             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                           APRIL SESSION, 1999

                                                              FILED
STATE OF TENNESSEE,          )                                      May 20, 1999
                             )    No. 02C01-9810-CC-00311
      Appellee               )                           Cecil Crowson, Jr.
                             )    HARDEMAN COUNTY      Appellate Court Clerk
vs.                          )
                             )    Hon. Jon Kerry Blackwood, Judge
ROBERT CRISP, JR.,           )
                             )    (Delivery of cocaine less than .5 grams)
      Appellant              )



For the Appellant:                For the Appellee:

Karen T. Fleet                    Paul G. Summers
Attorney at Law                   Attorney General and Reporter
P. O. Box 401
Bolivar, TN 38008                 Patricia C. Kussmann
                                  Assistant Attorney General
(ON APPEAL)                       Criminal Justice Division
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
Linda Sesson Taylor               Nashville, TN 37243-0493
Attorney at Law
423 North Highland Avenue
P. O. Box 1671                    Elizabeth T. Rice
Jackson, TN 38302                 District Attorney General

(AT TRIAL)                        Jerry W. Norwood
                                  Asst. District Attorney General
                                  Hardeman County Courthouse
                                  Bolivar, TN 38008




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



        The appellant, Robert Crisp, Jr., was convicted of one count of delivery of

cocaine less than .5 grams, a class C felony, in the Hardeman County Circuit Court.

The trial court imposed a sentence of three years in the Department of Correction,

to serve thirty days with the remainder on probation. In this appeal as of right, the

appellant argues:

        I. Newly discovered evidence exists which, if presented, would have
        resulted in a different judgment at trial; and

        II. The evidence is insufficient to support the jury verdict.1




        We affirm the judgment of conviction and sentence entered by the trial court.




                                              Background



        Kenneth Jones, an investigator with the Milan Police Department, was

assigned to assist the Bolivar Police Department in the surveillance of drug activities

in the city of Bolivar during the period between July 1997 and January 1998. On

July 15, 1997, Kenneth Jones met with Bolivar Police Officer Mike Jones at which

time a Cadillac outfitted with a “pin hole camera” was provided for the undercover

operation. Kenneth Jones then proceeded to a residence located at 219 Margin

Street, Bolivar where he would attempt to purchase crack cocaine.2




        1
        The appellant also raises as an issue that the senten ce imposed is excessive. However,
he concedes, in his brief, that “if, in fact, the appellant had committed this crime, this sentence
would not in any manner be excessive.” Accordingly, we need not address this issue herein.

        2
         Kenne th Jone s testified at trial tha t the reside nce wa s either 21 5 or 219 Margin Street.
On cross-examination, he stated that the house may have been at 319 Margin Street and he
could not be more definite without his field notes.

                                                    2
      Outside the residence at 219 Margin Street, Kenneth Jones observed a man,

later identified as co-defendant Rickey Bowles, standing outside the residence.

Kenneth Jones asked the man if he could get “three for four.”3 Co-defendant

Bowles informed Kenneth Jones that they would have to go inside the house and

talk to the “main man.” Jones parked the Cadillac in the driveway and accompanied

Bowles into the house.



      Inside the residence, the appellant emerged from a room in the back of the

house. Again, Kenneth Jones asked to purchase fifty dollars of crack cocaine. The

appellant and Bowles then discussed whether they had seen Jones before.

Apparently, satisfied regarding Kenneth Jones’ identity, the appellant and Bowles

agreed to complete the transaction and Bowles delivered three rocks of what was

later identified to be .3 grams of crack cocaine to Officer Jones. Kenneth Jones

then left the residence and rendezvoused with Mike Jones, at which time the

controlled substance was transferred to an evidence envelope.



      The appellant was indicted in January 1998, following the conclusion of the

undercover drug operation in Bolivar. At the appellant’s subsequent trial, on May

18, 1998, Officer Kenneth Jones testified that, although he had never met the

appellant until the day of the drug transaction, he recognized the appellant from

prior photographs he had reviewed. He explained that, before the undercover

operation began, Mike Jones showed him photographs of individuals to determine

whether he had previously made controlled buys from any of these persons.

Kenneth Jones testified that he was “100 percent positive” that the appellant was

the individual in the house that took his money in exchange for cocaine.



      Officer Mike Jones testified that he recovered the contraband from Kenneth

Jones immediately after the controlled buy transaction. He sealed the evidence in


      3
          Three rocks of crack cocaine for forty dollars.

                                                  3
an envelope and personally delivered the substance to the TBI Crime Laboratory in

Jackson. Mike Jones also explained that, in accordance with his departmental

policies, the name of the undercover officer, Kenneth Jones, was not placed on the

evidence envelope in order to protect his identity.



