State of Tennessee v. Margle Ward

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 17, 2009

STATE OF TENNESSEE v. MARGLE WARD

Direct Appeal from the Circuit Court for Warren County

No. F-11168 Larry B. Stanley, Jr., Judge

No. M2008-02389-CCA-R3-CD - Filed September 8, 2010

A Warren County jury convicted the Defendant-Appellant, Margle Ward,1 of facilitation of

theft of property over $1,000, a Class E felony. He was sentenced as a multiple offender to

a four-year term of imprisonment and assessed $1,332.50 in fines. On appeal, Margle claims

(1) the insufficiency of the evidence; (2) the trial court erred in denying his motion to exclude

a statement he made to Jeff Panter; (3) the trial court erred in denying his motion to exclude

the testimony of Jason Ward; and (4) his sentence was excessive. Upon review, we affirm

the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and

T HOMAS T. W OODALL, JJ., joined.

Jeremy D. Trapp, Smithville, Tennessee, for the Defendant-Appellant, Margle Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Lisa

S. Zavogiannis, District Attorney General; and Thomas J. Miner, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

Trial. Margle was originally charged with theft of property over $1,000. He was

tried with co-defendant, Jessie R. Parker (“Parker”). Jeff Panter, the manager for Hills Creek

Nursery, testified that the nursery consisted of 240 acres of land and used aluminum pipes

for irrigation. In March of 2007, some of the pipes were stockpiled on a trailer near Hills

Creek Road. Panter testified that he saw the pipes on the evening of March 28, 2007, and

1

This case deals with criminal activity involving Margle Ward and his son, Jason Ward. For

purposes of clarity, both individuals will be referred to by their first name. No disrespect is meant to either

individual.

the next morning they were gone. Panter called the sheriff’s department to report the theft.

He also called local scrap yards and advised them that the pipes had been stolen and “to be

on the lookout.” Panter described the pipes as six inches in diameter and thirty feet in length.

One of the scrap yards called Panter and advised him that the pipes were located off

of Highway 55 in Warren County. Panter called the police and drove to the location. Upon

arrival, Panter recognized the nursery’s pipes, which were cut into pieces, sitting in a trailer

attached to a truck. The truck had vegetation on its license plate which was the same as that

found in the area from where the pipes had been stolen. Panter was shown a photograph of

this area, and he identified the vegetation, as well as fresh tire tracks. He said the tire tracks

would not have resulted from operations at the nursery.

Panter testified that when he arrived at the location of the recovered pipes, he saw

Parker in the back of a patrol car. Panter recognized Parker because Parker’s mother and

step-father once worked for Panter’s father. Panter also saw Margle speaking to an

investigator. Panter testified that Margle approached him and “said something to the effect

of . . . ‘Can I pay you for these pipes that’s been cut up and forget about it?’” Panter testified

that around 90 pipes were stolen. He was unsure of the total value of the stolen pipes;

however, he was paid $8,300 by the insurance company.

On cross-examination, Panter testified that only twenty-five to thirty pieces of pipe

were actually recovered. Panter stated that in order to steal the pipes, someone needed to

drive across a field. He said he first came into contact with Margle after the pipes were

recovered. Panter did not know that Margle was in the scrap metal business.

Deputy Steven Carpenter of the Warren County Sheriff’s Department testified that he

responded to a call from the Hills Creek Nursery on March 29, 2007. He met with Panter at

the nursery. Panter described where the pipes were located on the property before they were

stolen. Deputy Carpenter said he went to that location and found a trailer parked in the grass.

The trailer had flat tires and was empty. Deputy Carpenter stated that tracks surrounded the

trailer suggesting recent travel.

While at the nursery, Deputy Carpenter received information regarding the possible

location of the stolen pipes. A scrap yard on Highway 55 had reportedly seen a load of pipes

on the other side of the highway. Deputy Carpenter went to that location and found Brian

Farmer and Parker cutting pipes with a saw. Parker claimed he got the pipes at Hills Creek

Nursery. Parker did not state that he purchased the pipe from a man named Danny Viller.

Deputy Carpenter said the pipes were visible from Highway 55 and did not appear hidden.

Jason Margle, the Defendant-Appellant’s son, is deaf and testified with the assistance

of an interpreter. Jason was asked if he understood the interpreter, and he responded, “Yes.

