State of Tennessee v. Kelly Anne Newmon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 2000 Session

STATE OF TENNESSEE v. KELLY ANNE NEWMON

Appeal from the Circuit Court for Carroll County
No. 98CR-1304 Lee Moore, Judge

No. W1999-01497-CCA-R3-CD - Decided August 4, 2000

This appeal arises from a guilty verdict returned by a Carroll County jury against the defendant for
two counts of delivering less than 0.5 grams of cocaine. On appeal, the defendant challenges her
convictions on the basis that the introduction of evidence bolstering the informant's testimony was
plain error, and the evidence was not sufficient to support the verdict. After a careful review of the
record, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY, J., joined. DAVID G.
HAYES, J., not participating.

Guy T. Wilkinson, District Public Defender, Camden, Tennessee (on appeal) and Ramsdale
O’DeNeal, Jackson, Tennessee (at trial) for the appellant, Kelly Anne Newmon.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
and John C. Zimmermann, District Attorney General Pro Tem, for the appellee, State of Tennessee.

OPINION

As a result of two controlled buys by a police informant, the defendant was indicted on
September 8, 1998, by a Carroll County grand jury on two counts of delivering less than 0.5 grams
of a Schedule II controlled substance, cocaine. After a one day trial, the jury returned a guilty
verdict on both counts. The defendant appealed the jury verdict, raising the following two issues:

I. It was plain error to bolster the credibility of the informant by
allowing the State to introduce evidence that other defendants
she bought from pled guilty and arguing that another jury
looked at her testimony favorably.

II. The evidence was insufficient to justify a rational trier of fact
from finding guilt beyond a reasonable doubt.
After a careful review of the record, we affirm the judgment of the trial court.

FACTS

The defendant was tried on February 11, 1999. The police informant, Debbie Ann Smothers,
was the first witness called by the State. Smothers testified that she was a twenty-seven-year-old
former drug user, who first met the defendant in high school. The two women became friends as
adults, and Smothers stated that she went to the defendant’s home to purchase drugs in 1995 or 1996.
The defendant sold rock cocaine to Smothers, which she smoked, and also helped the witness sell
Valium. In October 1997, Smothers approached Sergeant Johnny Hill of the Huntingdon Police
Department to volunteer to work as an informant. At that time, she was trying to stop using drugs
and “wanted it off the streets,” because she did not want her children to smoke cocaine. The witness
explained that cocaine made her want to kill herself, because she was doing anything to get it,
including selling her body. She stated that she stopped using drugs sometime around November
1997, and takes daily medication.

According to Smothers, Sergeant Hill already knew the identities of several people who were
selling drugs when she approached him, and she agreed to buy drugs from these individuals.
Subsequently, she was involved in drug buys that resulted in three or four convictions. Smothers
bought drugs from the defendant on two occasions under the supervision of Sergeant Hill. On
December 22, 1997, Smothers and her ex-husband met Sergeant Hill at the high school, where the
officer gave her twenty dollars to buy drugs and conducted a search of her pockets. She stated that
she was only wearing a flannel shirt and blue jeans and was not wearing a coat. Smothers contacted
the defendant using a cellular phone that was equipped with a tape recorder and also allowed the
police to hear the conversation. The defendant told Smothers that she had the cocaine, and Smothers
proceeded to the defendant’s home. After being dropped off at the house by her ex-husband,
Smothers found out that the defendant did not have the drugs at her house. The witness remembered
a black adult female she knew from school being at the house with the defendant, along with the
defendant’s children. The defendant left the house for approximately ten minutes and returned with
the drugs, for which Smothers paid the defendant twenty dollars. After the sale was completed,
Smothers’s ex-husband picked her up, and she took the rock cocaine to Sergeant Hill. She was then
paid forty dollars for her participation in the purchase.

