State v. Jerry Blaylock

IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

AT JACKSON

MARCH 1997 SESSION

FILED

August 21, 1997

Cecil Crowson, Jr.

STATE OF TENNESSEE, ) Appellate C ourt Clerk

)

Appellee, ) C.C.A. No. 02C01-9602-CC-00069

)

vs. ) Hardin County

)

JERRY BLAYLOCK, ) Hon. C. Creed McGinley, Judge

)

Appellant. ) (Possession of Controlled

) Substances)

)

)

FOR THE APPELLANT: FOR THE APPELLEE:

RICHARD W. DEBERRY (On Appeal) JOHN KNOX WALKUP

Assistant Public Defender Attorney General & Reporter

24th Judicial District

P.O. Box 663 ELLEN H. POLLACK

Camden, TN 38320 Assistant Attorney General

450 James Robertson Pkwy.

STEPHEN HALE (At Trial) Nashville, TN 37243-0493

Attorney At Law

P.O. Box 331 ROBERT RADFORD

Bolivar, TN 38008 District Attorney General

P.O. Box 686

Huntingdon, TN 38344-0686

JOHN OVERTON

Assistant Dist. Attorney General

Main Street

Savannah, TN 38372

OPINION FILED: _____________

AFFIRMED

CURWOOD WITT, JUDGE

OPINION

The defendant, Jerry Blaylock, appeals the conviction and sentence

he received in the Circuit Court of Hardin County. The indictment alleges as count

(1) possession of cocaine with intent to manufacture, deliver, or sell, a Class B

felony, and as count (2) possession of marijuana, a misdemeanor. The jury

convicted the defendant on both counts and determined that fines in the amount of

$75,000 on count (1) and $1,250 on count (2) were appropriate. After a sentencing

hearing, the court imposed the fines and ordered a mid-Range I sentence on count

(1) of ten years and the maximum sentence on count (2), eleven months, twenty-

nine days, to run concurrently. The trial court declined to order any form of

alternative sentencing.

On this appeal, the defendant makes the following arguments:

(1) The evidence is insufficient to support the convictions,

especially the felony conviction of possession with intent to deliver

cocaine.

(2) The defendant’s constitutional rights were violated through

the state’s use of a peremptory challenge of a juror.

(3) A witness for the state improperly communicated prejudicial

hearsay evidence through his testimony.

(4) A law enforcement officer improperly destroyed evidence

that may have been exculpative.

(5) The court erred in its use of enhancing factors, its failure to

apply mitigating factors, and in its failure to allow alternative

sentencing.

After a thorough review of the record on appeal, including a transcript

of the evidence presented at the trial and at the sentencing hearing, we conclude

that the defendant’s appeal is meritless. The judgment of the trial court is affirmed

in all respects.

2

In view of the issues raised, a short statement of the facts of this case

is in order. The cocaine charge (count (1)) and the marijuana charge (count (2))

arose from separate incidents. The cocaine arrest occurred on February 6, 1994.

Acting on information supplied by various informants, officer Brian Huggins of the

24th Judicial District Drug Task Force, accompanied by a second officer, entered

a Savannah apartment during the early morning hours. The tenant-occupant of the

apartment, Patrice Irvin, consented to the entry and accompanied the officers

whose purpose, as announced to Ms. Irvin, was to locate the defendant and

investigate his alleged drug activity. Ms. Irvin showed the officers to a bedroom in

the apartment. The officers turned on the lights and found the defendant and a

female companion, Cassandra Porter, both unclothed and asleep in the bed. Upon

waking, the defendant reached for, and according to at least one of the officers,

grabbed a pair of black trousers that was lying near the defendant’s side of the bed.

The defendant then stated that the pants were not his and threw them aside. There

were no other garments present, and the defendant wrapped a towel around

himself. Officer Huggins picked up the black trousers, which were accessorized by

a belt that bore the name “Jerry,” and discovered a rock of crack cocaine. That item

became the basis for count (1) in the indictment. According to the toxicologist’s

testimony, the rock consisted of 6.2 grams of cocaine.

Count (2) arose out of an earlier stop of the defendant’s vehicle by

Officer Huggins on November 10, 1993. Reacting to an informant’s tip, the officer

stopped the vehicle driven by the defendant and asked for and received consent to

search the automobile. The officer found a small amount of marijuana in the trunk.