I understand a little. I understand some sign language. But I’m not totally fluent in sign

language. Especially finger sign.” Jason said he could not read lips. He lived with his father

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at his home bordering Highway 55. Jason testified that on the night of the offense, Parker

was at Margle’s home. Parker was a friend of his father, but Jason did not know Parker

personally. Jason explained that Margle and Parker were talking inside of the home. When

they finished talking, Margle told Jason to go with Parker; however, Jason was not informed

of the destination. At around midnight, Jason said he got into his truck and followed Parker.

Jason’s truck had a trailer, which he bought from someone named Shawn. Jason testified that

he was alone in his truck. Upon arrival at their destination, Jason explained that he was

joined by his girlfriend’s brother, Chris, and Parker. The three men found the pipes sitting

on a trailer, loaded them onto Jason’s trailer, and drove away.

Jason was “a little” concerned that they were not authorized to take the pipes. He said

he was told to keep quiet while loading the pipes, and his headlights were turned off. Jason

drove home after loading the pipes. The pipes were left outside on his trailer. Margle was

already asleep when he arrived home. Jason was unsure of the exact time that they left to

pick up the pipes. He just remembered that it was dark outside. Jason claimed he did not

know that the pipes were stolen.

Chris Bratcher testified that he occasionally did work for Margle at his scrap yard.

Bratcher typically worked with Jason on various projects involving scrap metal. On the night

of the offense, Bratcher was at Margle’s home installing a CD player into Jason’s truck.

Parker arrived at Margle’s home and went inside to speak with Margle. At around 11:00

p.m., Margle directed Jason to go with Parker to load pipes onto Jason’s trailer. Bratcher

needed a ride home and wanted to earn some money, so he accompanied Jason.

Bratcher recalled hearing that the pipes would be picked up at a woman’s home. He

was surprised to find that the pipes were “just sitting there on a trailer in the middle of

nowhere.” Bratcher was concerned about whether he was doing the right thing. He testified

that Parker told him to work at a hurried pace. After the pipes were loaded, Bratcher said

they “turned around in the field and then . . . took the pipe back to Margle’s house.” The

next day, Bratcher spoke with his mother about what happened, and she called the sheriff’s

department. Bratcher went to speak with the police on his own volition. He was not charged

despite his involvement in the theft.

Bratcher said he heard Lonnie Shawn Miller’s (“Miller”) testimony from the

preliminary hearing. Bratcher testified that the pipes were not picked up from the location

testified to by Miller. Bratcher also stated that Miller’s testimony was not correct because

Miller claimed the pipes were laying in a field, rather than sitting on a trailer. Bratcher said

he was aware that Margle owned two scrap yards, one of which bordered Highway 55.

Investigator James Edward Ramsey testified that he responded to a call regarding the

stolen pipes. He was informed by deputies that the stolen pipes were located off of Highway

55. Upon arriving at that location, there were several patrol cars already present. Other

officers had already spoken with Parker and Farmer. Investigator Ramsey recalled Panter

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arriving at the scene and positively identifying the stolen pipes. Investigator Ramsey spoke

with Parker after the pipes were recovered. Parker gave a statement that was reduced to

writing and signed. In the statement, Parker claimed he bought the pipes from Danny Viller

for $150. Parker said he and Jason picked up the pipes as instructed near Myers Cove Road.

Parker did not have a bill of sale from the transaction. Investigator Ramsey said he also

spoke with Jason. Jason admitted that he drove across the nursery’s field. Investigator

Ramsey testified that Margle owned two scrap yards and that the pipes were recovered at

Margle’s scrap yard off of Highway 55.

Miller, who was serving a ten-year sentence based on multiple convictions for theft

at the time of trial, was the only witness for the defense. Miller’s theft convictions, which

occurred between March and April of 2007, resulted from stealing utility trailers. He sold

two of these trailers to Jason. Miller stated that while in jail, he learned that Margle was

charged with stealing the nursery’s pipes. Miller said he informed the police that Margle was

innocent and that he was responsible for the theft. Miller claimed he came across the pipes

while searching for a trailer to steal. He intended to steal the pipes and the trailer; however,

the trailer had flat tires. Miller said he loaded the pipes onto his trailer, dropped them off at

another location, and then contacted Parker to see if he was interested in purchasing them.