The second drug transaction occurred on January 23, 1998. Smothers and a friend met
Sergeant Hill at the high school rendezvous point, where Hill searched Smothers’s pockets and wired
her with a transmitter. Smothers drove to the defendant’s house and went inside, while her friend
waited in the car. Sergeant Hill was hidden nearby. This time, the defendant had the rock cocaine
at her house, and Smothers paid her forty dollars for it. Smothers testified that the amount of cocaine
she received from the defendant was not worth what she paid. Back at her car, Smothers put the
cocaine in cellophane and started to back out of the defendant’s driveway when her car died. She
made it known to Sergeant Hill and Officer Tony Lane, via the transmitter, that she was having car
trouble. Pretending that a neighbor had called them, the two officers pulled up and began checking
the car. Smothers was able to slip the transmitter and the cocaine to the officers. She was
subsequently paid forty dollars for this buy. She admitted making another unsupervised cocaine

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purchase from the defendant for her boyfriend’s brother after this incident. She did so to earn twenty
dollars for cigarettes and other items. Smothers also received phone calls from the defendant on a
number of occasions trying to get Smothers to buy drugs.

On cross-examination, Smothers testified that none of her four children live with her. She
admitted that, at the time she volunteered to be an informant in October 1997, she was still using
drugs, was not working, and was receiving disability benefits. According to Smothers, she needed
the money she received from the police drug buys, but she would have cooperated with the police
even if she had not been paid. She explained, “I don’t want my kids growing up on drugs. I do not
want my kids buying drugs.” She admitted that Sergeant Hill knew that she was still on drugs when
she first approached him in October 1997; however, she had stopped using drugs by December 1997.
She stated that she had participated in three or four other drug “busts” before participating in the first
buy with the defendant on December 22, 1997.

When questioned about the search conducted on her person by Sergeant Hill before she went
to the defendant’s house, Smothers testified that she was wearing shoes and a big T-shirt to cover
up the transmitter. Sergeant Hill made her turn all of her pockets inside out but did not make her
take off her shoes during the search. She did not have a bra on at the time. Neither her ex-husband,
who drove Smothers to and from the defendant’s house for the December drug buy, nor his car, was
searched by the officers. She remembered Sergeant Hill following her ex-husband’s car until they
turned onto the defendant’s street and then positioning himself close enough to see the defendant’s
house. When she found out that the defendant had to go somewhere else to get the drugs, Smothers
told her ex-husband to leave for fifteen or twenty minutes. Smothers stated that Leslie Thomas1 was
sitting in the dining room and should have heard the defendant asking Smothers how much [cocaine]
she wanted and Smothers answering “[a] twenty.”2 The defendant then told Smothers that she had
to go get it.

Smothers testified on further cross-examination that she currently takes Dilantin for seizures,
Theodrine for lung problems related to her crack use, and Valium for grande mal seizures. She
admitted that being an informant involves deceiving and lying to people and that she became good
at it. She denied any arrests for selling drugs. After a jury-out hearing, the trial court only allowed
defense counsel to question the witness about prior bad acts involving a citation she received for
writing bad checks in 1994 or 1995. The witness stated that her addiction to drugs caused her to do
this, and she had paid most of the checks. She denied making any phone calls to the defendant’s
father, Paul Newmon.

Sergeant Johnny Ray Hill of the Huntingdon Police Department was the next witness called
by the State. In the summer and fall of 1997, Hill was put in charge of investigating drug activity

1
Leslie Thomas was the black female w ho Sm others refe rred to on direct exam ination. This individual was
present at th e defend ant’s hou se when Smoth ers arrived on Dec embe r 22, 199 7, and testified at trial for the de fense.
2
From our revie w of the r ecord an d the Ag ent’s Activ ity Log for Confidential Funds, which tracks mone y paid
to inform ants, this app arently m eans a roc k of coc aine with a mark et value o f about tw enty do llars.

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in Huntingdon. He testified that he already had information about individuals involved in drug
trafficking but needed to find someone who was trusted by the dealers to make the actual drug buys
for the police. Sergeant Hill recalled that Smothers came to see him and volunteered to work with
the police to buy drugs from some of the dealers she knew. Smothers told Sergeant Hill at that time
that she was still on drugs. The officer explained that Smothers bought drugs from suspects while
the police recorded the transaction on tape and observed the house. The police corroborated the
information Smothers provided them on dealers with information received from other informants.
Sergeant Hill’s investigation targeted eight different people. He explained that Smothers was paid
a sum, usually forty dollars for each completed undercover buy. The money came from a special
drug fund, and all transactions were accounted for. Prior to making her first buy, the officers
explained to Smothers how to enter, get the drugs, and take them to the police, as well as how to
wear the radio transmitter. This device transmitted sound to Sergeant Hill’s car, which was parked
nearby so that he could observe the transaction. The conversations were taped, but Sergeant Hill
stated that the quality of some of the tapes was very poor. This procedure was followed each time
a drug buy was made.

