IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                               July  17,  2001  Session

                  STATE  OF  TENNESSEE  v.  PATRICIA  ADKISSON

                     Appeal  from  the  Circuit  Court  for  Hickman  County
                        No.  99-5039CR-I  Donald  P.  Harris,  Judge


              Nos.  M2000-01079-CCA-R3-CD,  M2000-02319-CCA-R3-CD  -  Filed  10/12/01


         The  defendant,  Patricia  Adkisson,  who  was  charged  with  253  counts  of  animal  cruelty  and  one  count
         of  tampering  with  evidence,  was  convicted  on  three  counts  of  animal  cruelty.  See  Tenn.  Code  Ann.
         ¤¤  39-14-202,  39-16-503.  The  trial  court  imposed  three  consecutive  terms  of  11  months,  29  days,
         and  granted  supervised  probation.  As  a  condition  of  probation,  the  defendant  was  prohibited  from
         owning  any  caged  animals  for  a  period  of  five  years.  The  defendant  appealed.  Later,  the  trial  court
         revoked  probation  and  a  second  appeal  followed.  In  this  consolidated  proceeding,  the  defendant
         claims  that  (1)  the  trial  court  erred  by  denying  her  motion  to  suppress  evidence  gathered  during  the
         initial  search  of  her  property;  (2)  the  evidence  was  insufficient;  (3)  the  sentence  was  improper;  and
         (4)  the  trial  court  lacked  authority  to  revoke  her  probation.  Because  the  search  of  the  defendant's
         premises  violated  constitutional  principles,  the  trial  court  erred  by  failing  to  suppress  the  evidence
         which  led  to  the  convictions. Accordingly,  the  convictions  are  reversed  and  the  causes  are
         remanded.

             Tenn.  R.  App.  P.  3;  Judgments  of  the  Trial  Court  Reversed;  Causes  Remanded

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         John  P.  Cauley,  Franklin,  Tennessee  (on  appeal),  and  Douglas  T.  Bates,  III,  Centerville,  Tennessee
         (at  trial),  for  the  appellant,  Patricia  Adkisson.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  David  H.  Findley,  Assistant  Attorney  General;  and
         Judson  Phillips  and  Kenneth  K.  Crites,  Assistant  District  Attorneys  General,  for  the  appellee,  State
         of  Tennessee.



                                                                -2- OPINION

                       On  December 17, 1998,  Kathy  Wilkes-Myers  and  Mary  Sexton,  the  vice-president  and
               president,  respectively,  of  the  Hickman  County  Humane  Society,  traveled  to  the  residence  of  the
               defendant,  Patricia  Adkisson,  to  investigate  an  anonymous  complaint  regarding  the  care  she  provided
               to  her  animals.  Deputy  Richard  Warden  of  the  Hickman  County  Sheriff's  Department  accompanied
               Ms.  Wilkes-Myers  and  Ms.  Sexton  to  the  site. After  viewing  the  property,  Ms.  Sexton  and  Officer
               Warden  left  to  obtain  a  search  warrant. Although  Ms.  Wilkes-Myers  remained  on  the  property,  she
               did  not  conduct  any  further  investigation  during  the  absence  of  Ms.  Sexton  and  the  officer. Upon
               their  return  and  in  reliance  upon  a  search  warrant,  Ms.  Sexton  photographed  the  defendant's  animals
               and  their  living  areas. There  were  one  hundred  ninety-five  animals,  consisting  mostly  of  a  variety
               of  canine  breeds.  As  a  result  of  the  search,  nine  dogs  were  removed  from  the  property  and  taken  to
               a  veterinary  hospital.
                       The  next  morning,  Ms.  Wilkes-Myers  and  Ms.  Sexton  returned  to  the  property,  accompanied
               by  a  second  officer  and  the  defendant's  attorney. Upon  their  arrival,  they  discovered  that  a  majority
               of  the  animals  had  been  moved  to  another  location. Ms.  Wilkes-Myers  and  Ms.  Sexton  removed
               those  that  remained. On  advice  of  counsel,  the  defendant  eventually  surrendered  a  large  number  of
               other  dogs,  which  were  purportedly  those  that  had  been  moved  during  the  night. A  total  of  253
               animals  were  evacuated  from  the  defendant's  pr  operty.
                                                                 I
                       First,  the  defendant  asserts  that  the  trial  court  erred  by  denying  her  motion  to  suppress  the
               evidence gathered from the initial search of her property.  At the hearing on the motion, the
               defendant  contended  that  the  search  was  illegal  because  it  was  conducted  without  a  warrant  and
               without her consent; she also argued, and the state conceded, that the search warrant was
               inappropriately  executed  by  members  of  the  Humane  Society  rather  than  the  Hickman  County  Sheriff
               or a deputy.  See Tenn. R. Crim.  P. 41(c).  At the conclusion of the hearing, the trial court
               determined  that  because  the  search  warrant  was  improperly  executed,  all  of  the  evidence  collected
               pursuant  thereto  would  be  excluded. The  trial  court  denied  the  motion,  however,  as  it  related  to  the
               initial  warrantless  inspection:
                       I  don't  think  that  the  state  has  carried[]  .  .  .  its  burden  of  proving  that  there  was  a
                       willful  and  knowing  consent  to  search  her  property  given by  Ms.  Adkisson  .  .  .  .
                       [T]hen  the  issue  becomes  whether  there  was  sufficient  state  involvement  to  result  in
                       a  suppression  of  what  was  seen  by  Ms.  Sexton  and  Ms.  Wilkes-Myers.  .  .  . And  I
                       find  that  there  was  not.
                              The  officer  accompanied  these  two  ladies  to  Ms.  Adkisson's  property,  but  it's
                       clear  that  he  was  doing  that  at  their  request.  His  only  participation,  really,  was  giving
                       some  advice,  and  even  that  advice  indicates  that  it  was  not  his  action,  he  told  Ms.
                       Adkisson  that  he  believed  that  these  ladies  had  probable  cause  to  believe  that  there



                                                                -3- was  cruelty  to  animals,  and  he  probably  was  correct  in  that. But,  still,  what  he  told
                       her  indicated  that  it  was  their  action  and  not  his.
                                                         *      *      *
                              So  I  don't  think  there  was  sufficient  state  action  .  .  .  until  the  time  of  the
                       search  warrant,  to  result  in  the  suppression  of  any  evidence.
                       The  defendant  asserts  that  Ms.  Wilkes-Myers  and  Ms.  Sexton  were  acting  "under  color  of
               law." She  contends  that  their  violation  of  the  Fourth  Amendment  of  the  United  States  Constitution
               and  Article  I,  Section  7  of  the  Tennessee  Constitution  must  be  attributed  to  the  state. The  state
               argues  that  Ms.  Wilkes-Myers  and  Ms.  Sexton  were  not  state  actors  and,  in  the  alternative,  that  the
               defendant  consented  to  their  inspection  of  her  property. On  review,  this  court  must  uphold  the  trial
               court's  findings  of  fact  unless  the  evidence  preponderates  otherwise.  State  v.  Keith,  978  S.W.2d  861,
               864  (Tenn.  1998).  This  court's  review  of  the  trial  court's  application  of  the  law  to  the  facts,  however,
               is  de  novo. Id.
                       Initially,  the  state  argues  that  because  the  defendant  failed  to  present  the  issue  in  a  motion
               for  new  trial,  the  ground  is  waived. The  state  also  asserts  that  the  issue  does  not  rise  to  the  level  of
               plain  error. Generally,  the  failure  to  present  an  issue  in  a  motion  for  new  trial  results  in  a  waiver.
               Rule  3(e)  of  the  Tennessee  Rules  of  Appellate  Procedure  provides  that  for  appeals  "in  all  cases  tried
               by  a  jury,  no  issue  presented  for  review  shall  be  predicated  upon  error  in  the  admission  or  exclusion
               of  evidence,  jury  instructions  granted  or  refused,  . .  .  or  other  ground  upon  which  a  new  trial  is
               sought,  unless  the  same  was  specifically  stated  in  a  motion  for  a  new  trial;  otherwise  such  issues  will
               be  treated  as  waived." Whether  properly  assigned  or  not,  however,  this  court  may  consider  plain
               error  upon  the  record  under  Rule  52(b)  of  the  Tennessee  Rules  of  Criminal  Procedure.  State  v.  Ogle,
               666  S.W.2d  58  (Tenn.  1984).
                       Before  an  error  may  be  so  recognized,  it  must  be  "plain"  and  must  affect  a  "substantial  right"
               of  the  accused. The  word  "plain"  is  synonymous  with  "clear"  or  equivalently  "obvious." United
               States  v.  Olano,  507  U.S.  725,  732  (1993).  Plain  error  is  not  merely  error  that  is  conspicuous.  Plain
               error  is  especially  egregious  error  that  strikes  at  the  fairness,  integrity,  or  public  reputation  of  judicial
               proceedings. See  State  v.  Wooden,  658  S.W.2d  553,  559  (Tenn.  Crim.  App.  1983). In  State  v.
               Adkisson,  899  S.W.2d  626,  639  (Tenn.  Crim.  App.  1994),  this  court  defined  "substantial  right"  as
               a  right  of  "fundamental  proportions  in  the  indictment  process,  a  right  to  the  proof  of  every  element
               of  the  offense  and  .  .  .  constitutional  in  nature." In  that  case,  this  court  established  five  factors  to  be
               applied  in  determining  whether  an  error  is  plain:
                       (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  [must  not  have  waived]  the  issue  for  tactical  reasons;  and 
                       (e)  consideration  of  the  error  must  be  "necessary  to  do  substantial  justice." 



                           1  Although  the  ground  was  not  included  in  a  motion  for  new  trial,  no  motion  for  new  trial  was  filed. In  fact,  the
                  record  also  demonstrates  that  the  defendant  did  not  file  a  timely  notice  of  appeal. Counsel  on  appeal,  who  was  not
                  involved  in  the  trial,  sought  and  received  a  waiver  of  the  requirement. In  granting  the  request,  this  court  found  that  the
                  appeal  sho  uld  be  gran  ted in  the  interest  o  f  justice. See  Tenn.  R.  App.  P.  4  (a). 

