                                                                                         02/28/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              November 6, 2018 Session

              STATE OF TENNESSEE v. RONNELL BARCLAY

                 Appeal from the Criminal Court for Shelby County
                  No. 14-05798       James C. Beasley, Jr., Judge
                     ___________________________________

                           No. W2017-01329-CCA-R3-CD
                       ___________________________________


Defendant, Ronnell Barclay, was convicted after a jury trial of one count of rape of a
child, one count of aggravated sexual battery, and six counts of exploitation of a minor.
After a sentencing hearing, Defendant was sentenced to a total effective sentence of
thirty-five years. After the denial of a motion for new trial, Defendant appeals and argues
that he did not receive adequate notice of the factual basis for the charge of rape of a
child, that the State withheld exculpatory statements made by the victim, and that the
prosecutor made improper statements during rebuttal closing argument. After a review of
the record, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and J. ROSS DYER, JJ., joined.

Stephen K. Barnes and Michael R. Working, Memphis, Tennessee, for the appellant,
Ronnell Barclay.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jessica Shurson,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          Factual and Procedural Background

       The testimony received at trial demonstrated that since her parents’ separation, the
victim lived in Memphis, Tennessee, with her mother, Sandra Jones. When the victim
was around the age of seven, her father, Keith Owens, began dating someone and settled
down. At that point, the victim began to visit Mr. Owens’s home, also in Memphis, on a
regular basis. Around the time that the victim reached the age of nine, Mr. Owens
married Sandra Owens. Mrs. Owens had three sons, of which Defendant is the eldest.
Defendant is approximately twelve years older than the victim. Ms. Jones and Mr.
Owens remained friends, and they had an arrangement for the victim to get to know her
new family. When Ms. Jones’s employment changed, she arranged for Mr. Owens to
pick up the victim after school from time to time. As part of this arrangement, Defendant
and the victim’s middle step-brother would pick the victim up from school when Mr.
Owens was unavailable.

       The victim grew close to Defendant and called him by his nickname “JJ.” When
Mr. and Mrs. Owens married, Defendant was serving in the military and lived in
Colorado with his wife and three children. Defendant separated from his wife and moved
to Memphis to live with Mr. and Mrs. Owens for a month. When Defendant moved back
in with Mr. and Mrs. Owens, the relationship between Defendant and the victim changed.
Defendant began to act like something other than a step-brother, and their relationship
began to incorporate sexual contact. Eventually, Defendant moved out to his own
apartment, which he shared with the victim’s middle step-brother, but his relationship
with the victim continued.

       Mr. Owens and Ms. Jones had forbidden the victim from having a phone, but
Defendant had secretly given her a phone when she was twelve years old so that they
could communicate. The victim hid the phone from her parents and talked to Defendant
using the Facebook and ooVoo1 applications. On Facebook, the victim used a fake name.
However, the victim’s identity was not fully concealed because everyone that she
interacted with on Facebook knew her real identity and she had posted pictures of herself
on Facebook. On these apps, Defendant and the victim exchanged explicit pictures. At
the time, the victim liked exchanging explicit pictures. Defendant and the victim also
video chatted on more than one occasion. During multiple video chats, Defendant asked
the victim to “play” with herself, the victim complied, and Defendant would “play” with
himself as well.

       On the morning of Saturday, March 29, 2014, Ms. Jones received a text message
from Defendant, then twenty-four years old, stating that he would like to take the victim,
then twelve years old, and her youngest step-brother to Chuck E. Cheese. Ms. Jones
allowed the victim to go to Chuck E. Cheese with Defendant. When Defendant arrived to
pick up the victim, Ms. Jones looked out the window to make sure that it was


       1
          OoVoo is a video chat and messaging application for smartphones and computers. OOVOO,
https://www.oovoo.com (last visited Feb. 11, 2019).
                                                 -2-
Defendant’s car and did nothing more because she trusted Defendant. Two or three hours
later, Defendant brought the victim back to Ms. Jones’s house.