Sergeant Hill testified that he had spoken to the defendant before the police made their first
undercover drug buy from her in December 1997. On October 16, 1997, the police raided a house
located three or four miles outside of Huntingdon on Highway 22 South that was being used as a
distribution point for drugs.3 During the raid, the officers found a large amount of cocaine, twenty-
six grams, which was being cut up for sale. While the police were still there, the defendant called
the house twice. Sergeant Hill had spoken to the defendant previously and recognized her voice
when he answered the first call. Someone else answered the second call but also recognized the
defendant’s voice. Sergeant Hill had received additional information from Sergeant Ricky Sawyers,
who lived next-door to the defendant, that there was abnormal traffic at the defendant’s home
consistent with illegal drug activity. People would come to the defendant’s residence all hours of
the day and night and stay only a few minutes before leaving. Sergeant Hill observed this activity
as well.

The police decided to make the first drug buy from the defendant on December 22, 1997.
Sergeant Hill testified that the officers searched Smothers’s pockets before they sent her to the
defendant’s house, but she was not searched thoroughly. Smothers had already made several drug
purchases for the police, and none of the suspects ever denied selling to her. Additionally, Hill
testified that Smothers was a very small person at the time and always dressed in jeans and a shirt.
She did not wear a coat, even in cold weather. After giving Smothers the transmitter and the money
to buy drugs, Sergeant Hill and Chief Deputy Tony Moon went to the fire station one street over and
directly in front of the defendant’s residence to observe the transaction. Hill and Moon watched and
listened as Smothers was dropped off in front of the defendant’s house, went inside and talked to the
defendant, and then saw the defendant leave the residence a short time later. She was gone
approximately four or five minutes. Shortly after the defendant returned to the house, Smothers left

3
As a result of the raid, Serge ant Hill stated that five or six people w ere charg ed. All either pled guilty or were
found guilty by a jury.

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the defendant’s residence and went back to the school, where she gave the officers the crack
cocaine.4 Sergeant Hill explained that there is a crack house, referred to by locals as “The Bottom,”
close to the defendant’s home, and she could have driven there and back within the time period she
was gone during the December transaction. According to Hill, the taped conversation between
Smothers and the defendant that day contained only normal conversation between friends.

The second drug purchase involving the defendant took place on January 23, 1998, at
approximately 7:00 p.m. The officers met and prepared Smothers just as before. Smothers called
the defendant on a cellular phone, and Sergeant Hill testified that he heard Smothers ask the
defendant if she had the “stuff” there, and the defendant answered that she did. She told Smothers
that she could come by and get it. The officers did not record this conversation. This time, the
officers parked at the school to observe the transaction, which was a little farther away than where
they parked in December. After pulling into the defendant’s driveway, Smothers entered the house
and came out after a short time, telling the officers via the transmitter that she thought she had been
“ripped off.” The amount of drugs she received was not enough for the money she paid. Sergeant
Hill described essentially the same event related by Smothers in her testimony, in which Smothers’s
car broke down in the defendant’s driveway, and the officers rescued her and retrieved the cocaine.5
Smothers was paid forty dollars for this transaction. Ledger records showing the drug transactions
for December and January were introduced into evidence through Sergeant Hill. The defendant was
not arrested immediately but was arrested in June of 1998.

Hill testified that Smothers never falsified anything, tampered with evidence, or lied to him
during his dealings with her as an informant. He stated that the defendant, who is the daughter of
the Carroll County Circuit Court Clerk, was not targeted or selected because her father is a public
official.

