        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT JACKSON
                   Assigned on Briefs October 30, 2001 at Knoxville

              STATE OF TENNESSEE v. DEDONNAS R. THOMAS

                     Appeal from the Criminal Court for Shelby County
                         No. 98-13520    Joseph B. Dailey, Judge



                   No. W2000-01465-CCA-R3-CD - Filed January 30, 2002



The defendant was tried by jury in the Shelby County Criminal Court on two counts of felony
possession of marijuana arising from a single episode. The jury acquitted the defendant of
possession of marijuana with intent to sell but convicted him of possession with intent to deliver.
The trial court ordered a two-year workhouse sentence. On appeal, the defendant questions the
sufficiency of the evidence, and he complains that erroneous evidentiary rulings, inadequate jury
instructions, and prosecutorial misconduct during closing arguments require a new trial. Based upon
our review, we affirm the conviction.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

Leslie I. Ballin, Memphis, Tennessee, for the Appellant, Dedonnas R. Thomas.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General for the Appellee, State of Tennessee.

                                           OPINION

                In the early morning of June 14, 1998, the defendant, Dedonnas R. Thomas, was
apprehended while in possession of approximately 49 grams of marijuana. The circumstances of his
arrest are virtually uncontested.

              Brookwood Apartments in Shelby County, Tennessee is a large complex with over
400 units. Ingress to the complex is controlled through a guardhouse and a security gate. Arrist
Douglas, a private security guard, was working the six p.m. to six a.m. shift at the apartment
complex on June 13 and 14, 1998. Shortly after midnight, the defendant drove up to the gate, signed
in, and told Douglas whom he was going to visit. As the defendant then approached the gate,
Douglas noticed the butt of a handgun under the armrest on the driver’s side. As a result, Douglas
told the defendant to pull over in front of the guard house and get out of the automobile.

                The defendant complied with Douglas’s request. At trial, Douglas testified that as
the defendant got out of the car, “small bags of marijuana started falling off of him.” Douglas
thought the bags were falling from the defendant’s pants pocket. Douglas ordered the defendant to
stand against the car, and Douglas searched the defendant. In the defendant’s right pocket, Douglas
found a large bag of what he surmised was marijuana with other smaller bags inside. Douglas and
another security officer took custody of the plastic bags and the gun1 from the defendant’s car, and
they detained the defendant until the police arrived. While waiting for the police, the defendant
solicited Douglas to throw the drugs away because “he didn’t want that charge.”

                 The defendant was arrested, and the police confiscated and preserved as evidence the
thirteen plastic bags believed to contain marijuana. The substance was later weighed and analyzed.
It tested positive for tetrahydrocannabinol, which is the active ingredient in marijuana. The net
weight of the contraband after it was removed from the plastic bags was 49 grams, not quite two
ounces.

                  Because the weight of marijuana involved was more than 14.175 grams but less than
ten pounds, the defendant was charged with the felony Class E variety of unlawful possession of a
controlled substance with intent to sell (Count 1) and unlawful possession with intent to deliver
(Count 2). See Tenn. Code Ann. § 39-17-417, -417(g)(1) (Supp. 2000). The defendant did not
testify at trial, and he did not dispute that he unlawfully possessed 49 grams of marijuana. He
defended on the basis that the state could not show that he intended to deliver or sell the marijuana.
The jury did not agree, and it found the defendant guilty of unlawful possession with intent to
deliver.

                                           I. Sufficiency of the Evidence

                The defendant fervently insists that the state’s evidence was insufficient as a matter
of law to prove his intent to deliver the marijuana that he possessed when arrested. The defendant
points to the uncontested evidence that when arrested he was driving a 1985 Oldsmobile, that he did
not have a beeper or cellular telephone with him, that he was dressed casually in jeans and a tee shirt,
that he wore no ostentatious jewelry, and that he possessed no cash. According to the defendant,
these telling details refuted the notion that he was plying the trade of “drug dealing,” particularly
because the state did not offer any evidence of the purity or street value of the marijuana or about
the packaging.




          1
              The parties stipulated at trial that the gun did n ot belong to the d efendan t. It was o wn ed by M s. Sop hia
Rowell.

