             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT NASHVILLE
                      Assigned on Briefs December 14, 2004

                     STATE OF TENNESSEE v. ELLIS J. BURNETT

                     Direct Appeal from the Circuit Court for Cannon County
                            No. F-2406    James K. Clayton, Jr., Judge



                         No. M2001-01495-CCA-R3-CD - Filed June 6, 2005


The appellant, Ellis J. Burnett, was convicted by a jury in the Cannon County Circuit Court of
aggravated arson. He received a sentence of twenty-three years incarceration in the Tennessee
Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the
jury instructions, the prosecutor’s closing argument, the trial court’s evidentiary rulings, and alleges
the ineffective assistance of counsel. Upon our review of the record and the parties’ briefs, we affirm
the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

David Wayne Piper, Woodbury, Tennessee (at trial) and Daryl M. South, Murfreesboro, Tennessee
(at trial and on appeal), for the appellant, Ellis J. Burnett.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                   OPINION

                                           I. Factual Background

       In January 1996, the appellant was indicted by the Cannon County Grand Jury for aggravated
arson.1 In the light most favorable to the State, the proof adduced at trial revealed that at
approximately 9:00 p.m. on November 8, 1995, Melissa Burnett was baking cupcakes in the kitchen


        1
           The appellant was previously convicted of aggravated arson based upon the facts recounted herein; however,
his previous conviction was reversed and remanded for new trial. See State v. Ellis Junior Burnett, No. M1999-00179-
CCA-R3-CD, 2000 W L 62110, at *1 (Tenn. Crim. App. at Nashville, Jan. 26, 2000).
of her home at 549 Hollow Springs Road in Cannon County while her husband, Tony, and her six-
year-old son, Thomas, slept in their respective bedrooms. After hearing a car door slam, Melissa
looked out of her kitchen door and saw a red glow “going through my yard and across the road.”2
Melissa believed that the red glow was fire. She went to look out the door of her living room and
saw that the fire was burning on the gas meter of her house, trailing through the road, and running
across the street to a tree. Melissa began to panic and ran to wake her husband.

        Tony and Melissa then ran outside to combat the flames. The area that was burning smelled
of gasoline. Once outside, Tony observed “a line of fire from behind a tree across the road all the
way under my gas meter.” The gas meter and the side of the house were in flames. The fire
extended from the side of the Burnetts’ home and across the road near a field of high grass. As they
were fighting the fire, the Burnetts saw a small, green Datsun hatchback being driven on the road
in front of their house. The vehicle had two occupants. The driver did not stop the vehicle to
investigate the fire. In fact, the driver drove through the flames that crossed the road and left the
area. Tony, who was an officer with the Woodbury Police Department, recognized the vehicle as
belonging to Timmy Elkins, an individual Tony had recently arrested for drugs.

        While the Burnetts were fighting the fire with water from a garden hose and a towel, Tony
called Officer Kevin Mooneyham, whom he knew was on duty at that time, and requested that
Officer Mooneyham find and detain the occupants of the green Datsun for questioning. Tony also
called David Pruitt, a deputy with the Warren County Sheriff’s Department, to request that he stop
the vehicle if he encountered it before Officer Mooneyham.

         Officer Mooneyham ultimately stopped the green Datsun. The appellant emerged from the
front passenger side of the vehicle and asked Officer Mooneyham “what was going on.” Officer
Mooneyham was unable to answer because he did not know at that time why he had been requested
to stop the vehicle. As Officer Mooneyham approached the appellant, he detected a “moderate odor
of gasoline” coming from the vehicle. Additionally, Officer Mooneyham observed a gas can in the
rear compartment of the vehicle.

        Upon approaching the vehicle, Officer Mooneyham recognized that the driver was Wynona
Parker. Officer Mooneyham knew that Parker’s driver’s license had been revoked; therefore, he
arrested her for driving on a revoked license.

        Deputy Pruitt and Tony Burnett arrived on the scene while Officer Mooneyham had the
occupants of the green Datsun detained. Tony saw his uncle, the appellant, near the green Datsun.
The two men engaged in a verbal altercation, and Deputy Pruitt separated them. Shortly thereafter,
Tony observed a two-gallon gas can in the rear compartment of the vehicle. He noted that the nozzle
of the gas can “was wet as if it had been used that night.” Tony believed that the appellant was
involved in the fire “[b]ecause I knew that a fire bug always returns back to the scene, and he was


         2
          Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize their first
names. W e mean no disrespect to these individuals.