On cross-examination, Sergeant Hill stated that he has not had any specialized training
relating to drug busts or informants; however, in the four years preceding the trial, he had been
involved in thirty to forty drug transactions involving an informant. He denied that Smothers told
him she was still using drugs when she volunteered to work with the police in October 1997.
Sergeant Hill stated that he checked out Smothers as best he could to make sure her information
about the defendant was reliable. Smothers was recommended to Hill by another officer who had
utilized her in the past. He admitted that a background check on Smothers was not done but that he
checked her out through other officers. He admitted that the sheriff’s department has a female
officer, and he could have made arrangements for her to search Smothers thoroughly before the drug
buys. Hill also admitted that Smothers could have hidden something the size of a twenty dollar

4
The piece of cocaine purchased from the defendant on December 22, 1997, was introduced through the
testimony of Sergeant Hill. The parties stipulated to the contents of the laboratory report signed by TBI Special Agent
Forensic Scientist San dra Rom anek w hich reve aled the ro ck to con tain .1 gram cocaine b ase, a Sche dule II controlled
substanc e.
5
This rock of cocaine was introduced into evidence through Sergeant Hill, and the parties aga in stipulated to
the TBI laboratory analysis that revealed .1 gram cocaine base, a Schedule II substance.

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cocaine rock in her shoe. Smothers’s ex-husband, who drove her to the first buy, was not searched,
nor was his car. Smothers’s car was not searched before the second buy in January but was searched
when the officers pretended to be responding to a call to help Smothers with her broken down car.
A friend named Robin was in the car with Smothers during the second buy. In the taped
conversation of the second buy, there was no mention of anything relating to drugs between the
defendant and Smothers once Smothers got to the house. Chief Deputy Moon stated that he saw a
black male at the defendant’s house during this transaction. He stated that Smothers denied making
any phone calls to the defendant’s father when he questioned her after Mr. Newmon accused her of
doing so. On redirect, Sergeant Hill testified that the prosecutor and the district attorney approached
Mr. Newmon after he made the accusation to get more information, but Mr. Newmon refused to give
them further information.

The next witness called to testify for the State was Chief Deputy Tony Moon. Moon was
part of the joint drug task force formed between the Carroll County Sheriff’s Department and the
Huntingdon Police Department to investigate drug activity in the county during 1997. On December
22, 1997, Moon accompanied Hill on the undercover drug buy from the defendant. This transaction
was part of an investigation involving several different people. From their investigation, the police
and sheriff obtained the names of some of the drug dealers before they made the undercover buys.
The defendant was one of the suspects. Moon’s description of the events surrounding the December
undercover drug buy were essentially the same as that testified to by Hill. He also stated that the
defendant was not targeted because her father was a public official. He explained that Mr. Newmon
was a friend of his, and, if anything, the fact that the defendant was Newmon’s daughter would have
made him not want to target her.

On cross-examination, Moon admitted that no one saw the defendant go to “The Bottom”
to purchase drugs on December 22, 1997, when she left the house. The officers had already
established that drugs were being sold at “The Bottom” from a previous stakeout. He did not recall
any statements in the taped conversation between the informant and the defendant on that day which
related to a drug transaction, such as “I want to buy drugs,” “Sell me a forty,” or the like. Moon
remembered Smothers’s ex-husband being with her, dropping her off, and driving around before
picking her up again. He admitted the ex-husband could have gone to “The Bottom” to buy the
cocaine. He also did not remember if Hill searched Smothers before the buy and explained that
whether an informant was searched depended on the situation. Moon was there only as an observer
to assist Hill, and this was Hill’s undercover buy. He remembered Hill telling him that Smothers
said that the defendant would not let her pull up in the yard, so her ex-husband had to drop her off.
Moon did not remember what Smothers was wearing that day and did not take any notes.

The State’s next witness was Officer Tony Lynn Lane, who assisted Hill after the January
23, 1998, undercover drug buy from the defendant when Smothers’s car broke down. He explained
that Sergeant Hill called him to ask him to help his informant with her car trouble. Lane drove to
the defendant’s house and found Smothers’s car parked in the street with a broken carburetor.
Smothers gave Sergeant Hill the cocaine wrapped in the foil from a cigarette package. Hill placed
the contraband in his pocket. Because the car could not be fixed, Officer Lane drove Smothers back

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home. He stated that Smothers did not lock the disabled car before it was left at the school or act
as if anything valuable was in the car.

On cross-examination, Officer Lane stated that he did not know where Smothers got the
drugs that she handed to Hill and that she did not hand the drugs to Hill until the officers arrived to
help her with her car.

