        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                August 21, 2012 Session

           STATE OF TENNESSEE v. TAMMY MARIE WILBURN

                   Appeal from the Circuit Court for Blount County
                       No. C-17933 David R. Duggan, Judge




                No. E2011-01207-CCA-R3-CD - Filed January 23, 2013


The Defendant, Tammy Marie Wilburn, was convicted by a Blount County Circuit Court jury
of attempt to commit aggravated arson, a Class B felony. See T.C.A. § 39-14-302 (2010).
The trial court sentenced the Defendant as a Range I, standard offender to twelve years’
confinement. On appeal, the Defendant contends that the prosecutor’s statements regarding
his personal beliefs of witness credibility is reversible error. We affirm the judgment of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Stanley R. Barnett, Maryville, Tennessee, for the appellant, Tammy Marie Wilburn.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Rocky H. Young,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case relates to a house fire in which Eddie Ledbetter was injured. At the trial,
Blount County Sheriff’s Deputy Chris Morgan testified that he responded to a house fire on
Old Niles Ferry Road around 4:00 p.m. on January 28, 2009, and that when he arrived, he
saw a home fully engulfed in flames. He said the firemen had yet to begin extinguishing the
fire. He said that he heard a man, later identified as Eddie Ledbetter, yelling for help, that
he and some of the firemen helped carry Mr. Ledbetter outside the home, and that Mr.
Ledbetter was unconscious by the time they took him outside. He said Mr. Ledbetter had
visible signs of smoke inhalation around his nose and was unresponsive for a few minutes.
He said that medical treatment was provided and that Mr. Ledbetter became responsive
before being taken to the hospital. On cross-examination, Deputy Morgan stated that he
spoke briefly to Mr. Ledbetter before he was taken to the hospital and that Mr. Ledbetter said
the Defendant might be inside the home.

        Blount County Sheriff’s Department Detective Mike Seratt, an expert in the field of
arson investigation, testified that when he arrived at 4:30 p.m., he saw Mr. Ledbetter lying
on a gurney and receiving medical treatment. He identified a photograph of Mr. Ledbetter’s
saliva collected at the hospital showing that Mr. Ledbetter inhaled smoke and soot. He
identified photograph exhibits that showed extensive fire damage to the front right side of
Mr. Ledbetter’s home. He concluded that the fire originated in a closet inside one of the
bedrooms based on the amount of fire damage, fire patterns, char marks, and the manner in
which the fire moved. He excluded the cause of the fire as accidental or electrical and
concluded that the fire began with an open flame. He did not find any evidence of an
accelerant.

        Detective Seratt testified that Mr. Ledbetter was the only person found inside the
home, although he received information that the Defendant was also inside. He said his
investigation led him to conclude that the Defendant started the fire. He said he arrested and
interviewed the Defendant. He said the Defendant denied starting the fire. He said his
investigation showed that Denise Newman may have been at Mr. Ledbetter’s home before
the fire began and that Ms. Newman argued with the Defendant. He identified a photograph
of a jewelry box, a candle, and candle wax lying on gravel outside the home and said he
could not conclude with any certainty that the candle caused the fire. He did not know how
the items got outside.

        On cross-examination, Detective Seratt testified that the burn patterns from where the
fire originated showed that the bedroom door was open. He could not state whether the
bedroom window was open. He agreed that wax was found on the front “stoop” near the
front door and that the candle found outside was taken through the front door. He identified
a photograph of a lighter and a remote control found inside the home at the side door. He
identified two photographs of two additional lighters. He said he did not determine who
owned the lighters.

       Detective Seratt testified that the Defendant was photographed two days after the
house fire for evidence of bruises and scratches. He identified a photograph showing a
“lump” and a bruise on the Defendant’s right arm. He identified photographs showing a
scratch on the Defendant’s index finger, a swollen left knee, a one- to three-inch bruise on
her right rib cage, scratches on her right hand and thumb, and a scar on her right knee.

                                             -2-
       On redirect examination, Detective Seratt testified that the door leading to the
bedroom where the fire originated was open at some point during the fire. He agreed Mr.
Ledbetter smoked cigarettes. He denied knowing if any of the lighters ignited the fire. He
said the Defendant stated during her interview that the injuries to her knees and legs were
caused by Mr. Ledbetter, although Detective Seratt could not state with any certainty whether
the Defendant received her injuries from Mr. Ledbetter or from jumping out a window and
landing on the ground. On recross-examination, he stated that he could not exclude the
lighters as the ignition source of the fire. He said the Defendant told him that Mr. Ledbetter
struck her with a metal pipe, which was consistent with the Defendant’s rib bruises.