        Later that night, Ms. Jones and the victim were sitting on the couch, and Ms. Jones
felt a vibration coming from the seat cushions of the couch. She asked, “What is that?”
The victim responded, “Nothing.” Ms. Jones told the victim to get up, and Ms. Jones
searched the couch. She found a cell phone. Ms. Jones looked through the phone and
found explicit messages and an explicit picture exchanged between Defendant and the
victim. Ms. Jones then called Mr. Owens and arranged to speak with him in person the
next day. Ms. Jones and Mr. Owens showed the phone and its contents to Mrs. Owens.
Soon thereafter, Ms. Jones and Mr. Owens went to the police and filed a report.

       The police came to Ms. Jones’s house and spoke with the victim. The victim told
the police that she had been “touched” by Defendant but that she had not sent any nude
pictures. Ms. Jones also took the victim to the Memphis Child Advocacy Center to be
interviewed. When Teresa Honory2 at the Child Advocacy Center asked the victim about
pictures exchanged between the victim and Defendant, the victim said that she had not
sent any nude pictures to Defendant. However, the victim admitted to Ms. Honory that
she had sent a clothed picture of herself to the Defendant. The victim also told Ms.
Honory that Defendant had digitally penetrated her. At a different point during the
conversation, the victim told Ms. Honory that Defendant had given her a hug that she did
not like.

       The case was transferred to the Special Victims Unit of the Memphis Police
Department because it involved the use of the internet. Sergeant James Taylor became
involved and retrieved all of the data and messages stored on the phone possessed by the
victim. Sergeant Taylor found explicit conversations between Defendant and the victim,
which included the victim sending Defendant pictures of her breasts and her vagina.
Sergeant Taylor’s investigation focused on the one reported digital penetration of the
victim and the electronic solicitation of the victim. Sergeant Taylor was not aware of a
penile penetration at the time that he charged the case and sent it to the District
Attorney’s office.

       In November of 2014, a Shelby County grand jury returned an indictment
charging Defendant for rape of a child in Count One; aggravated sexual battery in Count
Two; and exploitation of a minor in Counts Three through Eight. Count One alleged that
Defendant sexually penetrated the victim between the dates of January 1, 2014, and



        2
         The transcript from trial uses the name “Teresa Honory,” but a pre-trial motion by the State and
a Forensic Interview document contained in the technical record use the name “Teresa Onry.” For
consistency, we will use the name provided by the transcript. We intend no disrespect.
                                                  -3-
March 30, 2014. Count Two alleged that Defendant engaged in sexual contact with the
victim between the dates of January 1, 2014, and March 30, 2014.

       On February 27, 2017, the morning of trial, the prosecutor informed defense
counsel that the victim had just revealed that a penile penetration had occurred on March
29, 2014. Prior to the morning of trial, Defendant and defense counsel were only notified
of allegations pertaining to one digital penetration and were under the impression that
Counts One and Two were alternate theories of the same offense. Without any request
for a continuance from Defendant, the case proceeded to trial.

       The victim’s trial testimony differed substantially from the statements that she had
given to the police and Ms. Honory at the Child Advocacy Center. The victim testified
that the first encounter between Defendant and the victim occurred at the home of Mr.
and Mrs. Owens. The victim was lying on her bed watching television when Defendant
came into the room and got into bed with her. The situation seemed strange to the victim.
She asked what Defendant was doing, and he responded that he was “laying” with her.
So, she put some “covers” between her and Defendant to create some distance.
Defendant scooted toward the victim and put his arm around her. The victim did not
mind because there was “cover” between them. According to the victim, nothing else
happened that night.

       According to the victim, on a different occasion, Defendant, the victim, and the
victim’s youngest step-brother were all lying on the floor watching a movie in a different
bedroom of Mr. and Mrs. Owens’ house. The victim’s youngest step-brother got in the
top of a bunk bed and went to sleep. Defendant and the victim remained on the floor, the
victim took off her own pants, and Defendant tried to put his penis inside the victim’s
vagina. The victim told Defendant that it was hurting and told him to stop. Defendant
stopped and did not penetrate the victim, penilely or digitally.

        At a later date, Defendant and the victim were watching television in the den of
Mr. and Mrs. Owens’ home. The victim lay on the couch with her feet propped up on a
table, and Defendant rested his head on her stomach. Defendant reached down the
victim’s pants and digitally penetrated the victim. The victim testified that, on a family
trip to Gatlinburg, Defendant began “hitting on” her in front of ten other people and that
Defendant tried to have sex with her while another person was in the room.