                                                                          -4- Id. at 641-42.  Our supreme court characterized the Adkisson test as a "clear and meaningful
                  standard"  and  emphasized  that  each  of  the  five  factors  must  be  present  before  an  error  qualifies  as
                  plain  error.  State  v.  Smith,  24  S.W.3d  274,  282-83  (Tenn.  2000).
                           Here,  the  record  clearly  establishes  that  the  defendant  challenged  the  evidence  in  the  trial
                  court,  which  determined  that  neither  Article  I,  Section  7  of  the  Tennessee  Constitution  nor  the  Fourth
                  Amendment  to  the  United  States  Constitution  was  applicable  to  the  search. Because,  however,  our
                  research  suggests  that  Ms.  Wilkes-Myers  and  Ms.  Sexton  fit  within  the  definition  of  "state  actor"
                  and, therefore, were subject to constitutional limitations, the trial court's ruling appears to have
                  breached a clear and unequivocal rule of law and adversely affected a substantial right of the
                  defendant. There  is  no  indication  that  the  defendant  waived  the  issue  for  tactical  reasons.1 Finally,
                  it  is  our  view  that  consideration  of  the  suppression  issue  is  "necessary  to  do  substantial  justice."
                  Because  all  factors  appear  to  be  present,  this  court  chooses  to  address  the  question  as  plain  error.
                           Under  Article  I,  Section  7  of  the  Tennessee  Constitution  and  the  Fourth  Amendment  to  the
                  United States Constitution, made applicable to the states by the Fourteenth Amendment, a
                  warrantless  search  or  seizure  is  presumptively  unreasonable  and  any  evidence  discovered  thereby
                  is  subject  to  suppression  unless  one  of  the  narrowly  defined  exceptions  applies.  U.S.  Const.  amends.
                  IV,  XIV;  Tenn.  Const.  art.  I,  ¤  7;  Coolidge  v.  New  Hampshire,  403  U.S.  443,  450  (1971);  State  v.
                  Bartram,  925  S.W.2d  227,  229-30  (Tenn.  1996). There  is,  however,  no  constitutional  protection
                  against  unreasonable  searches  and  seizures  by  private  individuals. Burdeau  v.  McDowell,  256  U.S.
                  465  (1921). It  is  only  when  an  individual  acts  as  an  agent  of  the  state  that  a  constitutional  violation
                  may  be  utilized  to  preclude  the  admission  of  evidence. Coolidge,  403  U.S.  at  487.
                           In  State  v.  Burroughs,  our  supreme  court,  citing  United  States  v.  Walther,  652  F.2d  789  (9th
                  Cir.  1981),  recognized  two  factors  as  relevant  to  the  determination  of  whether  private  conduct  is
                  chargeable to the state in connection with an allegedly unreasonable search:  (1) whether the
                  government  has  knowledge  of  and  acquiesces  in  the  search;  and  (2)  the  intent  of  the  party  performing
                  the search.  926 S.W.2d 243, 246 (Tenn. 1996).  Describing this two-pronged analysis as the
                  "legitimate  independent  motivation"  test,  our  supreme  court  in  Burroughs  determined  that  a  private
                  individual  who  had  conducted  a  warrantless  search  of  a  dormitory  room  was  not  a  state  agent. In
                  several  of  the  federal  cases  cited  with  approval  in  Burroughs,  it  was  held  that  so  long  as  the  private
                  party  acts for a reason independent of the purpose of the state, there is no state agency  and, in
                  consequence,  no  protection  against  unreasonable  searches  and  seizures.
                           By the application of the Burroughs test to these circumstances, it is our view that the
                  conduct  of  Ms.  Wilkes-Myers  and  Ms.  Sexton  in  their  initial  search  of  the  property  is  chargeable  to
                  the  state.  In  our  view,  Officer  Warden  of  the  Hickman  County  Sheriff's  Department,  who  clearly  had



                                                                -5- knowledge  of  the  initial  search,  acquiesced  in  its  execution  by  accompanying  the  two  women  to  the
               property  and  lending  the  credibility  and  authority  of  law  enforcement  to  the  Humane  Society. The
               state  argues  that  the  deputy  was  present  in  this  instance  merely  to  provide  protection  to  Ms.  Wilkes-Myers 
                      and  Ms.  Sexton. At  the  suppression  hearing,  Ms.  Wilkes-Myers  testified  that  Hickman
               County  Humane  Society  representatives  "always  call  a  deputy  sheriff  to  accompany  [them]  because
               a  lot  of  times  .  .  .  isolated  locations  [are  involved]  and  [they]  just  do  that  for  [their]  protection." The
               record  reflects,  however,  that  the  deputy's  involvement  extended  beyond  providing  security  to  Ms.
               Wilkes-Myers  and  Ms.  Sexton. Officer  Warden  testified  that  he  attempted  to  calm  the  defendant
               after  Ms.  Sexton  advised  her  of  the  nature  of  the  investigation.  He  then  informed  the  defendant  that,
               in  his  opinion,  a  dead  puppy  they  had  observed  near  their  vehicles  supplied  the  necessary  probable
               cause  for  the  issuance  of  a  search  warrant. When  the  defendant  indicated  that  she  would  allow  an
               inspection  of  her  property  so  long  as  photographs  were  not  made,  the  officer  called  for  back-up
               assistance  at  the  scene. After  inspecting  the  property,  Officer  Warden  assisted  Ms.  Sexton,  as  she
               obtained  a  search  warrant,  by  signing  an  affidavit  in  support  of  its  issuance.  During  this  process,  Ms.
               Wilkes-Myers  was  left  alone  with  the  defendant  and,  by  all  appearances,  she  did  not  require  any
               protection  from  law  enforcement.
                       Application  of  the  second  factor  yields  the  same  result.  It  is  our  view  that  Ms.  Wilkes-Myers
               and  Ms.  Sexton  were  performing  a  law  enforcement  function  at  the  time  of  their  init  ial  search. In
               the  words  of  Ms.  Sexton,  she  and  Ms.  Wilkes-Myers,  as  representatives  of  the  Hickman  County
               Humane  Society,  "were  there  due  to  an  anonymous  complaint  of  animals  being  in  poor  conditions
               and  deplorable  housing  and  filth  and  .  .  .  to  substantiate  that  complaint."  Ms.  Wilkes-Myers  testified
               that  the  Humane  Society  "go[es]  by  the  State  of  Tennessee  cruelty  laws,  that's  what  [the  organization
               tries]  to  enforce." Humane  societies  which  are  chartered  by  the  state,  such  as  the  Hickman  County
               Humane  Society,  are specifically  vested  with  the  power  to  arrest  and  prosecute  animal  cruelty
               offenders:
                              The  agents  of  any  society  which  is  incorporated  for  the  prevention  of  cruelty
                       to  animals,  upon  being  appointed  thereto  by  the  president  of  such  society  in  any
                       county,  may,  within  such  county,  make  arrests,  and  bring  before  any  court  thereof
                       offenders  found  violating  the  provisions  of  this  part  with  regard  to  non-livestock
                       animals.
               Tenn.  Code  Ann.  ¤  39-14-210(a)  (emphasis  added). "While  county  humane  societies  may  engage
               in  certain  activities  that  are  not  governmental  in  nature,  the  above  statute[]  demonstrate[s]  that  the
               primary  purpose  of  such  organizations  is  law  enforcement  .  .  .  ." Studer  v.  Seneca  County  Humane
               Society,  No.  13-99-59,  2000  WL  566738,  at  *3  (Ohio  Ct.  App.  May  4,  2000)  (holding  that  humane
               society  was  political  subdivision  of  Ohio  for  purposes  of  immunity  statutes);  see  also  Putnam  County
               Humane  Society  v.  Woodward,  740  So.2d  1238,  1240  (Fla.  Dist.  Ct.  App.  1999)  (holding  that  Public
               Records  Act  was  applicable  to  humane  society  because  "[w]here  the  [s]ociety  ha[d]  used  its  statutory
               authority  to  investigate  acts  of  animal  abuse  and  .  .  .  to  seize  animals,  it  ha[d]  acted  as  an  agent  of
               the  state").  Here,  there  is  no  indication  that  either  Ms.  Wilkes-Myers  or  Ms.  Sexton  had  a  legitimate



                                                                -6- motivation  to  search  the  property  independent  of  her  affiliation  with  the  Hickman  County  Humane
               Society.
                       Having  determined that Ms. Wilkes-Myers and Ms. Sexton qualified as state actors in
               conducting the search, it is also our conclusion that the initial search of the property was
               unreasonable.  As the trial court also recognized, the state has failed to carry the  burden of
               establishing,  by  a  preponderance  of  the  evidence,  that  the  search  fell  within  one  of  the  recognized
               exceptions  to  the  warrant  requirement.  See  Coolidge,  403  U.S.  at  454-55.  Moreover,  the  trial  court,
               having  seen  and  heard  the  testimony  of  the  witnesses  and  having  reviewed  the  evidence  firsthand,
               determined  that  the  defendant  did  not  consent  to  the  search. This  court  is  obliged  to  uphold  the  trial
               court's  findings  of  fact  unless  the  evidence  preponderates  otherwise.  Keith,  978  S.W.2d  at  864;  State
               v.  McCrary,  45  S.W.3d  36,  41  (Tenn.  Crim.  App.  2000). It  does  not  do  so  in  this  case. Because  the
               initial  search  was  unreasonable  and  the  defendant  did  not  consent  thereto,  the  evidence  which  led
               to  each  of  the  convictions  must  be  suppressed. 
                                                                II
                       Next,  the  defendant  argues  that  the  evidence,  even  if  it  had  been  properly  admitted,  was
               insufficient  to  support  her  convictions. She  contends  that  there  is  no  evidence  of  the  appropriate
               standard  of  care  and  no  proof  that  any  deviation  from  that  standard  caused  or  contributed  to  the
               conditions  of  the  animals  for  which  the  state  obtained  convictions.
                       On  appeal,  of  course,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence  and
               all  reasonable  inferences  which  might  be  drawn  therefrom.  State  v.  Cabbage,  571  S.W.2d  832,  835
               (Tenn.  1978). The  credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and  the
               reconciliation  of  conflicts  in  the  proof  are  matters  entrusted  to  the  jury  as  the  trier  of  fact. Byrge  v.
               State,  575  S.W.2d  292,  295  (Tenn.  Crim.  App.  1978). When  the  sufficiency  of  the  evidence  is
               challenged,  the  relevant  question  is  whether,  after  reviewing  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. Tenn.  R.  App.  P.  13(e);  State  v.  Williams,  657  S.W.2d  405,  410  (Tenn.  1983).
               Questions  concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well
               as  all  factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact.  Liakas  v.  State,  199  Tenn.
               298,  286  S.W.2d  856,  859  (1956). Because  a  verdict  of  guilt  against  a  defendant  removes  the
               presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal  defendant  bears
               the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty  verdict. State  v.
               Evans,  838  S.W.2d  185,  191  (Tenn.  1992).
                       Animal  cruelty  is  committed  when  a  person  intentionally  or  knowingly
                              (1)  [t]ortures,  maims  or  grossly  overworks  an  animal;
                              (2)  [f]ails  unreasonably  to  provide  necessary  food,  water,  care  or  shelter  for
                       an  animal  in  the  person's  custody;
                              (3)  [a]bandons  unreasonably  an  animal  in  the  person's  custody;



