R3-

CD, 2015 WL 4484888, at *7-8 (Tenn. Crim. App. July 23, 2015), for the assertion that 

the complained-of statements in the instant case warrant “revers[ing] a conviction based 

on prosecutorial vouching” following plain error review. The Defendant insists that the 

statements in the instant case are “nearly identical” to those in Thomas. In Thomas, the 

prosecutor made statements during his closing argument that the victim was “telling the 

truth[,]” questioned “[w]hat has [the Defendant] said that makes sense or has a ring of truth 

to it?”, stated that the account of events given by the victim was “not a lie[,]” and implicitly 

stated that the defendant would not have been charged without the testifying detective’s 

“determination that he was a credible, truthful witness.” Id. at *7. This court ultimately 

reversed the defendant’s convictions because of the prosecutor’s statements, noting that 

the comments “‘affected the verdict to [Defendant’s] detriment.’” Id. at *8 (citations 

omitted). The Defendant also asserts that, despite the State’s arguments, “this court has 

not always, as the State suggests, rubber-stamped a prosecutor’s statements in the presence 

of the phrase ‘I submit.’” 

As relevant to the instant case, the prohibition against a prosecutor expressing his 

or her opinion about the truth or falsity of any testimony or evidence also prohibits him or 

her from “personally endorsing or vouching for or giving his or her opinion . . . the witness 

must stand on their own.” Goltz, 111 S.W.3d at 7 (citations omitted). Therefore, we agree 

with the Defendant that the prosecutor’s statements that the Defendant “was not a credible 

witness” whose “testimony [wa]s completely incredible” and multiple references to Officer 

Troutt’s testimony as “credible” were improper. However, unlike Thomas, we cannot 

conclude that such statements warrant plain error relief. 

Not all errors in a closing argument necessitate a new trial. When viewed in overall 

context, the prosecutor’s statements were not so inflammatory as to require reversal. In 

examining the above-referenced Chalmers factors, we note that defense counsel reminded 

the jury that the Defendant “swore an oath, as did the officers, to tell the truth.” Defense 

counsel further instructed the jury during closing arguments that they were only to use the 

Defendant’s previous convictions “to consider his credibility.” The prosecution did not 

offer a rebuttal closing argument. The record also reflects that the trial court instructed the 

jury that “[s]tatements, arguments, and remarks of counsel are intended to help you in 

understanding the evidence and applying the law, but they are not evidence.” The trial 

court went on to instruct the jury that it was “the exclusive judges of the credibility of the 

witnesses and the weight to be given to their testimony.” We generally presume that the 

jury has followed the trial court’s instructions. See State v. Butler, 880 S.W.2d 395, 399 

(Tenn. Crim. App. 1994). We cannot conclude that the prosecutor’s comments negatively 
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affected the verdict and therefore cannot conclude that the Defendant’s right to a fair trial 

was affected or that consideration under plain error is necessary to do substantial justice. 

The Defendant is not entitled to relief. 

III. Sufficiency of the Evidence. The Defendant challenges the sufficiency of the 

evidence and contends that the State failed to establish that he was in constructive 

possession of the weapon. The State argues, and we agree, that the evidence was sufficient 

to support the Defendant’s conviction. “Because a verdict of guilt removes the 

presumption of innocence and raises a presumption of guilt, the criminal defendant bears 

the burden on appeal of showing that the evidence was legally insufficient to sustain a 

guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 

838 S.W.2d 185, 191 (Tenn. 1992)). “Appellate courts evaluating the sufficiency of the 

convicting evidence must determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 

(Tenn. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. 

P. 13(e). When this court evaluates the sufficiency of the evidence on appeal, the State is 

entitled to the strongest legitimate view of the evidence and all reasonable inferences that 

may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) 

(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review 

for sufficiency of the evidence “‘is the same whether the conviction is based upon direct 

or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) 

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact 

must evaluate the credibility of the witnesses, determine the weight given to witnesses’ 

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). 

Moreover, the jury determines the weight to be given to circumstantial evidence, and the 

inferences to be drawn from this evidence, and the extent to which the circumstances are 

consistent with guilt and inconsistent with innocence, are questions primarily for the jury. 

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). 

When considering the sufficiency of the evidence, this court “neither re-weighs the 

evidence nor substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d 

at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). 

As pertinent to our review, Tennessee Code Annotated section 39-17-1307(b)(1)(A) 

provides that a person commits an offense “who unlawfully possesses a firearm” and “[h]as 

been convicted of a felony involving the use or attempted use of force, violence, or a deadly 
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weapon.” There is no dispute that the Defendant’s prior convictions for aggravated 

burglary qualify as a felony conviction involving the use of violence and force. A person 

may possess contraband alone or jointly with others. State v. Richards, 286 S.W.3d 873, 

885 (Tenn. 2009) (citations omitted); State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. 

App. 1984). In addition, “[p]ossession may be actual or constructive.” State v. Robinson, 

400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 

2001)). Constructive possession is established when a person has “‘the power and the 

intention at a given time to exercise dominion and control over an object, either directly or 

through others.’” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) 

(quoting United States v. Craig, 522 F.2d 29, 32 (6th Cir. 1975)). It has also been defined 

as “‘the ability to reduce an object to actual possession.’” Id. (quoting United States v.

Martinez, 588 F.2d 495, 498 (5th Cir. 1979)). Constructive possession depends on the 

totality of the circumstances in each case and may be established through circumstantial 

evidence. Robinson, 400 S.W.3d at 534 (citing Tenn. Code Ann. § 39-17-419). The mere 

presence of a person in an area where drugs are found is not, by itself, sufficient to support 

a finding of constructive possession. Id. (citing State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. 

Crim. App. 2000)). In addition, an individual’s mere association with a person in control 

of the drugs or the property where the drugs are found is not enough to support a finding 

of knowing possession. Id. (citing State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. 

App. 1987)). 

Taking the evidence in the light most favorable to the State, the proof at trial showed 

that JPD officers had received a tip from a confidential informant as to the location of an 

individual who had an outstanding arrest warrant. Officer Troutt had a photo and 

description of the person who was the subject of the arrest warrant. When he responded to 

the location, there were about 10 men standing around, including the Defendant. Officer 

Troutt observed the Defendant, who appeared to match the same build and clothing as the 

subject wanted in the arrest warrant, begin to walk away. Officer Troutt could not see the 

Defendant’s face clearly and began to follow the Defendant, without ordering the 

Defendant to stop. As Officer Troutt followed the Defendant, he observed the Defendant 

take a firearm and a bag of marijuana from his person and throw them to the ground. 

Officer Troutt then detained the Defendant and determined that the Defendant was not the 

person wanted for arrest. Officer Troutt went to the area where he observed the Defendant 

throw the items to the ground and recovered a firearm and a bag of marijuana within close 

proximity of each other. Officer Troutt had previously observed that the area where the 

firearm had been thrown was free of debris. The firearm was wet and muddy, which was 

consistent with the weather conditions that night. Officer Troutt testified that there was no 

one else in the area where the firearm and marijuana was found. After arresting the

Defendant, Officer Troutt determined that he had been previously convicted of a felony. 

Based on the above proof, a rational jury could have determined that the Defendant 
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exercised dominion and control over the firearm to satisfy the element of constructive 

possession. Accordingly, the Defendant is not entitled to relief.

CONCLUSION

Based on the foregoing reasoning and analysis, the judgment of the trial court is affirmed.

____________________________________

 CAMILLE R. MCMULLEN, JUDGE