       When Defendant gave the victim a phone, he failed to give her a charger. So, the
victim told Defendant to tell her mother, Ms. Jones, that he was going to take the victim
and her younger step-brother somewhere as a ruse for bringing her a phone charger.
Defendant called Ms. Jones and told her that he would like to take the victim and her
younger step-brother to Chuck E. Cheese. Defendant picked the victim up, but they did
not go to Chuck E. Cheese. Instead, they went to his apartment. Alone in the apartment,
                                           -4-
they went upstairs to Defendant’s room and “had sex,” which included oral sex and
unprotected vaginal intercourse. At the time, the victim was twelve years of age.
Defendant had told the victim that he would take her to Miami, and she said she wanted
to go with him.

        The victim admitted that, initially, she did not want to talk to the police and did
not want to get Defendant into trouble. The victim admitted that she lied and did not tell
the truth when she spoke with Ms. Honory at the Child Advocacy Center because she did
not want to get Defendant in trouble. The victim also admitted that she had falsely
accused a different step-brother of touching her inappropriately. She explained that the
false accusation was an attempt to get attention.

         At the end of the State’s case-in-chief, the trial court inquired, “[W]hich incident
are you relying on for purposes of Count One and are you talking about the same incident
for Count Two or is that an alternative theory for the same offense? Are you talking
about separate offenses?” The prosecutor responded, “For Count One[,] I’m going to use
. . . the last occurrence when she testified that he penetrated her vaginally with his penis. .
. on March 29th. . . [a]t his apartment. . . . As for Count Two . . . I’m going to elect the
time when he attempted to penetrate her with his penis, and she said he tried to put it in
and it hurt her.” Defendant raised no objection to the election of offenses.

       Defendant elected not to testify. The defense put on proof that a social media
account can easily be faked. Dr. Melissa Janoske, an assistant professor at the University
of Memphis, teaches social media from a public relations perspective. While testifying,
Dr. Janoske used a fake name and created an email address using a fake name and a
Facebook account using a fake name. Also, she used her personal Facebook account to
add the fake Facebook account as a friend. She then demonstrated how to send messages
between the fake Facebook account and her personal account. During her messaging
demonstration, Dr. Janoske illustrated the ease of finding a picture on the internet and
sending it between the accounts. Dr. Janoske also testified that explicit pictures of a
penis were readily available on the internet, but she refrained from downloading an
explicit picture on a computer owned by the State.

        Mrs. Owens also testified for the defense. She stated that she had known the
victim since 2009, and she gave her opinion on the victim’s truthfulness by saying, “[A]s
far as [the victim’s] truthfulness, my opinion is that . . . I wouldn’t trust her. . . . [I]f it’s
something that would be a negative reaction, she’s not going to tell the truth.”

       At the conclusion of the trial, the jury found Defendant guilty as charged on all
counts. After a sentencing hearing, Defendant was sentenced to consecutive sentences of
twenty-seven years, at Range II, to be served at one hundred percent, for his conviction of
rape of a child in Count One, and an eight years sentence for his conviction of aggravated
                                               -5-
sexual battery in Count Two, also to be served at one hundred percent. Counts Three
through Six merged into a single conviction with a sentence of eight years, to be served
concurrently with all other sentences in this case. Counts Seven and Eight merged into a
single conviction with a sentence of three years, to be served concurrently with all other
sentences in this case. Defendant’s total effective sentence was thirty-five years, to be
served at one hundred percent.

       Defendant filed a motion for new trial, arguing that he had insufficient notice of
the charges against him to prepare an adequate defense, that the prosecutor relied upon
facts not in the record during her rebuttal, and that the prosecutor made improper
personal attacks on defense counsel during her rebuttal. While discussing Defendant’s
argument that he received inadequate notice of the penile penetration at the motion for
new trial hearing, the trial court inquired about the State’s intent when seeking an
indictment and about when the State decided to use the March 29th penile penetration as
the factual basis for the rape of a child in Count One. The prosecutor responded, “Well,
Your Honor, I didn’t know what she was going to testify to having given me many, many
different stories now at this point. I didn’t elect any offense until after she had testified.”
The prosecutor agreed that she was only aware of one incident of sexual contact until the
morning of trial. The trial court probed defense counsel, asking why he didn’t request a
continuance, and defense counsel responded, “Your Honor, simply because the case had
been set for years and there had been many resets, and I frankly did not believe that that
was a possibility at the time. Also, I want to be clear that we – our understanding was a
shifting of days, not a shifting of Counts.”