                                                                -7- (4)  [t]ransports  or  confines  an  animal  in  a  cruel  manner; or
                              (5)  [i]nflicts  burns,  cuts,  lacerations,  or  other  injuries  or  pain,  by  any  method,
                       including  blistering  compounds,  to  the  legs  or  hooves  of  horses  in  order  to  make
                       them  sore  for  any  purpose  including,  but  not  limited  to,  competition  in  horse  shows
                       and  similar  events.
               Tenn.  Code  Ann.  ¤  39-14-202(a).
                       Here,  the  jury  convicted  the  defendant  on  counts  4,  11,  and  26  of  the  indictment.  Counts  four
               and  26  charged  the  defendant  with  cruelty  by  unreasonable  failure  "to  provide  necessary  food,  water,
               care  or  shelter"  to  a  female  Chihuahua  and  a  female  Maltese,  respectively. At  trial,  Cindy  Wasden,
               a  Hickman  County  Human  Society  member,  testified  that  she  took  possession  of  the  Chihuahua  on
               December  21. When  she  removed  the  animal  from  the  two-by-four-foot  cage  in  which  it  was  being
               transported  with  14  to  16  other  dogs,  she  discovered  that  it  s  back  legs  were  paralyzed. She  noted
               that  the  dog  was  thin  and  covered  with  sores.  It  was  euthanized  at  a  veterinarian's  recommendation.
               With  regard  to  the  Maltese,  Ms.  Wasden  testified  that  the  dog  was  thin,  toothless,  covered  in  mud
               and  feces,  and  had  an  obvious  cough. The  Maltese  was  also  euthanized. The  defendant  does  not
               deny  that  the  dogs  were  in  her  custody  and  care. On  these  facts,  a  jury  could  have  properly  found
               that  the  defendant  failed  to  provide  the  necessary  care  for  the  Chihuahua.  Even  though  the  defendant
               was  not  shown  to  have  caused  the  dog's  paralysis,  the  dog  had  a  number  of  untreated  open  sores  on
               its  body. A  jury  could  also  have  properly  found  that  the  Maltese,  which  was  living  in  its  own
               excrement  and  obviously  ill,  was  not  provided  proper  care  or  shelter.
                       Count  11  of  the  indictment  charged  the  defendant  with  animal  cruelty  by  the  "torture  and
               maim[ing]"  of  a  female  toy  fox  terrier.  Ms.  Wasden  testified  that  when  she  removed  the  terrier  from
               its  cage,  she  observed  that  it  was  unable  to  stand. One  of  the  dog's  front  legs  was  twisted  and  its
               back  leg  was  mangled  and  bleeding. Additionally,  there  was  blood  and  pus  coming  from  the
               animal's rectum. Ultimately,  the  terrier  was  also  euthanized. For  purposes  of  animal  offenses,
               "torture" is defined as "every act, omission, or neglect whereby unreasonable physical pain,
               suffering,  or  death  is  caused  or  permitted." Tenn.  Code  Ann.  ¤  39-14-201(4). While  there  was  no
               evidence  of  what  caused  the  terrier's  injuries,  it  was  within  the  jury's  province  to  infer  from  the
               circumstances that the defendant's neglect of those injuries resulted in unreasonable pain and
               suffering  to  the  terrier. In  summary,  had  there  been  a  valid  search,  the  evidence  would  have  been
               sufficient  to  support  each  of  the  three  convictions. 
                                                                III
                       The  defendant  next  asserts  that  the  trial  court  erred  by  imposing  the  maximum  term  for  each
               conviction,  ordering  consecutive  sentences,  and  prohibiting  her  from  owning  caged  animals  for  five
               years.
                       In misdemeanor sentencing, trial courts are required to provide the defendant with a
               reasonable  opportunity  to  be  heard  as  to  the  length  and  manner  of  the  sentence. Tenn.  Code  Ann.
               ¤  40-35-302(a). The  sentence  must  be  specific  and  consistent  with  the  purposes  of  the  Criminal



                                                                -8- Sentencing  Reform  Act  of  1989. Tenn.  Code  Ann.  ¤  40-35-302(a). Not  greater  than  75  percent  of
               the  sentence  should  be  fixed  for  service  by  a  misdemeanor  offender;  however,  a  DUI  offender  may
               be  required  to  serve  the  full  one  hundred  percent  of  his  sentence.  Tenn.  Code  Ann.  ¤  40-35-302(d);
               Palmer  v.  State, 902 S.W.2d  391,  393-94  (Tenn.  1995). In  determining  the  percentage  of  the
               sentence  to  be  served,  the  court  must  consider  enhancement  and  mitigating  factors  as  well  as  the
               legislative  purposes  and  principles  related  to  sentencing. Tenn.  Code  Ann.  ¤  40-35-302(d).
                       Upon  service  of  the  required  percentage  of  the  sentence,  the  administrative  agency  governing
               the  rehabilitative  program  determines  which  among  the  lawful  programs  available  is  appropriate.
               Id. The  trial  court  retains  the  authority  to  place  the  defendant  on  probation  either  immediately  or
               after  a term of periodic or continuous confinement.   Tenn. Code Ann. ¤ 40-35-302(e).  The
               legislature  has  encouraged  courts  to  consider  public  or  private  agencies  for  probation  supervision
               prior  to  directing  supervision  by  the  Department  of  Correction. Tenn.  Code  Ann.  ¤  40-35-302(f).
               The  statutory scheme is designed to provide the trial court with continuing jurisdiction in the
               misdemeanor  case  and  a  wide  latitude  of  flexibility. The  misdemeanant,  unlike  the  felon,  is  not
               entitled  to  the  presumption  of  a  minimum  sentence. State  v.  Creasy,  885  S.W.2d  829,  832  (Tenn.
               Crim.  App.  1994). Appellate  review  of  misdemeanor  sentencing  is  de  novo  with  a  presumption  of
               correctness. See  State  v.  Troutman,  979  S.W.2d  271  (Tenn.  1998).
                       Here,  the  trial  court  observed  that  the  "sentence  imposed  should  be  the  least  severe  measure
               necessary  to  achieve  the  purposes  for  which  the  sentence  is  imposed." Tenn.  Code  Ann.  ¤  40-35-
               103(4).  In  an  effort  to  protect  any  animals  in  the  defendant's  custody,  the  trial  court  ruled  as  follows:
                              I  do  think  that  she  is  guilty  of  animal  cruelty  in  these  counts.  .  .  . I  also  think
                       that  she  at  least  knowingly  treated  the  animals  cruelly  in  that  she  knew  that  she  wasn't
                       able  to  take  care  of  them  and  kept  having  puppies  and  it  got  out  of  hand. But  she
                       knew  that  and,  of  course,  knowingly  is  part  of  this  criminal  statute. And  she  was
                       making  a  living  at  that,  so  I  think  consecutive  sentencing  is  appropriate. I  will
                       sentence her to eleven months and twenty-nine days in the Hickman County
                       Workhouse  in  each  case  and  fine  her  in  the  amount  of  one  thousand  dollars. Those
                       sentences  to  run  consecutively  one  with  another.
                              I  will  suspend  the  sentences  and  place  her  on  eleven  months  and  twenty-nine
                       days  probation  in  each  case  and  order  that  as  a  condition  of  probation  .  .  .  for  a  period
                       of  five  years  that  she  have  no  dogs  or  any  animals  that  are  ordinarily  kept  in  cages
                       unless  she  gives  a  written  consent  to  the  Hickman  County  Humane  Society  to  search
                       her  premises  outside  the  actual  residence  where  she  lives  at  any  time,  and  then  she
                       allows  them  to  do  it.
                       Animal  cruelty,  a  Class  A  misdemeanor,  is  punishable  by  "not  greater  than  eleven  (11)
               months  twenty-nine  days  or  a  fine  not  to  exceed  two  thousand  five  hundred  dollars  ($2,500),  or
               both."  Tenn.  Code  Ann.  ¤¤  39-14-202(f);  40-35-112(e)(1).  Upon  conviction,  the  defense  agreed  to
               proceed  to  sentencing  without  a  presentence  report  or  a  separate  sentencing  hearing. When  invited



                           2  The  first  four  criteria  are  fo  und  in  Gray. A  fifth  category  in  Gray,  based  on  a  specific  number  of  prior  felony
                  convictions,  may  enhanc  e  the  sentence range  but  is  no longer  a  listed  c  riterion. See  Tenn.  Code  Ann.  ¤  40-35-115,
                  Sentencing  Commission  Comments.

                                                                          -9- to  be  heard  on  the  issue,  defense  counsel  stated  that  "everything  that  [he]  would  tell  the  [c]ourt  came
                  out  on direct examination."  In this appeal, the defendant does not  argue the  application  of  any
                  particular  mitigating  factors. Rather,  she  argues  that  "[i]mposition  of  the  most  sever[e]  sentence  .
                  .  .  is  simply  not  justified  in  this  case." As  indicated,  however,  there  is  no  presumptive  minimum  in
                  misdemeanor  sentencing. Moreover,  it  is  our  view  that  the  sentences  of  11  months,  29  days,  would
                  have been warranted by the circumstances of the offenses.  The evidence, photographs and
                  otherwise,  established  that  the  defendant,  a  commercial  dog  breeder,  maintained  over  250  animals
                  in  poor  conditions. By  all  appearances,  their  level  of  care  was  pitiful. After  the  Hickman  County
                  Humane  Society  discovered the improprieties,  the  defendant  hid  the  majority of  the  dogs. Even
                  though  there  were  only  three  convictions,  the  state  clearly  established  severe  neglect. See  State  v.
                  Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (holding that sentencing court may consider facts
                  underlying an offense for which the defendant has been acquitted where the facts have been
                  established  by  a  preponderance  of  the  evidence). That  the  trial  court  suspended  all  three  of the
                  defendant's sentences  and  ordered  total  probation  exhibited  leniency. Had the convictions  been
                  upheld,  it  would  be  our  determination  that  the  lengths  of  the  sentences  were  warranted. 
                           The  defendant  also  questions  the  propriety  of  consecutive  sentencing. Prior  to  the  enactment
                  of  the  Criminal  Sentencing  Reform  Act  of  1989,  the  limited  classifications  for  the  imposition  of
                  consecutive  sentences  were  set  out  in  Gray  v.  State,  538  S.W.2d  391,  393  (Tenn.  1976). In  that  case
                  our  supreme  court  ruled  that  aggravating  circumstances  must  be  present  before  placement  in  any  one
                  of  the  classifications. Later,  in  State  v.  Taylor,  739  S.W.2d  227  (Tenn.  1987),  the  court  established
                  an  additional  category  for  those  defendants  convicted  of  two  or  more  statutory  offenses  involving
                  sexual  abuse  of  minors. There  were,  however,  additional  words  of  caution:
                           [C]onsecutive  sentences  should  not  routinely  be  imposed  .  .  .  and  .  .  .  the  aggregate
                           maximum of consecutive terms must be reasonably related to the severity  of the
                           offenses  involved.
                  Id.  at  230. The  Sentencing  Commission  Comments  adopted  the  cautionary  language. Tenn.  Code
                  Ann.  ¤  40-35-115,  Sentencing  Commission  Comments.  The  1989  Act  is,  in  essence,  the  codification
                  of  the  holdings  in  Gray  and  Taylor;  consecutive  sentences  may  be  imposed  in  the  discretion  of  the
                  trial  court  only  upon  a  determination  that  one  or  more  of  the  following  criteria  2  exist:
                                    (1) The defendant  is  a  professional  criminal  who  has  knowingly  devoted
                           [himself]  to  criminal  acts  as  a  major  source  of  livelihood;
                                    (2)  The defendant is an offender whose record of criminal activity is
                           extensive;
                                    (3) The  defendant  is  a  dangerous  mentally  abnormal  person  so  declared  by
                           a competent psychiatrist who concludes as a result of an investigation prior to



