State of Tennessee v. Lymus Levar Brown III

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 13, 2013

STATE OF TENNESSEE v. LYMUS LEVAR BROWN, III

Appeal from the Circuit Court for Haywood County

No. 6710 Clayburn L. Peeples, Judge

No. W2012-02298-CCA-R3-CD - Filed November 26, 2013

A Haywood County jury convicted appellant, Lymus Levar Brown, III, of aggravated

robbery. The trial court sentenced him as a Range III offender to serve thirty years in the

Tennessee Department of Correction, with a release eligibility of eighty-five percent. See

Tenn. Code Ann. § 40-35-501(k)(1) (release eligibility for aggravated robbery conviction).

On appeal, he argues that: (1) the evidence supporting his conviction was insufficient; (2) the

trial court erred by allowing a witness to testify despite a violation of the rule of

sequestration; (3) the trial court erred by not granting him a mistrial or some other remedy

for the State’s failure to provide previously requested discovery; (4) his right to a speedy trial

was violated; (5) the trial court erred by allowing the jury to hear that appellant was a

convicted criminal; (6) the State failed to provide a sufficient chain of custody for the cellular

telephone found at the crime scene; and (7) the trial court erred by considering his prior

convictions during the sentencing hearing despite not having certified copies of said

convictions. Following our review, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT

W. W EDEMEYER, JJ., joined.

Bob C. Hooper, Brownsville, Tennessee, for appellant, Lymus Levar Brown, III.

Robert E. Cooper, Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell and

Larry Hardister, Assistant District Attorneys General, for appellee, State of Tennessee.

OPINION

I. Facts

This case concerns the January 18, 2011 aggravated robbery of Terica Gause, an

employee of Cash Express in Brownsville, Tennessee. The Haywood County Grand Jury

indicted appellant for the aggravated robbery, and the matter proceeded to trial in December

2011. A mistrial was declared, and the trial was reset for June 2012.

At trial, Terica Gause testified that she was working at Cash Express on January 18,

2011. Tamika Anderson was also working that day, but Ms. Anderson left the store to

purchase supplies prior to the robbery. Ms. Gause said that the store normally opened at 9:30

a.m., but that day, a tall, black man entered the store between 9:00 and 9:30 a.m. He was

wearing a black or blue jacket with white stripes and a black or blue ball cap. When shown

a picture of appellant wearing a jacket, she testified that the jacket appellant was wearing

“kind of look[ed] like” the one worn by the robber. Ms. Gause testified that the man asked

whether the store cashed checks. When she responded affirmatively, the man pulled a gun

and a black bag from his jacket, laid the gun on the counter, and told her to give him all of

the money. Ms. Gause recalled that she was crying and terrified, but the man told her that

he would not hurt her. She said that she pulled the cash drawer out to give him the money.

Ms. Gause stated that she believed there was $525 in the drawer, plus change. She hit the

store’s panic button at some point during the robbery, and after the man left, she locked the

door. At that point, she answered the store’s telephone. The store’s main office had

accessed the store’s security footage when Ms. Gause had pressed the panic button, and they

were calling to verify her safety. The main office had also contacted the police. Ms. Gause

testified that the man had left a cellular telephone on the floor of the store. She said that she

and Ms. Anderson had closed the store the previous night, and they had vacuumed the floors

at that time. There was not a cellular telephone on the floor the night before, and no one else

had entered the store besides her, Ms. Anderson, and the robber.

On cross-examination, she agreed that she had previously said that the robber was

taller than she was. She agreed that she was five feet, four inches tall and that the robber was

between five feet, six inches and five feet, eight inches tall. She further agreed that she never

identified appellant in a lineup.

Tamika Anderson, the store manager of the Cash Express, testified that she was not

at the store during the January 18, 2011 robbery. She explained that she left the store to

purchase supplies, and she took $25 from the cash drawer with her. Ms. Anderson testified

that there would have been $515 in the drawer at that point. She recalled seeing a man

standing outside the Cash Express, whom she described as a black male wearing a blue or

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black jacket with white lettering that was trimmed in royal blue and a dark navy or black

baseball cap. When shown a photograph of appellant wearing a jacket and cap, she said that

the jacket and cap looked similar to those worn by the man outside of the store on the day of

the robbery. Ms. Anderson said that there was not a telephone on the store’s floor the night

before or the morning of the robbery.