        Steve Ledbetter testified that he lived at 4755 Old Niles Ferry Road and that he was
Eddie Ledbetter’s brother. He said he was the sole owner of the property and home in which
his brother lived. He said he did not give anyone permission to burn his property. He said
that the Defendant was his cousin and that he had known her all his life. He said that his
brother was forty-six or forty-seven and that he was the conservator over his brother’s affairs.
He said his brother had difficulty writing, reading, and understanding. He said attorney
Daphne Moffatt was his brother’s guardian ad litem. He said his brother was “run over by
a car” while riding his bicycle when he was a child and was hospitalized for about three
months. He said his brother did not work.

       Steve Ledbetter testified that he, his brother, and the Defendant went to town around
11:00 the morning of the fire. He said the Defendant stayed periodically at his brother’s
home. He said the Defendant did not work and had no place to live. He said that his brother
bought beer and that the Defendant bought a one-half pint bottle of tequila. He said he left
them at his brother’s home around 12:30 p.m. and went home. He denied hearing his brother
and the Defendant argue. He said the Defendant called him around 2:30 p.m. offering him
homemade chili.

       Steve Ledbetter testified that he knew Denise Newman, who came to his brother’s
home around the time his brother received his money each month. He said he asked Ms.
Newman to stay off his property and to stop taking his brother’s money. He said that on the
day of the fire, he saw Ms. Newman’s car at his brother’s home and that Ms. Newman was
there for about fifteen to twenty minutes. He said that after the housefire, he had Ms.
Newman arrested for trespassing on his property.

        Steve Ledbetter testified that he called his brother around 3:00 or 3:30 p.m. the day
of the fire and that he heard the Defendant while speaking to his brother. He said that about
twenty minutes later, he saw smoke coming from his brother’s home, that he ran to the home,
and that he yelled for his brother and the Defendant. He said he told the firemen the
Defendant’s bedroom was on fire. He said that fire was coming from the Defendant’s open

                                              -3-
bedroom window and that the window was usually closed. He denied witnessing an
argument between the Defendant and Ms. Newman or an argument between his brother and
the Defendant. He said the Defendant did not say anything about his brother’s hitting her
with a metal pipe.

       Steve Ledbetter testified that he stayed at the scene after his brother was taken to the
hospital and that he realized the Defendant was not inside the home when a fireman said
there was not a human body inside the home. He denied having a reason to burn down the
house and denied being behind on the mortgage. He denied that his brother attempted
suicide in the past, that his brother was upset with him, or that his brother threatened to burn
down the house. He admitted that he threatened to burn the Defendant’s belongings two
weeks before the fire. He said that the Defendant stored her belongings in his home’s leaky
basement, that her belongings were molding and causing an odor, and that he threatened to
burn her belongings if she did not remove them from his basement. He said the belongings
were removed after the fire. He denied threatening to burn the Defendant’s belongings that
were kept at his brother’s house.

       Steve Ledbetter testified that he could tell if his brother were intoxicated, that his
brother had to drink at least twelve beers to be intoxicated, and that there were three beers
missing from the twelve-pack. He said his brother did not drink liquor. He denied that his
brother was intoxicated on the day of the fire.

        On cross-examination, Steve Ledbetter testified that his brother was mentally disabled
and denied that his brother spent time in a mental institution. He said his brother took
medicine for bipolar disorder. He admitted that he was not with his brother all day before
the fire and that he did not know if his brother drank liquor that day. He agreed his brother
had a problem with beer and had been arrested for driving under the influence and possession
of marijuana. He agreed his brother had been drinking the morning of the fire but said his
brother did not have “that much.” He said his brother did not take his medication that
morning. He admitted he did not know what happened inside the home.

        Paul Edward “Eddie” Ledbetter testified that he lived at 4749 Old Niles Ferry Road,
that the Defendant was his cousin, and that he had convictions for “possession,” being a
habitual motor vehicle offender, and driving under the influence. He said the Defendant
came to his house twice the day of the fire. The Defendant arrived about 10:00 or 11:00 a.m.
to go to the store with him and his brother. He purchased beer, and the Defendant bought a
bottle of tequila. He said that his brother drove them to his house and that the Defendant left.
He denied knowing where the Defendant went when she left and said she returned after
lunch. He recalled the Defendant’s stating she was going to make chili and her calling his
brother to offer him a bowl.