                                                           -10- sentencing  that  the  defendant's  criminal  conduct  has  been  characterized  by  a  pattern
                     of  repetitive  or  compulsive  behavior  with  heedless  indifference  to  consequences;
                            (4)  The  defendant  is  a  dangerous  offender  whose  behavior  indicates  little  or
                     no  regard  for  human  life,  and  no  hesitation  about  committing  a  crime  in  which  the
                     risk  to  human  life  is  high; 
                            (5)  The defendant is  convicted of two (2) or more statutory offenses
                     involving sexual abuse of a minor with consideration of the aggravating
                     circumstances  arising  from  the  relationship  between  the  defendant  and  victim  or
                     victims,  the  time  span  of  defendant's  undetected  sexual  activity,  the  nature  and  scope
                     of  the  sexual  acts  and  the  extent  of  the  residual,  physical  and  mental  damage  to  the
                     victim  or  victims;
                            (6)  The  defendant  is  sentenced  for  an  offense  committed  while  on  probation;
                            (7) The  defendant  is  sentenced  for  criminal  contempt.
              Tenn.  Code  Ann.  ¤  40-35-115(b).
                     The  length  of  the  sentence,  when  consecutive  in  nature,  must  be  "justly  deserved  in  relation
              to  the  seriousness  of  the  offense,"  Tenn.  Code  Ann.  ¤  40-35-102(1),  and  "no  greater  than  that
              deserved"  under  the  circumstances,  Tenn.  Code  Ann.  ¤  40-35-103(2);  State  v.  Lane,  3  S.W.3d  456
              (Tenn.  1999). 
                     Here,  the  trial  court  ordered  consecutive  sentencing  because  the  defendant  "was  making  a
              living"  as  a  commercial  breeder  notwithstanding  her  failure  to  properly  care  for  the  large  number  of
              animals  in  her  possession.  As  such,  the  trial  court  apparently  relied  upon  Tennessee  Code  Annotated
              section  40-35-115(b)(1),  that  the  defendant  is  a  professional  criminal  who  has  knowingly  devoted
              her  life  to  criminal  acts  as  a  major  source  of  livelihood. In  our  view,  however,  that  factor  is
              inapplicable. Although  the  defendant  committed  criminal  acts  in  connection  with  her  livelihood,
              breeding  and  selling  dogs,  the  business,  properly  operated,  is  not  inherently  criminal. There  are  no
              other  applicable  criteria  that  would  support  consecutive  sentencing. 
                     Finally,  the  defendant  complains  that  the  trial  court  erred  by  prohibiting  her  from  keeping
              caged  animals  for  a  period  of  five  years. Such  a  requirement  would  have  been  an  appropriate
              condition  for  the  full  term  of  the  defendant's  probation. See  Tenn.  Code  Ann.  ¤  40-35-303(d)(9).
              Trial  courts,  however,  may  only  suspend  a  sentence  "for  a  period  of  time  .  .  .  up  to  and  including  the
              statutory  maximum  time  for  the  class  of  the  conviction  offense." Tenn.  Code  Ann.  ¤  40-35-303(c).
              The  state  concedes  error  by  the  trial  court  in  extending  the  term  to  five  years.  This  court  must  agree.
              No  conditions  of  probation,  such  as  the  prohibition  against  dog  ownership,  could  have  extended
              beyond  the  term  of  the  sentence.
                                                            IV
                     As  her  final  issue,  the  defendant  argues  that  the  trial  court  erred  by  revoking  her  probation
              because  her  sentence  was  automatically  stayed  pending  the  outcome  of  her  appeal. See  State  v.
              Lyons,  29  S.W.3d  48  (Tenn.  Crim.  App.  2000).  Citing  State  v.  Conner,  919  S.W.2d  48  (Tenn.  Crim.



                                                           -11- App.  1995),  the  state  responds  that  a  trial  court  always  retains  jurisdiction  over  a  probationer,  even
              when  the  sentence  is  not  in  effect. 
                     The  jurisdiction  of  this  court  "attaches  upon  the  filing  of  the  notice  of  appeal  and,  therefore,
              the  trial  court  loses  jurisdiction." State  v.  Pendergrass,  937  S.W.2d  834,  837  (Tenn.  1996);  see
              also  State  v.  Peak,  823  S.W.2d  228,  229  (Tenn.  Crim.  App.  1991).  Although  the  defendant  filed  her
              notice  of  appeal  nearly  two  months  late,  this  court  granted  the  defendant's  motion  to  waive  timely
              filing  on  May  24,  2000,  concluding  that  the  notice  was  considered  timely  filed  as  of  May  8. At  that
              time,  almost  two  months  before  the  filing  of  the  probation  revocation  warrant  on  July  8,  2000,  the
              trial  court  lost  jurisdiction. 
                     In  our  view,  State  v.  Conner  is  distinguishable  from  this  case.  In  Conner,  the  defendant  pled
              guilty  to  driving  under  the  influence,  fourth  offense,  and  driving  on  a  revoked  license.  He  received
              an  effective  sentence  of  11  months,  29  days,  with  all  but  150  days  suspended. The  sentence  was
              ordered  to  be  served  consecutively  to  a  prior  felony  sentence.  Later,  the  district  attorney  general  filed
              a  petition  to  revoke  probation,  asserting  that  the  defendant  had  failed  to  return  from  a  furlough  and
              had  also  received  another  driving  under  the  influence  conviction. The  defendant  argued,  among
              other  things,  that  the  trial  court  was  without  authority  to  revoke  his  probation  because  his  sentence
              had  not  actually  commenced. This  court  disagreed,  holding  that  a  trial  court  may  revoke  a  term  of
              probation  based  on  acts  committed  after  sentencing,  but  before  the  commencement  of  a  probationary
              term.  Id.  at  51.  There  is  one  critical  procedural  difference  between  Conner  and  this  case:  At  the  time
              of  the  revocation  petition  in  Conner,  no  notice  of  appeal  had  been  filed  and  the  judgment  had
              become  final.  Here,  of  course,  a  notice  of  appeal  had  been  filed  and  the  trial  court's  jurisdiction  had
              ended  prior  to  the  July  8  probation  revocation  warrant.
                     Our  conclusion  does  not  turn  on  the  fact  that  the  sentence  of  the  defendant  was  stayed
              pending  her  appeal. Rather,  it  is  a  matter  of  jurisdiction. The  state  argues  that  such  a  holding  will
              give  probationers  "carte  blanche  to  violate  the  law  during  a  period  when  the  sentence  is  not  in
              effect." The  hands  of  a  trial  court,  however, are  not  tied  under  these  circumstances. Under
              Tennessee Code Annotated section 40-35-311(a) and the rule in Conner, a trial court could
              appropriately  consider  a  probation  revocation  warrant  based  on  a  criminal  offense  committed  during
              appeal  after  completion  of  the  appeal  and  return  of  jurisdiction  to  the  trial  court. 
                     Because  the  evidence  resulting  from  the  initial  search  of  the  defendant's  property  should  have
              been  suppressed,  the  convictions  are  reversed  and  the  cause  remanded  to  the  trial  court.


                                                                ___________________________________ 
                                                                GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                              August  7,  2001  Session

                STATE  OF  TENNESSEE  v.  ALAN  LAWRENCE  ADLER

                   Direct  Appeal  from  the  Criminal  Court  for  Fayette  County
                         No.  4945  Jon  Kerry  Blackwood,  Judge


                     No.  W2001-00178-CCA-R3-CD  -  Filed  August  29,  2001


         The  petitioner  was  indicted  for  aggravated  child  neglect  of  a  child  under  six  years  of  age,  a  Class  A
         felony. Following  a  trial,  a  Fayette  County  jury  convicted  him  of  the  lesser  offense  of  reckless
         endangerment,  a  Class  A  misdemeanor.  The  petitioner,  pursuant  to  Tenn.  Code  Ann.  ¤  40-32-101,
         petitioned  for  the  destruction  of  the  public  records  concerning  his  arrest  and  prosecution  for  the
         felony  charge  on  which  he  was  acquitted.  The  trial  court  ordered  that  all  records  relating  to  the
         petitioner's  arrest  and  prosecution  be  expunged,  except  those  records  relating  to  reckless
         endangerment.  In  this  appeal,  the  state  argues  the  petitioner  was  not  entitled  to  expungement  since
         he  was  convicted  of  a  lesser-included  offense.  The  petitioner  argues  this  court  is  without  jurisdiction
         to  hear  the  stateÕs  appeal  as  a  matter  of  right;  the  trial  court  properly  ordered  expungement;  and  the
         trial  court  erroneously  charged  reckless  endangerment  as  a  lesser-included  offense  of  aggravated
         child  neglect.  After  a  thorough  review  of  the  record,  we  conclude  (1)  the  state  appeal  as  of  right  is
         properly  before  this  court;  (2)  records  relating  to  the  petitioner's  arrest  and  prosecution  are  not
         subject  to  expungement;  and  (3)  petitioner  may  not  collaterally  attack  his  conviction  on  a  lesser
         offense  in  an  expungement  action.  Accordingly,  we  reverse  the  trial  court's  order  of  expungement.


            Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Criminal  Court  Reversed;
                                   Remanded

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  ALAN  E.  GLENN,
         JJ.,  joined.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Kim  R.  Helper,  Assistant  Attorney  General;
         Elizabeth  T.  Rice,  District  Attorney  General;  and  Ryan  D.  Brown,  Assistant  District  Attorney
         General,  for  the  appellant,  State  of  Tennessee.
         Robert  L.  Hutton,  Memphis,  Tennessee,  for  the  appellee,  Alan  Lawrence  Adler.



