         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                              AT KNOXVILLE                     September 29, 1999

                                                                Cecil Crowson, Jr.
                            JULY SESSION, 1999                 Appellate Court Clerk




STATE OF TENNESSEE,           )    C.C.A. NO. 03C01-9808-CR-00294
                              )
      Appellee,               )
                              )
                              )    MCMINN COUNTY
VS.                           )
                              )    HON. CARROLL L. ROSS,
GLEN PORTER,                  )    JUDGE
                              )
      Appe llant.             )    (Sale of Cocaine)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF MCMINN COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

C. MICHAEL ROBBINS                 PAUL G. SUMMERS
46 North Third Street              Attorney General and Reporter
Suite 719
Memphis, TN 38103                  TODD R. KELLEY
(On A ppea l)                      Assistant Attorney General
                                   425 Fifth Avenu e North
CHARLES M. CORN                    Nashville, TN 37243
District Public Defender
                                   JERRY N. ESTES
THOMAS E. KIMBALL                  District Attorney General
Assistant Public Defender          Washington Avenue
110 ½ Washington Avenue            Athens, TN 37303
Athens, TN 37303



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

       This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure. The Defendant, Glen Porter, was indicted for the unlawful

sale of more than .5 grams of cocaine and fo r poss essio n with th e inten t to sell

more than .5 grams of cocaine, in violation of Tennessee Code Annotated § 39-

17-417. A McMinn County jury found the Defe ndan t guilty of th e offen se of s ale

of more than .5 grams of schedule II cocaine, though the Judgment reflects a

conviction for the sale of less than .5 grams of schedule II cocaine.1 The jury

then found the Defendant not guilty of possession with the intent to sell more than

.5 grams of cocaine, but convicted the Defendant of the lesser included offense

of simple possession of cocaine. The Defendant presents three issues for

review: (1) wheth er the evid ence is s ufficient to sustain the convictions; (2)

whether the trial judge erred by denying the Defendant’s request for a

continuance; and (3) whether the trial judge erred by permitting improper

argument by the prosecution. We find these issues to be without merit and affirm

the judgm ent of the tria l court.



       In August of 1997, Special Agent James Richardson of the Alcohol

Beverage Commission was contacted by Detective Bill Matthews of the Athens

Police Departm ent about dru g problems occurring in Athens, Tennessee. On

August 29, 1997, Richardson received $100.00 from Detective Matthews, which

       1
            While the transcript of the proceedings reflects that the jury returned a verdict of
guilty of sale of more than .5 grams of schedule II cocaine, which is a Class B felony, the
Judgment indicates that the Defendant was found guilty of sale of less than .5 grams of
cocaine, which is a Class C felony. The Defendant was sentenced to ten years, which is the
maximum sentence for a Class C felony under Range II, multiple offender, but which is below
the minimum for a Class B felony under Range II. While this discrepancy does not affect the
analysis of the issues presented, the case must be remanded for clarification of the record.

                                              -2-
he was to use to attempt to purchase crack cocaine from any willing seller on

Kilgore Street in Athens. Richardson drove to Kilgore Street and observed the

Defendant sitting on the front porch at 520 Kilg ore Stree t. Richard son po inted to

the Defendant, who approached the vehicle and said, “What you need?”

Richardson replied, “Can you do m e a hun dred?”, w hich he e xplained mean t a

hundred dollars of crack co caine. The D efendant the n told Richards on to drive

around the block, which he did. When he returned, Richardson exchanged the

$100.00 for five pieces of what he believed to be crack cocaine. Richardson

turned the substance over to the TBI crime lab, which identified it as .6 grams of

cocaine base, or crack co caine.



      Richardson was equippe d with a n aud io tape record er durin g this

transaction, but due to damage to the recorder, only a portion of the transaction

was re corde d. W hile Ric hards on’s voice is clearly heard on the tape, the other

person is just making noises which the prosecution described in closing argument

as “kind of grunting.” Richa rdson says on the tap e that he is going to a ttempt to

buy drugs from a black m ale called “Bink”; then at trial he identified the

Defen dant, Glen Porter, as the individual called “Bink” from whom he purchased

the drug s.