The two counts were tried together. In addition to the testimony of

Huggins and the officer who assisted in the arrest in the Irvin apartment, Irvin and

Porter testified. Irvin confirmed the officers’ account of the entry into the apartment

and the discovery of the contraband.

3

Officer Huggins testified that, based upon his experience as a drug

enforcement officer, the street value of the large rock found in the defendant’s

trousers pocket would be in the aggregate $1,500 to $2,500, based upon it being

divided into smaller rocks that could be sold as $25, $50, or $100 units. The

toxicologist testified that, based upon approximately 1,500 submissions of cocaine

which she had tested in the laboratory, the average quantity per submission was .10

gram. At 6.2 grams, the rock submitted to her in the defendant’s case was sixty-two

times larger than the average rock she typically tests.

Ms. Porter testified as a defense witness that on February 5, 1994, the

defendant pawned a television set, raised $250 to $300, and went to Jackson to buy

cocaine. She testified she had been a cocaine addict for eight years, the defendant

had been and was still her boyfriend, and they smoked crack together every day.

She stated that they intended to smoke the crack that the defendant purchased on

February 5, that they did smoke crack on that day, but that she had not seen the

rock that was found in the pants pocket. She testified that she uses twenty to thirty

twenty-dollar rocks per day. At one point she said that the defendant used a like

amount, but later in her testimony she denied saying that.

In addition, the defense called a drug rehabilitation counselor who

testified that during May and part of June, 1994, the defendant received drug

rehabilitation at True Recovery A&D Treatment Center, where the witness worked.

He stated the defendant had addictions to marijuana and crack cocaine. He further

stated that some crack addicts use five to ten rocks per day. In his opinion, a

person could not function after using that much crack.

The evidence reflects that there were no drug paraphernalia found on

or about the defendant’s person nor in the apartment where he was discovered.

4

Also, a search of his personal effects from the scene revealed no significant

amounts of cash.

The trial court conducted a sentencing hearing on September 16,

1994. The presentence report, contained in the technical record submitted by the

trial court clerk, reflects that the defendant had a previous conviction record

consisting of two misdemeanor convictions for possession of a weapon, a

misdemeanor conviction for flight to avoid arrest, a conviction for driving without a

valid driver’s license, and a conviction for violating the vehicle registration law. The

trial court approved the fines as fixed by the jury and imposed concurrent sentences

of ten years on count (1) (a Class B felony, Range I) and eleven months, twenty-

nine days on Count (2). The ten-year felony sentence is the midpoint of the

applicable range of eight to twelve years. The court below enhanced the sentence

above the minimum based upon findings that the defendant has a previous history

of criminal convictions or criminal behavior and that there were no mitigating factors.

The court declined to order any form of alternative sentencing.

I. Sufficiency of the Evidence.

When an appeal challenges the sufficiency of the evidence, the

standard of review is whether, after viewing the evidence in the light most favorable

to the state, 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, 318 (1979);

State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On

appeal, the state is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835, (Tenn. 1978). This court will not re-weigh the

evidence, re-evaluate the evidence, or substitute its evidentiary inferences for those

reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).

Furthermore, in a criminal trial, great weight is given to the result reached by the

5

jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

Once approved by the trial court, a jury verdict accredits the witnesses

presented by the state and resolves all conflicts in favor of the state. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted exclusively to the jury as trier of fact. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984). A jury’s guilty verdict removes the presumption of

innocence enjoyed by the defendant at trial and raises a presumption of guilt. State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the

burden of overcoming this presumption of guilt on appeal. State v. Black, 815

S.W.2d 166, 175 (Tenn. 1991).

A crime may be established by direct evidence, circumstantial

evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900

(Tenn. 1987). Before an accused may be convicted of a criminal offense based

upon circumstantial evidence, the facts and the circumstances “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, 225 Tenn. (3

Pack) 478, 482, 470 S.W.2d 610, 612 (1971). “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.” Id. at 484, 470 S.W.2d at 613.