                                                                -2- OPINION
                                                      I. JURISDICTION

                       The  petitioner  alleges  that  this  court  may  review  this  appeal  only  as  a  petition  for  writ  of
               certiorari. The  petitioner  specifically  argues  that  the  state's  authority  to  appeal  as  a  matter  of  right
               is  limited  to  instances  specifically  provided  in  Tenn.  R.  App.  P.  3(c),  which  states:
                       In  criminal  actions  an  appeal as  of  right  by  the  state  lies  only  from  an  order  or
                       judgment  entered  by  a  trial  court  from  which  an  appeal  lies  to  the  Supreme  Court  or
                       Court  of  Criminal  Appeals: (1)  the  substantive  effect  of  which  results  in  dismissing
                       an  indictment,  information,  or  complaint; (2)  setting  aside  a  verdict  of  guilty  and
                       entering  a  judgment  of  acquittal; (3)  arresting  judgment; (4)  granting  or  refusing  to
                       revoke  probation; or  (5)  remanding  a  child  to  the  juvenile  court. The  state  may  also
                       appeal as of right from a final judgment in a habeas corpus, extradition, or
                       post-conviction  proceeding.
                       Tenn.  R.  App.  P.  3(b)  governs  the  appellate  court's  jurisdiction  of  a  direct  appeal  initiated  by
               a  defendant  in  a  criminal  case: 
                       In  criminal  actions  an  appeal  as  of  right  by  a  defendant  lies  from  any  judgment  of
                       conviction  entered  by  a  trial  court  from  which  an  appeal  lies  to  the  Supreme  Court
                       or  Court  of  Criminal  Appeals: (1)  on  a  plea  of  not  guilty;  and  (2)  on  a  plea  of  guilty
                       or  nolo  contendere,  if  the  defendant  entered  into  a  plea  agreement  but  explicitly
                       reserved  with  the  consent  of  the  state  and  the  trial  court  the  right  to  appeal  a  certified
                       question  of  law  dispositive  of  the  action,  or  if  the  defendant  seeks  review  of  the
                       sentence  and  there  was  no  plea  agreement  concerning  the  sentence,  or  if  the  issues
                       presented  for  review  were  not  waived  as  a  matter  of  law  by  the  plea  of  guilty  or  nolo
                       contendere  and  if  such  issues  are  apparent  from  the  record  of  the  proceedings  already
                       had. The  defendant  may  also  appeal  as  of  right  from  an  order  denying  or  revoking
                       probation, and from a final judgment in a criminal contempt, habeas corpus,
                       extradition,  or  post-conviction  proceeding.
                       Neither  of  the  above  provisions  expressly  grants  a  petitioner  or  the  state  the  right  to  appeal
               an  expungement  matter. This  court  has  held  that  the  state  cannot  appeal  as  of  right  the  trial  courtÕs
               unilateral  decision  to  reduce  the  sentence  in  a  negotiated  plea  agreement.  State  v.  Leath,  977  S.W.2d
               132, 135 (Tenn. Crim. App. 1998).  The court noted that none of the Tenn. R. App. P. 3(c)
               provisions  applied;  nevertheless,  the  court  treated  the  appeal  as  a  petition  for  writ  of  certiorari. Id.

               However,  this  court  has  interpreted  Tenn.  R.  App.  P.  3(b)  to  allow  a  petitioner  an  appeal  as  of  right
               from  a  trial  court's  order  denying  the  expungement  of  records. See  State  v.  McCary,  815  S.W.2d
               220,  221  (Tenn.  Crim.  App.  1991). McCary  is  more  closely  in  point  than  Leath. Although  McCary
               concerned  a  petitionerÕs,  not  the  stateÕs,  appeal  as  a  matter  of  right,  Ōwhat  is  good  for  the  goose  is



                                                                -3- good  for  the  gander.Ķ Accordingly,  we  treat  the  appeal  as  one  of  right  pursuant  to  Tenn.  R.  App.  P.
               3(c). 


                                             II. DESTRUCTION  OF  RECORDS

                       The  issue  of  whether  the  expungement  statute  applies  when  a  person  is  acquitted  of  the
               indicted  offense,  but  convicted  of  a  lesser-included  offense,  is  not  specifically  addressed  by  the
               statute. The  controlling  statute  provides: 
                       All  public  records  of  a  person  who  has  been  charged  with  a  misdemeanor  or  a  felony,
                       and  which  charge  has  been  dismissed,  or  a  no  true  bill  returned  by  a  grand  jury,  or  a
                       verdict  of  not  guilty  returned  by  a  jury  or  a  conviction  which  has  by  appeal  been
                       reversed,  and  all  public  records  of  a  person  who  was  arrested  and  released  without
                       being  charged,  shall,  upon  petition  by  that  person  to  the  court  having  jurisdiction  in
                       such  previous  action,  be  removed  and  destroyed  without  cost  to  such  person.  .  .  .
               Tenn.  Code  Ann.  ¤  40-32-101(a)(1). 
                       The  petitioner  argues  that  this  statute  requires  the  trial  court  to  destroy  all  records  that  pertain
               to  the  petitioner's  arrest  and  prosecution,  except  those  relating  to  the  lesser  misdemeanor  offense.
               In  support  of  his  argument,  the  petitioner  relies  upon  Eslick  v.  State,  942  S.W.2d  559,  560  (Tenn.
               Crim.  App.  1996);  State  v.  Liddle,  929  S.W.2d  415  (Tenn.  Crim.  App.  1996);  and  McCary,  815
               S.W.2d  at  221.  The  state  relies  upon  State  v.  John  Wayne  Slate,  C.C.A.  No.  03C01-9511-CC-00352,
               1996  WL  596948,  at  *2  (Tenn.  Crim.  App.  filed  October  18,  1996,  at  Knoxville),  perm.  to  app.
               denied  (Tenn.  1997). 
                       In  McCary,  the  petitioner  was  charged  in  three  separate  indictments. The  petitioner  pled
               guilty  to  one  of  the  indictments,  and  the  trial  court  dismissed  the  remaining  two  indictments  upon
               the  state's  motion. This  court  held  that  the  trial  court  had  no  discretion  in  determining  whether  the
               records  of the dismissed indictments should be destroyed  and ordered the destruction of such
               records. McCary,  815  S.W.2d  at  222. 
                       In  Eslick,  the  petitioner  was  charged  in  a  multiple-count single  indictment,  but  he  was
               convicted  of  only  one  count. The  petitioner  filed  a  motion  to  expunge  the  records  of  the  counts  on
               which  he  was  acquitted. We  held  the  trial  court  improperly  denied  his  motion  for  expungement;
               however,  we  noted  that  if  it  were  impossible  to  redact  information  related  to  the  acquitted  counts
               without destroying information related to the convicted counts, then expungement would be
               improper. Eslick,  942  S.W.2d  at  560. 
                       In  Liddle,  the  petitioner  pled  guilty  to  one  count  of  a  six  count  indictment. The  petitioner
               then  sought  to  have  the  records  of  the  remaining  five  counts  destroyed,  which  was  denied  by  the  trial



                                                                -4- court. On  appeal,  this  court  held  the  trial  court  erred  by  refusing  to  order  expungement  on  the  five
               ŌchargesĶ  that  were  dismissed. Liddle,  929  S.W.2d  at  415. 
                       The  Slate  court  encountered  a  different  situation  from  the  aforementioned  cases. In  Slate,
               the  petitioner  was  indicted  and  convicted  of  first  degree  murder. On  appeal,  this  court  reduced  the
               petitioner's  conviction  to  second  degree  murder. The  petitioner  then  petitioned  for  expungement  of
               the  records  relating  to  his  first  degree  murder  prosecution,  which  was  denied  by  the  trial  court.  This
               court  upheld  the  trial  court's  ruling  stating  that  "[t]he  expunction  statute  appears  to  provide  relief
               only  in  situations  where  .  .  .  criminal  charges  fail  to  result  in  any  conviction." Slate,  1996  WL
               596948,  at  *2. We  conclude  that  the  Slate  rationale  controls  the  case  sub  judice.

                       The petitioner argues the instant situation differs from  Slate because the petitioner in
               Slate  was  originally  convicted  by  the  jury  of  the  greater  offense,  while  the  petitioner  in  the  instant
               case  was acquitted of the greater offense that he seeks to expunge. However, in each of the
               petitionerÕs  proffered  cases,  this  court  ordered  expungement  in  a  situation  where  the  petitioner  was
               either  acquitted  of  the  charged  offense,  or  the  charged  offense  was  dismissed. The  petitioner  does
               not  cite  us  authority,  nor  do  we  find  any,  where  the  expungement  statute  was  applied  when  the
               petitioner was acquitted of the indicted offense but convicted of a lesser-included offense.
               Therefore,  the  trial  court  erred  in  ordering  expungement. 
                       We  are  sympathetic  with  petitionerÕs  argument  that  he  was  charged  with  a  stigmatizing  Class
               A  felony  but  only  convicted  of  a  lesser-included  misdemeanor  offense. However,  we  are  unable  to
               distinguish  Slate. We,  therefore,  conclude  that  this  matter  is  more  appropriately  addressed  to  the
               legislature,  which  has  the  ability,  if  it  so  desires,  to  amend  the  statute  to  cover  a  situation  like  the  one
               presented  in  this  appeal. 


                                            III. LESSER-INCLUDED  OFFENSE

                       The petitioner attempts to collaterally  attack his conviction of reckless endangerment,
               contending  it  is  not  a  lesser-included  offense  of  aggravated  child  neglect.  The  petitioner  did  not  seek
               a  direct  appeal  of  his  conviction,  nor  has  he  attacked  the  conviction  by  habeas  corpus  or  post-conviction 
                          relief.  A  facially  valid  judgment  in  a  court  with  proper  jurisdiction  cannot  be  collaterally
               attacked  except  by  authorized  routes  of  attack. State  v.  McClintock,  732  S.W.2d  268,  271  (Tenn.
               1987).  The  expungement  statute  is  predicated  upon  a  prior  dismissal,  no  true  bill,  not  guilty  verdict,
               or  appellate  reversal  of  the  conviction. See  Tenn.  Code  Ann.  ¤  40-32-101(a)(1). A  collateral  attack
               on  a  conviction  via  a  petition  for expungement  is  not  an  authorized  route  of  collateral  attack.
               Furthermore,  the  petition  for  expungement  does  not  allege  this  as  a  basis  for  expungement,  and  there
               is  no  indication  in  the  record  that  the  matter  was  ever  raised  in  the  trial  court. PetitionerÕs  argument
               lacks  merit. 



                                                                -5- CONCLUSION

                       Based  on  the  foregoing,  we  conclude  that  (1)  the  state  may  appeal  as  a  matter  of  right  an
               order for the expungement of records; (2) expungement of records is not available when the
               petitioner  is  convicted  of  a  lesser-included  offense  and  is  seeking  to  expunge  a  greater  charged
               offense;  and  (3)  a  petitioner  may  not  collaterally  attack  a  conviction  in  an  expungement  action.  The
               judgment  of  the  trial  court  is  reversed,  and  the  case  is  remanded  for  entry  of  an  order  consistent  with
               this  opinion. 