Miller said Parker purchased the pipes for $150. Miller told Parker the location of the pipes,

and he provided a bill of sale. Miller said the bill of sale listed his name as Danny Viller,

which he used as an alias. Miller did not tell Parker that the pipes were stolen. Miller said

he sold the pipes to Parker and had no dealings with Margle. Miller testified that his criminal

record includes about fifteen convictions.

On cross-examination, Miller said he knew Jason and Margle for several months

before the pipes were stolen. Miller explained that they both knew him as Shawn Miller.

Miller said he visited Margle’s scarp yard about once a week. Miller also knew Parker from

high school. Miller said Parker would have known him from school, although they were not

acquaintances. Miller stated that after stealing the pipes, he dumped them in a field. He

denied that Jason and Bratcher would have unloaded the pipes off of a trailer.

Following the proof at trial, Margle was acquitted of theft over $1,000. He was

convicted of facilitation of theft over $1,000. Margle filed a motion for new trial that was

denied.

Sentencing Hearing. Charles Bayless testified that he was a minister who served as

a spiritual adviser to Margle. Each week, they studied the Bible together for about an hour.

Bayless said they had studied together for two years, and they continued to do so even after

Margle was imprisoned. Bayless believed that probation would be beneficial to Margle, his

family, and the community. Bayless was aware that Margle has a criminal history; however,

he believed that Margle was making progress towards becoming a better person.

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Gina Smithson said she served as Margle’s probation officer. Margle was placed on

probation following a conviction for sale of marijuana. Smithson said Margle was on

probation when he was charged in the current proceeding. Margle also violated his probation

by testing positive for marijuana. Officer Smithson testified that she prepared the

presentence report. She said she performed a criminal background search of Margle, and she

concluded that the report was accurate.

Margle testified that he was employed by a brick and block company, and he received

a consistent income from this job. Margle acknowledged that he had an extensive criminal

history; however, he claimed he was taking steps to change his life. He was active with the

church, and he claimed he was no longer involved in criminal activity.

The record includes the presentence report. The report lists Margle’s prior criminal

record, which includes at least twenty-five convictions. These convictions occurred between

1976 and 2006.

At the conclusion of the hearing, the trial court sentenced Margle as a range two,

multiple offender. Consequently, the range of punishment was two to four years. The trial

court considered the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114, and imposed the maximum sentence of four

years. It focused on Margle’s extensive criminal history and the fact that he was on

probation when he committed the instant offense.

ANALYSIS

I. Sufficiency of the Evidence. Margle claims the evidence did not support his

conviction for facilitation of theft over $1,000. Specifically, he argues the evidence failed

to prove that he knew another person intended to steal the pipes or that he knowingly

furnished substantial assistance with the theft. In response, the State contends that a rational

jury could have found that Margle facilitated the theft. Upon review, we agree with the

State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

this court must consider “whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support a finding by the trier of fact of guilt beyond a

reasonable doubt.” The requirement that guilt be found beyond a reasonable doubt is

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applicable in a case where there is direct evidence, circumstantial evidence, or a combination

of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State

v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977) and Farmer v. State, 343 S.W.2d 895, 897

(Tenn. 1961)). The trier of fact must evaluate the credibility of the witnesses, determine the

weight given to witnesses’ testimony, and must reconcile all conflicts in the evidence. State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” State v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim.

App. 1994) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978), superseded by

statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)).

This court has often stated that “[a] guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the

theory of the State.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also

“removes the presumption of innocence and replaces it with a presumption of guilt, and the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id. (citation omitted).

We recognize that “[i]n the absence of direct evidence, a criminal offense may be

established exclusively by circumstantial evidence.” State v. Hanson, 279 S.W.3d 265, 275

(Tenn. 2009) (citing Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State,

313 S.W.2d 451, 456-58 (Tenn. 1958)). In such a case, the evidence “must be so strong and

cogent as to exclude every other reasonable hypothesis save the guilt of the defendant, and

that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). In

addition, the evidence “must be not only consistent with the guilt of the accused but it must

also be inconsistent with his innocence and must exclude every other reasonable theory or

hypothesis except that of guilt.” Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App.

