        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs November 7, 2001

      STATE OF TENNESSEE v. ANTHONY DEWAYNE McELRATH

                  Direct Appeal from the Circuit Court for Decatur County
                        No. 99-CR-550     C. Creed McGinley, Judge



                   No. W2000-02241-CCA-R3-CD - Filed February 7, 2002


Following a jury trial, Defendant, Anthony Dewayne McElrath, was found guilty of sale of cocaine,
a Class B felony. In this appeal, he challenges the sufficiency of the evidence to sustain the
conviction, and argues that he was so prejudiced by the trial court’s comments to a witness called
by the defense, that the conviction should be reversed. After a thorough review of the record, we
affirm the judgment of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE
G. RILEY, J., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Louis W. Ringger, Decaturville,
Tennessee (at trial), for the appellant, Anthony Dewayne McElrath.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
G. Robert Radford, District Attorney General; and Jerry Wallace, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

       For several months beginning in the latter portion of 1997 and continuing into 1998, the Drug
Task Force of the Twenty-Fourth Judicial District, in conjunction with the Office of the Inspector
General (OIG) of the United States Housing and Urban Development office (HUD), conducted an
undercover drug operation focused upon drug sales in housing projects in Decaturville, Tennessee.
Special Agent Herschel Harvell, Jr., of OIG, worked the undercover operation in conjunction with
confidential informants. The confidential informant in Decaturville was Rhonda Swift.

       According to the testimony of Agent Harvell and Ms. Swift, Ms. Swift became acquainted
with the Defendant in Decaturville about the time that she moved into an apartment in the public
housing project. Defendant earned his living washing cars and also waxing and “detailing” the
vehicles. On the morning of December 19, 1997, Ms. Swift spoke with Defendant at the car wash
where he worked. She informed Defendant that her boyfriend was coming to town and that he
wanted to buy drugs. Defendant told her that if her boyfriend, “Herschel,” came to her apartment
that “we wouldn’t use the word ‘crack’ or ‘drug.’ That we would call it a car wash.”

        Later that afternoon, Agent Harvell arrived at Ms. Swift’s apartment in Decaturville at
approximately 3:00 p.m. Defendant arrived at approximately 4:45 p.m. Defendant was introduced
to Agent Harvell and they had a brief conversation about the purchase of cocaine. Defendant asked
Agent Harvell, “Do you want a full car wash?” Agent Harvell replied affirmatively. Harvell had
previously been informed by Ms. Swift that Defendant would refer to a drug transaction as a “car
wash.” Harvell gave the Defendant $250.00 in cash, and Defendant left the apartment. Within an
hour, Defendant returned to Ms. Swift’s apartment. He insisted that Ms. Swift accompany him
outside the apartment. They went down some steps to the outside of the apartment building and
around a storage building. There the Defendant pulled two packages out of his pocket and threw
them on the ground. Defendant told Ms. Swift that he threw the packages on the ground because that
way no one could say that he had sold her any drugs. The Defendant left and Ms. Swift returned to
her apartment where she and Agent Harvell inspected the substance in the package, which appeared
to be powder cocaine.

        Harvell and Swift took the packages to McKenzie, Tennessee, to turn them over to Steve Lee,
the director of the Twenty-Fourth Judicial Drug Task Force. Harvell and Swift had already placed
the packages in a sealed Ziploc bag and placed their initials on the bag prior to taking the packages
to Steve Lee. Lee testified that the packages were taken to the Crime Laboratory of the Tennessee
Bureau of Investigation where the substance was analyzed for weight and content. Kaye Sherriff,
a forensic scientist with the TBI Criminal Laboratory, testified that she examined the substance
contained in the two packages. The proof showed that the substance, weighing 2.6 grams, was
cocaine, a Schedule II drug.

       Steve Lee also testified that in February 1998, Rhonda Swift was terminated as a paid,
confidential informant because she tested positive for drug use. However, he clarified that he had
no information, or other indication, that she was using drugs at the time of the transaction between
her and Defendant in December 1997.

        After the State rested, the Defendant testified after he called three other witnesses to testify.
Carlton Sanders, who had lived in Decatur County virtually all of his life, testified that he knew the
Defendant and had worked with him in the car wash business. In fact, he was working with
Defendant in December 1997 in the car wash and “detailing” business. He testified that a “complete
detailing” of a vehicle cost approximately $125.00. E. L. Sanders testified that at the time of trial,
he was serving a sentence in the Decatur County Jail for selling drugs, having been caught in the
same undercover operation which resulted in the charges being brought against the Defendant.
Before going to jail, he had also cleaned cars and detailed them. He testified that the going rate for
a “detail” of a pickup truck was $175.00. Belva Dixon testified that she formerly lived in the


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housing project in Decaturville and was a next-door-neighbor to Rhonda Swift in December 1997.
Ms. Dixon further testified that Ms. Swift tried to get Ms. Dixon to consume drugs with her.