                                              -4-
       Eddie Ledbetter testified that he met Denise Newman through the Defendant and that
Ms. Newman came to his home the day of the fire. He said Ms. Newman brought the
Defendant back to his home around 3:30 or 3:45 p.m. He said that the Defendant and Ms.
Newman began to argue and that the argument did not become physical. He identified the
jewelry box found at the scene as belonging to his sister and said the Defendant threw it at
Ms. Newman’s car. He said Ms. Newman left when he threatened to call the police. He said
that the Defendant entered the home and that he watched television. He said he smelled
smoke about fifteen minutes later.

        Eddie Ledbetter testified that he ran through the hall, kicked open the Defendant’s
bedroom door, and saw the fire inside the closet. He said he ran outside to connect the water
hose and attempted to extinguish the flames. He said he “passed out” on the kitchen floor
attempting to put out the flames. He said that before he lost consciousness, he saw the
Defendant leave the home and run toward the woods and that he called 9-1-1. He denied
starting the fire and said the Defendant was the only other person inside the home that day.

       Eddie Ledbetter testified that the Defendant stayed at his home periodically. He said
his brother told him to tell the Defendant that he was going to burn her belongings if she did
not remove them from the basement. He said he relayed the information to the Defendant.

       On cross-examination, Eddie Ledbetter testified that he did not drink alcohol on the
morning of the fire and that he did not begin drinking until lunchtime. He said he took the
medication at bedtime to treat bipolar disorder but admitted it was possible he took the
medication that morning. He said he was not supposed to drink alcohol while taking his
medication. He admitted that he did not testify at the preliminary hearing that he saw the
Defendant run toward the woods. He stated that although he thought the water hose lost
pressure, he agreed that he testified at the preliminary hearing that the hose was not
connected to the spigot.

       Eddie Ledbetter testified that the Defendant had stayed at his home for the two days
before the fire and agreed that he stated at the preliminary hearing that the Defendant had not
stayed at his home during the two weeks before the fire. He agreed he stated at the
preliminary hearing that the Defendant did not have any belongings in his home, although
the Defendant had some belongings in his home at the time of the fire.

        Eddie Ledbetter testified that he was not upset with the Defendant the day of the fire
and denied making sexual advances toward the Defendant. He said that he did not hit the
Defendant with his fists or a steel bar and that he did not shove her out the front door causing
her to fall on concrete.



                                              -5-
       Denise Newman testified for the defense that she had known the Defendant for years
and that she knew the Ledbetters through the Defendant. She thought she and Eddie
Ledbetter were friends. She said that she had seen Mr. Ledbetter drink to excess and that
when he drank, he acted “crazy” and talked to himself. She said Mr. Ledbetter tried to fight
people when he was drinking.

        Ms. Newman testified that she saw Eddie Ledbetter the week before the fire, that he
was drinking, and that “he seemed like he wanted rid of [the Defendant].” She denied being
at Mr. Ledbetter’s home the day of the fire but said she was there earlier that week. She said
that the Defendant lived with Mr. Ledbetter at the time and that she saw the Defendant while
she was there. She said she helped the Defendant move her belongings into Mr. Ledbetter’s
home. She said the Defendant had furniture in the basement. She denied that someone
borrowed or used her car the day of the fire. She stated that she did not have an argument
with the Defendant on the day of the fire. She admitted she had a history of smoking
marijuana and drinking beer.

        On cross-examination, Ms. Newman testified that she did not “have anything against
[Eddie Ledbetter] other than that marijuana deal.” She said Mr. Ledbetter gave her and her
father a check drawn from Mr. Ledbetter’s account and made payable to Mr. Ledbetter. She
said that she drove Mr. Ledbetter to her father’s house and that he asked her father to cash
the check for him. She said her father cashed the check and gave the money to Mr.
Ledbetter. She denied stealing the check and said she knew Steven Ledbetter controlled
Eddie’s financial accounts. She agreed Steven Ledbetter stopped payment on the check.

       Ms. Newman testified that she was at Mr. Ledbetter’s home twice in the two weeks
before the fire and that she was there the day before the fire. She denied that she and the
Defendant fought over cocaine or crack cocaine and said that she and the Defendant had
never argued. She denied the Defendant’s throwing a jewelry box at her the day of the fire
and having any problems with Steven Ledbetter. She agreed Steven Ledbetter called the
police “over the crack deal.” She agreed the police were called regarding Eddie Ledbetter’s
check.