1970), perm. to appeal denied (Tenn. Nov. 2, 1970). In other words, “[a] web of guilt must

be woven around the defendant from which he cannot escape and from which facts and

circumstances the jury could draw no other reasonable inference save the guilt of the

defendant beyond a reasonable doubt.” Crawford, 470 S.W.2d at 613. The trier of fact

decides the weight to be given to circumstantial evidence, and “‘[t]he inferences to be drawn

from such evidence, and the extent to which the circumstances are consistent with guilt and

inconsistent with innocence, are questions primarily for the jury.’” Marable, 313 S.W.2d

451, 457 (Tenn. 1958) (quoting 2 Wharton’s Criminal Evidence 1605-06).

The offense of theft of property is defined under Tennessee Code Annotated section

39-14-103, which states:

A person commits theft of property if, with intent to deprive the owner of

property, the person knowingly obtains or exercises control over the property

without the owner’s effective consent.

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Section 39-11-403 sets forth the requirements for facilitating a felony. It states:

(a) A person is criminally responsible for the facilitation of a felony, if,

knowing that another intends to commit a specific felony, but without the

intent required for criminal responsibility under § 39-11-402(2), the person

knowingly furnishes substantial assistance in the commission of the felony.

First, Margle asserts that the evidence was insufficient because it failed to prove that

he knew another person intended to steal the pipes. He claims this case is analogous to State

v. Rod Mills, No. E2006-02207-CCA-R3-CD, 2007 WL 1610092 (Tenn. Crim. App., at

Knoxville, June 5, 2007), in which this court reversed a conviction for theft based on the

insufficiency of the evidence. Id. at *3. In Rod Mills, the defendant worked as a mechanic

at a garage. Id. at *1. While employed there, the garage’s owner gave him a truck that

purportedly served as payment for past work the defendant had done. The truck contained

an engine which the owner had stolen from a customer’s truck. The engine was found in the

defendant’s possession during the police’s investigation. Id. The owner told a detective that

the defendant was not told that the engine was stolen. Id. at *2. On appeal, this court

reversed the conviction, concluding that the evidence “did not prove, beyond a reasonable

doubt, that the defendant had actual or constructive notice that the truck was stolen at the

time he was found with the truck in his possession.” Id. at *3. This court referred to the

testimony that the defendant received the truck as payment for past work. It also considered

the testimony that the defendant was not informed of the theft, that he cooperated with the

police’s investigation, and that he had not taken steps to hide the theft. Id.

We are not persuaded that this case is analogous to Rod Mills. Margle argues that,

like the defendant in Rod Mills, he relied on statements from someone claiming to be the

lawful owner of the stolen property. This argument assumes the jury credited Miller’s

testimony that he was responsible for stealing the pipes and selling them to Parker. Through

the guilty verdict, the jury clearly rejected Miller’s testimony. The jury had reason to

question Miller’s credibility given his criminal record, the context of his admission, and the

fact that his testimony was rebutted by the proof at trial. Miller claimed he stole the pipes

from the nursery and dumped them on the ground in a field. This testimony was rebutted by

Bratcher and Jason, both of whom testified that the pipes were situated on a trailer. Bratcher

also disputed Miller’s preliminary hearing testimony and stated that Miller did not accurately

describe the location of the pipes. Additionally, there was testimony from Deputy Carpenter

that Parker claimed he got the pipes from the nursery.

Based on the testimony of Jason and Bratcher, there was sufficient evidence that

Margle knew Parker intended to steal the pipes. Both witnesses testified that Parker visited

with Margle at his home on the night of March 28. At around midnight, Jason said Margle

directed him to go “somewhere” with Parker. Jason was not informed of the destination;

however, he was told to follow Parker’s vehicle. Upon loading the pipes, both Jason and

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Bratcher said they were concerned about whether they were authorized to take the pipes.

Bratcher testified that Parker had them work at a hurried pace, and the lights on their vehicles

were turned off. The pipes were recovered the next day at Margle’s scrap yard. Panter

testified that when he arrived at the scrap yard, Parker and another individual were cutting

the pipes. Based on the foregoing evidence, a rational jury could have found that Margle

knew Parker intended to steal the pipes.

Second, Margle argues that the evidence did not show that he knowingly provided

substantial assistance in the commission of the theft because he was not seen handling the

pipes. We recognize that Margle did not remove the pipes from the nursery; however, we

conclude that he furnished substantial assistance in the commission of the offense. As

discussed above, Margle met with Parker in private before instructing Jason to assist Parker

in retrieving the pipes. Jason complied with his father’s instructions even though he did not

know Parker personally. Jason’s involvement in the theft was critical because his truck and

trailer were used to transport the stolen pipes. The pipes were brought back to Margle’s

property where they remained until they were recovered by the police. Based on these facts,

a rational jury could have found that Margle knowingly furnished substantial assistance in

the theft of the pipes. Accordingly, Margle is not entitled to relief on this issue.