Brownsville Police Investigator Patrick Black testified that he investigated the robbery

at the Cash Express store. He arrived at the store within two minutes of receiving the call

about the robbery. Ms. Gause informed him that the robber had left a cellular telephone on

the floor, and he took the telephone into evidence. Investigator Black testified that he

obtained a search warrant for the telephone and had the telephone sent to the Tennessee

Bureau of Investigation (“TBI”) laboratory for “serology and fingerprint identification.”

Pursuant to the search warrant, Investigator Black downloaded photographs from the

telephone, which were entered into evidence. He distributed the photographs to various

agencies in West Tennessee and throughout the patrol division in an attempt to identify the

person in the photographs, and this attempt was successful. Investigator Black also obtained

the number associated with the telephone: 731-879-0475. Investigator Black testified that

information he received from the TBI laboratory led him to obtain a search warrant for

appellant’s DNA. The search warrant was executed, and DNA swabs from appellant were

sent to the TBI for testing.

Investigator Black testified that he arrested appellant at the Bureau of Probation and

Parole in Jackson, Tennessee. Appellant told Investigator Black that he had never been to

Brownsville and did not have anything to do with the robbery. Appellant said that he had

sold his telephone several weeks earlier for forty-five to fifty dollars to a person named

James. When asked whether appellant identified James to him, Investigator Black responded

that appellant had James’s driver’s license.1 Appellant did not indicate why he had James’s

driver’s license. Investigator Black testified that Marquisha Lloyd was with appellant when

he was arrested. He further testified that photographs of Ms. Lloyd were found on the

cellular telephone associated with the robbery. Investigator Black testified that appellant said

that “he had seen himself on the news and was waiting to come in to see his parole officer

about it.” Investigator Black said that the news footage was shown within a few days of the

robbery and that appellant was arrested thirteen days after the robbery. Investigator Black

testified that appellant indicated that he knew he was wanted by the police but did not turn

himself in because he was scared.

1

During a jury-out bench conference, Investigator Black testified that he made the assumption that

the James to whom appellant allegedly sold his telephone and the James on the driver’s license were the same

person, but he said that appellant never actually told him that.

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On cross-examination, Investigator Black said that he believed the photograph

released to the media was one taken from the telephone, not from Cash Express’s

surveillance video. He testified that TBI Agent Brent Booth and a Jackson Police

Department officer followed up on the information from appellant about James. They

learned that the driver’s license was stolen. Investigator Black agreed that Ms. Gause never

positively identified anyone from the lineup he showed her and that he never found the jacket

worn by appellant in the photographs.

Probation and Parole Officer Evelyn Hill testified that appellant had been under her

supervision in January 2011. Appellant met with her at her office on January 11, 2011. As

part of the normal procedure for meetings, he completed an information form that asked for

his telephone number. The number he provided was 731-879-0475. Officer Hill testified

that appellant came to her office on January 31, 2011, “at [her] insistence.” She said that

appellant had contacted her between January 11 and January 31 to tell her about a change to

his address but not a change to his telephone number.

TBI Agent Brent Booth testified that he assisted Investigator Black with his

investigation. His participation included transporting the telephone to the Nashville TBI

laboratory and interviewing appellant. Agent Booth identified his name on the package

containing the telephone and testified that it was the same telephone he had taken to the

laboratory.

TBI Agent Nicholas Christian of the technical services unit testified that he performed

a data retrieval on the telephone related to this case. He explained that he received the

telephone from James Howard Patterson, who in turn had received it from Lelia Jackson.

Agent Christian was responsible for generating the report detailing all of the data on the

telephone, which was received as an exhibit.

TBI Agent Mark Dunlap of the serology and DNA unit testified that he tested the

telephone for DNA. He said that he received the telephone from Lelia Jackson, who worked

in the evidence receiving unit at the laboratory. Agent Dunlap explained that Ms. Jackson

was responsible for assigning an exhibit number to the telephone, and he stated that her

initials were on the package containing the telephone. He swabbed the telephone for DNA

and developed a DNA profile that he entered into a database. From the information gathered

from the database, Agent Dunlap requested a DNA sample from appellant. Once he received

that, he compared the DNA from the telephone with appellant’s DNA. Agent Dunlap

testified that there were at least two people who contributed DNA to what was found on the

phone. Appellant was the major contributor, and an unknown female was the minor

contributor. On cross-examination, Agent Dunlap testified that there was no way to tell how

long the DNA had been on the telephone.