The last witness called by the State was Sergeant Richard Sawyers, a narcotics investigator
for the Huntingdon Police Department. Sergeant Sawyers lived next-door to the defendant for
several years, including 1997 and early 1998. He testified that he noticed unusual activities at the
defendant’s residence beginning shortly after she moved there in 1995. Sergeant Sawyers noticed
several visitors to the defendant’s residence who would stay from thirty minutes to a couple of hours.
Other individuals would stay only fifteen or twenty minutes. The traffic seemed to slow down when
the task force began making arrests based on undercover buys of crack cocaine. Sawyers also
noticed the defendant leaving her house often and returning shortly thereafter. He suspected the
defendant or someone else was dealing drugs out of her house. Because he felt it would be
inappropriate for him to conduct an investigation of his next-door neighbor, Sergeant Sawyers
reported the defendant’s conduct to the police. Following this testimony, the State rested its case.

The defense called Patsy Newmon, the defendant’s mother, as its first witness. Mrs.
Newmon recalled getting two unusual phone calls, the first of which occurred on election night. She
stated that she answered the phone, and a young lady asked to speak to “Paul Newmon from the
courthouse.” When Mrs. Newmon told the caller that her husband was not there, the caller told Mrs.
Newmon that she, the caller, had a problem with her daughter. The call struck Mrs. Newmon as
unusual, because they normally do not get calls like that, and most people that call the couple know
that Mr. Newmon works at the courthouse. The next night, Mrs. Newmon answered another phone
call and recognized that voice as being the caller from the night before. Mrs. Newmon was on the
line when her husband took the call. The young lady told him, “I know your daughter is in trouble
and I can help you out. . . . I can plead the Fifth and get her out of trouble.” Mr. Newmon said,
“Debbie, we know who you are.” According to Mrs. Newmon, the young lady implied that she
wanted money from the couple, to which Mr. Newmon refused. Mrs. Newmon interrupted and
asked the caller to give them time to think about it. The Newmons did not have caller ID on their
phone at the time, and it was Mrs. Newmon’s intention to have equipment installed to enable them
to identify the caller. Following the call, Mr. Newmon contacted Chief Deputy Moon, who was
involved in the case. Sergeant Johnny Hill and another officer met with Mr. Newmon. Mrs.
Newmon was not present during the meeting and did not know if Smothers knew her daughter.

The next witness called by the defense was Paul Reed Newmon, the defendant’s father. He
testified that he is the Circuit Court Clerk, a position that he has held for nine years. Mr. Newmon
recalled receiving a telephone call one night around the time of the election. His wife called him to
the phone and told him the caller was the same person who had phoned the night before. The
woman caller told Mr. Newmon that she would “plead the Fifth” if he would pay her. He “played
along” with the caller for a few minutes and then told her he would not agree. The caller kept asking
Mr. Newmon to talk louder, and he got the impression that she was taping the conversation. The

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caller finally told Mr. Newmon, “Well, if you don’t want to go along with me, by God, let your
daughter spend 10 or 12 years in prison.” Mr. Newmon responded, “Debbie, I know who you are
and where you live, and you know there are other ways to keep you from testifying if I didn’t want
you to testify. There’s no reason to pay you anything.” He stated that he heard Smothers testify at
the preliminary hearing and identified the voice on the phone as hers. Mr. Newmon contacted Chief
Deputy Moon, who relayed the information to Sergeant Hill. Sergeant Hill and Sergeant Sawyers
met with Mr. Newmon about the call. Mr. Newmon testified that he could not get the caller’s
number from the phone company or another police agency he was trying to get the number from and
was unable to retrieve the number.

On cross-examination, Mr. Newmon admitted getting a visit from District Attorney General
Gus Radford related to his claims about the call. General Radford told Mr. Newmon that the TBI
could get the phone records if he would give them an official statement. The witness admitted that
he never gave an official statement to the TBI. He denied telling General Radford that he would
think about it and then told him to forget it.

The defense next called Leslie Thomas, who was present at the defendant’s residence on
December 22, 1997. She stated that Smothers came to the house to get a pair of tennis shoes for her
daughter from the defendant. Ms. Thomas recalled that the defendant had a conversation with
Smothers in the kitchen, but she did not hear what was said. She did not see or hear anything related
to a drug transaction. Smothers stayed less than half an hour and left with the tennis shoes. Ms.
Thomas testified that she is a frequent visitor to the defendant’s residence and has never seen the
defendant use or sell drugs.