II. Rule 408. Margle claims the trial court erred by denying his motion to exclude

a statement he allegedly made to Panter. At trial, Panter testified that he encountered Margle

shortly after the pipes were recovered. According to Panter, Margle “said something to the

effect of . . . ‘Can I pay you for these pipes that’s been cut up and forget about it?’” Margle

asserts the statement was inadmissible under Rule 408 of the Tennessee Rules of Evidence

because it constituted an offer to compromise. Alternatively, he claims this statement should

not have been allowed under Rule 403 because it was unfairly prejudicial. The State argues

that the trial court properly found that the statement was not an offer of compromise under

Rule 408. It also contends that Margle’s claim under Rule 403 was waived by his failure to

raise the issue either before or during trial. Waiver notwithstanding, the State argues that the

statement was not unfairly prejudicial.

Margle filed a pre-trial motion seeking to exclude the statement under Rules 408 and

410 of the Tennessee Rules of Evidence. This motion did not assert Rule 403 as grounds for

relief. The motion was addressed at a pre-trial hearing, and Margle claimed the statement

was inadmissible under Rule 408. Margle did not raise Rule 403 as a basis for excluding the

statement at the pre-trial hearing. Panter was called to testify at the hearing. He said Margle

was present when he went to recover the pipes. According to Panter, Margle stated, “‘If I

pay you for what’s been cut up, will you just forget about it?’” Panter explained that he had

no prior discussions with Margle about the pipes and that the details of the offer were

unclear. Following Panter’s testimony, the trial court overruled the motion. It found that

Rule 408 was inapplicable because there was no evidence of a “legitimately disputed claim”

when the statement was made.

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The Tennessee Supreme Court has generally held, “questions concerning the

admissibility of evidence rest within the sound discretion of the trial court, and this Court

will not interfere in the absence of abuse appearing on the face of the record.” State v.

Pylant, 263 S.W.3d 854, 870 (Tenn. 2008) (citing State v. Dotson, 254 S.W.3d 378, 392

(Tenn. 2008); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864

S.W.2d 465, 477 (Tenn. 1993); and State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992)). A trial

court abuses its discretion when it applies “an incorrect legal standard or [reaches] a decision

which is illogical or unreasonable and causes an injustice to the party complaining.” State

v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337

(Tenn. 2006)).

Rule 408 of the Tennessee Rules of Evidence states:

Evidence of (1) furnishing or offering to furnish or (2) accepting or offering

to accept a valuable consideration in compromising or attempting to

compromise a claim, whether in the present litigation or related litigation,

which claim was disputed or was reasonably expected to be disputed as to

either validity or amount, is not admissible to prove liability for or invalidity

of a civil claim or its amount or a criminal charge or its punishment. Evidence

of conduct or statements made in compromise negotiations is likewise not

admissible. . . . This rule also does not require exclusion when the evidence

is offered for another purpose, such as proving bias or prejudice of a witness,

negativing a contention of undue delay, or proving an effort to obstruct a

criminal investigation or prosecution; however, a party may not be impeached

by a prior inconsistent statement made in compromise negotiations.

In considering the plain language of Rule 408, the trial court properly denied Margle’s

motion. The final sentence of Rule 408 states, “This rule also does not require exclusion

when the evidence is offered for another purpose, such as . . . proving an effort to obstruct

a criminal investigation or prosecution.” Here, the testimony regarding Margle’s statement

was certainly introduced to show that he attempted to obstruct a criminal investigation or to

possibly avoid prosecution. Panter said Margle made the statement in the presence of the

police after the pipes were recovered. At the time, Panter said Parker was already in the back

of a patrol car. Margle claims his case is somehow distinguishable because he made the

statement in an effort to protect his son, Jason, who was also involved in the theft. Rule 408

does not specify that the defendant must be the beneficiary of the obstruction; rather, it refers

in general terms to the obstruction of “a criminal investigation or prosecution.” (emphasis

added). Accordingly, we hold that the trial court correctly found that Rule 408 does not

require excluding Margle’s statement. We note that Tennessee appellate courts have rarely

had to consider the applicability of Rule 408 in the context of criminal cases. Our holding

is consistent with the approach taken in Hawaii, which has a rule of evidence nearly identical

to Rule 408 in Tennessee. See State v. Gano, 988 P.2d 1153, 1161 (Haw. 1999) (“We hold

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that, in a criminal trial, evidence of an accused’s offer to pay value to a complainant in an

attempt to avoid prosecution is not excludable under HRE 408.”).