                                                           -2-
in that car and that jug was in that backseat and it appeared as if it had just been used, and he was
a passenger in that vehicle.”

        A tow truck arrived to impound the green Datsun. The gas can was not removed from the
vehicle when it was impounded. Deputy Pruitt drove the appellant home. Deputy Pruitt noticed that
the appellant’s tennis shoes and his pants below the ankle were wet. Additionally, when the
appellant exited the vehicle, Deputy Pruitt noticed wet spots and grass seeds where the appellant’s
feet had been.

        The next day, Tom Carmooch, an agent with the Tennessee Bureau of Investigation (TBI),
began investigating the fire. Agent Carmooch went to the Burnetts’ home and noticed that “[a]cross
the road in front of [the] house was a large tree, and there was a black trail or mark from that tree,
around behind it, across the road, and going to the gas meter or the gas system, to the heating unit
of [the] house.” Later that day, Agent Carmooch went to the impound lot and obtained the gas can
from the rear compartment of the green Datsun. The gas can was approximately half-full of fuel.
Shortly thereafter, Agent Carmooch relinquished the gas can and the investigation to TBI arson
investigator Larry Dauberman.3

        Agent Dauberman testified that during the course of his investigation, he and Agent
Carmooch went to the appellant’s home. Agent Dauberman testified that the appellant insisted that
he was innocent and that Elkins, the owner of the green Datsun, was the perpetrator of the crime.
Thereafter, following the appellant’s indictment by the Grand Jury, the appellant agreed to cooperate
with a plan designed to get Elkins to incriminate himself. Agent Dauberman, representing the
District Attorney General’s office, and David Dinkins, an investigator with the Public Defender’s
office, coordinated the operation.

        A wireless transmitter was placed on the appellant, and he then went to Elkins’ home. Agent
Dauberman instructed the appellant on the type of questions he should ask and the information that
was needed to incriminate Elkins in the fire. The appellant was wired for sound on two occasions,
and, thereafter, he went to Elkins’ residence. Although the appellant was explicitly instructed to
question Elkins regarding the fire, the appellant failed to do so on both occasions. Instead, the
appellant asked Elkins “social-type questions” and discussed his impending arson charges, noting
his need for money and an attorney. Dinkins recalled that on the second occasion, while they were
discussing the appellant’s legal problems, Elkins informed the appellant, “I’m going to keep my
mouth shut.” The appellant responded, “I appreciate it.” Further attempts to use the appellant to
gain information against Elkins were abandoned.

        Additionally, Agent Dauberman testified that when he went to the Burnetts’ home he saw
the black burn trail left by the fire. He concluded that the trail was indicative of the use of a liquid
accelerant. The accelerant appeared to be concentrated around the gas meter. The left end of the
home had a black smoke stain that was ten to twelve feet high, which stain indicated that the fire had

       3
           Dauberman’s surname is also spelled “Dobberman” and “Doberman” in the record.

                                                    -3-
produced black soot common to fire from “hydro-carbon based fuel” such as gasoline or kerosene.
Agent Dauberman took a sample of the soil from around the gas meter and submitted the soil sample
and a fuel sample from the gas can found in the green Datsun to the TBI crime laboratory for testing.
The gas can was also tested for fingerprints.

       At the TBI crime laboratory, no viable fingerprints were found on the gas can because it was
constructed of “very textured, hard plastic” that was not conducive to the lifting of latent
fingerprints. Agent Sandra Evans, a forensic scientist with the TBI crime laboratory, tested the soil
sample and the fuel sample. Both samples contained “gasoline range petroleum distillate” and
“kerosene range distillate.” The testing revealed that both samples contained “a very strong gasoline
presence and a very weak kerosene presence.” Agent Evans opined that the samples from the soil
and from the gas can were “very similar.”