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                              May  23,  2001  Session

                STATE  OF  TENNESSEE  v.  JEREMY  WAYNE  AIKENS

                   Direct  Appeal  from  the  Criminal  Court  for  Loudon  County
                           No.  9622  E.  Eugene  Eblen,  Judge


                            No.  E2000-00997-CCA-R3-CD 
                                  July  30,  2001

         The  Loudon  County  Grand  Jury  indicted  the  Defendant  for  driving  under  the  influence  of  an
         intoxicant.  The  DefendantÕs  first  jury  trial  resulted  in  a  mistrial.  Following  a  second  trial,  a  Loudon
         County  jury  convicted  the  Defendant  of  the  offense  charged.  The  trial  court  sentenced  him  to  eleven
         months,  twenty-nine  days  incarceration,  with  all  but  four  days  suspended,  and  fined  him  $400.  The
         Defendant  now  appeals  his  conviction,  arguing  (1)  that  insufficient  evidence  was  presented  to
         support  his  conviction;  and  (2)  that  he  received  ineffective  assistance  of  counsel  at  trial. Upon
         review  of  the  record,  we  conclude  that  the  evidence  presented  at  trial  was  sufficient  to  support  the
         DefendantÕs  conviction,  and  we  conclude  that  the  Defendant  received  adequate  representation  at
         trial.  We  thus  affirm  the  judgment  of  the  trial  court. 

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and
         THOMAS  T.  WOODALL,  J.,  joined.
         Wesley  M.  Baker,  Knoxville,  Tennessee  (on  appeal);  and  Alfred  Hathcock,  Harriman,  Tennessee
         (at  trial);  for  the  appellant,  Jeremy  Wayne  Aikens.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Angele  M.  Gregory,  Assistant  Attorney  General;
         J.  Scott  McCluen,  District  Attorney  General;  D.  Roger  Delp,  Assistant  District  Attorney  General;
         for  the  appellee,  State  of  Tennessee.

                                   OPINION

             In  April  1998,  the  Loudon  County  Grand  Jury  indicted  the  Defendant,  Jeremy  Wayne  Aikens,
         for  one  count  of  driving  under  the  influence  of  an  intoxicant.  The  case  subsequently  proceeded  to
         trial,  but  resulted  in  a  mistrial. On  January  13,  1999,  a  second  trial  was  conducted,  and  at  its
         conclusion,  a  Loudon  County  jury  found  the  Defendant  guilty  of  the  offense  charged.  On  October
         12,  1999,  the  trial  court  sentenced  the  Defendant  to  eleven  months,  twenty-nine  daysÕ  incarceration,
         all  suspended  except  four  days.  The  trial  court  also  fined  the  Defendant  $400.  The  Defendant  now



                                                                -2- appeals  his  conviction,  arguing  (1)  that  the  evidence  presented  at  trial  was  insufficient  to  support  his
               conviction,  and  (2)  that  he  received  ineffective  assistance  of  counsel  at  trial.  We  affirm  the  judgment
               of  the  trial  court.
                       At  trial,  Officer  David  A.  Flynn  testified  that  he  had  served  as  a  patrol  police  officer  for  the
               Knoxville  Police  Department  from  1990  until  1997  and  for  the  Lenoir  City  Police  Department  since
               July  28,  1997. He  stated  that  it  was  part  of  his  regular  duties  to  make  arrests  for  alcohol-related
               offenses. Officer  Flynn  recalled  that  on  December  6,  1997,  while  he  was  working  the  Ōmidnight
               shiftĶ  in  Lenoir  City,  he  received  a  radio  dispatch  at  approximately  3:45  a.m.  for  a  Ōburglary  in
               progressĶ  at an  apartment complex.  The dispatcher informed him that the suspects were two
               individuals  in  a  black  truck  who  were  leaving  the  scene. 
                       Flynn  testified  that  from  the  time  of  the  initial  dispatch,  it  took  him  a  minute  or  less  to  reach
               the  apartment  complex. He  recalled  that  as  he  was  pulling  into  the  apartment  complex,  he  saw  a
               black  truck  containing  two  individuals  leaving  the  complex. He  activated  his  lights  and  pulled  in
               front  of  the  truck  to  stop  it.  The  truck  stopped  approximately  100  yards  from  the  apartments. Flynn
               then  radioed  the  dispatcher  and  reported  that  he  had  stopped  a  vehicle  matching  the  description
               previously  provided. Other  officers  soon  arrived  at  the  scene. 
                       Flynn  testified  that  he  approached  the  driverÕs  side  of  the  truck  and  that  another  officer
               approached  the  passengerÕs  side  of  the  truck. Flynn  reported  that  he  asked  the  driver  to  step  out  of
               the  vehicle. He  stated  that  he  recognized  the  driver  as  the  Defendant,  whom  he  had  seen  on  other
               occasions.  Flynn  recalled  that  as  the  Defendant  exited  the  truck,  he  Ōwas  a  little  unsteady  on  his  feet,
               kind  of  swaying.Ķ He  also  noted  that  the  Defendant  Ōhad  an  odor  of  alcoholic  beverage  about  him,
               .  .  .  kind  of  slurred  speech,  glassy  eyes.Ķ  Flynn  stated  that  the  odor  of  alcohol  was  coming  from  the
               DefendantÕs  breath,  and  he  recalled  that  the  Defendant  was  wearing  a  blue  shirt  and  blue  jeans  that
               Ōwere  wet  on  his  left  side.Ķ He  also  reported  that  the  Defendant  behaved  differently  than  he  had
               behaved  on  other  occasions  when  Flynn  had  seen  him.
                       Flynn  testified  that  he  asked  the  Defendant if  he  had  just  come  from  apartment  8-A  at
               McGhee Square Apartments, the apartment where the burglary  had reportedly just occurred.
               According  to  Flynn,  the  Defendant  reported  that  he  had  been  visiting  relatives  at  an  apartment  in
               building  eleven at McGhee Square.  Flynn then sent one of  the other officers at the scene to
               apartment  8-A  to  collect  information. 
                       Following  this  discussion,  Officer  Flynn  asked  the  Defendant  to  perform  field  sobriety  tests.
               He  first  asked  the  Defendant  to  perform  the  walk-and-turn. Flynn  explained  that  this  test  requires
               the  suspect  to  take  nine  steps  in  a  straight  line,  touching  heel  to  toe  each  step. Following  the  ninth
               step,  the  suspect  must  pivot  to  face  the  opposite  direction  and  again  take  nine  steps  heel-to-toe,
               returning  to  the  starting  point. Flynn  stated  that  he  also  had  the  Defendant  perform  a  one-leg  stand.
               He  explained  that  this  test  requires  the  suspect  to  stand  on  one  foot,  with  hands  down  by  his  or  her
               sides;  raise  one  foot  off  of  the  ground;  and  remain  in  that  position  for  thirty  seconds.



                                                                -3- Flynn  recalled  that  the  Defendant  was  Ōkind  of  talkative  and  loudĶ  during  the  field  sobriety
               tests. He  testified  that  he  had  to  explain  the  walk-and-turn  test  to  the  Defendant  twice  before  the
               Defendant  understood  the  instructions,  and  Flynn  stated  that  the  Defendant  could  not  keep  his
               balance  while  listening  to  the  instructions. Flynn  testified  that  the  Defendant  first  tried  to  perform
               the  test  wearing  his  boots,  but  quickly  stopped  to  remove  his  boots  before  resuming  the  test  in  his
               socks.  Flynn  stated  that  the  Defendant  was  Ōkind  of  wobblyĶ  while  wearing  his  boots. He  reported
               that  when  the  Defendant  attempted  the  test  after  removing  his  boots,  he  missed  two  steps  while
               returning  to  the  starting  point.  Flynn  testified  that  the  Defendant  successfully  completed  Ōabout  halfĶ
               of  the  test  and  stated,  Ō[H]e  didnÕt  really  pass.Ķ  Flynn  further  testified  that  when  attempting  the  one-leg 
                   stand,  the  Defendant  raised  his  arms  to  catch  his  balance  and  put  his  foot  down  at  fifteen  seconds.
               He  then  quit  the  test  at  twenty-five  seconds  and  told  Officer  Flynn  that  he  could  not  perform  the  test.
                       Following  the  tests,  Flynn  placed  the  Defendant  under  arrest.  He  reported  that  he  also  placed
               the  passenger  in  the  truck,  whom  he  described  as  Ōextremely  intoxicated,Ķ  under  arrest  for  public
               intoxication. Flynn  testified  that  after  arresting  the  two  men,  he  found  a  twelve-pack  of  Miller  Lite
               beer  bottles  in  the  cab  of  the  truck. He  stated  that  only  six  full  bottles  remained  in  the  cardboard
               container. 
                       After  placing  the  two  men  under  arrest,  Flynn  went  to  apartment  8-A  at  McGhee  Square
               Apartments. He  found  a  Miller  Lite  beer  bottle  lying  next  to  the  door  of  the  apartment. Flynn
               recalled  that  the  door  of  the  apartment,  which  was  metal,  had  scuff  marks  and  a  footprint  on  it. He
               stated,  Ō[I]t  was  bowed  in  about  .  .  .  an  inch.Ķ  Flynn  testified  that  the  footprint  appeared  to  have  been
               made  by  a  tennis  shoe  and  that  the  scuff  marks  appeared  to  have  been  made  by  a boot; Flynn
               recalled  that  on  the  night  of  the  arrests,  the  Defendant  wore  boots,  and  the  passenger  in  the  truck
               wore  tennis  shoes. 
                       Officer  Mark  Grossbard  testified  that  he  had  served  as  a  police  officer  for  the  Lenoir  City
               Police  Department  for  approximately  three  years  and  stated  that  he  was  working  with  Officer  Flynn
               on  the  night  of  December  6,  1997. Officer  Grossbard  reported  that  he  received  a  police  radio  call
               concerning  a  possible  break-in  at  one  of  the  apartments  at  McGhee  Square. He  stated  that  when  he
               responded  to  the  call,  he  encountered  Officer  FlynnÕs  police  vehicle  at  the  scene. He  recalled  that
               Flynn  and  the  Defendant  were  talking  when  he  arrived,  and  he  therefore  went  to  the  passengerÕs  side
               of the DefendantÕs truck to speak to the passenger.  Grossbard stated that he recognized the
               passenger  as  ŌRussellĶ  or  his  nickname,  ŌGator.Ķ Grossbard  testified  that  when  he  approached
               Russell,  he  noticed  Ōan  obvious  odor  of  an  alcoholic  beverage  on  his  person,Ķ  and  he  stated  that  he
               Ōbelieve[d]Ķ  Russell  was  unsteady  on  his  feet. 
                       Sergeant  John  M.  Tinnel  of  the  Lenoir  City  Police  Department  testified  that  he  had  served
               as  a  police  officer  for  about  twelve  years  and  that  he  had  been  a  sergeant  for  eight  of  those  twelve
               years.  He  stated  that  he  was  serving  as  the  midnight  shift  supervisor  on  the  night  of  the  DefendantÕs
               arrest.  Tinnel  recalled  that  between  3:00  and  4:00  a.m.,  he  was  dispatched  to  a  Ōburglary  in  progress
               callĶ  at  McGhee  Square  Apartments.  When  he  arrived,  he  discovered  that  Officer  Flynn  had  stopped
               a  vehicle  matching  the  description  given  by  the  dispatcher  for  the  vehicle  containing  the  burglary