Margle also claims that the statement was inadmissible under Rule 403 because its

probative value was substantially outweighed by the danger of unfair prejudice. However,

Margle failed to raise this issue in his pre-trial motion, at trial, or in his motion for new trial.

Therefore, this issue is waived. See T.R.A.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.”); T.R.A.P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence . . . unless the same was

specifically stated in a motion for a new trial; otherwise such issues will be treated as

waived.”). Waiver notwithstanding, we are not persuaded that Margle’s statement was

inadmissible under Rule 403. Margle’s brief contains almost no explanation as to how he was

unfairly prejudiced by the statement. It is limited to the following assertion: “The probative

value of Appellant’s statement was substantially outweighed by the unfair prejudice that

resulted as the State tried to use this statement as an admission of guilt.” Based on this

blanket assertion, we cannot conclude that the trial court abused its discretion. Margle is not

entitled to relief on this issue.

III. Admissibility of Jason Ward’s testimony. Margle claims the trial court should

have excluded the testimony of Jason under Rule 403 because it is questionable whether he

was able to effectively communicate with the interpreter. In response, the State argues that

Margle failed to demonstrate that the interpreter provided inaccurate translations, or any

resulting prejudice.

Before trial, Margle made an oral motion to exclude Jason’s testimony. At that time,

Jason had already entered a best interest plea. Margle claimed it was evident from Jason’s

testimony at his plea hearing that he struggled to communicate with an interpreter. Margle

argued that he would be prejudiced by Jason’s testimony at trial, and therefore he should not

be allowed to testify. Margle did not specify the legal basis for his argument other than

stating that he would suffer prejudice. The trial court overruled Margle’s motion, stating:

I think [Jason] got through [the plea hearing] pretty well, considering all the

circumstances. Considering he can’t read and that all of that had to be

explained to him. But . . . you can renew your objection when he testifies if

you want.

At the start of Jason’s testimony, he was asked if understood the interpreter, who

communicated through sign language. Jason responded, “Yes. I understand some sign

language. But I’m not totally fluent in sign language. Especially finger sign.” Jason stated

that he could not read lips. The interpreter interjected during Jason’s testimony on three

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separate occasions. In the first instance, she had Jason repeat a response. The second

instance related to the use of a leading question. The final instance occurred on cross-

examination while defense counsel was questioning Jason about the drive to pick up the

pipes. The questioning continued as follows:

DEFENSE: Okay, so Mr. Parker followed you then, correct?

JASON: Ah, yeah. We were going, but I did not know we were going to

steal any pipe.

COURT: Was anyone in front of you, leading you?

JASON: It was dark and we turned.

INTERPRETER: I’ll be honest with you. Your honor, I’m just not sure at

this point what he’s trying to say.

COURT: How did you, how did you know the directions to find the pipe?

JASON: Jessie told me. He told me. Then I had the trailer in the back

and there was no lights on the trailer. So we had to go there at

night to get it.

As previously stated, questions concerning the admissibility of evidence are reviewed

for an abuse of discretion. See Pylant, 263 S.W.3d at 870; Forbes, 918 S.W.2d at 449. Here,

Margle argues that Jason’s testimony was inadmissable under Rule 403 because “the

potential for inaccurate translation” was unfairly prejudicial to his defense. Rule 403

provides:

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.

In viewing the trial transcript, Margle’s appeal is problematic because he did not

object to Jason’s testimony. In ruling on the pre-trial motion, the trial court overruled

Margle’s motion based on Jason’s response at his guilty plea. The court advised Margle that

he could renew his objection at trial; however, he failed to do so. Our review is therefore

limited to the trial court’s pre-trial decision to overrule Margle’s motion. At that time, the

only evidence the trial court had to consider was Jason’s testimony at his plea hearing. We

have reviewed the transcript from the plea hearing, and it contains no support for Margle’s

claim. Jason clearly struggled to answer some of the questions; however, there is no

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evidence that this was due to his inability to communicate with the interpreter. Additionally,

nothing suggests that the interpreter provided an inaccurate translation of Jason’s testimony.