        Based upon the foregoing, the jury convicted the appellant of aggravated arson. The trial
court sentenced the appellant as a Range I standard offender to twenty-three years incarceration. On
appeal, the appellant contends that there was insufficient evidence to support his conviction; the trial
court erred in failing to instruct the jury fully on circumstantial evidence; the prosecutor made
inappropriate statements during closing argument; the trial court should have excluded “evidence
regarding the [appellant’s] cooperation with law enforcement officials and his use of surveillance
equipment”; and the appellant received the ineffective assistance of counsel.

                                             II. Analysis

                                   A. Sufficiency of the Evidence

        On appeal, a jury conviction removes the presumption of the appellant’s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court
why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

        A person commits arson when that person “knowingly damages any structure by means of
a fire or explosion . . . without the consent of all persons who have a possessory, proprietary or
security interest therein.” Tenn. Code Ann. § 39-14-301(a)(1) (1997). Aggravated arson occurs
when a person commits arson when one or more persons are present inside the structure. See Tenn.


                                                  -4-
Code Ann. § 39-14-302(a)(1) (1997). The proof is undisputed that Tony, Melissa, and Thomas
Burnett were inside the home during the fire. Additionally, Tony testified that no one had consent
to set fire to his home. Moreover, there was evidence that the structure was damaged during the fire.

        The appellant’s chief complaint appears to be that there was insufficient evidence to identify
him as the perpetrator. However, we conclude that there was considerable circumstantial evidence
that the appellant was the perpetrator. He was seen in the area at the time of the fire. The vehicle
he was in contained a gas can that was half-full of fuel. The vehicle also smelled strongly of
gasoline. The fuel in the can was very similar to the fuel used to start the fire. Also, the nozzle of
the gas can was wet, an indication that fuel had recently been poured from it. The appellant’s pants
and shoes were wet and were studded with grass seeds. The field across from the Burnetts’ home
was filled with tall grass that had gone to seed. We conclude that the foregoing facts were sufficient
to sustain the appellant’s conviction for aggravated arson.

                                                B. Evidentiary Ruling

        Next, the appellant contends that “the trial court erred in refusing to grant [the appellant’s]
motion to exclude evidence regarding [the appellant’s] cooperation with law enforcement officials
and his use of surveillance equipment.” Specifically, the appellant alleges that the testimony of
Agent Dauberman and Investigator Dinkins regarding the appellant’s failure to ask Elkins questions
which might have incriminated Elkins in the crime should not have been admissible. The appellant
argues that the testimony was irrelevant, or, if relevant, unduly prejudicial.

         “‘Relevant evidence’ means 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; see also State v. Kennedy, 7 S.W.3d 58, 68 (Tenn.
Crim. App. 1999). Tennessee Rule of Evidence 402 provides that “[a]ll relevant evidence is
admissible except as [otherwise] provided. . . . Evidence which is not relevant is not admissible.”
However, even 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, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.
It is within the trial court’s discretion to determine whether the proffered evidence is relevant; thus,
we will not overturn the trial court’s decision absent an abuse of discretion. See State v. Forbes, 918
S.W.2d 431, 449 (Tenn. Crim. App. 1995).4

        First, we must determine if the contested proof is relevant. As we noted earlier, Agent
Dauberman and Investigator Dinkins testified that the appellant was thoroughly instructed on how
to question Elkins regarding the fire in order to incriminate Elkins and exculpate the appellant.
Despite the instructions, the appellant did not attempt to elicit incriminating information from Elkins
on either occasion when he was wired for sound. Instead, the appellant and Elkins engaged in casual


         4
           W e note that the trial court did not make a specific finding as to relevancy, or as to the balancing test between
probative value and prejudicial effect.

                                                            -5-
conversation regarding the appellant’s impending arson charges. During the second meeting, while
they were discussing the appellant’s legal problems, Elkins informed the appellant, “I’m going to
keep my mouth shut.” The appellant responded, “I appreciate it.” We note that in ruling on this
issue, the trial court stated, “I feel like it is admissible. . . . I think it bears on his state of mind to try
to direct the attention away from himself.” We agree that the evidence was relevant. At trial, the
appellant’s theory of defense was that Elkins was the perpetrator of the crime. Yet, when given the
opportunity to elicit incriminating evidence from Elkins, the appellant did not attempt to do so, and
notably expressed his appreciation to Elkins for his promise to remain quiet. We cannot conclude
that the risk of undue prejudice outweighs the probative value of the testimony.