                                                             -2-
                 The state counters that intent to sell or deliver may be inferred from the quantity of
the controlled substance possessed along with any other relevant facts surrounding the arrest. The
state relies on the amount of marijuana in the defendant’s possession together with the method of
packaging in thirteen individual plastic bags as being sufficient to sustain an inference of intention
to deliver, rather than possession for mere personal use.

                When an accused challenges the sufficiency of the evidence, an appellate court
inspects the evidentiary landscape, including the direct and circumstantial contours, from the vantage
point most agreeable to the prosecution. The reviewing court then decides whether the evidence and
the inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable
doubt that the defendant is guilty of the charged crime. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 In determining sufficiency of the proof, the appellate court does not replay and
reweigh the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Witness credibility, the weight and value of the evidence, and factual disputes are entrusted to the
finder of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).
Simply stated, the court will not substitute its judgment for that of the trier of fact. Instead, the court
extends to the State of Tennessee the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences that may be drawn from the evidence. See
Cabbage, 571 S.W.2d at 835.

                The evidence in this case, viewed most favorably to the state, amply supports the
verdict that the defendant unlawfully possessed marijuana with intent to deliver. Code section 39-
17-419 permits a jury to infer

                from the amount of a controlled substance or substances possessed by
                an offender, along with other relevant facts surrounding the arrest,
                that the controlled substance or substances were possessed with the
                purpose of selling or otherwise dispensing. . . . Such inference[ ] shall
                be transmitted to the jury by the trial judge’s charge, and the jury will
                consider such inference[] along with the nature of the substance
                possessed when affixing the penalty.

Tenn. Code Ann. § 39-17-419 (Supp. 2000). The jury in this case was instructed consistently with
the statute.

                Although the defendant had none of the more obvious trappings thought to be
associated with “drug dealers,” the lack of such accouterments is not fatal to the legal sufficiency of
the state’s case. We agree with the state that the quantity of marijuana possessed by the defendant


                                                   -3-
that evening, in conjunction with the method by which it was packaged in thirteen separate plastic
bags, supported a reasonable inference of the defendant’s intent to deliver. The defendant’s only
rebuttal was that he did not look like a drug dealer, and he argued in closing that inasmuch as
consumer bulk purchases of items such as paper towels and soft drinks are commonplace, it was not
implausible that he was merely stocking up on marijuana for his personal use. The jury heard the
evidence and considered the arguments and inferences offered by the parties. The jury rejected the
defendant’s theory and arguments, and that is its prerogative. See State v. Larry Wayne Burney, No.
M1999-00628-CCA-R3-CD (Tenn. Crim. App., Nashville, April 7, 2000) (defendant had 2.5 grams
of cocaine base, divided into two large rocks and eighteen smaller ones, and had $37 in cash on his
person; evidence sufficient to infer defendant intended to sell the cocaine); State v. Larry G. Hart,
No. 02C01-9406-CC-00111 (Tenn. Crim. App., Jackson, June 28, 1995) (in view of all
circumstances, evidence that defendant possessed one gram of cocaine base divided into eighteen
rocks was sufficient to support conviction for possession with intent to sell).

               The evidence, we hold, is sufficient to support the conviction.

                                     II. Opinion Testimony

              The defendant next complains that the security guard, during direct examination,
offered an improper and harmful opinion that the defendant was trying to conceal the bags of
marijuana as he got out of his automobile. The objected-to opinion arose during the following
exchange:

               Q.      Did the bags that fell off of the defendant appear –

               A.      They were the same as the ones that were in the bag.

               Q.      Okay.

               A.      The big, loose plastic bag, it was the same ones. Just, I guess,
                       he tried to conceal them with something before he got out and
                       they fell out.

               MR. BALLIN: Object to what he guessed, Your Honor. I ask the jury
               to be instructed to disregard it.

               THE COURT: Overruled. Go ahead.

                In our view, the security guard was attempting to explain for the jury his perception
of the bags of marijuana that fell from the defendant as he got out of his vehicle. A lay witness is
permitted to offer an opinion if it is based on the witness’s own personal knowledge and
observations and if it is helpful to a clear understanding of the testimony or the determination of a
fact in issue. See Tenn. R. Evid. 701(a). The admission or exclusion of such evidence is reviewable


                                                 -4-
on appeal only for abuse of discretion. See State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App.
1997). We are not persuaded that the trial court abused it discretion in this instance.