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Shanee Cohen testified that appellant was her ex-boyfriend. They had dated from

March to November 2010. Sometime after the robbery, appellant called her. He told her that

he had been involved in the robbery. Appellant also told her that one of the women working

at the store and the woman’s boyfriend were supposed to be involved. He never said

anything about whether the woman’s boyfriend actually participated in the robbery, but he

said that the woman had gotten scared and left the store prior to the robbery.

On cross-examination, Ms. Cohen agreed that she had one prior conviction for theft.

She also said that she called appellant’s cellular telephone after they had broken up and that

someone other than appellant answered the telephone.

Nimrod White testified that he had been incarcerated with appellant. Appellant told

him that he had been at the Cash Express during the robbery, but appellant did not explicitly

say that he had committed the robbery. Appellant told Mr. White that he had been standing

outside and saw a woman leave the store and walk by him. He then went inside the store.

Appellant indicated to Mr. White that he had a gun with him. Appellant also told Mr. White

about a cellular telephone that was found at the store after the robbery. Appellant said that

the only way the police could connect him to the telephone was through photographs and text

messages sent to or received from a female friend of appellant the day before the robbery

because appellant had told the police that he had sold the telephone. Mr. White testified that

he believed the female friend’s name was “Marquita or something like that” and that her last

name was Lloyd. Mr. White agreed that he had a cellular telephone at the county jail and that

appellant had used his telephone to call Marquisha Lloyd at a number ending in 7704. On

cross-examination, Mr. White agreed that he had several aggravated burglary, burglary, theft,

and vandalism convictions.

The State recalled Investigator Black. He testified that the cellular telephone found

at Cash Express had one contact number with the last digits 7704, which was assigned to the

name “Budda Bay.” There were several text messages from Budda Bay on January 17, 2011,

the day before the robbery. Investigator Black also testified that there were photographs of

Marquisha Lloyd on the telephone, and at least one photograph had been taken the day before

the robbery.

On cross-examination, Investigator Black agreed that some of the photographs on the

telephone appeared to have been taken during a time period in which appellant was

incarcerated. On re-direct examination, Investigator Black testified that the boots worn by

appellant in the courtroom were similar to those in a photograph from the telephone.

Following this testimony, the State rested.

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On behalf of appellant, Janice Webb, a nurse who provided services at the Haywood

County Criminal Justice Complex, testified that she had weighed appellant and taken his

height the morning of her testimony. Appellant was six feet, one inch tall and weighed 204

pounds.

The State called Investigator Black as a rebuttal witness. He testified that the

description of the robber sent to law enforcement agencies after the robbery stated that the

robber was five feet, eleven inches tall. Investigator Black testified that the robber’s

description came from the victim, Terica Gause.

Following the close of proof and deliberations, the jury convicted appellant as

charged. The trial court sentenced him as a Range III, persistent offender to serve thirty

years in the Tennessee Department of Correction, with a release eligibility of eighty-five

percent. See Tenn. Code Ann. § 40-35-501(k)(1) (release eligibility for aggravated robbery

conviction).

II. Analysis

A. Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to support his convictions because

Terica Gause never identified appellant, TBI Agent Dunlap could not say when appellant’s

DNA was left on the telephone, and two of the witnesses whose testimony connected him to

the offense had criminal records. The State responds that jury accredited the witnesses and

that the evidence was sufficient to support appellant’s conviction for aggravated robbery. We

agree with the State.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing 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 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

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On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

To sustain a conviction for aggravated robbery as indicted in this case, the State must

have proven beyond a reasonable doubt that appellant intentionally or knowingly committed

“theft of property from the person of another by violence or putting the person in fear” and

that he accomplished the robbery “with a deadly weapon or by display of any article used or

fashioned to lead the victim to believe it to be a deadly weapon.” Tenn. Code Ann. §§ 39-

13-401(a), -402(a)(1).

Viewed in the light most favorable to the State, the evidence presented at trial reveals

that appellant entered the Cash Express store in Brownsville, Tennessee, on January 18,

2011, prior to the store’s opening. He laid a gun on the counter and demanded money.

