        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   Opinion on Remand

               STATE OF TENNESSEE v. JAMES RAE LEWTER

               Direct Appeal from the Circuit Court for Lincoln County
                      No. S0600095 Robert G. Crigler, Judge



              No. M2010-01283-CCA-RM-CD            - Filed March 31, 2011


The Defendant-Appellant, James Rae Lewter, was convicted by a Lincoln County jury of
burglary and theft of property valued at $1,000 or more but less than $10,000, both Class D
felonies. The trial court sentenced Lewter as a Range II, multiple offender to concurrent
sentences of eight years at thirty-five percent in the Department of Correction. On direct
appeal, Lewter argued: (1) the evidence was insufficient to convict him; (2) the trial court
imposed an excessive sentence of eight years in violation of State v. Gomez, 239 S.W.3d
733, 740 (Tenn. 2007); and (3) the State engaged in misconduct during closing arguments.
See State v. James Rae Lewter, No. M2007-02723-CCA-R3-CD, 2009 WL 1076716, at *1
(Tenn. Crim. App., at Nashville, Apr. 9, 2009), rev’d, 313 S.W.3d 745 (Tenn. June 4, 2010).
Upon initial review, this court, after concluding that the evidence was insufficient to support
his convictions, reversed and vacated Lewter’s convictions and dismissed the indictment.
Id. Following the reversal, the State applied for permission to appeal this court’s decision
to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules of Appellate
Procedure, and on August 17, 2009, permission to appeal was granted. Upon review, the
Tennessee Supreme Court held that “the evidence was sufficient to support a reasonable
inference of guilt beyond a reasonable doubt.” State v. Lewter, 313 S.W.3d 745, 746 (Tenn.
2010). Consequently, it reversed the judgment of the Court of Criminal Appeals and
remanded the case to this court for consideration of the remaining two issues: (1) whether
the trial court imposed an excessive sentence in violation of Gomez, 239 S.W.3d at 740; and
(2) whether the State engaged in misconduct during closing arguments. See Lewter, 313
S.W.3d at 751. On remand, we conclude that Lewter did not receive an excessive sentence
pursuant to Gomez and that the State’s remarks during closing argument did not constitute
prosecutorial misconduct. Accordingly, as to the issues remanded for our review, the
judgments of the trial court are affirmed.

   Tenn. R. App. P. 3 Appeal as Right; Judgments of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

S. Craig Moore, Fayetteville, Tennessee (on appeal) and A. Jackson Dearing, III and Dorothy
Buck, Shelbyville, Tennessee (at trial) for the defendant-appellant, James Rae Lewter.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Cameron L. Hyder and Elizabeth Bingham Marney, Assistant Attorneys General; Charles F.
Crawford, Jr., District Attorney General; and Ann L. Filer and Hollyn Hewgley, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

        This case concerns the burglary and theft of a dentist’s office in Fayetteville,
Tennessee, on January 31, 2006. During the burglary, computer equipment, furnishings, and
office supplies were stolen. In addition, a window in the office was broken, papers and
office supplies were scattered throughout the office, and numerous objects, including several
chairs and a large table were moved out of place.

        On March 22, 2007, a jury convicted Lewter of burglary and theft. On May 8, 2007,
the trial court sentenced Lewter to an effective sentence of eight years. Lewter timely filed
a motion for new trial and an amended motion for new trial, which were denied. On
November 8, 2007, Lewter filed a timely notice of appeal.

                                         ANALYSIS

        I. Excessive Sentence. Lewter argues that the trial court erred in applying three
enhancement factors in violation of Gomez prior to sentencing him to the maximum in his
range for both offenses. In response, the State contends that the trial court’s application of
the enhancement factors in this case did not violate Gomez because Lewter committed the
offenses in this case after the June 7, 2005 effective date of the amended Criminal
Sentencing Reform Act. In addition, the State erroneously and inaptly asserts that Lewter
admits not including this issue in his motions for new trial but argues that the court should
address the issue as plain error. A review of the record shows that Lewter argued that his
sentence was excessive and contrary to the law in both motions for new trial. In any event,
sentencing issues need not be presented in a motion for new trial as a predicate for raising
these issues on appeal. See Tenn. R. App. P. 3(e) (failure to raise an issue of error, other than
sufficiency of the evidence or sentencing, in a motion for a new trial waives that issue for
purposes of appellate review). That said, we agree that Lewter’s sentences did not violate
Gomez and were not excessive.