                Nonetheless, even if the testimony should have been excluded or stricken, we fail to
see how the defendant was prejudiced. The defendant did not contest possession of the marijuana;
the issue was whether he intended to sell or deliver the marijuana. The defendant reasons that the
testimony invited the jury to conclude that he had more than the usual motive to conceal his
possession, which was indicative of a drug dealer. The logic of this argument, however, eludes us.
The defendant cites no authority – and we are aware of none – that illegal drug users are less prone
to conceal their drugs than are drug dealers. Consequently, we are not prepared to attribute prejudice
to the security guard’s testimony.

                                         III. War on Drugs

               The defendant next accuses the state of resorting to inflammatory rhetoric that was
designed to scare the jury into returning a guilty verdict. The basis for this accusation is the state’s
invocation of the “War on Drugs” theme during closing arguments.

                       MS. WEIRICH: Mr. Ballin told you yesterday that this case
                wasn’t about the war on drugs. As a representative of the citizens of
                this community, I take great issue with that.

                        MR. BALLIN: Judge, if I could interject an objection.

                        THE COURT: Overruled.

                        MS. WEIRICH: It most certainly is about the war on drugs,
                ladies and gentlemen. The citizens of the state of Tennessee do not
                want drugs in their community. They don’t want drugs sold on the
                street corners. They don’t want drugs sold in their schools. This is
                about the war on drugs.

                 “The fairness or unfairness of comments appealing to the national or local community
interests of jurors . . . will depend in great part on the nature of the community interest appealed to,
and its relationship to, and the nature of, the wider social-political context to which it refers.” United
States v. Solivan, 937 F.2d 1146, 1152 (6th Cir. 1991), quoted in State v. Pulliam, 950 S.W.2d 360,
368 (Tenn. Crim. App. 1996). Arguments that invoke the “War on Drugs” as a rallying point to
return a guilty verdict can be particularly pernicious. See Pulliam, 950 S.W.2d at 368. Although the
nature of the defense advanced in this case opened a great many proverbial windows and doors, the
state’s rhetoric, in our opinion, was not confined to the generous metes and bounds marked off by
the defendant. As one jurist has written, “Merely because a defense attorney opens the door does
not mean that a prosecutor can come storming through it in a pair of hobnailed boots.” United States
v. Sepulveda, 15 F.3d 1161, 1189 n.24 (1st Cir. 1993).


                                                   -5-
               The state introduced its “War on Drugs” argument by reminding the jury that defense
counsel had told them yesterday “that this case wasn’t about the war on drugs.” We interpret this
remark as most likely referring to something defense counsel said during opening statements, and
evidently the “War on Drugs” was mentioned. We are unable to surmise more because the record
does not contain a transcript of opening statements.

                We do, however, have the benefit of a transcript of closing arguments. From the
transcript, we glean that the state waived first argument, preferring to address the jury in rebuttal
after the defendant’s closing argument. The centerpiece of the defendant’s closing argument was
that the defendant did not fit the profile of a “drug salesman.” Although the state did respond and
insist, as quoted above, that this case was about the “War on Drugs,” our review of the transcript
convinces us that the state was not applying the ordinary connotation to the phrase. Rather, the state
was legitimately attacking the defense efforts to stereotype drug dealers. After telling the jury, as
quoted above, that “[t]his is about the war on drugs,” the state continued, “And here’s the
defendant’s ammunition. See, we’re fighting the battle against, what does a drug dealer look like?”

               Had the state pursued the approach that prosecutions should not be decided on the
basis of an accused’s appearance, no problem likely would have arisen. The state’s argument,
however, quickly veered off course. After explaining that the battle was against “what does a drug
dealer look like,” the state argued,

               According to Mr. Ballin’s argument, unless someone is driving a
               shiny car, wearing tons of jewelry, loaded down with cash and
               equipped with a cell phone and a beeper, got to let them go. . . . What
               are you going to do, state of Tennessee? What we’re going to do is
               tell the defendants in this community, the Dedonnas Thomases of this
               community, it’s not okay. If you believe Mr. Ballin’s argument, the
               defendant will be rewarded for his sneakiness, for his criminal
               behavior. Can’t you see if now, the word getting back to the drug
               dealers in the community. Hey, you all, get rid the [sic] those phones
               and those beepers and those rings and those shiny flashy clothes and
               those cars that you like to drive –

                       ...