        Prior to trial, the appellant provided notice of his intent to rely upon an alibi

defense. At trial, he presented several witnesses in support of this defense.

Monica Woods, the appellant’s first cousin, testified that, on July 15, 1997, she and

the appellant traveled to the casinos in Tunica, Mississippi. Specifically, she stated

that they had left Bolivar at approximately 8:15 that morning and did not return until

2:00 the next morning. Woods explained that she was certain of the date because

she had just received her child support check, which she receives on the fifteenth of

each month, and she cashed the check before leaving for the casino. The

appellant’s co-defendant, Rickey Bowles, whose trial date was pending, also

testified for the appellant.4 Bowles related that he was never in the presence of the

appellant on July 15, 1997. Following this statement, Bowles then invoked his Fifth

Amendment privilege against self-incrimination to all further questions.



        The appellant took the stand in his own defense. He explained that he

owned three houses, 219 Margin, 662 Mitchell, and one on Rogers Street. The

houses were left to him as part of his inheritance. Although he owned the houses,

the appellant maintained that he did not live at any of the properties. He testified

that co-defendant Bowles and Laray Buntyn lived at the residence at 219 Margin

Street.5 He added that many people often stayed at that residence, “the house was

open all the time.” The appellant testified that he was in Tunica, Mississippi on the

date the alleged drug transaction occurred.



        4
            The record indicates that co-defendant Bowles pled guilty to this offense May 22, 1998.

        5
         Although the appellant was not related to Rickey Bowles, he explained that he was the
guardian over Bowles’ social security disability check and that he furnished Bowles with a home
becau se Bow les had n o where else to go .

                                                   4
       Based upon this evidence, the jury found the appellant guilty of delivery of

less than .5 grams of cocaine.




                           I. Newly Discovered Evidence

       On September 9, 1998, a hearing was held on the appellant’s motion for new

trial. The appellant’s motion relied, in part, on newly discovered evidence, i.e., the

sworn statement of Laray Charles Buntyn. Buntyn’s affidavit related that, on July

15, 1997, he resided with Rickey Bowles at 219 Margin Street, Bolivar. At that time,

his sole means of support was the sale of illegal controlled substances. He

conceded that it was he, rather than the appellant, who along with Rickey Bowles

sold crack cocaine to the undercover officer. He further asserted that the appellant

was not at the residence at 219 Margin Street when the transaction occurred. On

the date of the trial, May 18, 1998, Buntyn, a juvenile, stated that he was

incarcerated at the Nashville Preparatory School and, thus, was unable to testify for

the appellant.



       The appellant contends that the sworn statement of Laray Buntyn “is so

material that a different result would follow in that it goes beyond mere impeaching

testimony and in fact does exonerate the defendant.” Accordingly, he argues that

the trial court erred in denying his motion for new trial on the grounds of newly

discovered evidence.



       In seeking a new trial based on newly discovered evidence, a criminal

defendant must establish (1) reasonable diligence in attempting to discover the

evidence; (2) the materiality of the evidence; and (3) that the evidence would likely

change the result of the trial. State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim.

App. 1996) (citing State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing State

v. Goswick, 656 S.W.2d 355, 358-360 (Tenn. 1983))). If the defendant fails to show


                                         5
that he and/or his attorney exercised reasonable diligence in the procurement of a

witness at the original trial, the trial court may properly deny a motion for new trial

based on newly discovered evidence. See State v. Gentry, No. 02C01-9708-CC-

00304 (Tenn. Crim. App. at Jackson, Sept. 14, 1998) (citing Hawkins v. State, 417

S.W.2d 774 (Tenn. 1967)). Moreover, the trial court is afforded broad discretion in

deciding whether to grant or deny a motion for new trial based on newly discovered

evidence and its decision will not be overturned on appeal absent a clear abuse of

discretion. See State v. Walker, 910 S.W.2d 381, 395 (Tenn. 1995), cert. denied, --

U.S. --, 117 S.Ct. 88 (1996).



       The appellant maintains that (1) he and his attorney exercised reasonable

diligence in the search for evidence in preparation of the case, (2) he and his

counsel had no pre-trial knowledge of such new evidence; and (3) the facts

contained in the affidavit of the witness Buntyn had not been communicated to the

accused prior to trial. Despite these assertions, we conclude that the proof fails to

support the appellant’s exercise of reasonable diligence in discovering the statement

of Laray Buntyn.