                                           C. Closing Argument

        Next, we will turn to the appellant’s complaint that the State in its rebuttal closing argument
“on at least two separate occasions spoke and argued in such a manner which can only be construed
so as to inflame the passion and arouse the prejudice of the local jury.” It is well-established that
closing argument is an important tool for both parties during a trial; thus, counsel is generally given
wide latitude during closing argument, and the trial court is granted wide discretion in controlling
closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix).
“Notwithstanding such, arguments must be temperate, based upon the evidence introduced at trial,
relevant to the issues being tried, and not otherwise improper under the facts or law.” State v. Goltz,
111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

       Initially we note that the appellant did not object to any statements during the State’s rebuttal
closing argument. Ordinarily, absent such contemporaneous objection, the appellant would have
waived this issue. See Tenn. R. App. P. 36(a); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim.
App. 1992). Nevertheless, we conclude that the State did not commit reversible error by making the
statements.

        “In determining whether statements made in closing argument constitute reversible error, it
is necessary to determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In
connection with this issue, we must examine the following factors:

                 “(1) the conduct complained of viewed in context and in light of the
                 facts and circumstances of the case[;]

                 (2) the curative measures undertaken by the court and the
                 prosecution[;]

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

                 (4) the cumulative effect of the improper conduct and any other errors
                 in the record [; and]


                                                      -6-
               (5) the relative strength or weakness of the case.”

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

        During the appellant’s closing argument, the appellant repeatedly questioned the adequacy
of the police investigation. In pertinent part, the appellant, in closing, stated:

               You should not look at only one witness as having bias or prejudice,
               you should assume there’s bias and prejudice in all of us, because we
               all do have bias and prejudice. . . . [L]aw enforcement people are
               going to have a bias in favor of trying to protect other law
               enforcement people in doing what they can to do that. . . . I simply
               ask that you look at the credibility, look at what the person has to gain
               or lose, and to judge the credibility of these folks. . . .

                       In this case, what you find is you find a fundamentally flawed
               investigation that resulted in bogus charges. . . .

                        So, ladies and gentlemen, whenever you think about this case,
               I ask you to consider what you heard. Do police officers ever
               misrepresent the truth? That should be a concern. Have you ever
               been accused of something you didn’t do and them find that the facts
               started a media as it came along? Well, it may be that way in this
               case. . . . [After the grand jury,] [w]e start having some changes in
               testimony. We started having some basic changes in what happened.
               ...

               . . . I ask that you return a not guilty verdict, and I’m asking that you
               send a signal to the law enforcement community that you want to see
               good police work, we want to be safe in our homes, but we don’t
               want innocent people put in prison.

        Thereafter, the State commenced its rebuttal closing argument. During the rebuttal closing,
the State made the following comments, which comments are the basis of the appellant’s complaint
on appeal:

                       I told you you’d hear that. It’s all the police’s fault, that it’s
               a shoddy investigation, let’s send a message to the community; the
               police officers are a bunch of liars; they’re a bunch of incompetents;
               that somehow they’ve come up here in conspiracy to get this innocent
               man sent to prison.

               ....


                                                  -7-
                      Did you hear what [the appellant] told you, that police officers
               misrepresent the truth in an effort to sent and [sic] innocent man to
               the penitentiary.

        The appellant argues that the State’s comments were singularly designed to inflame the
passions of the jury “when there is simply no notation whatsoever in the entirety of the record that
[the appellant] suggested any of the law enforcement officials were liars.” However, based upon our
review of the closing arguments, we conclude that the State’s rebuttal closing argument is clearly
in response to the appellant’s insinuations during closing. See State v. Timothy Wayne Holland, No.
M2001-03129-CCA-R3-CD, 2002 WL 31007428, at *6 (Tenn. Crim. App. at Nashville, Sept. 4,
2002). Accordingly, we can discern no impropriety by the State in its closing. This issue is without
merit.