                       . . . Get rid of it because, see, here’s the gig. This is what
               we’ve got to focus on. We need to be driving around in beat-up cars,
               don’t have a lot of cash on you, don’t have a beeper, don’t have a
               phone, then what’s the state of Tennessee doing to do? What can the
               state do to us? Ladies and gentlemen, this is what we can do, stop
               and listen to what these 13 identical bags of marijuana are telling you.
               Listen to them. Casual use? Let’s see, Monday morning, Monday
               night. Tuesday morning, Tuesday night – come on. Is it reasonable


                                                 -6-
               to think that the defendant went out and blew his money on some
               marijuana to smoke for his own fun and that’s what he got? No, it’s
               not.

                By this argument, the state was exhorting the jury to return a guilty verdict because,
otherwise, the state would be powerless to combat drug trafficking. This type of argument has been
condemned as improper. See United States v. Barker, 553 F.2d 1013, 1024-25 (6th Cir. 1997)
(finding reversible misconduct when prosecution argued that “if you can’t take this evidence and find
these defendants guilty on this evidence that [sic] we might as well open all the banks and say,
‘Come on and get the money, boys, because we’ll never be able to convict them’”); Brown v. United
States, 370 F.2d 242 (D.C. Cir. 1966) (improper closing argument when the prosecutor warned the
jury that to acquit the defendant would leave the police powerless to protect themselves and citizens
against assault short of resort to martial law). Here, the state explicitly urged the jury to send a
message to “the Dedonnas Thomases of this community” by finding the defendant guilty.

                There is another aspect of the state’s summation that is troubling. The state’s
rhetorical question, “What can the state do to us?,” equated a not-guilty verdict with immunizing
drug dealers from prosecution. This argument was misleading. Tennessee most certainly does
criminalize illegal possession of a controlled substance, and the defendant in this case was
admittedly guilty of illegal possession of marijuana. Perhaps the prosecutor does not agree with the
misdemeanor classification of simple possession, but that disagreement should be addressed to the
legislature, not our juries.

               When a prosecutor makes improper comments during closing argument, we must
determine “whether the impropriety ‘affected the verdict to the prejudice of the defendant.’” State
v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994) (quoting Harrington v. State, 385 S.W.2d 758, 759
(Tenn. 1965)). On appellate review, the court should “consider several factors including [1] the
intent of the prosecutor, [2] the curative measures which were undertaken by the court, [3] the
improper conduct viewed in context and in light of the facts and circumstances of the case, [4] the
cumulative effect of the remarks with any other errors in the record, and [5] the relative strength or
weakness of the case.” State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997); see also Judge
v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). In addition, we must keep in mind that
closing argument is subject to the trial court’s discretionary control. See State v. Middlebrooks, 995
S.W.2d 550, 557 (Tenn.1999).

                We have carefully studied the closing remarks made by the prosecution; considering
the five factors we conclude that the state’s misconduct did not affect the verdict to the prejudice of
the defendant. While factor (2) favors the defense because the trial court overruled the defense
objections and took no curative action, the other factors weigh against the defendant. Although the
state’s remarks trespassed into improper territory, the trespass was an overzealous attempt to respond
to the defendant’s arguments and not calculated to unfairly prejudice the defendant. The facts and
circumstances of the case were straightforward; it was the “bulk consumer purchases” and the
“doesn’t look like a drug dealer” theories of defense that prompted the state’s rebuttal. There are no


                                                 -7-
other errors by which to gauge any cumulative prejudicial effect. Last, the state presented a solid
case for conviction of possession with intent to distribute or sell.

                The defendant is not entitled to relief on this claim.

                             IV. Jury Instruction: Simple Possession

                 The defendant raises a challenge to the trial court’s jury charge regarding the lesser-
included offense of misdemeanor, simple possession. The nature of the defendant’s complaint
appears to be that the trial court misstated the elements of simple possession by failing to clarify that
the statute does not define any maximum amount that can be possessed for personal use. This
failure, the defendant says, violated due process and the jury trial guarantee of the Sixth Amendment.