      After the purch ase, D etective Gary M iller with th e McM inn Co unty S heriff’s

Department, Detective Bill Matthews with the Athens Police Department, and

another officer named D aniel Denton approach ed the residen ce at 520 K ilgore

Street. Detective Miller stated that three people were on the front porch when

they approached. The Defendant was sitting in a chair on the right side of the

porch. Detective Miller secured the Defendant, searched him, and removed

                                         -3-
money found on him. Beside the Defendant’s foot Miller found a small fuse

container which contained a substance Miller believed to be cocaine. Miller also

saw a bucke t next to th e Def enda nt whic h con tained a sm all con tainer w ith a

substance believed to be cocaine inside. After the Defendant was secured, Miller

turned the evidence and money over to Detective Matthews.



      Detective Matthews testified that before the purchase, he drove through the

area and s aw the Defe ndan t on the porch , then re ported to Richardson that it

looked like Bink , or the D efend ant, wa s the o ne wo rking o n that d ate. W hile

Richardson was purchasing the cocaine, Matthews was in another car w ith Gary

Miller and D aniel D enton. Matthew s did not s ee the D efenda nt walk ov er to

Richa rdson ’s car, but he did see the Defendant walk away from the car, walk over

to the porch, and bend over. He did not see anything after this because he had

to keep d riving arou nd. After the purchase, he approached the house w ith Gary

Miller and Daniel Denton. While Miller secured the Defendant and Denton

secured an individual walking up towards the porch, Matthews secured two

individu als who were standing out in the yard. Once everyone was secured,

Miller showe d Matthe ws the co caine he had fou nd next to the Defendant in a

bucket and beside the Defend ant’s foot in a fuse co ntainer.        He also gave

Matthews a roll of m oney w hich h e had taken from th e Def enda nt. Th e roll of

money consiste d of three hundre d and s ome o dd dollars . Matthews stated that

he had given Agent Rich ardson five twenties at the beginning of the transaction

and that he had rec orded the se rial numbers of those five twenties. H e found five

twenties with serial numbers that matched those he had recorded in the roll of

money. The sub stances be lieved to be coca ine were turned over to the TBI




                                        -4-
crime lab, which found the substances together to be 2.7 grams of cocaine base,

or crack cocaine.



      The only witness for the defense was the Defendant. He testified that he

went to Paul Moss’s home at 520 Kilgore Street between 10:00 and 10:30 on the

morning of Augus t 29 to disc uss pa inting Mo ss’s hou se. Two othe r people were

at the house besides Paul Moss. The Defendant never saw Richardso n drive up

to the house, and he did not go out to any automobiles. He knows what crack

cocaine is, but he did not handle any while he was there. After he had been

there a while, three or four po lice officers came up to th e hou se an d sea rched all

the people who were there. The police took money from the Defendant, which

the Defenda nt said was m oney he ha d been sa ving from w orking . He ha d this

money in his pocket on Friday because he was going to pay his parole fees and

probation fees the following Tu esday, whe n he saw h is officer. The Defendant

saw the officers pull som ething ou t of a buck et, but he did n ot kno w who it

belonged to or what it was. He did not see the fuse container. He said the

bucket was on the porch because people had been washing Moss’s cars in the

past, but n o one w as was hing cars on that da y.



      The Defendant said he is known by the names Brody and Glen, but he was

known by the name Bink about thirty years ag o. In ass erting th at he d id not s ell

any cocaine to Richardson, the Defendant stated,

      you didn’t hear my voice on the tap e or noth ing. Evide ntly, if I had,
      he had purchased anything to me, looks like you could hear my
      voice saying something to him. I didn’t just go give him nothing and
      just leave. Quite naturally, if I sold him anything I’d be looking for
      something. I’d have some kind of conversation with him.




                                          -5-
He claimed that the re was no wa y mar ked m oney c ould h ave be en fou nd on him

unless someone planted it. When asked if he had an opinion about why the

officers would lie a bout him , the Defe ndant responded, “Yes, sir, one, for the

simp le reason M r. Matthews ba ck in ‘90 when I first . . . went to the penitentiary,

he stopped me 12 o r 13 consec utive times harassing me, but he never found any

drugs on me, a nd tha t contin ued. T hat’s why I, why I think so an d why he’s ga ve

him m y name in the first plac e.”



                       SUFFICIENCY OF THE EVIDENCE

              Tennessee Rule of Appellate Procedure 13(e) prescribes that

“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evidence is insufficient to support the findings by the trier of fact of

guilt beyond a re asonable d oubt.” Tenn. R . App. P. 13(e). Evidence is sufficient

if, after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doub t. Jack son v. V irginia, 443 U.S . 307, 319 (1979); State v.

Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBe e v. State , 372 S.W.2d 173, 176 (Ten n. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).




                                          -6-
       In its review of the evidence, an a ppellate court m ust afford the State “the

strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S .W .2d at 9 14 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978)). The court may not “re-

weigh or re-evaluate the e vidence” in the record b elow. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimon y, the court mus t resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       To be gu ilty of the s ale of a contro lled su bstan ce, on e mu st kno wingly sell

the controlled substance . Tenn. Co de Ann. § 3 9-17-417(a )(3). The e videnc e in

this case overwhelmingly shows that the Defendant sold $100.00 worth of crack

cocaine, which was determined to be .6 grams of crack cocaine, to Special Agent

Richardson. Ther efore, th e evide nce s uppo rts a find ing tha t the D efend ant is

guilty of the s ale of more than .5 grams of a schedule II controlled substance, and

it also suppo rts a finding that the De fendant is guilty of the lesse r included

offense of the sa le of less than .5 grams of a schedule II controlled substance.

Richardson identified the Defendant in court as the person from whom he

purchased the cocaine, and $100.00 in five marked twenty dollar bills was

removed from the Defe ndant w hen he was se arched . The D efenda nt points out

that Richardson did not describe the denominations of the $100.00 he received

from Detective Matthews and that the money removed from the Defendant was

not described as an amount certain or in any particular denominations. He then

argues, “This leaves the proof estab lishing that a c ertain fiv e twen ty dollar bills

were given to Richardson by Matthews, and later those same five twenty dollar

bills were retu rned to M atthews by M iller. It is the ranke st of spec ulation to

                                           -7-
conclude that in the interim be tween th ese two events it was the s ame five twenty

dollar bills that were being handled only by the defendant.” Instead of being the

“rankest of speculation,” it is the most reasonable inference that these sam e five

twenty dollar b ills were given to the Defendant by Richardson in exchange for

crack cocaine, then removed from the Defendant by Detective Miller, who turned

them over to Detective Matthews. Certainly, this is sufficient evidence that the

Defendant is guilty of selling crack cocaine to Richardson.



      The Defendant also argues that the evidence is insufficient because the

voice on the aud io tape was not identified as the Defendant’s. He asserts that

he denied the voice on the tape was his and that the denial was unrefuted.

Howeve r, there is no clear voice to be heard on the tape. Regardless of whether

the voice on the tape was identified, Richardson identified the Defendant as the

person who sold him the drugs, and the marked money from the drug purchase

was found on the Defendant. This is more than sufficient evidence that the

Defendant is guilty of the sale of a controlled substance. Therefore, this issue

has no merit.



      To be guilty of simple possession of a controlled substance, one must

know ingly possess the controlled substance . Tenn. Co de Ann. § 3 9-17-418(a ).

Posse ssion m ay be ac tual or con structive. State v. Brown, 823 S.W.2d 576, 579

(Tenn. Crim. App. 19 91); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.

App. 1987); State v. Williams, 623 S.W .2d 121, 125 (Tenn. Crim . App. 1981 ).

Constructive possession occurs whe n a person knowingly has “‘the power and

the intention at a given time to exercise dominion and control ove r an obje ct,

either directly or through othe rs.’” Williams, 623 S.W.2d at 125 (quoting United

                                        -8-
States v. Craig , 522 F.2d 29 (6th Cir. 1975)).          “‘In essence , constructive

possession is the ability to reduce an objec t to actual posse ssion.’” Id. (quoting

United States v. Martinez, 588 F.2d 49 5 (5th Cir. 1979)). In this case, cocaine

totaling 2.7 gra ms w as fou nd in a fuse container by the De fenda nt’s foo t and in

a plastic container in a bucket beside the Defendant on the p orch. Detective

Matthews saw th e Def enda nt walk away fr om R ichard son’s car, wa lk over to the

porch, and bend over, though he did not see what the Defendant was doing when

he bent over. Based on this evidence, a reasonable juror could conclude that the

Defendant had the ability to reduce the cocaine to actua l possession, thus the

evidence was s ufficien t to con vict the Defendant of po ssessio n of coca ine.