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        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has the burden of showing the
impropriety of the sentence. T.C.A. § 40-35-401(d) (2006), Sentencing Commission
Comments. Because the trial court in this case properly considered the sentencing principles
and all relevant facts and circumstances, our review is de novo with a presumption of
correctness. See Ashby, 823 S.W.2d at 169.

        Lewter argues that the trial court violated Gomez because it used judicial fact finding
to apply enhancement factors (6), (8), and (13). T.C.A. § 40-35-114(6), (8), and (13) (2006).
On June 7, 2005, the Tennessee legislature passed a new sentencing law eradicating
presumptive sentences and establishing advisory sentencing guidelines. Under the new
sentencing law, the trial court’s discretion in sentencing was broadened and the applicable
enhancement and mitigating factors were merely advisory, not mandatory. See State v.
Carter, 254 S.W.3d 335, 344 (Tenn. 2008). The Compiler’s Notes to the amended Tennessee
Code Annotated section 40-35-210 (2006) state that the amended act “shall apply to
sentencing for criminal offenses committed on or after June 7, 2005.” Lewter committed the
offenses in this case on January 31, 2006; therefore, he was sentenced under the 2005
amendments to the sentencing act. Accordingly, Lewter cannot claim that the trial court
erroneously employed judicial fact finding in its application of enhancement factors because
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’”
Carter, 254 S.W.3d at 344 (citing T.C.A. § 40-35-210(d)).

       The sentencing hearing transcript in this case shows that the trial court applied the
following enhancement factors to Lewter’s convictions for burglary and theft:

       (1)    The defendant has a previous history of criminal convictions or
              criminal behavior, in addition to those necessary to establish the
              appropriate range;

       ....


       (6)    The personal injuries inflicted upon, or the amount of damage to
              property sustained by or taken from, the victim was particularly great;



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       ....

       (8)     The defendant, before trial or sentencing, failed to comply with the
               conditions of a sentence involving release into the community;

       ....

       (13)    At the time the felony was committed, one (1) of the following
               classifications was applicable to the defendant:

               ....

               (C)    Released on probation[.]

T.C.A. § 40-35-114(1), (6), (8), and (13)(C) (2006).

       The trial court stated that he placed “enormous weight” on Lewter’s “lengthy
record[,]” which included a total of four felony convictions for failure to appear, driving
while a habitual motor vehicle offender, credit card theft, and attempted burglary. Because
only two of these convictions were necessary to establish him as a Range II offender, the
remaining two felony convictions were considered part of his criminal history under
enhancement factor (1). The court also considered Lewter’s numerous misdemeanor
convictions, which included six convictions for theft under $500, two convictions for public
intoxication, ten convictions for writing worthless checks, one conviction for possession of
a forged instrument, two convictions for assault, two convictions for casual exchange of
drugs, one conviction for contributing to the delinquency of a child, one conviction for
driving under the influence, one conviction for driving on a license that was suspended,
cancelled, or revoked, and one conviction for a false report.

        The trial court stated that it applied enhancement factor (6) because the dentist’s office
“was ransacked from top to bottom” with “a number of things damaged and destroyed [and
there was] a great deal of disarray.” See id. § 40-35-114(6) (2006). In addition, the trial
court explained that it applied enhancement factor (8) because it “recall[ed] at least one
probation violation” in Lewter’s record. See id. § 40-35-114(8) (2006). Our review of the
presentence investigation report shows that Lewter actually had two probation violations in
his criminal history. The trial court also applied enhancement factor (13) because Lewter
was on probation for a misdemeanor theft conviction at the time that he committed the
offenses in this case. See id. § 40-35-114(13) (2006). The record supports the application
of all of the aforementioned enhancement factors. The trial court then applied mitigating
factor (13) because Lewter had a record of military service and had been honorably

                                               -4-
discharged. Following the application of these factors, the trial court imposed maximum
concurrent sentences of eight years for both of Lewter’s convictions.

       We reiterate that under the amended sentencing act, the trial court has broad discretion
in sentencing a defendant:

               [Under the amended sentencing act] a trial court’s weighing of various
       mitigating and enhancement factors has been left to the trial court’s sound
       discretion. Since the Sentencing Act has been revised to render these factors
       merely advisory, that discretion has been broadened. Thus, even if a trial court
       recognizes and enunciates several applicable enhancement factors, it does not
       abuse its discretion if it does not increase the sentence beyond the minimum
       on the basis of those factors. Similarly, if the trial court recognizes and
       enunciates several applicable mitigating factors, it does not abuse its discretion
       if it does not reduce the sentence from the maximum on the basis of those
       factors. The appellate courts are therefore left with a narrower set of
       circumstances in which they might find that a trial court has abused its
       discretion in setting the length of a defendant’s sentence.