                                         D. Jury Instructions

        The appellant contends that “[t]he trial court erred in refusing to include a jury charge with
respect to the issue of circumstantial evidence in accordance with the rules as stated in Marable v.
State, 313 S.W.2d 451 (Tenn. 1958).” Initially, we note that the appellant did not complain
regarding the jury instructions at trial, arguably waiving this issue on appeal. See Tenn. R. App. P.
3(e). Moreover, the appellant has failed to include the jury instructions in the record for our review,
depriving this court of our ability to determine the propriety of the jury charge. See Tenn. R. App.
P. 24(b) (stating that “the appellant shall have prepared a transcript of such part of the evidence or
proceedings as is necessary to convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal”). “In the absence of an adequate record on
appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.”
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, the appellant is not
entitled to relief on this issue.

                                E. Ineffective Assistance of Counsel

         As his final issue, the appellant contends that his trial counsel was ineffective in failing to
request a continuance so that a subpoenaed witness could be brought before the court and in failing
to have expert testing conducted “to determine the amount of [fuel] as might be necessary to produce
a fire as alleged.” A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court


                                                  -8-
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Moreover,

                [b]ecause a petitioner must establish both prongs of the test, a failure
                to prove either deficiency or prejudice provides a sufficient basis to
                deny relief on the ineffective assistance claim. Indeed, a court need
                not address the components in any particular order or even address
                both if the [petitioner] makes an insufficient showing of one
                component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

        We note that this court has repeatedly cautioned that

                the practice of raising ineffective assistance of counsel claims on
                direct appeal is “fraught with peril” since it “is virtually impossible
                to demonstrate prejudice as required” without an evidentiary hearing.
                Instead, “ineffective assistance of counsel claims should normally be
                raised by petition for post-conviction relief.”

State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations omitted); see also State
v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992).

         The appellant raises two claims of ineffective assistance. First, he contends that “trial
counsel received an affidavit from a Tony Barrett and such statement clearly identifies Mr. Barrett
would testify that the perpetrator of the alleged crime was a Timmy Elkins and not the [appellant].”
Barrett was subpoenaed to testify at the appellant’s trial. However, Barrett did not appear. After two
witnesses testified that Elkins confessed to the crime, trial counsel rested. The appellant argues that
trial counsel should have moved for a continuance until Barrett’s presence could be obtained.
However, the record reflects that the substance of Barrett’s testimony, that Elkins was the
perpetrator, was a common theme in trial counsel’s cross-examination of the State’s witnesses and
in the testimony of two defense witnesses, Marilyn Dean Acott and Tammy Jo Parker. Therefore,
this testimony was before the jury, and Barrett’s testimony would have been cumulative. See
Howard Eugene Buchanan v. State, No. M2003-01815-CCA-R3-PC, 2004 WL 1114589, at *6
(Tenn. Crim. App. at Nashville, May 19, 2004), perm. to appeal denied, (Tenn. 2004). Thus, the
petitioner has been unable to establish prejudice in this regard.

        Finally, the appellant claims that “trial counsel’s failure to request that the liquid as
confiscated in the gas can be tested by such means and manner as to determine whether such liquid
was in such quantity as to even have the possibility of causing the fire at issue left a most basic issue
unresolved.” In other words, the appellant argues that trial counsel was ineffective by failing to
have an expert determine how much fuel would have been required to cause the fire and thus
determine if the amount of fuel missing from the gas can would have been sufficient to cause the


                                                  -9-
fire.

        At the appellant’s motion for new trial, the appellant testified:

                       I asked [trial counsel] to, you know – like I said before, I
               asked [trial counsel] would he file for an expert to go check it out and
               everything and determine how much fuel it would have used and
               everything. And [trial counsel] said I don’t think we need that. I
               think we already have enough the way it is.

Additionally, the appellant conceded that he did not have a specific expert in mind but he was “sure
there is people out there – experts out there that can do that.” He also conceded that he did not know
if it was even possible for an expert to determine the amount of fuel required to produce the fire that
occurred at the Burnetts’ home.

       From the foregoing, we conclude that the appellant has again failed to prove that he was
prejudiced by trial counsel’s representation. The appellant presented no proof that the test could be
performed nor was there proof that the results of such test would prove favorable to the appellant.
Therefore, the appellant is not entitled to relief on this issue.

                                          III. Conclusion

        Based upon the foregoing, we affirm the judgment of the trial court.

                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




                                                 -10-