The offense alleged as count (1) in the indictment is set forth in

Tennessee Code Annotated section 39-15-417 (a) (4) (Supp. 1996), whereby it “is

an offense for a defendant to knowingly . . . possess a controlled substance with

intent to manufacture, deliver or sell such controlled substance.” Cocaine is a

controlled substance. Tenn. Code Ann. § 39-17-408 (1991). Count (2) indicted the

defendant under section 39-17-418 (a), whereby it “is an offense for a person to

6

knowingly possess or casually exchange [marijuana].” Tenn. Code Ann. § 39-17-

418 (a), (b) (Supp. 1996).

The evidence is cogent and overwhelming that the defendant

possessed controlled substances as alleged in both counts of the indictment.

However, the defendant focuses his appellate argument not on proof of possession,

but on the sufficiency of proof of his intent to possess cocaine for delivery. Under

the Code, simple knowing possession is a Class A misdemeanor, while the crime

of which the defendant was convicted, possession with intent to deliver, is a Class

B felony. See Tenn. Code Ann. § 39-17-418(a), (c) (Supp. 1996); § 39-17-417(c)(1)

(Supp. 1996). Section 39-17-419 provides:

It may be inferred from the amount of a controlled substance

or substances possessed by an offender, along with other

relevant facts surrounding the arrest, that the controlled

substance or substances were possessed with the purpose of

selling or otherwise dispensing. It may be inferred from

circumstances indicating a casual exchange among individuals

of a small amount of a controlled substance or substances that

the controlled substance or substances so exchanged were

possessed not with the purpose of selling or otherwise

dispensing in violation of the provisions of § 39-17-417 (a).

Such inferences shall be transmitted to the jury by the trial

judge’s charge, and the jury will consider such inferences

along with the nature of the substance possessed when

affixing the penalty.

Tenn. Code Ann. § 39-17-419 (1991). The trial court charged the jury with the

inference contained in the first sentence of section 39-17-419. The second

inference, arising when a small amount of controlled substances is casually

exchanged, was not charged. Presumably, this portion of the statute was omitted

because there was no proof of any exchange, casual or otherwise.

Applying the appropriate standard of review and assessing the

evidence in the light most favorable to the state, we find sufficient evidence

justifying any rational trier of fact to conclude beyond a reasonable doubt that the

defendant possessed cocaine with intent to deliver the substance. Based upon the

amount of cocaine seized--a large amount, according to two experienced witnesses-

-the state was entitled to the inference set forth in the first sentence of Tennessee

7

Code Annotated section 39-17-419. While the proof suggests that the defendant

had a crack cocaine habit, the proof is lacking as to how prodigious his habit was.

The only proof submitted came through the testimony of Ms. Porter. Not only were

her statements conflicting, but her testimony was vulnerable to the jury making

critical credibility judgments. The defendant did not testify. Being constrained to not

reweigh the evidence and not substitute our evidentiary inferences for those made

by the jury, we conclude that the defendant has not carried his burden of

overcoming on appeal the presumption of guilt that arose upon his conviction in this

case.

II. Constitutional Infringement: Peremptory Juror Challenge

Exercised by the State.

During the voir dire of the venire members, one juror, Ms. Stackings,

a black female, responded to questions about being acquainted with prospective

witnesses by stating that she had played softball in the past with one of the

prospective witnesses and that the two were “still friends.” When asked if the

relationship would cause her to give an inordinate amount of weight to the witness’s

testimony, Ms. Stackings replied twice, “I don’t know, it might.” The court then

examined Ms. Stackings and determined that she could adequately disregard the

personal relationship in considering the facts presented in evidence and declined

to excuse her for cause. After the venire was examined, the state peremptorily

challenged Ms. Stackings. The trial court called counsel to the bench for a

conference out of the hearing of the prospective jurors. The judge noted the fact

that Ms. Stackings is black and that the defendant is black and inquired if the district

attorney had a race-neutral reason for challenging this juror. The district attorney

said, “She is a friend of a person who may testify.” The district attorney further

stated that while the witness might not be used, she was under subpoena. The

defense objected to the use of this challenge, but the trial court overruled the

objection and ordered the jury selection to be resumed.