As a result, the trial court did not abuse its discretion by permitting Jason to testify. Margle

is not entitled to relief on this issue.

IV. Sentencing. Margle asserts the trial court erred in imposing the maximum

sentence of four years. He claims the trial court should not have considered his criminal

record in the presentence report because it contained unreliable hearsay evidence. Margle

also contends that proper weight was not given to several mitigating factors. In response, the

State argues that the trial court could consider the presentence report because it was reliable

hearsay. It also claims the trial court properly weighed the mitigating factors.

In sentencing Margle, the trial court relied upon a presentence report from the

Tennessee Board of Probation and Parole, which contains a list of Margle’s criminal

convictions. The report states that it was prepared by Investigating Officer Gina Smithson,

who testified at the sentencing hearing. Officer Smithson said she performed a criminal

background search of Margle, and she testified that the report was accurate. Officer

Smithson was also familiar with Margle’s criminal history because she served as his

probation officer. Margle objected to the introduction of the report as an exhibit, but the trial

court overruled this objection without comment. The report states that Margle has at least

twenty-five prior convictions.

Margle acknowledges on appeal that the trial court was permitted to consider reliable

hearsay in reviewing his criminal history. See T.C.A. § 40-35-209(b) (2008); State v.

Chambless, 682 S.W.2d 227, 233 (Tenn. Crim. App. 1984). He argues, however, that the

criminal record included in the presentence report was not reliable. In support, Margle cites

to State v. Buck, 670 S.W.2d 600 (Tenn. 1984), in which an uncertified computer print-out

from the National Crime Information Center (N.C.I.C.) was used to prove the defendant’s

criminal record. Id. at 607. The Tennessee Supreme Court held:

[C]omputer print-outs from the N.C.I.C. are not admissible as a substitute for

certified copies of court convictions nor for any other purpose. The

information in such reports is pure hearsay, of a dubious degree of accuracy,

prepared for purposes other than court use, contains information that is likely

to be prejudicial under all circumstances and is not the best evidence of matters

that can be proven by reliable, documentary evidence.

Id. Here, an uncertified print-out2 was also used to prove Margle’s criminal record; however,

the comparison to Buck is somewhat misplaced because of the additional testimony offered

2

The sentencing hearing transcript shows that the State offered into evidence certified copies of

Margle’s prior convictions. However, the record does not contain this exhibit.

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by Officer Smithson. Officer Smithson testified that she performed a criminal background

search, and she personally attested to the accuracy of the report. Officer Smithson was also

familiar with Margle’s criminal history, having served as his probation officer. Based on this

additional testimony, we conclude that the information supporting Margle’s criminal history

was reliable hearsay. See State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000) (“This

court has consistently held the presentence report to be reliable hearsay.”); State v. Baker,

956 S.W.2d 8, 17 (Tenn. Crim. App. 1997) (“[T]he information is reliable because it is based

upon the presentence officer’s research of the records, contact with relevant agencies, and

the gathering of information which is required to be included in a presentence report); State

v. Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993). In reaching this conclusion,

we find it significant that Margle testified at the sentencing hearing and did not contest the

convictions within the presentence report. Instead, he conceded at least three of the prior

convictions listed in the report. Margle is not entitled to relief on this issue.

Margle also claims that the trial court failed to give proper weight to several

mitigating factors. Specifically, he refers to his lack of involvement in the crime and the

insufficiency of the evidence. The trial court found that neither factor was applicable. At

the sentencing hearing, the trial court considered the enhancement and mitigating factors set

forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114, and it imposed the

maximum sentence of four years. The sentencing range for a multiple offender is two to four

years. The trial court based its decision primarily on Margle’s extensive criminal record and

the fact that he was on probation when he committed the offense. Our review of the record

supports the findings of the trial court. The record shows that the trial court considered the

appropriate mitigating and enhancement factors, and that Margle’s sentence comports with

the principles of the Sentencing Act. As a result, the trial court acted within its discretion in

imposing the maximum sentence. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008)

(This court is “bound by a trial court’s decision as to the length of the sentence imposed so

long as it is imposed in a manner consistent with the purposes and principles set out in

sections -102 and -103 of the Sentencing Act.”). Margle is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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