       In order to show reasonable diligence, the defendant must demonstrate that

neither he nor his counsel had knowledge of the alleged newly discovered evidence

prior to trial. See Meade, 942 S.W.2d at 566 (citing Jones v. State, 452 S.W.2d

365, 367 (Tenn. 1970)). First, the “Notice of Alibi” filed by the appellant identified

Laray Buntyn as a witness to establish the defense of alibi. Second, minimal

diligence in the preparation of the case would have required trial counsel to have

investigated the identity of the second person involved in the drug transaction.

Finally, Buntyn stated in his affidavit that the appellant contacted him prior to trial

and that he and the appellant discussed the appellant’s pending trial, although they

“just couldn’t talk on the phone like we really wanted to.” There is nothing in the

record to indicate that the appellant attempted to procure Buntyn’s presence at trial;


                                           6
the mere fact that Buntyn was incarcerated at the time of the trial did not prevent

Buntyn from testifying. See Tenn. Code Ann. § 40-21-305 (1997).



       We conclude that the trial court correctly denied the appellant’s motion.

There is no competent proof before us to establish that the appellant exercised

reasonable diligence in searching for the evidence prior to trial. Accordingly, the trial

court did not abuse its discretion by denying the motion for new trial. This issue is

without merit.




                           II. Sufficiency of the Evidence

       In his final issue, the appellant asserts that the evidence presented at trial

was not sufficient to support a conviction for the delivery of less than .5 grams of

cocaine beyond a reasonable doubt. In support of this issue, the appellant attacks

the credibility of Officer Kenneth Jones, the only eyewitness to the undercover drug

transaction. Specifically, he argues that (1) Kenneth Jones admitted to drinking

beer at the time he arrived at the residence at 219 Margin Street; (2) Kenneth Jones

testified that the residence in which he purchased the crack cocaine was 215, 219

or 319 Margin Street; (3) Kenneth Jones was not identified as a person in the chain

of custody on the sealed evidence envelope; and (4) the appellant was not identified

on the videotape of the transaction. Additionally, the appellant refers to

contradictions between the State’s proof and the proof presented by the defense.



       The record offers explanation to the appellant’s specific attacks on Officer

Kenneth Jones. First, Officer Jones testified that, while working undercover, he

often would have a few sips of beer in order to “blend in” in an attempt to look and

act the part of a “crack head.” He stated that he was in no way impaired or

intoxicated at the time of the undercover transaction. Second, Officer Jones

explained that he could not remember the exact address of the transaction without


                                          7
the aid of his field notes. Third, the absence of Officer Jones’ identity on the

evidence envelope was in conformance with undercover narcotics procedure of the

Bolivar Police Department. Finally, Officer Jones testified that the “pin hole” camera

was located inside the Cadillac. Obviously, the camera would not have been able to

video-record the transaction occurring inside the house.



       Essentially, the appellant's argument rests on his attack of the credibility of

Officer Kenneth Jones. A guilty verdict, approved by the trial judge, accredits the

testimony of the witnesses for the State and resolves any conflicts in the evidence

favorably to the State's theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978).

It is not the duty of this court to revisit questions of witness credibility on appeal, that

function being within the province of the trier of fact. See generally State v. Adkins,

786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 718-19

(Tenn. Crim. App. 1993); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.

App.1990). The jury has the authority, as the trier of fact, to believe or disbelieve

the testimony of any witness. In the case sub judice, the jury chose to accredit the

testimony of Kenneth Jones and reject the alibi presented by the defense. We

decline the appellant’s invitation to overturn his conviction by making a choice

different from that of the jury.



       Moreover, the appellant has failed to show that the evidence presented was

insufficient for any rational trier of fact to find the essential elements of this offense

beyond a reasonable doubt. Tenn. R. App. P. 13(e). First, there is no dispute as to

the substance and quantity of the sale. Moreover, Officer Kenneth Jones positively

identified the appellant and his co-defendant as the two individuals that sold him

three rocks of crack cocaine on July 15, 1997. Tenn. Code Ann. § 39-17-417(a)(2),

(c)(2) (1997). Accordingly, this issue is without merit.




                                           8
      Finding the issues raised by the appellant to be without merit, we affirm the

judgment of conviction and sentence entered by the trial court.




                                  ____________________________________
                                  DAVID G. HAYES, Judge




CONCUR:



____________________________________
JOSEPH M. TIPTON, Judge



____________________________________
L. T. LAFFERTY, Judge




                                        9