On cross-examination, Ms. Thomas stated that the defendant left the house for ten or fifteen
minutes to go to the store for Cokes and cigarettes after Smothers arrived. Ms. Thomas stated that
the defendant was already planning to go to the store when Smothers showed up. Shortly after the
defendant returned, Smothers left the house. Ms. Thomas admitted that she knew Smothers was a
crack addict.

The defense recalled Sergeant Johnny Hill to the stand. He explained how Smothers was
paid by the police to make undercover buys. She received twenty dollars to buy the drugs and was
paid forty dollars after she brought the drugs to the police. After the rock of cocaine from the
December buy was shown to the court and jury, Sergeant Hill stated that the amount of cocaine, 0.1
gram, that Smothers received from the defendant during that first buy was the appropriate size rock
to have a “street value” of twenty dollars. When shown the second rock from the January buy, which
also contained 0.1 gram of cocaine, Sergeant Hill stated that it could easily have a “street value” of
forty dollars. He explained that the price depended on who was selling the drug. He agreed with
the defense attorney that the twenty dollar December rock looked bigger than the forty dollar January
rock, although the lab report showed that both had the same weight.

Additionally, Sergeant Hill testified that he was present in June 1998, when the defendant
was booked after her arrest. The defendant’s father, Paul Newmon, was also present. The officer
testified that Mr. Newmon threatened that the informant would never testify. This threat was made

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in the presence of other officers. Sergeant Hill was aware of the allegations made in November 1998
that Smothers had called his house. He reported Mr. Newmon’s claims to General Radford and then
made an offer to Newmon to get the TBI involved. The police offered to install equipment on the
Newmons’ phone so calls could be recorded, but Mr. Newmon never contacted Sergeant Hill to get
any such equipment. As far as he knew, no equipment was ever installed.

Paul Newmon was recalled as the last witness for the defense. He remembered the district
attorney offering to put equipment on his phone but did not remember the officers doing so. He
stated that a recorder was installed on his phone shortly thereafter by the drug task force.

ANALYSIS

I. Plain Error

The defendant argues that the State’s introduction of evidence that Smothers was involved
in drug buys from other individuals which resulted in guilty pleas or guilty verdicts amounted to
plain error pursuant to Tennessee Rule of Criminal Procedure 52(b). The defendant contends that
this was inadmissible evidence that bolstered the informant’s credibility. The State argues that the
defendant waived any error by her failure to object at trial and by raising the same issue on her cross-
examination of Sergeant Hill. Even if error exists, the State contends that it was harmless in light
of the other evidence presented at trial. We agree with the State and conclude that any error
committed was harmless.

The testimony complained of occurred during the direct examination of Sergeant Hill by the
State. The district attorney was exploring the relationship that Smothers had with the police as an
informant and their experience with her as far as truthfulness and reliability. A part of that testimony
follows:
Q. Now of the people that Ms. Smothers made buys from,
controlled buys under your control, have those cases all been
disposed of in court?

A. Yes, they have.

Q. What was the result in those cases?

A. In each and every case, we had a guilty plea.

On cross-examination, defense counsel elicited testimony from Sergeant Hill to explain why a more
thorough search of Ms. Smothers was not done before she made each of the buys from the defendant:

Q. The procedure is, is it not, to search her (Smothers) and make
sure she doesn’t have any type of drug or contraband; right?

A. Yes.

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 Q. And why is that? Why do you want to search her to make
sure?

A. Just to make sure that that person is not carrying anything. .
. . In Ms. Smothers’ case, we had dealt with her several times
before and all of her information had turned out to be true.
As I had stated, we had all the other convictions and guilty
pleas. So we had dealt with her on several occasions in this
same type of thing.

Q. With respect to [Ms.] Smothers in these other cases, everyone
pled out; didn’t they? . . . Nobody said: I didn’t do it and I
want a jury trial.

....

A. There was one gentleman that went to trial. He went to
Circuit Court and was tried in front of a jury and was found
guilty.