Terica Gause, the only store employee present at the time, pulled out the cash drawer, and

appellant took $515-525 from the drawer. Ms. Gause testified that she was terrified during

the robbery. Ms. Gause described the jacket and cap worn by the robber, and Tamika

Anderson, the store manager, testified that she saw a similarly dressed man standing outside

the store when she left that morning. After the robbery, Ms. Gause found a cellular telephone

on the floor of the store. Both Ms. Gause and Ms. Anderson testified that it had not been

there the night before. Appellant’s DNA was found on the telephone, and the number

assigned to the telephone was the same number appellant had used as his contact number

when he met with his probation officer on January 11, 2011. Furthermore, pictures on the

telephone depicted appellant wearing clothing similar to what the robber had worn, and some

of the pictures were of Marquisha Lloyd, a known companion of appellant. Ms. Lloyd was

with appellant when he was arrested, and according to Nimrod White, appellant contacted

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her from jail. Text messages from a number ending in 7704 were found on the telephone

dated the day before the robbery, and Mr. White testified that Ms. Lloyd’s telephone number

ended in 7704. Mr. White also testified that appellant told him about the robbery in a round-

about fashion. In appellant’s conversation with Mr. White, appellant placed himself outside

of the store and inside of the store with a weapon, but he never explicitly said that he was

responsible for the robbery. However, appellant told Shanee Cohen, a former girlfriend, that

he had been involved with the robbery. Thus, appellant was connected to the aggravated

robbery through his own words and through the telephone found at the scene. Regarding

appellant’s challenges to the sufficiency of the evidence, Ms. Gause may have been mistaken

about appellant’s height, but she was terrified and crying during the robbery. Agent Dunlap

could not say when appellant’s DNA was left on the telephone, but he testified that appellant

was the only major contributor to the DNA found thereon. Mr. White and Ms. Cohen both

had prior criminal convictions, which might have weighed against their credibility, but the

jury accredited their testimony, as was their prerogative. We conclude that the proof was

sufficient for any rational jury to find appellant guilty of aggravated robbery beyond a

reasonable doubt.

B. Rule of Sequestration

Appellant complains that the trial court should not have allowed Evelyn Hill to testify

after she had violated the rule of sequestration. See Tenn. R. Evid. 615. The State responds

that the trial court was within its discretion when it allowed her testimony. We agree with

the State.

Tennessee Rule of Evidence 615 provides that a trial court shall exclude witnesses

from the courtroom at the request of a party to an action. “The purpose of the rule is to

prevent one witness from hearing the testimony of another and adjusting his testimony

accordingly.” State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). The text of the rule does not

provide a remedy for a violation; instead, courts have the discretion to fashion a remedy

appropriate to the circumstances. See State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App.

2001) (citing State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992)). One possible

sanction is the exclusion of the violating witness’s testimony. See id. “The decision to

exclude or allow the testimony is a matter within the discretion of the trial court, subject to

a showing of abuse and prejudice to the complaining party.” Id. at 424-25 (citing State v.

Chadwick, 750 S.W.2d 161, 166 (Tenn. Crim. App. 1987)). The Advisory Commission

Comments to Rule 615 provide the following guidance: “If a witness inadvertently and

unintentionally hears some trial testimony, the sense of the rule would permit the judge to

allow the witness to testify if fair under the circumstances.” Tenn. R. Evid. 615, Advisory

Comm’n Cmt.

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In this case, the trial transcripts do not clearly reflect that any party requested the

sequestration of the witnesses; however, the motion for new trial transcript includes a

comment by defense counsel that the rule had been called. In addition, when the matter was

discussed at a bench conference, the State responded as if the rule of sequestration had been

properly requested under Rule 615.

During the third witness’s testimony, that of Investigator Black, the State realized that

Evelyn Hill, appellant’s probation officer, was in the courtroom. The State immediately

brought it to the attention of the court, and the court ordered Ms. Hill to leave the courtroom.

Defense counsel objected to Ms. Hill’s testifying later in the trial, and the court overruled the

objection. The court reasoned that nothing said to that point in the trial would affect Ms.