       Clara Wilburn testified that she was the Defendant’s mother and that the Ledbetter
brothers were her nephews by marriage. She said that Eddie Ledbetter was a heavy drinker
and that he wanted to argue and fight when he was intoxicated. She said that after Mr.
Ledbetter was released from the hospital, he left the hospital with an IV still in his arm. She
said Mr. Ledbetter told her that he was supposed to get thousands of dollars from the
insurance company and that he was going to use the money to pay his fines, to pay his
brother’s debts, and to build a log cabin.



                                              -6-
       Ms. Wilburn testified that the Defendant lived with her for a while, that the Defendant
moved out, and that the Defendant moved in with Eddie Ledbetter. She said the Ledbetter
brothers told her that the Defendant was living with Eddie. She said she and the Defendant
had “a disagreement” about “some behaviors” at a Christmas party just before she moved in
with Mr. Ledbetter.

       On cross-examination, Ms. Wilburn testified that she did not dispute that the
Christmas party occurred on December 13, 2008, and said that the Defendant did not live
with her from December 13 to the day of the fire. She denied that Eddie Ledbetter stayed the
night at her home after he left the hospital. She denied talking to the Defendant about the fire
and denied the Defendant’s asking to stay at her home after the fire.

       Ms. Wilburn testified that the last time she saw Eddie Ledbetter fight was several
years before her testimony and that he jumped on her husband and sprayed her husband with
pepper spray. She knew Ms. Newman through the Defendant and said Ms. Newman was
welcome in her home.

      The Defendant testified that after she was involved in a car accident, she moved in
with Eddie Ledbetter. She said her belongings were inside the bedroom where the fire
began. She said that she was bedridden for two weeks and that during the third week, Mr.
Ledbetter became verbally abusive. She tried to stay in her bedroom as much as possible,
which made Mr. Ledbetter angry. She said that when Mr. Ledbetter became intoxicated, he
made “rude remarks” and made sexual “gestures toward[] her body.” She said this made her
uncomfortable. She denied telling anyone about his behavior. She denied that Eddie and
Steven Ledbetter threatened to burn her belongings if they were not moved.

       The Defendant testified that the night before the fire one of Eddie Ledbetter’s friends
stopped by the home, that they stayed in the living room, and that she stayed in her bedroom.
She said that at 5:00 a.m., the radio was playing loudly and that Mr. Ledbetter was yelling.
She said she got out of bed and entered the living room. She said that she began talking to
Mr. Ledbetter’s friend and that Mr. Ledbetter did not like it. He told his friend that the
Defendant was his girlfriend. She said that after his friend left, Mr. Ledbetter became
furious, flipped her chair over, and swung a steel rod at her. She said that Steven Ledbetter
took her and Eddie to the store later that morning.

       The Defendant testified that Eddie Ledbetter was intoxicated when Steven Ledbetter
took them to the store. She said that she and Eddie Ledbetter entered the liquor store, that
she bought a bottle of Black Velvet, and that she put the bottle in the truck. She said that
they entered the grocery store and that she bought beer and other items. She said they
returned home and that Eddie began to “kill the whole bottle” of liquor. She said that she put

                                              -7-
three beers in the refrigerator and the remainder under her bed and that he came through her
bedroom door with the steel pipe and destroyed all her personal belongings. She said that
he swung the pipe at her, that she put up her arms, and that he struck her with the pipe. She
said he grabbed her and threw her out the front door. She identified the photographs of her
injuries and said they were caused by Mr. Ledbetter.

        The Defendant testified that she did not see her bedroom on fire and denied that she
started the house fire. She stated that after Mr. Ledbetter threw her out the front door, she
stood up and ran into the woods to get away from him and that she hid there until nightfall.
She said that after nightfall, she began to walk toward her friend Gina’s restaurant.

        On cross-examination, the Defendant testified that the car accident occurred after she
moved from her mother’s home and after she moved her belongings into Eddie Ledbetter’s
home. She said that although she did not want to socialize with Eddie and his friend the
night before the fire, she had sexual intercourse with Eddie’s friend. She said his name was
James, though she did not know his last name. She denied that James paid her for sex and
said that the money she used at the grocery and liquor stores came from selling one of her
chairs to James’ sister before she met James.

       The Defendant testified that although Steven Ledbetter was a dependable person and
that she could have called him when Eddie Ledbetter assaulted her, she was only thinking
about getting away from Eddie. She acknowledged she did not call her mother or the police
for help. She denied that she could have stayed with Ms. Newman and said she “stopped
associating” with Ms. Newman in 2007 because of “the things that she was doing and an
incident that happened in her life.” She said that Ms. Newman came to Mr. Ledbetter’s home
twice in the two weeks before the fire to obtain “his pills and . . . money.” She agreed Ms.
Newman took advantage of Mr. Ledbetter.