                           DENIAL OF CONTINUANCE

      The Defen dant as serts that the trial judg e abu sed h is discr etion in denying

his motion for a continuance. On the day of trial, the Defendant asked the trial

court to continue the case because the tape of the preliminary hearing was

missing. Wh ile defense counsel was not present at the preliminary hearing, he

argued that the Defendant recalled one of the officers testifying at the preliminary

hearing that there was a videotape of the drug sale, that now the officer denied

there ever bein g a video tape, an d that he n eeded a continu ance to attemp t to find

the preliminary hearing tape. The trial judge commented that “normally we

haven ’t been having any videotapes” in these types of cases, and that “it would

be extremely rare if there was one.” He stated that the officer was present to

testify as to whether there was a video tape, then den ied the motion for a

continua nce.




                                         -9-
       The granting or denial of a continuance is left to the sound discretion of the

trial judge, and that decision “will not be disturbed in the absence of a clear

showing of gross abuse of his discretion to the p rejudice o f the defen dant.”

Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App . 1973) (citations om itted);

see also State v. Meeks, 876 S.W.2d 121, 130 (Tenn. Crim. App. 1993 ). “A

reversal will be o rdere d on a ccou nt of de nial of a contin uanc e only if the app ellate

court is convinc ed that the comp laining pa rty did not ha ve a fair trial an d that a

different result would or m ight reasonab ly have been re ached ha d there been a

different disposition of the application for a continuanc e.” Baxter, 503 S.W.2d at

230.



       The Defendant argues that the denial of a continuance was an abuse of

discre tion because it foreclosed even the possibility of a n investiga tion to

determine whether the preliminary hearing tape could be found and whether the

tape contained information which could be used in cross-examining the officers.

He also asserts that the trial judge abused his discretion by denying the

continuance because he did not believe a videotape existed. The Defendant

does not, however, show how he may have been prejudic ed because of the

denial of the continuance.        Therefore, the denial of the continuance is not

reversible error, regardless of whether it was an abuse of discretion.



       The loss of a preliminary hearing tape, in and of itself, is not prejudicial

error. Wh ile Rule 5.1(a) of the T ennesse e Rules of C riminal Proced ure requires

that preliminary hearing proceedings “be preserved by electron ic recordin g or its

equivale nt” and “be made available for listening to by the defendant or

defen dant’s counsel to the end that they may be apprised of the evidence

                                           -10-
introduced upon th e prelim inary exam ination,” failure to preserve that pre liminary

hearing may be harmle ss error. State v. B utts, 640 S.W.2d 37, 38 (Tenn. Crim.

App. 1982); see also State v. Carter, 970 S.W.2d 509, 511-12 (Tenn. Crim. App.

1997); State v. Bohanan, 745 S.W .2d 892 , 896 (T enn. C rim. App . 1987).



       The Defendant has made no showing of how the missing preliminary

hearing tape actually harmed him. Instead, he simp ly allege s in his b rief that if

he had been allowed more time, the preliminary hearing tape might have been

found, and it might have revealed that an officer testified at that hearing that there

was a videotape of the drug transaction. He then argues that if this were the

case, he could have used the tes timon y to cros s-exa mine the offic er durin g trial.

This list of “ifs” and “m ights” d oes n ot dem onstra te that a differen t result w ould

or might reasonably have been reached had there been a continuance. The

evidence against the Defendant was very strong, and there is no way of

determining wheth er any impe achin g testim ony ex isted without the prelim inary

hearing tape. Th e Defe ndant h ad time to search for the tape while preparing his

motion for a ne w trial, and he could have presented evidence of prejudice at the

hearing on the mo tion for a new tria l if he ha d in fac t found the tap e and it

revealed testimony about a videotape. Because the Defendant made no showing

of prejudice, the de nial of a continuan ce is not reversible erro r.



                  IMPROPER ARGUMENT BY PROSECUTION

       During closing argument, the prosecutor made the following statement,

which the Defen dant as serts wa s impro per argu ment:

              Folks, Mr. Kimball has asked you to consider that these
       officers are lying. . . . But let m e tell you why this con spiracy theory
       that they’ve got, why you can’t even conside r it as evidence.

                                          -11-
      They’ve introduce d not one ounce of evidence that there’s a
      conspiracy theory ag ainst Gle n Porter. I mean did you hear any
      evidence about how officers are conspiring against Glen Porter or
      are conspiring against drug dealers in this town?

Defense counsel objected to this statement on the ground that the prosecution

was shifting the burden of proof, but the trial court overruled the objection. The

prosecutor then later argued,

             I can promise you that Bill Matthews had no reason to plant
      fake money on Glen Porter. I can promise you that Bill Matthews
      had no reason to plant crack cocaine on Glen Porter that wasn’t his,
      that just coincidentally happened to be next to him while he
      coinc identa lly happened to have marked money on him, and
      coinc identa lly happ ened to have $300 .00 in cash on him sitting next
      to crack co caine. Where do you think that cash came from? What
      do you think he had really been doing that day? How do you think
      he really got that $300.00? He was selling crack cocaine.