Hill’s testimony. Having reviewed the record, we agree with the trial court. Ms. Hill’s

testimony related to appellant’s contact information and how he came to be at her office the

day of his arrest. The State brought her presence in the courtroom to the court’s attention just

before Investigator Black began discussing appellant’s arrest at Ms. Hill’s office. None of

the prior witnesses’ testimonies had any bearing on that of Ms. Hill. Considering that the

purpose of Rule 615 is to prevent a witness from changing his or her testimony according to

other testimony presented, we conclude that the trial court did not abuse its discretion by

allowing her to testify because none of the testimony presented to that point could have had

any influence on Ms. Hill’s testimony. Furthermore, appellant has made no showing that Ms.

Hill’s violation of the rule was prejudicial to him. See Black, 75 S.W.3d at 424-25.

Therefore, appellant’s argument is without merit.

C. Failure of the State to Provide Discovery

Appellant argues that the trial court should have dismissed the indictment because of

the State’s alleged failure to comply with Tennessee Rule of Criminal Procedure 16, which

governs the discovery process. Specifically, appellant contends that the State failed to

provide the driver’s license issued to a person named James, which appellant had in his

possession when he was arrested.2 The State responds that the trial court did not abuse its

discretion by denying appellant’s motion to dismiss the indictment. Upon review, we

conclude that appellant has waived this issue.

During the trial, appellant moved the court to dismiss the indictment based on the

State’s failure to disclose exculpatory evidence. While not defined as such during the jury-

out bench conference on the issue, the argument advanced by defense counsel was that of a

2

In his brief, appellant also contends that the State failed to provide the defense with appellant’s

oral statement to Investigator Black. However, no objection was made on this basis at trial. Therefore, this

argument is waived. See Tenn. R. App. P. 36(a).

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Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963) (holding that the State’s

suppression of exculpatory evidence is a due process violation). In contrast, a Rule 16

violation does not require that undisclosed evidence be exculpatory, and Rule 16 allows a

court to fashion remedies other than dismissing the indictment. See Tenn. R. Crim. P. 16.

On appeal, appellant advances a Rule 16 argument. “In this jurisdiction, a party is bound by

the ground asserted when making an objection,” and changing theories on appeal constitutes

waiver of the issue. State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994).

Because appellant did not argue below that the State had violated Rule 16 and instead argued

that the State failed to disclose exculpatory evidence, we conclude that appellant has waived

appellate review of this issue.

D. Speedy Trial Violation

Appellant contends that his right to a speedy trial was violated when he was tried

sixteen and one-half months after his arrest. The State responds that the factors of the speedy

trial analysis do not weigh in appellant’s favor. We agree with the State.

The Sixth Amendment to the United States Constitution states that “in all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const.

amend. VI. This provision was made applicable to the states through the Fourteenth

Amendment to the United States Constitution. State v. Simmons, 54 S.W.3d 755, 758 n.4

(2001) (citing Klopfer v. North Carolina, 386 U.S. 213 (1967)). Likewise, the Tennessee

Constitution provides the same guarantee for criminal defendants. See Tenn. Const. art. I,

§ 9. “The speedy trial guarantee is designed to protect the accused from oppressive pre-trial

incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that

the accused’s defense will be impaired by dimming memories or lost evidence.” Simmons,

54 S.W.3d at 758. The right to a speedy trial is triggered when an accused is arrested or

when a grand jury issues a formal accusation or indictment. State v. Hudgins, 188 S.W.3d

663, 667 (Tenn. Crim. App. 2005) (citing State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997)).

We review a trial court’s determination of whether a defendant’s right to a speedy trial was

violated under an abuse of discretion standard. Hudgins, 188 S.W.3d at 667.

In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court set forth four

factors to be considered when reviewing an alleged violation of an accused’s right to a

speedy trial, including the “[l]ength of delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant.” See Simmons, 54 S.W.3d at 759. Our

supreme court has cited with approval the application of the Barker analysis in Tennessee.

Simmons, 54 S.W.3d at 759 (citing State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977)). If,

after applying the Barker balancing test, a court determines that an accused’s right to a

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speedy trial has been violated, “the remedy is reversal of the conviction and dismissal of the

criminal charges.” Id.