                                                                -4- suspects. Tinnel  recalled  that  when  he  arrived  at  the  scene,  Officer  Flynn  was  administering  field
               sobriety  tests  to  the  Defendant. Tinnel  described  the  Defendant  as  ŌimpairedĶ  and  stated,  ŌHe
               appeared  to  be  unsteady  to  me. When  he  spoke,  his  speech  was  somewhat  slurred.Ķ He  also
               testified,  Ō[H]ad  I  made  that  traffic  stop,  I  would  have  also  had  him  perform  field  sobriety  tests.Ķ 
                       Brian  Russell  was  called  as  a  witness  for  the  defense. He  testified  that  his  nickname  was
               ŌGator,Ķ  and  he  stated  that  he  was  the  passenger  in  the  DefendantÕs  truck  on  the  night  of  the  arrests.
               Russell  testified  that  prior  to  being  arrested  on  December  6,  1997,  he  and  the  Defendant  went
               dancing  at  a  club  in  Knoxville  called  JudyÕs,  where  they  arrived  at  approximately  11:00  p.m. He
               maintained  that  the  Defendant  had  agreed  to  be  their  designated  driver  for  the  evening.  After  leaving
               JudyÕs,  he  and  the  Defendant  then  went  to  the  MouseÕs  Ear,  a  Ōstrip  clubĶ  also  located  in  Knoxville.
               Russell  testified  that  he  and  the  Defendant  stayed  at  the  MouseÕs  Ear  until  it  closed.
                       Russell  testified  that  after  he  and  the  Defendant  left  the  MouseÕs  Ear,  they  went  to  McGhee
               Square  Apartments  in  Lenoir  City  to  visit  RussellÕs  girlfriend.  Russell  admitted  that  he  did  not  know
               his  girlfriendÕs  last  name  and  that  he  had  only  known  her  for  approximately  two  weeks  prior  to  the
               incident.  Russell  testified  that  when  he  and  the  Defendant  arrived  at  his  girlfriendÕs  apartment,  they
               knocked  on  the  door,  but  no  one  answered. However,  he  claimed  that  they  heard  a  ŌTV  .  .  .  blaring
               real loud,Ķ so they  knocked harder.  Russell admitted that he may have kicked the door, but
               maintained  that  he  did  not  kick  it  hard  enough  to  damage  it.
                       Russell  recalled  that  during  the  course  of  the  evening,  he  drank  approximately  eight  beers.
               He  stated  that  he  drank  two  beers  at  JudyÕs  and  later  purchased  a  twelve-pack  of  Miller  Lite. He
               reported  that  the  Defendant  also  drank  two  beers  at  JudyÕs,  but  did  not  consume  any  other  alcohol
               that  evening. 
                       On  cross-examination,  Russell  admitted  that  he  was  not  exactly  sure  how  many  beers  he
               drank on December 6, 1997.  Although he had stated on direct examination that he  was not
               intoxicated,  he  admitted  he  had  been  found  guilty  of  public  drunkenness.  He  also  acknowledged  that
               he  ŌwasnÕt  in  perfect  conditi  on.Ķ Finally,  Russell  admitted  that  he  may  have  kicked  the  apartment
               door  harder  than  he  originally  thought. 
                                            I. SUFFICIENCY  OF  THE  EVIDENCE
                       The  Defendant  first  challenges  the  sufficiency  of  the  evidence  used  to  convict  him. The
               Defendant  was  convicted  of  driving  under  the  influence  of  an  intoxicant,  defined  in  Tennessee  Code
               Annotated  ¤  55-10-401. This  statute  provides,  in  pertinent  part,  as  follows: 
                       It  is  unlawful  for  any  person  to  drive  or  to  be  in  physical  control  of  any  automobile
                       or  other  motor  driven  vehicle  on  any  of  the  public  roads  or  highways  of  the  state,  or
                       on  any  streets  or  alleys,  or  while  on  the  premises  of  any  shopping  center,  trailer  park
                       or  any  apartment  house  complex,  or  any  other  premises  which  is  generally  frequented
                       by  the  public  at  large,  while  .  .  .  [u]nder  the  influence  of  any  intoxicant,  marijuana,



                                                                -5- narcotic  drug,  or  drug  producing  stimulating  effects  on  the  central  nervous  system  .
                       .  .  .
               Tenn.  Code  Ann.  ¤  55-10-401(a)(1).
                       When  an  accused  challenges  the  sufficiency  of  the  evidence,  an  appellate  courtÕs  standard
               of  review  is  whether,  after  considering  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,  324  (1979);  State  v.  Duncan,  698  S.W.2d  63,  67  (Tenn.
               1985);  Tenn.  R.  App.  P.  13(e). This  rule  applies  to  findings  of  guilt  based  upon  direct  evidence,
               circumstantial  evidence,  or  a  combination  of  both  direct  and  circumstantial  evidence.  State  v.  Dykes,
               803  S.W.2d  250,  253  (Tenn.  Crim.  App.  1990),  overruled  on  other  grounds,  State  v.  Hooper,  29
               S.W.3d  1  (Tenn.  2000). 
                       In  determining  the  sufficiency  of  the  evidence,  this  Court  should  not  re-weigh  or  re-evaluate
               the  evidence. State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990). Nor  may  this
               Court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from  the  evidence.  State  v.  Buggs,
               995  S.W.2d  102,  105  (Tenn.  1999);  Liakas  v.  State,  286  S.W.2d  856,  859  (Tenn.  1956). Questions
               concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well  as  all
               factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact. Liakas,  286  S.W.2d  at  859.
               This Court must afford the State of Tennessee the strongest legitimate view of the evidence
               contained  in  the  record,  as  well  as  all  reasonable  inferences  which  may  be  drawn  from  the  evidence.
               State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992). Because  a  verdict  of  guilt  against  a  defendant
               removes  the  presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal
               defendant  bears  the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty
               verdict. Id.
                       We  are  satisfied  that  ample  evidence  was  presented  in  this  case  from  which  a  jury  could  have
               adduced  the  DefendantÕs  guilt. The  arresting  officer  testified  that  when  he  stopped  the  Defendant,
               the  DefendantÕs  speech  was  slurred,  his  eyes  were  glassy,  he  was  unsteady  on  his  feet,  and  he
               smelled  of  alcohol. He  also  stated  that  he  was  acquainted  with  the  Defendant  and  reported  that  the
               Defendant  behaved  differently  on  the  night  of  the  arrest  than  he  normally  behaved. The  officer
               further  testified  that  he  found  a  twelve-pack  of  beer,  with  only  six  beers  remaining,  in  the  cab  of  the
               DefendantÕs  truck. Finally,  the  officer  testified  that  the  Defendant  failed  two  field  sobriety  tests.
               Another  officer  called  to  the  scene  verified  that  the  Defendant  appeared  to  be  impaired  on  the  night
               of  the  arrest. The  jury  weighed  this  evidence  against  testimony  by  defense  witness  Brian  Russell,
               who  claimed  that  the  Defendant  drank  only  two  beers  prior  to  his  arrest,  and  apparently  accredited
               the  testimony  of  the  police  officers  present  at  the  scene  of  the  arrest.  We  will  not  disturb  this  finding
               on  appeal. See  Liakas,  286  S.W.2d  at  859. 
                                       II. INEFFECTIVE  ASSISTANCE  OF  COUNSEL
                       The  Defendant  next  contends  that  he  received  ineffective  assistance  of  counsel  at  trial.  The
               record  reveals  that  Assistant  Public  Defender  Rowland  Cowden  represented  the  Defendant  at  his  first



                                                                -6- trial. At  the  second  trial,  Assistant  Public  Defender  Alfred  Lee  Hathcock,  Jr.,  represented  the
               Defendant.  The Defendant now complains that he did not realize that Hathcock would be
               representing  him  at  his  second  trial  until  the  morning  of  trial. He  also  complains  that  Hathcock
               failed  to  interview  Brian  Russell  and  him  prior  to  his  second  trial  and  that  Hathcock  failed  to  prepare
               them  to  testify  at  trial. 
                       Alfred  Lee  Hathcock,  Jr.,  was  called  to  testify  at  the  hearing  on  the  motion  for  new  trial.
               Hathcock  testified  that  he  had  been  an  assistant  public  defender  for  over  ten  years  and  had  practiced
               law  for  approximately  twenty-five  years. He  stated  that  he  had  known  the  Defendant  for  several
               years. Hathcock  recalled  that  he  first  discussed  this  case  with  the  Defendant  when  the  Defendant
               visited  the  Public  DefenderÕs  Office  just  prior  to  his  first  trial,  which  ended  in  a  mistrial.  He  stated
               that  he  thought  he  had  also  seen  the  Defendant  on  other  occasions  prior  to  the  first  trial  when  the
               Defendant  had  visited  the  office.
                       Hathcock  testified  that  during  the  week  prior  to  the  DefendantÕs  second  trial,  Assistant  Public
               Defender  Cowden  asked  him  to  handle  the  DefendantÕs  second  trial,  stating  that  he  no  longer  wished
               to  represent  the  Defendant. Hathcock  agreed. Hathcock  could  not  recall  whether  he  contacted  the
               Defendant  after  agreeing  to  accept  the  case,  but  he  maintained  that  he  was  Ōwell  groundedĶ  in  the
               facts  of  the  DefendantÕs  case.  He  stated  that  he  had  heard  the  DefendantÕs  discussions  with  Cowden
               prior  to  the  first  trial. He  also  stated  that  he  reviewed  the  DefendantÕs  file  and  read  the  transcript  of
               the  mistrial. Finally,  he  reported  that  he  was  familiar  with  the  road  and  area  where  the  Defendant
               was  stopped  and  subsequently  arrested. 
                       Hathcock  testified  that  he  spoke  with  the  Defendant  on  the  morning  of  trial,  but  admitted  that
               he  did  not  discuss  the  second  trial  with  the  Defendant  prior  to  that  morning. However,  Hathcock
               emphasized  that  he  had  participated  in  preparing  the  Defendant  for  his  first  trial. Hathcock  could
               not  recall  whether  he  had  spoken  with  defense  witness  Brian  Russell  prior  to  the  day  of  trial,  but  he
               stated  that  he  thought  Russell  had  visited  the  Public  DefenderÕs  Office  prior  to  trial.  He  recalled  that
               he  did  speak  with  Russell  on  the  morning  of  trial,  prior  to  calling  him  as  a  witness,  and  he  admitted
               that  his  preparation  with  Russell  was  not  lengthy.  Hathcock  reported  that  he  was  aware  of  RussellÕs
               conviction  for  public  intoxication  and  its  possible  effect  on  the  jury.  However,  Hathcock  maintained
               that  he  called  Russell  as  a  witness  at  the  DefendantÕs  instruction.  He  stated,  ŌI  would  have  preferred
               to  have  called  [the  Defendant]. And  then  not  have  called  Mr.  Russell  unless  he  was  needed  to
               corroborate  [the  DefendantÕs]  testimony. But  I  proceeded  in  this  matter  according  to  instruction.Ķ
                       Hathcock  stated  that  the  DefendantÕs  case  was  not  Ōparticularly  complex,Ķ  and  he  maintained
               that  he  felt  that  he  was  as  prepared  as  he  could  have  been  for  the  trial. He  testified,  Ō[W]hen  you
               have  as  many  cases  as  we  have,  thereÕs  always  something  that  you  could  probably  think  of. But
               under  these  circumstances,  I  think  I  understood  the  issues  and  the  facts,  and  I  think  there  wasnÕt
               anything  else  I  could  put  in  place.Ķ 
                       The right of a criminally accused to representation is guaranteed by both the Sixth
               Amendment  to  the  United  States  Constitution  and  Article  I,  Section  9  of  the  Tennessee  Constitution.