       The revelation of a March 29th penile penetration on the day of trial disturbed the
trial court, who remarked “it just doesn’t smell good.” Ultimately, the trial court
determined that the defense had notice of the penile penetration, albeit last moment
notice, and that the defense chose not to request a continuance. The trial court said that
the issue was waived and found that “both sides entered the trial with full knowledge of
what was coming.” The trial court denied the motion for new trial. This timely appeal
followed.

                                           Analysis

                                          I. Notice

       In general terms, Defendant argues that he received insufficient notice to prepare a
proper defense. More specifically, he argues that the first two counts of the indictment
were based on only one act by Defendant and that when the State chose to pursue a
conviction of a different act using the same indictment, they ran afoul of the notice


                                             -6-
requirements of the United States and Tennessee Constitutions.3 The State maintains that
Defendant waived this issue by not seeking a remedy at trial and that Defendant is not
entitled to plain error relief because the indictment was sufficient. We agree with the
State.

       A motion alleging a defect in an indictment must be made prior to trial, unless the
indictment fails to establish jurisdiction in the court or fails to charge an offense. Tenn.
R. Crim. P. 12(b)(2)(B). Additionally, relief will not be granted when a defendant failed
to take whatever action was reasonably available to prevent or nullify the harmful effect
of an error. Tenn. R. App. P. 36(a). When faced with the revelation that the victim
alleged a penile penetration occurring on March 29, 2014, Defendant did not ask for a
continuance, move for a bill of particulars, notify the trial court, or take any step toward a
resolution of the problem prior to trial. When the victim testified about a penile
penetration on March 29, 2014, Defendant did not raise an objection. When the State
elected to use the alleged penile penetration as the factual basis for rape of a child in
Count One, Defendant did not object or even mention that he had only found out about
the penile penetration minutes before trial. Because Defendant’s argument regarding the
indictment does not pertain to the trial court’s jurisdiction or whether the indictment
charges an offense, this issue is waived. Therefore, Defendant is not entitled to relief
unless his claim rises to the level of plain error.

       Our supreme court has succinctly described the discretionary nature of the plain
error doctrine as follows:

       In criminal cases, the doctrine of plain error permits appellate courts to
       consider issues that were not raised in the trial court. [Tennessee Rule of
       Appellate Procedure] 36(b), the codification of the plain error doctrine,
       states in part that “[w]hen necessary to do substantial justice, an appellate
       court may consider an error that has affected the substantial rights of a party
       at any time, even though the error was not raised in the motion for a new
       trial or assigned as error on appeal.” We have cautioned, however, that the
       discretionary authority to invoke the plain error doctrine should be
       “sparingly exercised,” State v. Bledsoe, 226 S.W.3d [349,] 354 [(Tenn.
       2007)], because “appellate courts do not sit as self-directed boards of legal
       inquiry and research, but essentially as arbitrators of legal questions
       presented and argued by the parties before them.” State v. Northern, 262
       S.W.3d [741,] 766 [(Tenn. 2008)] (Holder, J., concurring and dissenting)
       (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).
       3
          Defendant’s argument on the issue of notice is limited to a deficiency in the indictment.
Therefore, Defendant has waived consideration of any other due process claim which may exist. See
Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate reference to the record will be treated as waived in this court.”).
                                                     -7-
State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). To determine whether a trial error rises
to the level of justifying “plain error” relief, we look to the following five factors:

       (a) the record must clearly establish what occurred in the trial court; (b) a
       clear and unequivocal rule of law must have been breached; (c) a
       substantial right of the accused must have been adversely affected; (d) the
       accused did not waive the issue for tactical reasons; and (e) consideration of
       the error is “necessary to do substantial justice.”


State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record
before this Court will recognize the existence of plain error, and complete consideration
of all the factors is not necessary when it is clear from the record that at least one of the
factors cannot be established. Bishop, 431 S.W.3d at 44. Even if all five factors are
present, “the plain error must be of such a great magnitude that it probably changed the
outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642).