Considering first the length of the delay, we note that unless “there is some delay

[that] is presumptively prejudicial, it is not necessary to inquire into the other balancing

factors of the speedy trial analysis.” Id. (citing Barker, 407 U.S. at 530; State v. Wood, 924

S.W.2d 342, 346 (Tenn. 1996)). A delay following a formal accusation must “generally” be

one year or longer to trigger a speedy trial analysis. Id. If this threshold is crossed, a

reviewing court must employ a balancing test to determine the merits of the speedy trial

issue. State v. Bates, 313 S.W.3d 265, 270 (Tenn. Crim. App. 2009).

In this case, appellant was arrested on January 31, 2011, and indicted on May 16,

2011. His case was originally tried on December 1, 2011, but resulted in a mistrial due to

a mistake by the State. The matter was reset for March 29, 2012. On that day, the State

requested an amendment to the indictment, which the trial court granted. The trial court gave

appellant the option to proceed with the trial or reset the trial. Appellant chose to reset the

trial, and based on the parties’ calendars and the court calendars, the case was reset to June

14, 2012. Thus, appellant’s trial was clearly more than a year after his arrest; however, as

his trial was four and one-half months past the year marker, the length of the delay weighs

against the State but not heavily.

Having determined that the length of the delay was sufficient to trigger the speedy trial

analysis, we must now inquire as to the reasons for the delay. Reasons for delay fall within

four identifiable categories: “(1) intentional delay to gain a tactical advantage over the

defense or delay designed to harass the defendant; (2) bureaucratic indifference or

negligence; (3) delay necessary to the fair and effective prosecution of the case; and (4) delay

caused, or acquiesced in, by the defense.” State v. Vickers, 985 S.W.2d 1, 5-6 (Tenn. Crim.

App. 1997) (citing Wood, 924 S.W.2d at 346-47). While the reasonableness of the length of

the delay is commensurate to the complexity and nature of the case, the presumptive

prejudice inherent in the delay intensifies over time. Simmons, 54 S.W.3d at 759 (citing

Doggett v. United States, 505 U.S. 647, 652 (1992); Utley, 956 S.W.2d at 492; Wood, 924

S.W.2d at 346).

Here, the State caused the first delay by its mistake at the first trial, on December 1,

2011, which resulted in a mistrial. However, such a delay was necessary for the fair

prosecution of the case to prevent a miscarriage of justice. The second delay occurred when,

in response to the State’s amendment of the indictment on March 29, 2012, appellant

requested that the case be reset. If he had proceeded to trial on that day, the trial would have

been fourteen months after his arrest. He chose to reset the trial, and because of the

calendars involved, the case could not be tried until June 14, 2012. Thus, the second delay

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was caused by the State’s amending the indictment but was acquiesced to by appellant.

Therefore, the factor does not weigh heavily against the State.

The third factor we must consider is whether appellant asserted his right to a speedy

trial. Simmons, 54 S.W.3d at 760 (citing Barker, 407 U.S. at 531-32). In this case,

appellant’s motion to dismiss based on a speedy trial violation, filed May 11, 2012, was the

first assertion of his right to a speedy trial. Considering that “the timeliness of the demand

for a speedy trial is a factor to be considered when determining whether the defendant has

been denied his speedy trial right,” State v. Harold Wayne Nichols, E2008-00169-CCA-R3-

CD, 2009 WL 2633099 (Tenn. Crim. App. Aug. 27, 2009) (citing Simmons, 54 S.W.3d at

760 (Tenn. 2001); Bishop, 493 S.W.2d at 84), we note that this assertion came fifteen and

one-half months after his arrest and that he was tried approximately one month after the

assertion. The fact of his assertion weighs in his favor, however.

Finally, we analyze the prejudice to appellant caused by the delay. Appellant asserts

that the delay made it more difficult to find James, the person to whom appellant allegedly

sold his cellular telephone. The trial court reasoned that any delay would actually have been

beneficial in this regard. Furthermore, the proof at trial showed that appellant had been using

his telephone the day before the robbery. Appellant has not provided any indication that he

was actually prejudiced by the delay. Taking all of the factors into consideration, we

conclude that appellant’s right to a speedy trial was not violated.