8

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986), the United States Supreme Court held that the state’s use of peremptory

challenges in the jury selection process to intentionally exclude jurors of the

defendant’s race violates his right to equal protection under the Fourteenth

Amendment to the U.S. Constitution. A prima facie case of purposeful discrimination

could be established by the defendant showing that the defendant was a member

of a “cognizable racial group,” that the state exercised its challenges to exclude

members of the defendant’s race, and that all of the relevant circumstances raised

an inference that the state used the peremptory challenge to exclude potential

jurors because of their race. 476 U.S. at 96, 106 S.Ct. at 1723. If the defendant is

able to establish a prima facie case of intentional discrimination against prospective

jurors from his own race, the state must then show there was a race-neutral reason

for the challenge(s). 476 U.S. at 97, 106 S.Ct. at 1723. The explanation does not

have to rise to the level justifying a challenge for cause. In determining the issue,

the trial court examines the “totality of the relevant facts.” State v. Bell, 759 S.W.2d

651, 653 (Tenn. 1988). Such facts may include the number of members of the

defendant’s race that were excluded through the state’s challenge, but see State

v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (cautioning that numbers alone

are not conclusive), whether the state failed to exhaust its peremptory challenges

while leaving members of the defendant’s race on the jury panel, State v. Butler,

795 S.W.2d 680, 687 (Tenn. Crim. App. 1990), or whether the challenged venire

members exhibited or acknowledged some race-neutral attitude or relationship so

that the state was justified in fearing his or her antipathy to the prosecution. Id.;

State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); Brown, 915 S.W.2d at 9.

However, we point out that the exercise of “even one peremptory challenge in a

purposefully discriminatory manner would violate equal protection.” State v. Ellison,

841 S.W.2d 824, 827 (Tenn. 1992). In passing, we note that in 1991 the United

States Supreme Court modified Batson by deleting the requirement that the

defendant and the wrongfully excluded jurors must be of the same race. Powers

v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed. 2d 411 (1991). In Georgia v.

9

McCollum, 505 U.S. 42, 112 S.Ct. 2348. 120 L.Ed.2d 33 (1992), the Supreme Court

further amplified Batson by requiring that the defendant’s peremptory challenges be

subject to equal protection scrutiny.

On appellate review of the trial court’s findings regarding the Batson

issue, we “cannot substitute our judgment for that of the trial court or declare error

absent a finding that the trial judge abused his or her discretion.” State v. Matthew

L. Moates, No. 03C01-9610-CR-00383, slip op. at 5 (Tenn. Crim. App., Knoxville,

June 24, 1997).

Guided by the foregoing principles, we find no abuse of discretion in

the trial court’s ruling that no purposeful discrimination occurred. Indeed, the record

fully supports a finding that, not only was the state’s single challenge of a black juror

based on a race-neutral factor, but the defendant failed to establish even a prima

facie case of purposeful discrimination.

III. Hearsay.

During the state’s direct examination of Officer Huggins, the witness

began to describe the information given to him by an informant about the

defendant’s alleged drug sales. Defense counsel interposed a hearsay objection

which was sustained, and the trial court announced that the witness may not “state

what someone else told him.” Later in his testimony, Officer Huggins was asked

how he came into contact with Patrice Irvin. He responded, “She was seen in the

vehicle that the informants had told me that Mr. Blaylock would be in, that he was

selling crack out of.” A further objection was made and was sustained, but the trial

court gave no admonitory or limiting instructions to the jury.

The state argues that the reference to the defendant selling drugs was

not hearsay because it was not offered to prove the truth of the matter asserted by

10

the absent declarant, citing State v. Caughron, 855 S.W.2d 526 (Tenn. 1993). See

Tenn. R. Evid. 801(c), 802. The difficulty with the state’s argument is that there was

no other reason for offering the statement other than to suggest that the defendant

had been selling crack from a vehicle. See Neil P. Cohen, et al, Tennessee Law of

Evidence § 801.3 (3d ed. 1995). If even relevant to the question being answered,

the comment was gratuitous, and we must bear in mind that the person testifying

was the prosecuting officer. There was no other relevant reason for the offered

information except to show that the defendant sold crack from this vehicle, and for

a such a purpose, the evidence depended upon the credibility and/or accuracy of

the absent declarant.