       The Defendant testified that Mr. Ledbetter threw her out the front door before noon
and that she hid in the woods from noon until nightfall. She did not recall calling Steve
Ledbetter to ask him if he wanted a bowl of chili. She said she stayed the night with her
friend Gina. She said she did not learn of the house fire until the next day when she was
arrested at Walmart. She said, though, that the cuts and scratches possibly came from the fire
and running through the woods.

       On redirect examination, the Defendant testified that she did not see or argue with Ms.
Newman the day of the fire. She identified the photograph of her jewelry box on the ground
outside the home and said she last saw the box on her dresser before Eddie Ledbetter entered
her bedroom with the metal pipe.



                                             -8-
       Eddie Ledbetter was recalled as a rebuttal witness and testified that he did not strike
the Defendant with a steel pole on the day of the fire and that he did not destroy any of her
personal belongings. He denied being angry that the Defendant had sex with his friend. He
said that although there was rebar in the basement, there was none upstairs. He denied
drinking the bottle of liquor.

        On cross-examination, Eddie Ledbetter testified that he did not keep a piece of rebar
behind the front door for protection. He said he thought the Defendant drank the liquor and
did not know if the bottle was found. He said that his friend’s name was Jake, that they were
not drinking, and that nobody was at his home after dark. On redirect examination, he stated
that Jake was at his home before he and the Defendant left to go to the grocery and liquor
stores.

       Upon this evidence, the jury convicted the Defendant of attempt to commit aggravated
arson. The trial court sentenced her to twelve years’ confinement. This appeal followed.

        The Defendant contends that the prosecutor’s comments during his closing argument
regarding his personal beliefs about witness credibility rises to the level of reversible error.
The State contends that Defendant waived the issue because she failed to raise the issue in
her motion for a new trial. Alternatively, the State responds that although the prosecutor’s
statements were improper, the statements did not rise to reversible error. We agree with the
State that the statements were not reversible error.

         During closing argument, the prosecutor told the jury that the critical issue in the case
was whether the Defendant was at the home at the time the fire started. He told the jurors
that if they believed the Defendant left the home around noon, the State failed to prove its
case beyond a reasonable doubt. He said that “Steve Ledbetter is, to me, an incredibility [sic]
credible witness for you to listen to.” He reminded the jury that Mr. Ledbetter testified that
he spoke to the Defendant around 2:30 p.m. the day of the fire about whether he wanted chili
and that he spoke with his brother about thirty minutes before the fire and heard the
Defendant in the background. He said he believed the Defendant was at the home around
the time of the fire. The Defendant did not object.

       The prosecutor stated that the Defendant’s testimony was “absolutely incredible, to
me, to sit and listen to.” With regard to Ms. Newman, the prosecutor stated,“Her situation
and her lifestyle [was] such that it’s almost impossible for me to believe anything [she said].”
He said that he thought Ms. Newman was at Mr. Ledbetter’s home the day of the fire because
Steven Ledbetter saw her car at the home. Although the Defendant did not object, the
prosecutor said, “Let me step back. Because it doesn’t matter what I believe and I shouldn’t
even be using that phrase. And I apologize for saying that I believe.”

                                               -9-
        The prosecutor told the jury that the Defendant’s theory that Eddie Ledbetter started
the fire while he remained inside the home was “absolutely incredible.” With regard to the
Defendant’s hiding in the woods until nightfall, the prosecutor stated that although he
believed the Defendant hid in the woods, he “did not believe for an instant. . . .” The
prosecutor stopped himself from finishing the statement and apologized to the court. The
prosecutor stated that the “logical conclusion” was that the Defendant hid in the woods
because she started the fire inside the home.

       During the State’s rebuttal argument, the prosecutor addressed some of the
inconsistencies in Eddie Ledbetter’s testimony and told the jury that he did not think Mr.
Ledbetter lied during his testimony. The Defendant objected, and the trial court sustained
the objection. The prosecutor asked the court, “Did I say it again, Judge?” The court told
the prosecutor to “stay away from what you think.” The prosecutor apologized and said he
“didn’t realize [he] said it that time.” The Defendant did not ask for an immediate curative
instruction, and the trial court did not provide an instruction.