In his closing statement, the prosecutor referred to this evidence in arguing the credibility of
the informant:

Was she [Smothers] testifying from the heart, the truth, or was she
putting on a show for each one of you? What does she have to gain
now? The case is over. She’s gotten paid. Of all the people that they
investigated, every one but two pleaded guilty. Another jury looked
at her testimony.

However, both the prosecutor and the trial judge reminded the jury that the statements of the lawyers
were not evidence:

State: [Y]ou’re going to have [to] evaluate the credibility of the
witnesses and whether or not the evidence backs them up -- the
evidence, not what you think with your heart, not what you suspicion,
and not what one lawyer or another tells you what they think, but
what you hear on the evidence.

....

Jury Charge by the Court: [Y]ou should understand that the
statements made to you by the attorneys are not evidence. Therefore,
you should disregard any argument made by the attorneys which you
find is not supported by the evidence.

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 The defendant did not object to this testimony of Sergeant Hill or to the prosecutor’s
statements at trial; nor was this issue raised in the defendant’s motion for a new trial. She raises it
for the first time on appeal. Although the defendant’s inaction amounts to a waiver of any error, we
choose to address the issue sua sponte.

This court may review issues not properly preserved for appeal to (1) prevent needless
litigation; (2) prevent injury to the public interest; and (3) prevent prejudice to the judicial process.
Tenn. R. App. P. 13(b); State v. Adkisson, 899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994).
Pursuant to Tennessee Rule of Criminal Procedure 52(b), “plain error” that affects a “substantial
right” of the accused may be addressed by this court in its discretion. However, this type of error
must be “an especially egregious error” that seriously compromises the fairness and integrity of the
judicial system. Adkisson, 899 S.W.2d at 639. The plain error rule is to be used sparingly by this
court and invoked only in exceptional circumstances in which an error has had “an unfair prejudicial
effect which undermined the fundamental fairness of the trial.” Id. at 639, 641-42.

In determining whether “plain error” has occurred, we look to the following factors: (1)
whether the record clearly establishes what happened in the trial court; (2) whether a clear and
unequivocal rule of law was violated; (3) whether a substantial right of the accused was adversely
affected; (4) whether the accused waived the issue for tactical reasons; and (5) whether our
consideration of the error is necessary for substantial justice to be served. Id. at 641-42. In the event
that an error is found to be reviewable pursuant to Tennessee Rule of Appellate Procedure 13(b) or
Tennessee Rule of Criminal Procedure 52(b), reversal of the conviction is not warranted if the error
is found to be harmless. Adkisson, 899 S.W.2d at 642. In other words, an error that does not
affirmatively affect the outcome of the trial is not reversible error. See Ruff v. State, 978 S.W.2d
95, 98 (Tenn. 1998).

We conclude that the admission of the testimony about police convictions of other defendants
involved in undercover buys with Smothers was, at most, harmless error. Pursuant to Tennessee
Rule of Evidence 608(a), evidence of a witness’s truthful character in the form of opinion and
reputation is only admissible after the witness’s truthfulness has been attacked. Specific acts that
support the witness’s credibility may only be inquired into upon cross-examination of a character
witness under the conditions stated in the rule. The record shows that defense counsel attacked
Smothers’s truthfulness during cross-examination by implying that she was not properly searched
before the buy and could have had the cocaine on her person when she went to the defendant’s house
to make the buy. Defense counsel also questioned her about using lies and deceit to make
undercover buys. During the questioning of Sergeant Hill, the State elicited testimony about other
defendants who had successfully been convicted or pled guilty based on undercover buys by
Smothers. It appears from the record that the purpose of this line of questioning was to show that
Smothers was a reliable informant and had not tampered with or planted the evidence used against
the defendant. Defense counsel followed up with questions on the same subject related to why such
a cursory search of the informant was conducted before the buys from the defendant took place.
There was also an inference by the defense that the defendant was targeted by the informant because
she was the daughter of a public official who could be blackmailed. This evidence about the
informant’s reliability was related to other issues in the case, such as the specific procedures used

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by the police in preparing Smothers to make the undercover buys, some of which were raised by the
defense.