Accordingly, we conclude that the comment was objectionable

hearsay, but we further hold that the injection of this comment was harmless error.

The defense elicited information from this witness that, on different occasions when

the defendant came to Savannah, the officer had received fifty to sixty calls from

persons who claimed that the defendant was dealing in drugs. Even though the

witness acknowledged that he had never effected a “buy” from the defendant and

had obtained no other proof of the defendant selling drugs, the infusion of the

volume of informants’ tips tends to overwhelm and minimalize the hearsay

statement, relegating the admission of the statement to harmless error. Tenn. R.

App. P. 36(b); Tenn. R. Crim. P. 52(a). See e.g., Caughron, 855 S.W.2d 526.

State v. Summerall, 926 S.W.2d 272, 278 (Tenn. Crim. App. 1995); Marsh v. State,

561 S.W.2d 767 (Tenn. Crim. App. 1977); Snowball v. State, 477 S.W.2d 240

(Tenn. Crim. App. 1971). Furthermore, we observe that, in the same cross-

examination that elicited the fact of a large number of informant tips, defense

counsel was effective in extracting the witness’s admission that no proof of any

actual sale of drugs had been obtained, despite all of the informant activity and the

intense investigation of the defendant that had been ongoing for some eight

months. The record reflects a palpable suggestion that the informants’

communications were contrived, or at least unreliable, thereby diminishing the

11

impact of the insertion of inadmissible hearsay evidence. Accordingly, the issue is

meritless.

IV. Destruction of Exculpatory Evidence.

The defendant asserts that he was prejudiced by the destruction of audio

tapes which may have preserved the defendant’s statements that he did not sell

drugs, allegedly made in response to an undercover solicitation to buy drugs from

him. Officer Huggins admitted that attempts had been made to equip

informants/undercover-operatives with tape recorders in order to record a sale of

drugs by the defendant to an informant/operative. However, the record does not

reflect that any recording of the defendant was ever made.1 Thus, we resolve the

issue by concluding there was no factual basis in the record for finding that the state

failed to disclose or destroyed exculpative evidence.

V. Sentencing.

The defendant complains that the trial court improperly determined the

length of this sentence and failed to grant alternative sentencing.

When there is a challenge to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review of the record

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. §40-35-401(d) (1990). This presumption is “conditioned upon the

1

Officer Huggins acknowledged at one point in cross examination that,

during the operation, conversations were recorded, but he then testified, “There

were no transactions on those tapes.” When asked if the tapes contained

statements wherein the defendant said, “I don’t sell drugs,” the officer stated, “No

sir,” and then the officer testified there were no conversations with the defendant

on any of the tapes. The officer indicated that any tapes that had been used to

try to ensnare the defendant in a drug sale had “probably” been destroyed. The

matter was not further pursued, and no proof concerning the existence and/or

destruction of the tapes was tendered by either party throughout the trial or at the

hearing on the motion for new trial.

12

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is

upon the appellant.” Id. at 169. In the event the record fails to demonstrate the

required consideration by the trial court, review of the sentence is purely de novo.

Id. If appellate review reflects the trial court properly considered all relevant factors

and its findings of fact are adequately supported by the record, this court must

affirm the sentence, “even if we would have preferred a different result.” State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In the absence of enhancement and mitigating factors, the

presumptive length of sentence of a Class B, C, D, or E felony is the minimum

sentence in the statutory range while the presumptive length of sentence for a Class

A felony is the midpoint in the statutory range. Tenn. Code Ann. §40-35-210(c)

(Supp. 1996). Where one or more enhancement factors and no mitigating factors

exist, the trial court may sentence above the presumptive sentence but still within

the range. Id. §40-35-210(d). Where both enhancement and mitigating factors

apply, the trial court must start at the minimum sentence, enhance the sentence

within the range as appropriate for the enhancement factors, and then reduce the

sentence within the range as appropriate for the mitigating factors. Id. §40-35-

210(e). The weight afforded an enhancement or mitigating factor is left to the

discretion of the trial court so long as the trial court complies with the purposes and

principles of the Tennessee Criminal Sentencing Reform Act of 1989 and its

findings are supported by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn.

Crim. App.), perm. app. denied (Tenn. 1995).