                 The offense of simple possession is statutorily defined: “It is an offense for a person
to knowingly possess or casually exchange a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course
of professional practice.” Tenn. Code Ann. § 39-17-418 (1997). The defendant cites no authority
that a jury instruction defining simple possession should or must charge that the offense is unlimited
by any specific maximum quantity of illegal substance.

                 We also note that the record fails to include a transcript of the instructions as read to
the jury, although it contains what purports to be a written copy of the trial court’s charge. Failure
to include a transcript normally waives review of appellate issues pertaining to jury instructions
because without a complete record, it is impossible for this court to discern whether the written jury
instruction conforms to the instructions as read to the jury and thus, whether error actually occurred.
See Tenn. R. App. P. 24(b); State v. Jones, 623 S.W.2d 129 (Tenn. Crim. App.1981). Furthermore,
the record fails to reflect that the defense complied with the requirement of Criminal Procedure Rule
30 that special requests for jury instructions be filed in writing. Tenn. R. Crim. P. 30(a). A trial
court will not be placed in error where a requested special instruction was not presented in writing.
See State v. Mackey, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982).

                This issue, we hold, has been waived.

                                    V. Prior Murder Conviction

              The defendant’s final lamentation is that the trial court improperly applied Tennessee
Evidence Rule 609(a)(3) to allow the state to use a 1986 conviction for second degree murder to
impeach the defendant if he elected to testify at trial. The defendant cites no authority; instead he
advances a generalized proposition that the potential for unfair prejudice is inherent in impeachment
with a conviction for a crime that is far more serious than the charged offense. We reject his
argument.




                                                   -8-
                Subject to certain conditions for admissibility, Tennessee Evidence Rule 609
authorizes the use of proof of a witness's prior convictions in order to attack a witness's credibility.
Tenn. R. Evid. 609(a). The prior conviction must be for a felony or a crime involving dishonesty
or false statement. Id. 609(a)(2). To be eligible as an impeaching conviction, a prior felony
conviction need not involve dishonesty. When the witness to be impeached is the criminal
defendant, however, the state must give notice prior to trial of its intent to utilize the conviction for
impeachment purposes, Id. 609(a)(3), and upon request, the court must determine the admissibility
of an eligible conviction by deciding whether “the conviction's probative value on credibility
outweighs its unfair prejudicial effect on the substantive issues.” Id. In making this determination,
“two criteria are especially relevant.” State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). First, the
court must “analyze the relevance the impeaching conviction has to the issue of credibility” and
“explain [the relevance] on the record,” id., and second, it must “assess the similarity between the
crime on trial and the crime underlying the impeaching conviction,” id. (quoting Cohen, et al.,
Tennessee Law of Evidence § 6.09[10][c], at 6-97 to -99 (4th ed. 2000)).

               On appellate review, the trial court's rulings on the admissibility of prior convictions
for impeachment purposes are subject to reversal only for abuse of discretion. See, e.g., Mixon, 983
S.W.2d at 674.

                 In this case, the issue is the balancing of probative value versus unfair prejudicial
effect; that is, whether the probative value of the defendant's second degree murder conviction on
the defendant's credibility outweighed its prejudicial effect upon the substantive issues presented at
trial. The defendant’s second degree murder conviction implicates a crime of violence. “[F]elonies
of a violent nature reflect on the moral character of a witness[, and] . . . this evidence is not usually
without probative value.” State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).
Furthermore, the crime of second degree murder bears no similarity to the crime of felony possession
of illegal narcotics. Accordingly, we see no abuse of discretion in permitting impeachment use of
the second degree murder conviction, and we affirm the trial court’s ruling. See Mixon, 983 S.W.2d
at 674 (unfairly prejudicial effect of an impeaching conviction on the substantive issues greatly
increases if the impeaching conviction is substantially similar to the crime for which the defendant
is being tried).

               Having considered the issues raised on appeal and finding no reversible error, we
affirm the judgment of the trial court.




                                        __________________________________________
                                        JAMES CURWOOD WITT, JR., JUDGE




                                                  -9-