Carter, 254 S.W.3d at 345-46. Upon review, we conclude that Lewter’s effective sentence
of eight years was not excessive. Accordingly, he is not entitled to relief on this issue.

        II. Prosecutorial Misconduct. Lewter also contends that the State made
inflammatory and improper remarks about him throughout its closing argument that denied
his right to a fair trial by an impartial jury. Specifically, he claims that the State implied that
he was “some sort of pond scum” and that his defense was “manure.” He further asserts that
the “defense stinks” message “permeated” the State’s closing argument. Lewter argues that
the prosecution’s statements “prejudice[d] the jury to decide against [him] based on
emotions, not to render a decision based on the facts.”

        In response, the State argues that Lewter has waived this issue because he failed to
make a contemporaneous objection at trial. The State also erroneously argues that Lewter
failed to raise this issue in his motions for new trial. Waiver aside, the State contends that
the prosecutor’s remarks do not constitute misconduct. Specifically, the State asserts that the
“pond scum” remark referred to defense counsel’s characterization of Dinah Justice and that
the “defense stinks” remarks were merely a metaphor made in the context of the
prosecution’s rhetorical question to the jury regarding whether its own case “passed the
smell test.” The State asserts that the prosecution then extended this metaphor by asserting
that the defense’s claim that Ms. Justice’s son committed the burglary was nothing more than
“a red herring[,]” i.e., a bad-smelling fish. Finally, the State asserts that “the prosecutor’s

                                                -5-
reliance on olfactory imagery is nothing more than a rhetorical grace note that does not
constitute misconduct.” We agree with the State that prosecutorial misconduct did not occur
in this case.

        Initially, we agree that Lewter has waived this issue by failing to make a
contemporaneous objection to the prosecutor’s remark at trial. See Tenn. R. App. P. 36(a);
State v. McPherson, 882 S.W.2d 365, 373 (Tenn. Crim. App. 1994); State v. Gregory, 862
S.W.2d 574, 578 (Tenn. Crim. App. 1993). However, we do not agree that Lewter waived
this issue by failing to include it in his motions for new trial. Despite the State’s arguments
to the contrary, the record shows that Lewter did, in fact, include the issue of prosecutorial
misconduct in his amended motion for new trial.

        Waiver for failure to make a contemporaneous objection notwithstanding, we agree
with the State that the prosecutor’s remarks during closing argument do not constitute
prosecutorial misconduct. The Tennessee Supreme Court has noted that “[c]losing argument
is a valuable privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d
574, 603 (Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). However,
an attorney’s comments during closing argument “‘must be temperate, must be predicated
on evidence introduced during the trial of the case, and must be pertinent to the issues being
tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007) (quoting State v.
Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). The trial court has substantial discretion in
controlling the course of arguments and will not be reversed unless there is an abuse of that
discretion. Bane, 57 S.W.3d at 425. In addition, prosecutorial misconduct does not
constitute reversible error absent a showing that it has affected the outcome of the trial to the
prejudice of the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). In
order to be entitled to relief on appeal, the defendant must “show that the argument of the
prosecutor was so inflammatory or the conduct so improper that it affected the verdict to his
detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996) (citing
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). This court must consider the
following factors when determining whether the argument of the prosecutor was so
inflammatory or improper as to negatively affect the verdict:

       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 improper statement.

       4. The cumulative effect of the improper conduct and any other errors in the
       record.

                                               -6-
       5. The relative strength or weakness of the case.

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

        Upon review, we conclude that the prosecutor’s remarks did not affect the outcome
of the trial to the prejudice of Lewter. The prosecutor’s “pond scum” remark referred to
defense counsel’s characterization of Dinah Justice, an individual who had already pleaded
guilty to the offenses with which Lewter was charged in this case. The remark was meant
to show the jury that defense counsel was attempting to attack Ms. Justice with the hope of
making Lewter appear innocent. The prosecution’s comparisons of Lewter’s defense to
“manure” as well as the “defense stinks” remarks were made in reference to whether the
prosecution’s case and Lewter’s defense “passed the smell test.” We conclude that these
comments do not constitute prosecutorial misconduct. Accordingly, Lewter is not entitled
to relief on this issue.

                                     CONCLUSION

       On remand, we affirm the judgments of the trial court as to the issues remanded for
our review.


                                                  ___________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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