The Defen dant did n ot object to this argument at trial, but now argues that it was

improper.



      In determining whether statements made during closing argument

constitute reversible e rror, it is neces sary to determine whethe r the statem ents

were improper, and if so, whether the improper statements affected the verdict.

State v. Sutton, 562 S.W .2d 820 , 823 (T enn. 19 78); Harring ton v. State , 385

S.W.2d 758, 759 (1965). Closing argument is a valuable privilege for all parties,

and trial courts give the parties wide latitude in their argum ents to the jury. State

v. Cauthern , 967 S.W .2d 726 , 737 (T enn. 19 98); Sutton, 562 S.W.2d at 823.

Appe llate courts will not interfere with a trial court’s discretion in controlling

argument of counsel unless th ere has been a n abus e of that dis cretion. State v.

Pulliam, 950 S.W .2d 360, 368 (Tenn. Crim . App. 1996 ).




                                        -12-
         W hile the parties are given wide latitude in their closing arguments, those

argum ents are no t withou t limitatio n.    They “must be temperate, must be

predicated on evidence introduced during the trial of the case, and must be

pertinent to the issu es being tried.” Russe ll v. State, 532 S.W.2d 268, 271 (Tenn.

1976). A prose cutor m ay mak e an arg umen t to the jury w hen th at argu men t is

supported by evidence introduced at trial and may state an ultimate conclusion

which would necessarily follow from the testimony of the prosecution witnesses.

State v. Brown, 836 S.W.2d 530, 552 (Tenn. 1992) (citing State v. Beasley, 536

S.W.2d 328, 330 (Tenn. 1976)). A pro secu tor ma y also a rgue th at its pro of is

unrefute d or uncon tradicted. See State v. Rice, 638 S.W.2d 424, 427 (Tenn.

Crim. App. 1982).       A prosecutor may not, however, place his or her own

credibility before the jury by stating his or her own opinions of the Defendant or

the evidenc e. See Judge v. State, 539 S.W .2d 340, 345 (Tenn. Crim. App.

1976).



         The Defendant complains that the prosecution improperly argued that he

had presented no proof in support of his theory of the case and that this was an

attempt to shift the burden of proof. The prose cution did ad dress the De fenda nt’s

theory of the case by stating, “But let me tell you why this conspiracy theory that

they’ve got, why you can’t even consider it as evidence. They’ve introduced not

one ounce of eviden ce that the re’s a con spiracy the ory again st Glen Porter. I

mean did you hear any evidence about how officers are conspiring against Glen

Porter or are conspiring against drug dealers in this town?” The Defendant

objected to this comment at trial, but the trial court overruled the objection. The

comment was in response to argument by defense counsel and was a comment

on the evidence. The effect of the statement was to argue that the State’s case

                                         -13-
was uncontradicted by any evidence of a police conspiracy to frame the

Defen dant. Su ch an a rgume nt was p roper, an d it was no t error to allow it.



       The Defendant also complains that the prosecutor improperly argued that

the proof clearly showed the marked $100.00 used for the drug buy was found

in the Defendant’s possession and that the prosecutor improperly inserte d his

person al opinion into the arg umen t. Though he rais es the se issu es on appe al,

he did not contemporaneously object to the argument when it was being made.

Since he failed to object during the argument, the issue is waived. State v. Little,

854 S.W.2d 643, 651 (Tenn. Crim. App. 1992); Tenn. R. App. P. 36(a). Even so,

the statement that the marked $100.00 was found in the Defendant’s possession

was a prope r argum ent bas ed on th e State’s case, and even though the

prosecutor improperly inserted his personal opinion into the argument by

“promising” the jury that the police had no reason to plant money or drugs on the

Defen dant, we conclude that those statements did not affect the verdict. The

evidenc e again st the De fendan t was ove rwhelm ing.



       Having found all the Defendant’s issues to lack merit, the judgment of the

trial court is affirme d in all re spec ts.   The case is remanded, however, for

clarification of whether the judgment of con viction s hould have b een fo r the sa le

of more than .5 grams of a controlled substance or the sale o f less than .5 grams

of a contro lled subs tance.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



                                          -14-
CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -15-