In making its sentencing determination, the trial court, at the

“conclusion of the sentencing hearing,” determines the range of sentence and then

determines the specific sentence and the propriety of sentencing alternatives by

considering (1) the evidence, if any, received at the trial and the sentencing hearing;

13

(2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternative; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on the enhancement

and mitigating factors; (6) any statements the defendant wishes to make in the

defendant’s behalf about sentencing; and (7) the potential for rehabilitation or

treatment. Tenn. Code Ann. §40-35-210(a), (b) (Supp. 1996); Tenn. Code Ann.

§40-35-103(5) (1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993).

In the case now before us, the trial judge placed of record extensive

findings of fact and demonstrated that he understood, reviewed, and considered the

applicable sentencing principles. The sentencing determinations, therefore, are

accompanied by the presumption of correctness.

Applying the principles of sentencing with the presumption of

correctness, the length of each sentence is fully supported in the record. The trial

court’s reliance upon the previous history of criminal convictions or criminal behavior

is warranted.2 See Tenn. Code Ann. § 40-35-114(1) (Supp. 1996). The trial court

2

As pointed out above, the pre-sentence report, which contains

information about the defendant’s previous criminal convictions, is found in the

technical record as prepared and certified by the trial court clerk. The copy

included in the record bears a facsimile of the clerk’s filing stamp (indicating that

the original was filed with the clerk on September 9, 1994), but the document

bears no notation that it was received by the court as an exhibit to the sentencing

hearing. In the transcript of the sentencing hearing, the trial court referred to the

pre-sentence report and stated, “It will be considered then as amended and

corrected.” However, it was not exhibited to the sentencing hearing. There was

no objection to the procedure nor to the ultimate use of the report. Within the

context of the proceeding in this case, the trial court received the report, if not by

stipulation, then by tacit acceptance by both sides, without objection.

Furthermore, we note that, whether the report’s admissibility is stipulated or not,

the court’s consideration of the report -- and hence the court’s receipt of the

report -- is mandated by Tennessee Code Annotated section 40-35-210(b) (2)

(1990). Thus, the defendant does not and could not complain of the use of the

report.

The issue that trial courts should take care to address, however, is the

organization of the sentencing record for appellate review. An appellate court

must be able to identify in the record the same document upon which the trial

court relied. Even though a report in this case may have been a de facto exhibit,

amounting to evidence submitted on behalf of the state, no report was

specifically identified and authenticated in the record by the trial court. For

situations of this type, the following well-reasoned rule was developed:

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was justifiably concerned about the dangerous combination of drug trafficking and

going armed. Clearly, the trial judge determined that the record of prior convictions

for weapons offenses exacerbated the drug offense in the case under review,

causing the trial court to give controlling weight to this enhancement factor. See

Hayes, 899 S.W.2d at 185. We concur.

The defendant argues on appeal that the trial court should have

considered and applied the statutory mitigating factor that the criminal conduct

neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-

113(1) (1990). However, had there been any error committed in failing to use this

mitigating factor, it would be harmless based upon the weight justifiably accorded

to the applicable enhancement factor. 3 Tenn. R. App. P. 36(b); Tenn. R. Crim. P.

Before an exhibit may be considered by this court, it must have been (a)

received into evidence, (b) marked by the trial judge, clerk or court

reporter as having been received into evidence as an exhibit, (c)

authenticated by the trial judge, and (d) included in the transcript of the

evidence transmitted to this court.

State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987) (emphasis

added). See Tenn. R. App. P. 13(c). See also State v. Richard Douglas Lowery,

No. 03C01-9604-CC-00146, slip op. at 9-10 (Tenn. Crim. App., Knoxville, May

19, 1997) (rule applied to a “criminal history report” in the context of sentencing

hearing). Under this rule a pre-sentence report filed only with the clerk and

found only in the technical record is not in evidence. As pointed out above, the

report in the case now before us may have been substantially “received into

evidence as an exhibit,” but “authenticated by the trial judge” as a matter of

record it was not. (The technical record, where the ostensible report appears in

this case, is certified by the court clerk, not authenticated by the trial judge.

Compare Tenn. R. App. P. 24(a) (1) with Tenn. R. App. P. 24(f)). Sentencing

courts should take care to assure that the pre-sentence report is authenticated

by the judge as evidence received in the sentencing hearing.