        Our supreme court has noted that cases involving sexual offenses against children
“may involve repeated criminal actions over an extended period by the defendant against
a child, who may have difficulty remembering the specifics of each offense.” State v.
Smith, 492 S.W.3d 224, 233 (Tenn. 2016). “To accommodate the inherent uncertainty
the prosecution faces with young children testifying about specific events on particular
dates, the State may charge a single offense as having occurred over a significant span of
time.” Id. “[W]here [an] indictment charges that sex crimes occurred over a span of
time, evidence of unlawful sexual contact between the defendant and the victim allegedly
occurring during the time charged in the indictment is admissible.” State v. Knowles, 470
S.W.3d 416, 423 (Tenn. 2015) (quoting State v. Rickman, 876 S.W.2d 824, 828 (Tenn.
1994)). However, at the end of the State’s case-in-chief, it must elect the particular
offense for which conviction is sought. Id. “The two primary purposes of this election
requirement are ‘to preserve a criminal defendant’s right under the state constitution to a
unanimous jury verdict, and to allow the State some latitude in the prosecution of
criminal acts committed against young children . . . .’” Id. at 423-24 (quoting Rickman,
876 S.W.2d at 828).

       Here, like in many cases of a similar nature, Defendant’s indictment alleged the
crimes of rape of a child by sexual penetration between January 1, 2014, and March 30,
2014, in Count One, and aggravated sexual battery by engaging in sexual contact
between January 1, 2014, and March 30, 2014, in Count Two. Because of the nature of
the offenses, this case contained inherent uncertainty and necessitated an open dated
indictment. The face of the indictment does not limit the crimes charged to merely one
                                            -8-
factual basis. These indictments put Defendant on notice that any sexual penetration or
sexual contact between the aforementioned dates was subject to prosecution by the State.
Further, the elected offenses fit squarely within the date range of the indictment and
protected Defendant from double jeopardy. Defendant has failed to prove that a clear and
unequivocal rule of law was breached in the formation of the indictment, in the election
of offenses, or in the verdict of the jury pursuant to the indictment.

                        II. Improper Statements by the Prosecutor

       Defendant claims that the prosecutor misstated the evidence in her rebuttal by
saying that Defendant continued to message the victim after the phone was taken away
and saying that defense counsel never asked Mrs. Owens when she found out about the
messages between Defendant and the victim. He also asserts that the prosecutor’s
comments about defense counsel lying were so improper that they require reversal and
that the prosecutor introduced evidence not in the record in her rebuttal. The State
maintains that Defendant failed to preserve these claims for appeal when he failed to
object at trial and that Defendant is not entitled to relief because none of the claims rise to
the level of reversible error. We agree with the State.

       During closing argument, defense counsel made an assertion that all of the
messaging ceased once the phone was taken away from the victim and presented the
theory that the victim had authored all of the messages using fake accounts under
Defendant’s name in an attempt to get the Defendant in trouble. Defense counsel
anticipated that the State would argue that Defendant stopped sending messages only
after Ms. Jones informed Mrs. Owens about the discovery of the phone. Defense counsel
argued that Mrs. Owens could not have notified Defendant about the discovery of the
phone until long after the messaging had already ceased and, thereby, posited that
Defendant had not authored the messages.

        On rebuttal, the prosecutor pointed out that defense counsel’s assertion was
contrary to the proof presented and stated that the messages from Defendant continued
after the phone had been taken away from the victim. In so doing, the prosecutor told the
jury that defense counsel “lied.” The prosecutor also said, “He didn’t ask [Mrs. Owens]
when she found out, because then he couldn’t get up here and make this argument to you
that’s based on a lie.” The prosecutor went on to say, “Did he ask her, when did you find
out about this? When did you talk to the [D]efendant about this? No, he never asked
that, because then he couldn’t get up here and lie to you.” The prosecutor also repeated
the phrase “don’t let him insult your intelligence.” The trial court interrupted the
prosecutor, called the attorneys to the bench, and instructed the prosecutor to stop calling
defense counsel a liar. She complied, but the trial court did not issue a curative
instruction to the jury.