        The Defendant testified that, between July and September 1997, he had been released from
prison on parole from a prior cocaine-related conviction. He returned to Decaturville and resumed
work washing and detailing vehicles. He claimed to have first met Ms. Swift on December 16 or
17, 1997, when she approached him asking for directions to the housing project in Decaturville.
Defendant stated that he was at the car wash where he worked at the time he met Ms. Swift. He
stated that she returned the next day and told him that she needed her vehicle, a sports car, cleaned,
and that her boyfriend would be in town the next day with his pickup truck. She also wanted to get
her boyfriend’s truck cleaned. She advised that she wanted a “complete detail” on both vehicles, and
Defendant quoted her a price of $125.00 for each vehicle. Defendant stated that he did not meet
Special Agent Harvell until after he had returned the completely cleaned pickup truck to him on
December 19. He stated that Ms. Swift wanted to look at her just-cleaned vehicle and walked with
the Defendant outside of her apartment to look at the vehicle while Mr. Harvell remained inside the
apartment. The Defendant stated that Ms. Swift handed him $250.00 in cash, as payment for
cleaning and detailing the two vehicles. He stated that while he was outside preparing to leave the
apartment complex, a person named Teddy Carr drove up and motioned Ms. Swift to come over to
his vehicle to speak with him. There was other testimony at trial that Teddy Carr was a confidential
informant for Agent Harvell in a housing project in nearby Parsons, Tennessee. Defendant denied
selling any cocaine, throwing any cocaine on the ground, and emphatically stated that the $250.00
he received from Ms. Swift was only for cleaning and detailing the two vehicles.

                                            ANALYSIS

       Defendant first contends that the evidence was insufficient to sustain his conviction for a sale
of cocaine. We disagree.

        On appeal, the burden rests with Defendant to prove that the evidence was insufficient to
support the verdict returned by the trier of fact. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). We must review the evidence, in the light most favorable to the prosecution, to determine
if “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000) (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A guilty verdict shall be set
aside on appeal if the evidence was insufficient to support the findings of guilt beyond a reasonable
doubt. Tenn. R. App. P. 13(e).

        The prosecution is entitled to the strongest legitimate view of the evidence in the record, as
well as all reasonable and legitimate inferences that may be drawn from the evidence. See Keough,
18 S.W.2d at 181 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). “A guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. The trier of
fact resolves all questions concerning witnesses’ credibility, the weight and value to be given the
evidence, and all factual issues; the evidence will not be reweighed or reevaluated. See id.; State v.

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Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987).

         On appeal, the Defendant argues that the only proof linking him to the sale of cocaine was
the testimony of Rhonda Swift, an admitted drug user who had a financial incentive to make as many
drug purchases as possible. Proof at the trial showed that if there was a drug sale transaction
involving Ms. Swift, she would receive a $100.00 payment. If there was no transfer of illegal drugs,
Ms. Swift would not receive the $100.00 payment.

        The jury was given two sharply contrasting versions of events. By its verdict, the jury chose
to accredit the testimony of the witnesses for the State. Conflicts in the testimony were thus resolved
in favor of the prosecution’s theory. See Bland, 958 S.W.2d at 659. Questions regarding the
credibility of the witnesses, and the weight and value given the evidence, were resolved by the jury.
See id. On appeal, we are unable to reweigh or re-evaluate the evidence. See id. Taken in a light
most favorable to the State, as we are required to do, there was sufficient evidence presented to
support the conviction. Defendant is not entitled to relief on this issue.

       In his second issue, Defendant argues that certain comments made by the trial court to Ms.
Belva Dixon, following her testimony, but in the presence of the jury, were prejudicial to Defendant.
Defendant asserts that the comments by the trial court destroyed the credibility of the witness.

        Prior to trial, Ms. Dixon was served with a subpoena to appear in court at 9:00 a.m. on
December 16, 1999 and testify on behalf of Defendant. When the case was called for trial,
Defendant’s trial counsel (who is not the same counsel on appeal) advised the court that Ms. Dixon
was not present. The trial court ordered the sheriff to immediately obtain custody of Ms. Dixon and
bring her to court. She subsequently appeared in court and testified during Defendant’s case-in-
chief. When Ms. Dixon was allowed to step down from the witness chair, the following comments
by the court were made:

       THE COURT:              Step down. You need to remain in our courtroom because
                               you’re in custody; do you understand that?

       [MS. DIXON]:            I’m –

       THE COURT:              Yes, you are.

       [MS. DIXON]:            Am I allowed to make a phone call?

       THE COURT:              We’ll deal with you shortly. You weren’t here this morning.
                               You’re aware that court starts at 9:00 and you were under
                               subpoena. So you stay with me and we’ll resolve your
                               matter; all right?

       WITNESS:                All right. Thank you.

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        We disagree with the Defendant that the comments made by the trial court to the witness
destroyed the credibility of the witness. In any event, Defendant’s trial counsel did not object to the
trial court’s comments to the witness in the presence of the jury and did not request any curative
instructions to the jury regarding the comments. A party is not entitled to relief when he or she fails
to take whatever action is reasonably available to nullify the harmful effect of an alleged error.
Tenn. R. App. P. 36(a).

        Furthermore, the issue was not included in the motion for new trial filed by Defendant’s trial
counsel. Therefore, the issue was waived. Tenn. R. App. P. 3(e). Defendant is not entitled to relief
on this issue.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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