E. Tennessee Rule of Evidence 404(b)

Appellant challenges the trial court’s ruling on his motion in limine to exclude

testimony pursuant to Tennessee Rule of Evidence 404(b) regarding his status as a convicted

criminal, specifically the testimony of probation officer Evelyn Hill and a document from the

probation office containing appellant’s contact information.3 The State responds that the trial

court did not abuse its discretion in admitting the evidence. We agree with the State.

Tennessee Rule of Evidence 404(b) provides that evidence of other crimes, wrongs,

or acts is generally not admissible “to prove the character of a person in order to show action

in conformity with the character trait.” However, evidence of other crimes, wrongs or acts

may be admissible where it is probative of a purpose other than the defendant’s propensity.

3

Both appellant and the State have treated this matter as a Rule 404(b) issue. However, if it had

been addressed as a Tennessee Rule of Evidence 401 and 403 issue instead, the evidence would nonetheless

have been admissible as the probative value was not substantially outweighed by the danger of unfair

prejudice. Regardless, any error in the admission of this evidence is harmless in light of the overwhelming

evidence of appellant’s guilt. See Tenn. R. App. P. 36(b).

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Tenn. R. Evid. 404(b). While Rule 404(b) does not enumerate the exceptions under which

evidence of prior crimes, wrongs, or acts may be admitted, our courts have held that such

evidence may be admissible to show another purpose such as motive, intent, guilty

knowledge, identity of the defendant, absence of mistake, or the existence of a common

scheme. See, e.g., State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004); Collard v. State, 526

S.W.2d 112, 114 (Tenn. 1975). To admit such evidence, Rule 404(b) specifies the following:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record the

material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear and

convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Should a review of the record indicate that the trial court substantially complied with

the requirements of Rule 404(b), the trial court’s admission of the challenged evidence will

remain undisturbed absent an abuse of discretion. State v. James, 81 S.W.3d 751, 759 (Tenn.

2002); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). “An abuse of discretion occurs

when the trial court applies an incorrect legal standard or reaches a conclusion that is

‘illogical or unreasonable and causes an injustice to the party complaining.’” State v. Dotson,

254 S.W.3d 378, 392 (Tenn. 2008) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.

2006)).

Appellant moved the court to exclude Ms. Hill’s testimony because, as he reasoned,

evidence that appellant had been on parole was equivalent to evidence of prior crimes,

wrongs, or acts. In a jury-out hearing prior to the first trial in December 2011, the trial court

ruled that “the probative value of the evidence outweighed the prejudicial value.” When

appellant renewed his motion to exclude the evidence prior to the second trial, the trial court

determined that Ms. Hill’s testimony and the document accompanying her testimony were

highly probative of appellant’s identity as the perpetrator. In addition, the trial court gave

the jury an instruction in its jury charge to disregard the information that appellant had been

on parole, stating that it should not be considered by the jury for any purpose.

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Our review of the record indicates that the trial court substantially complied with the

dictates of Rule 404(b). The trial court determined that the evidence was admissible to prove

identity, which is a recognized exception to the general exclusion of evidence of prior crimes,

wrongs, or acts. See Berry, 141 S.W.3d at 582. Furthermore, the trial court ruled that the

probative value was not outweighed by the danger of unfair prejudice, and the trial court

gave a limiting instruction to the jury for it not to consider that appellant had been on parole.

Therefore, we conclude that the trial court did not abuse its discretion in admitting the

evidence.

F. Chain of Custody

Appellant argues that the State did not establish a sufficient chain of custody for the

cellular telephone found at the crime scene because TBI employee Lelia Jackson did not

testify and because Agent Dunlap did not state where in the chain of custody he received the

telephone. The State responds that it sufficiently established the chain of custody so as to

“reasonably assure the identity of the evidence and its integrity.”

The determination of whether the State has properly established the chain of custody

of evidence is a matter left to the sound discretion of the trial court and will not be reversed

absent an abuse of that discretion. See State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008).

Tennessee Rule of Evidence 901(a) provides: “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient to

the court to support a finding by the trier of fact that the matter in question is what its

proponent claims.” As our supreme court has held, “as a condition precedent to the

introduction of tangible evidence, a witness must be able to identify the evidence or establish

an unbroken chain of custody.” Cannon, 254 S.W.3d at 296 (quoting State v. Scott, 33

S.W.3d 746, 760 (Tenn. 2000)). “The purpose of the chain of custody is to ‘demonstrate that

there has been no tampering, loss, substitution, or mistake with respect to the evidence.’”