While this issue is worthy of amplification for the sake of sentencing by

courts in the future, we are not concerned about the effect of the lack of

authentication or identification of the exhibit in this case. First, the issue was not

raised in the trial court nor on appeal, and accordingly, it is waived. Tenn. R.

App. P. 13(b), 24(b), 36(a); Tenn. R. Ct. Crim. App. 10(b). Secondly, the prior

convictions that were utilized by the trial court in sentencing the defendant, being

two convictions involving the carrying of weapons, and a conviction for evading

arrest were acknowledged by the defendant when he testified at the sentencing

hearing. Under these facts any error in not authenticating the report as evidence

is harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. App. 52(a).

3

We note, for example, that in State v Dondi B. Dolan, No. 03C01-9101-

CR-283 (Tenn. Crim. App., Knoxville, March 25, 1992), this court was willing to

accept the trial court’s application of mitigating factor (1) where the defendant

sold 1.5 grams of cocaine. However, in Dolan we affirmed the trial court’s

determination that the enhancement factors outweighed this mitigating factor,

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52(a).

Finally, we examine the refusal of the trial court to allow alternative

sentencing in this case.4 Under the Tennessee Sentencing Reform Act of 1989, a

defendant who is “an especially mitigated or standard offender convicted of a Class

C, D, or E felony,” and who has not been convicted of “committing the most severe

offenses, possessing [a] criminal histor[y] evincing a clear disregard for the laws and

morals of society, and evincing failure of past efforts of rehabilitation,” is presumed

to be a favorable candidate for alternative sentencing options, “in the absence of

evidence to the contrary.” Tenn. Code Ann. § 40-35-102(5), (6) (Supp. 1996). A

defendant is eligible for probation, a particular alternative sentencing option, when

the sentence “actually imposed . . . is eight (8) years or less . . . .” Tenn. Code Ann.

§ 40-35-303(a) (Supp. 1996) (unless the defendant is convicted of aggravated

forms of kidnapping, robbery, child abuse, or sexual battery or certain drug offenses

not applicable in the case sub judice).

The defendant was convicted of a Class B felony and received a

sentence of ten years. He is neither eligible for probation nor is he presumed to be

a favorable candidate for alternative sentencing. The record reflects the trial court

was guided by the principles of sentencing and considered alternative sentencing,

and likewise in the case now before us, the enhancement factor so clearly

outweighs any possible benefit to the defendant of applying mitigating factor (1),

that we do not feel constrained to determine the applicability of this mitigating

factor to the defendant’s possession of 6.2 grams of cocaine. This conclusion is

further facilitated by the fact that neither party developed the mitigation issue in

the briefs filed on appeal.

4

Tennessee Code Annotated section 40-35-302(d) provides that, in

imposing a misdemeanor sentence, “the court shall fix a percentage of the

sentence which the defendant shall serve.” Tenn. Code Ann. § 40-35-302(d)

(Supp. 1996) (emphasis added). (After serving the required percentage, the

prisoner is eligible for work release, furlough, or other rehabilitative programs.)

The maximum percentage that may be established is 75% (except in certain

cases not applicable here). “If no percentage is expressed in the judgment, the

percentage shall be considered zero percent (0%).” In the case now before us,

the sentencing order specifies no percentage. With respect to the misdemeanor

sentence, the “administrative authority” has the discretionary authority to “place

the defendant in [rehabilitative] programs as provided by law.” Id. However, the

imposition of concurrent sentences renders the zero percentage service of the

misdemeanor sentence meaningless.

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and that is all that we can require. There is no basis in the record for upending the

trial court’s judgment that alternative sentencing options were not appropriate. In

other words, the defendant has failed to carry his burden of demonstrating that the

manner of service of the sentence is improper. There is no ground for altering or

setting aside the sentence as ordered below.

VI. Conclusion.

The conclusion is that there is no consequential error in the

proceedings below, and the judgment of the trial court is in all respects affirmed.

_______________________

CURWOOD WITT, Judge

CONCUR:

__________________________

JOE B. JONES, Presiding Judge

__________________________

GARY R. WADE, Judge

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