                                             -9-
        When critiquing Sergeant Taylor’s investigation during closing argument, defense
counsel asserted that Sergeant Taylor should have asked Facebook for the IP address
from which the messages attributed to Defendant were sent. On rebuttal, the prosecutor
said, “[Defense counsel] asked you why [Sergeant Taylor] didn’t subpoena Facebook for
IP addresses. Did he ask Sergeant Taylor that? No, he didn’t ‘cause Sergeant Taylor
would’ve said in response to that Facebook doesn’t keep IP Address[es].”

       At the motion for new trial hearing, the trial court found the prosecutor’s
comments about defense counsel lying to be “improper,” but the court did not believe
that the comments had an effect on the verdict. Also, the trial court determined that the
prosecutor’s remarks about IP addresses did not affect the verdict.

        Defendant did not object at any point during the prosecutor’s closing argument or
rebuttal. Appellate relief is generally not available when a party has “failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of any
error.” Tenn. R. App. P. 36(a). A defendant’s “failure to object to the State’s argument
at trial precludes [this Court’s] review of the issue, subject to our noticing ‘plain error.’”
State v. Derrick Dewayne Lyons, No. M2014-00178-CCA-R3-CD, 2015 WL 475158 at
*9 (Tenn. Crim. App. Feb. 4, 2015) (citing Tenn. R. App. P. 3(e); Tenn. R. App. 36(a);
State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992)), perm. app. denied (Tenn.
June 11, 2015). As noted above, one of the five factors necessary for plain error relief is
that “consideration of the error is ‘necessary to do substantial justice.’” Smith, 24 S.W.3d
at 282. The burden is on the defendant to establish all five factors, and “complete
consideration of all the factors is not necessary when it is clear from the record that at
least one of the factors cannot be established.” Id. Furthermore, the error must be of
“such a great magnitude that it probably changed the outcome of the trial.” Id.

        While the scope and depth of closing argument is generally a matter within the
trial court’s discretion, State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994), the State is
not free to do what they wish. Arguments are required to be “temperate, based upon the
evidence at trial, relevant to the issues being tried, and not otherwise improper under the
facts of the law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker
v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)). Although not exhaustive, this
Court has recognized five general areas of potential improper prosecutorial argument: (1)
intentionally misstating the evidence or misleading the jury as to the inferences it may
draw; (2) expressing personal beliefs or opinions as to the truth or falsity of any
testimony or the guilt of the defendant; (3) inflaming or attempting to inflame the
passions or prejudices of the jury; (4) injecting issues broader than the guilt or innocence
of the accused; and (5) arguing or referring to facts outside the record unless the facts are
matters of common knowledge. Id. at 6.


                                            - 10 -
       First, we note that the prosecutor did not misstate the evidence when she said that
Defendant continued to message the victim after the phone had been taken away. In fact,
it appears that during the trial, defense counsel continually misstated the day on which
Ms. Jones took the phone away from the victim. Defendant’s final message to the victim
on ooVoo was at “3/30/2014 6:05:04 AM UTC,” which would have been 12:05 a.m. on
March 30th in Shelby County, Tennessee.4 Ms. Jones testified that she took the phone
away from the victim on Saturday night and that she spoke to Mr. Owens on Sunday
morning before filing a police report. Sergeant Taylor testified that the police report was
made on March 30th. Thus, it appears clear that Ms. Jones took the phone away from the
victim on the night of March 29th, and Defendant continued to send messages to the
victim until 12:05 a.m. on March 30th.

       However, the prosecutor misstated the evidence when she said that defense
counsel did not ask Mrs. Owens when she found out about the messages between
Defendant and the victim. During direct examination, defense counsel asked Mrs.
Owens, “But you would know that on the day that you found out about this you did not
find out until after 7:00 p.m.?” Mrs. Owens responded, “Yes, sir.” Also, the prosecutor
attempted to inflame the jury and injected issues broader than the guilt or innocence of
the accused when she said that defense counsel had lied and implored the jury to not let
him insult their intelligence. On top of that, the prosecutor referred to facts outside of the
record that were not common knowledge when she said, “Sergeant Taylor would’ve said
in response to that Facebook doesn’t keep IP Address[es].” The fact that Facebook does
not keep IP addresses was not in evidence and is not common knowledge, if it is even
true. Moreover, it is clear from the phrasing of the statement that the prosecutor was
speculating as to what Sergeant Taylor would have testified about, instead of actual
testimony. To call defense counsel a “liar” was improper, unnecessary and as the
experienced trial court pointed out, not “proper etiquette.”