        As a preliminary matter, we note that the Defendant did not include this issue in her
motion for a new trial. The State argues that failure to include the issue in the motion for a
new trial results in waiver of the issue on appeal. See T.R.A.P. 3(e) (stating “that in all cases
tried by a jury, no issue presented for review shall be predicated upon error in the . . .
misconduct of . . . counsel . . . committed or occurring during the trial of the case, . . . unless
the same was specifically stated in a motion for a new trial”). Because the Defendant failed
to include the issue in her motion for a new trial, we are limited to plain error review. See
T.R.A.P. 36(b).

       Our supreme court has adopted the factors developed by this court to be considered

       when deciding whether an error constitutes “plain error” in the absence of an
       objection at trial: “(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)). The record must establish all five factors before
plain error will be recognized 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. In order for this court to reverse the judgment of a trial court, the error
must be “of such a great magnitude that it probably changed the outcome of the

                                               -10-
[proceedings],” and “recognition should be limited to errors that had an unfair prejudicial
impact which undermined the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at
642.

        Our supreme court has stated that “closing arguments are a valuable privilege that
should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). The
State and the Defendant “must both be given the opportunity to argue the facts in the record
and any reasonable inferences that may be drawn therefrom.” State v. Seay, 945 S.W.2d 755,
763 (Tenn. Crim. App. 1996). “Argument[s] must be temperate, predicated on evidence
introduced during the trial, relevant to the issues being tried, and not otherwise improper
under the facts or law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). There
is “greater leeway in arguing their positions before the jury, and the trial court has significant
discretion in controlling these arguments.” Terry, 46 S.W.3d at 156. A trial court’s decision
regarding closing arguments will be reversed only upon an abuse of discretion. Smith v.
State, 527 S.W.2d 737, 739 (Tenn. 1975).

       When a statement made during a closing argument is improper, “the test for
determining if reversal is required is whether the impropriety ‘affected the verdict to the
prejudice of the defendant.’” State v. Cribbs, 967 S.W.2d 773, 783 (Tenn. 1998) (quoting
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). The factors to consider include the
conduct at issue viewed in light of the facts and circumstances of the case, any curative
actions by the trial court, the intent of the prosecutor’s improper statement, the cumulative
error of the improper statement and any additional errors in the record, and the strength or
weakness of the case. Id.

       We note that the Defendant only objected once to the prosecutor’s improper
statements. There were multiple objectionable statements made by the prosecutor, and
because the Defendant did not object, she did not avail herself from preventing error. The
prosecutor’s statements about his personal assessment of witness credibility were improper,
and the State concedes the statements were improper. We cannot conclude, though, that the
prosecutor’s statements more probably than not affected the outcome of the trial. See
T.R.A.P. 36(b).

       When the prosecutor realized he improperly commented on the credibility of the
witnesses, he stopped his argument and told the jurors that it did not matter what he believed
and that he was wrong for telling the jurors what he believed or disbelieved. When the
prosecutor made an additional statement regarding his disbelief of the Defendant’s testimony,
he stopped himself again, apologized to the trial court, and rephrased his statement to address
the “logical conclusion” to be drawn from the evidence. The prosecutor made one final
improper statement, and the Defendant made her only objection. The court admonished the

                                              -11-
prosecutor for his statements. The prosecutor did not make another improper statement. We
conclude that although the prosecutor made statements about his personal beliefs in the
credibility of the witnesses, the record fails to show that the comments affected the outcome
of the trial. See Adkisson, 899 S.W.2d at 642.

        Although evidence was presented that called into question Eddie Ledbetter, Ms.
Newman, and the Defendant’s credibility, the record does not show evidence impugning the
credibility of Detective Seratt and Steven Ledbetter. Detective Seratt concluded that the
house fire was intentionally started after he excluded mechanical and electrical causes. Eddie
Ledbetter was inside the home at the time of fire and required medical treatment as a result
of his injuries. The primary issue in the case was whether the Defendant was present at the
home around 4:00 p.m when the fire began. Steven Ledbetter testified that he spoke to the
Defendant on the telephone at 2:30 p.m. about having chili and that he spoke to his brother
thirty minutes before the fire and heard the Defendant in the background. There is no
evidence to suggest Mr. Ledbetter was mistaken about the time of the telephone calls or that
he had a motive to be dishonest. The jury credited Mr. Ledbetter’s testimony placing the
Defendant at the home near the time of the fire. This evidence contradicts the Defendant’s
testimony that Eddie Ledbetter threw her out the front the door before noon and that she hid
in the woods until nightfall. The Defendant is not entitled to relief.

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




                                                    ___________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -12-