Scott, 33 S.W.3d at 760 (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App.

1993)). The State should sufficiently prove each link in the chain of custody, but the State

is not required to prove the identity of tangible evidence beyond all possibility of doubt nor

must it exclude every possibility of tampering. Cannon, 254 S.W.3d at 296. In addition, the

State’s failure to call as a witness each person who handled an item does not necessarily

preclude the admission of the evidence. Id. “Accordingly, when the facts and circumstances

that surround tangible evidence reasonably establish the identity and integrity of the

evidence, the trial court should admit the item into evidence.” Id. The trial court should not

admit an item into evidence if the State fails to provide sufficient proof of the chain of

custody, unless the identity and integrity of the item can be established by other means. Id.

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In this case, Investigator Black testified that he retrieved the telephone from the crime

scene. Agent Booth testified that he took the telephone to the TBI laboratory, and he further

testified that the telephone in the courtroom was the same one he had taken to the laboratory.

Agent Christianson testified that he received the telephone from Agent Patterson, who had

received it from Lelia Jackson, a TBI employee. Agent Christianson said that he returned

the telephone to Ms. Jackson. Agent Dunlap testified that he recognized Ms. Jackson’s

initials on the telephone’s packaging. He also explained that Ms. Jackson worked in the

evidence receiving unit and was responsible for assigning an exhibit number to the evidence.

Ms. Jackson did not testify, and Agent Dunlap did not definitively state that he received the

telephone from Ms. Jackson. The State is not required to present testimony from every

person in the chain, and it does not have to prove the identity of the evidence beyond all

possibility of doubt. Cannon, 254 S.W.3d at 296. Here, the State presented evidence

regarding each link in the chain of custody, even though it did not present testimony from

each person in the chain. In addition, there was testimony that the telephone admitted as an

exhibit was the same one found at the crime scene. Therefore, we conclude that the State

sufficiently established the chain of custody.

G. Certified Copies of Convictions

Appellant argues that the trial court erred by considering uncertified copies of his prior

convictions during the sentencing hearing via the presentence report. However, as the State

responds, appellant did not object to the admission of the presentence report during the

sentencing hearing. Therefore, he has failed to preserve this issue for appellate review. See

Tenn. R. App. P. 36(a).

Furthermore, appellant has not argued specifically for plain error review. Even if we

construed his appellate argument as a request for plain error review, he has not established

the five factors necessary for this court to find plain error. Our supreme court formally

adopted this court’s Adkisson test for reviewing claims of plain error:

The Court of Criminal Appeals has developed five factors to consider when

deciding whether an error constitutes “plain error” in the absence of an

objection at trial: “(a) the record must clearly establish what occurred in the

trial court; (b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error must [have

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been] of such a great magnitude that it probably changed the outcome of the trial.” Adkisson,

899 S.W.2d at 642. All five factors must be established by the record before a court will find

plain error. Smith, 24 S.W.3d at 282. Complete consideration of all the factors is not

necessary when clearly at least one of the factors cannot be established by the record.

In this case, appellant has failed to establish that a clear and unequivocal rule of law

has been breached. Reliable hearsay is admissible with certain qualifications during

sentencing hearings, see Tenn. Code Ann. § 40-35-209(b), and “[t]his court has consistently

held the presentence report to be reliable hearsay,” State v. Adams, 45 S.W.2d 46, 59 (Tenn.

Crim. App. 2000) (citing State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997)).

“Furthermore, this court has held that certified copies of convictions are not necessary to

prove a prior criminal history; thus, courts can rely upon the presentence report.” Id. (citing

State v. Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993)); see also State v. Tyrone

Ralph Wright, No. M2010-02096-CCA-R3-CD, 2012 WL 601332, at *18-19 (Tenn. Crim.

App. Feb. 23, 2012), perm. app. denied (Tenn. June 25, 2012) (concluding that the trial court

properly relied on presentence report and preparer’s testimony when the State did not present

certified copies of two of the defendant’s six prior convictions). Thus, because one of the

five factors necessary to establish plain error is absent, appellant is without relief as to this

issue.

CONCLUSION

Based on our review of the record, the parties’ briefs, and the applicable law, we

affirm the judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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