       If the prosecution’s argument is found to be improper, relief may only be granted
when “the conduct was so improper or the argument so inflammatory that it affected the
verdict to the [defendant’s] detriment.” Id. at 5. When measuring the prejudice caused
by the argument, we consider: (1) the facts and circumstances of the case; (2) any
curative measures undertaken by the court and the prosecutor; (3) the intent of the
prosecution; (4) the cumulative effect of the improper conduct and any other errors in the
record; and (5) the relative strength or weakness of the case. Id. Given the facts and
circumstances of this case, the statements by the prosecutor were relatively
inconsequential. As for the prosecutor’s comments about defense counsel lying, the trial
court took curative action by instructing the prosecutor to cease her inappropriate
behavior, but no additional curative measures were asked for or taken with regard to the

       4
         We take judicial notice that Universal Coordinated Time (UTC) is six hours ahead of the North
American Central Time Zone (CT), in which Shelby County, Tennessee is located.
                                                 - 11 -
other improper statements. The intent of the prosecutor is certainly questionable. There
were no other trial errors identified which would accumulate with the improper
statements. The circumstantial evidence strongly supported the victim’s account of what
happened, and the prosecutor’s statements pertained to matters that were not central to
the case. Ultimately, we conclude that the improper statements did not affect the verdict
to the Defendant’s detriment, and thus, consideration of the error is not necessary to do
substantial justice.

                                    III. Brady Claim

        Defendant also claims that the prosecutor revealed the existence of undisclosed
statements by the victim during the motion for new trial hearing when she said, “I didn’t
know what she was going to testify to having given me many, many different stories now
at this point.” The prosecutor made this statement after Defendant’s argument that he
had insufficient notice of the charges against him to prepare an adequate defense. The
State argues that this claim is waived for failure to raise the issue in the trial court. A
defendant’s ability to amend a motion for new trial ceases on the day of the hearing, and
testimony at the motion for new trial hearing is limited to the issues raised in the motion
for new trial. Tenn. R. Crim. P. 33(b), (c)(1). Arguably, Defendant did not have an
opportunity to respond since this revelation by the State came at the close of the trial
court process.

         Nevertheless, defense counsel took no action at the motion for new trial hearing
in response to the prosecutor’s comments about the victim’s contradictory statements.
Defendant failed to object or ask for a continuance to further address any potential Brady
violation. The trial court had no opportunity to make a ruling on the Brady claim.
Because Defendant failed to make an effort to address the issue at the trial level and
raised it for the first time on appeal, the issue is waived. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); State v. Franklin, No. M2017-00180-
CCA-R3-CD, 2018 WL 1100962, at *4 (Tenn. Crim. App. Feb. 27, 2018) (holding the
defendant’s issue was “waived because the [d]efendant raise[d] it for the first time on
appeal”); State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016) (“It is well-settled that a
defendant may not advocate a different or novel position on appeal.”); State v. Johnson,
970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal
are considered waived.”).

       Furthermore, Defendant is not entitled to plain error review of this issue. The
doctrine of plain error applies when all five of the following elements have been
established:

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       (1) the record clearly establishes what occurred in the trial court; (2) a clear
       and unequivocal rule of law was breached; (3) a substantial right of the
       accused was adversely affected; (4) the issue was not waived for tactical
       reasons; and (5) consideration of the error is necessary to do substantial
       justice.

State v. Minor, 546 S.W.3d 59, 67 (Tenn. 2018). A defendant’s failure to establish any
of these criteria requires denial of relief under the plain error doctrine, and “an appellate
court need not consider all criteria when the record demonstrates that one of them cannot
be established.” Id. “An error would have to [be] especially egregious in nature, striking
at the very heart of the fairness of the judicial proceeding, to rise to the level of plain
error.” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). Here, the record does not
clearly establish what occurred at the trial court. Due to Defendant’s failure to object, it
is unclear to which of the victim’s statements the prosecutor was referring during the
hearing. Thus, plain error review is not applicable.

                                        Conclusion

       For the aforementioned reasons, the judgments of the trial court are affirmed.


                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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