Even if we assume that this evidence was improperly admitted, we fail to see how this
constitutes reversible error. The defendant did not object to any of this testimony and, in fact,
explored those same facts on cross-examination. The prosecutor’s closing remarks about another
jury believing the informant, if improper, were cured with his statements to the jury that they were
to look at the evidence and not at the opinions of the lawyers. The judge also instructed the jury to
disregard the statements of the lawyers which did not match the evidence. In light of the strength
of the State’s case founded on the physical evidence, the informant’s testimony, and that of the
police officers, one of whom was the defendant’s next-door neighbor, we cannot conclude that the
admission of the bolstering evidence more probably than not affected the judgment or would have
resulted in prejudice to the judicial process pursuant to Tennessee Rules of Appellate Procedure
13(b) and 36(b). Ruff, 978 S.W.2d at 98. For the same reason, we cannot conclude that this error
affected the outcome of the trial on the merits pursuant to the plain error doctrine of Tennessee Rule
of Criminal Procedure 52(a). Ruff, 978 S.W.2d at 98. This issue is without merit.

II. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to convict her, because: (1) the
informant’s credibility was bolstered by the outcome of other cases she was involved in; (2) the
informant was not properly searched before making the buys from the defendant; and (3) the
informant attempted to extort money from the defendant’s father in exchange for not testifying. The
State argues that the evidence against the defendant was strong and sufficient. Smothers testified
that she participated in two undercover buys from the defendant, and the defense did not offer any
evidence to the contrary. After reviewing the record, we conclude that there was sufficient evidence
to convict the defendant.

The defendant’s initial presumption of innocence is lost following a jury conviction and
replaced with a presumption of guilt; thus, on appeal, the burden is now shifted to the defendant to
prove the insufficiency of the evidence. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
court must affirm the convictions unless the evidence presented at trial was so deficient that no
rational trier of fact could have found all of the essential elements of the offense beyond a reasonable
doubt. Tenn. R. App. P. 13(e); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). This rule has
been found by our courts to be applicable to a conviction based on direct or circumstantial evidence
or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. app.
denied (Tenn. 1990).

In determining whether the evidence was sufficient to support a conviction, we do not
reweigh the evidence or substitute our own inferences for those of the trial court. Tenn. R. Crim.
P. 33(f); State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996); State v. Burlison, 868
S.W.2d 713, 719 (Tenn. Crim. App. 1993). Furthermore, the State is entitled to the strongest
legitimate view of the evidence presented and all reasonable inferences drawn therefrom. State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993). A jury

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verdict accredits the testimony of the State’s witnesses and resolves all conflicts in favor of the
State’s theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

The defendant was convicted of two counts of delivering less than 0.5 grams of cocaine, a
Class C felony, pursuant to Tennessee Code Annotated § 39-17-417:

(a) It is an offense for a defendant to knowingly:

....

(2) Deliver a controlled substance[.]

....

(c) A violation of subsection (a) with respect to:

....

(2) Any other Schedule II controlled substance, including
cocaine in an amount of less than point five (.5) grams, is a
Class C felony. . . .

Because the State gets the benefit of all credibility determinations on appeal, any doubt about
the informant’s credibility is resolved in the State’s favor. Viewing the evidence in the light most
favorable to the State, we find that there was more than enough evidence presented at trial for a
rational jury to find beyond a reasonable doubt that the defendant delivered less than 0.5 grams of
cocaine to the informant on two occasions. Apparently, the jury either did not believe Mr.
Newmon’s story about the extortion phone call or did not give it much weight in determining the
guilt or innocence of his daughter. There was a substantial amount of other evidence from
independent witnesses, such as law enforcement officers, who connected the defendant with drug
sales, as well as physical evidence gathered by Sergeant Hill in the controlled buys from the
defendant. This evidence was essentially undisputed by the defense, other than the testimony of
Leslie Thomas, which did not prove that the defendant did not sell drugs to the informant. As a
result, we cannot conclude that a rational trier of fact could not have found all of the essential
elements of the crime beyond a reasonable doubt. This issue is also without merit.

CONCLUSION

Upon our de novo review, we find that any error committed by admission of testimony
bolstering the informant’s credibility was harmless and does not require reversal. Furthermore, the
evidence was sufficient for a rational jury to find every element of the offense upon which the

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defendant was convicted beyond a reasonable doubt. We, therefore, affirm the judgment of the trial
court.

___________________________________
ALAN E. GLENN, JUDGE

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