                                                                -7- State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999);  Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.  1975).
               This  right  to  representation  includes  the  right  to  Ōreasonably  effectiveĶ  assistance.  Burns,  6  S.W.3d
               at  461.
                       In  reviewing  a  claim  of  ineffective  assistance  of  counsel,  this  Court  must  determine  whether
               the  advice  given  or  services  rendered  by  the  attorney  are  within  the  range  of  competence  demanded
               of  attorneys  in  criminal  cases. Baxter,  523  S.W.2d  at  936. To  prevail  on  a  claim  of  ineffective
               assistance  of  counsel,  a  defendant  must  show  that  ŌcounselÕs  representation  fell  below  an  objective
               standard  of  reasonableness,Ķ  Strickland  v.  Washington,  466  U.S.  668,  688  (1984),  and  that  this
               performance  prejudiced  the  defense,  resulting  in  a  failure  to  produce  a  reliable  result,  id.  at  687;
               Cooper  v.  State,  849  S.W.2d  744,  747  (Tenn.  1993). To  satisfy  the  requirement  of  prejudice,  a
               defendant  must  show  a  reasonable  probability  that,  but  for  counselÕs  unreasonable  error,  the  fact
               finder  would  have  had  reasonable  doubt  regarding  the  petitionerÕs  guilt.  Strickland,  466  U.S.  at  695.
               This  reasonable  probability  must  be  Ōsufficient  to  undermine  confidence  in  the  outcome.Ķ  Id.  at  694;
               see  also  Harris  v.  State,  875  S.W.2d  662,  665  (Tenn.  1994).
                       When  evaluating  an  ineffective  assistance  of  counsel  claim,  the  reviewing  court  should  judge
               the  attorneyÕs  performance  within  the  context  of  the  case  as  a  whole,  taking  into  account  all  relevant
               circumstances. Strickland,  466  U.S.  at  690;  State  v.  Mitchell,  753  S.W.2d  148,  149  (Tenn.  Crim.
               App.  1988). The  reviewing  court  must  evaluate  the  questionable  conduct  from  the attorneyÕs
               perspective  at  the  time. Strickland,  466  U.S.  at  690;  Cooper,  849  S.W.2d  at  746;  Hellard  v.  State,
               629  S.W.2d  4,  9  (Tenn.  1982).  In  doing  so,  the  reviewing  court  must  be  highly  deferential  and
               Ōshould indulge a strong presumption that counselÕs conduct falls within the wide range of
               reasonable  professional  assistance.Ķ  Burns,  6  S.W.3d  at  462.  Counsel  should  not  be  deemed  to  have
               been  ineffective  merely  because  a  different  procedure  or  strategy  might  have  produced  a  different
               result. Williams  v.  State,  599  S.W.2d  276,  279-80  (Tenn.  Crim.  App.  1980).
                       A  defendant  claiming  ineffective  assistance  of  counsel  must  prove  the  allegations  of  fact
               underlying  the  claim  by  clear  and  convincing  evidence. Tenn.  Code  Ann.  ¤  40-30-210(f);  State  v.
               Burns,  6  S.W.3d  453,  461  (Tenn.  1999). This  standard  applies  regardless  of  whether  the  defendant
               brings  the  claim  on  direct  appeal  or  in  a  post-conviction  petition. Burns,  6  S.W.3d  at  461  n.5. A
               claim  of  deficient  representation  presents  a  mixed  question  of  law  and  fact  and  thus  is  subject  to  a
               de  novo  review. Id.  at  461. However,  the  trial  courtÕs  findings  of  fact  are  accorded  a  presumption
               of  correctness,  while  its  conclusions  of  law  are  subject  to  a  purely  de  novo  review  by  this  Court.
               Fields  v.  State,  40  S.W.3d  450,  456-457  (Tenn.  2001).
                       Having  reviewed  the  record,  we  conclude  that  counselÕs  performance  in  this  case  was  well
               within  the  range  of  competence  demanded  of  attorneys  in  criminal  cases. Although  Hathcock
               accepted  the  case  shortly  prior  to  trial,  his  uncontradicted  testimony  was  that  he  was  sufficiently
               prepared  for  trial. He  testified  that  he  was  familiar  with  both  the  Defendant  and  this  case  prior  to
               accepting  the  case. He  reported  that  he  participated  to  some  extent  in  the  preparations  for  the
               DefendantÕs  first  trial,  that  he  reviewed  the  DefendantÕs  file,  and  that  he  reviewed  the  transcript  of
               the  DefendantÕs  first  trial.  He  further  testified  that  he  met  with  both  the  Defendant  and  Brian  Russell



                                                                -8- on the morning of trial.  Finally, he stated that he was aware of  RussellÕs public intoxication
               conviction and maintained that the decision to call Russell as a witness was the DefendantÕs
               decision. We  find  no  error  on  the  part  of  the  DefendantÕs  attorney. However,  even  assuming  that
               HathcockÕs  representation  of  the  Defendant  was  in  some  way  deficient,  we  are  satisfied  that  any
               error  on  HathcockÕs  part  was  harmless. The  Defendant  points  to  no  prejudice  resulting  from  his
               attorneyÕs  performance. On  the  basis  of  this  record,  we  are  simply  unconvinced  that  had  Hathcock
               performed  differently,  the  jury  would  have  had  reasonable  doubt  concerning  the  DefendantÕs  guilt.
               We  therefore  find  this  issue  to  be  without  merit.
                       Accordingly,  we  AFFIRM  the  judgment  of  the  trial  court. 


                                                                     ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                              June  20,  2001  Session

                  STATE  OF  TENNESSEE  v.  JAMES  DAVID  ALDER


                      Appeal  from  the  Circuit  Court  for  Franklin  County
                           No.  12715  Buddy  D.  Perry,  Judge


                    No.  M2000-01825-CCA-R3-CD  -  Filed  September  7,  2001


         The  Defendant,  James  David  Alder,  was  convicted  of  attempted  second  degree  murder,  aggravated
         assault  and  reckless  endangerment.  He  was  sentenced  as  a  Range  III  Persistent  Offender  to  twenty
         (20)  years  for  the  attempted  second  degree  murder,  eleven  (11)  months  and  twenty-nine  (29)  days
         for  assault,  and  three  (3)  years  for  reckless  endangerment. His  sentences  were  ordered  to  run
         concurrently  to  each  other,  but  consecutively  to  the  sentence  ordered  in  a  case  for  which  the
         Defendant  was  on  bail  at  the  time  he  committed  the  present  offenses.  On  appeal,  he  argues:  (1)  the
         trial  court  erred  in  allowing  the  jury  to  hear  expert  testimony  concerning  the  extent  of  the  victimÕs
         injuries,  the  length  of  her  hospital  stay  and  the  number  of  surgeries  she  had;  (2)  the  evidence  was
         insufficient  to  sustain  a  conviction  for  reckless  endangerment;  and  (3)  the  trial  court  failed  to  follow
         the  sentencing  guidelines  and  improperly  ordered  consecutive  sentencing.  After  a  review  of  the  law
         and  the  briefs,  we  affirm  the  judgment  of  the  trial  court.

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

         THOMAS  T.  WOODALL,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES,  J.  and
         TERRY  LAFFERTY,  Sp.J.,  joined.
         Martha  J.  Yoakum,  District  Public  Defender;  and  B.  Jeffery  Harmon,  Assistant  Public  Defender,  for
         the  appellant,  James  David  Alder. 
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         J.  Michael  Taylor,  District  Attorney  General;  Steven  Strain,  Assistant  District  Attorney  General,  for
         the  appellee,  State  of  Tennessee.

                                   OPINION

             On  the  morning  of  August  28,  1998,  the  Defendant  entered  the  Favorite  Market  in  Dunlap,
         Tennessee  with  a  20-gauge  shotgun  and  shot  his  wife,  Casey  Davidson  (then  Casey  Alder),  in  the
         stomach  and  chest  area.  Davidson  stated  that  she  had  arrived  for  work  at  about  5:00  a.m.,  and  had



                                                                -2- been  there  approximately  ten  minutes  when  the  Defendant  entered  the  store  and  walked  towards  the
               kitchen  area. Davidson  was  in  the  kitchen  with  Nancy  Early,  another  Favorite  employee. She
               testified  that  the  Defendant  looked  at  her  and  said  ŌBitch,  today  is  your  day.Ķ  Davidson  said  that  she
               told  the  Defendant  to  Ōdo  what  he  felt  like  he  had  to  do.Ķ She  stated  that  they  began  to  argue,  and
               the  Defendant  kept  insisting  that  she  leave  with  him,  but  she  refused.  Davidson  testified  that  she  told
               the  Defendant  that  their  relationship  was  over  and  that  she  was  not  going  to  leave  with  him. She
               asked  her  co-worker,  Lynnette  Farley  to  call  the  police,  but  the  Defendant  Ōpulled  the  hammer  back
               on  the  gun  and  he  turned  the  gun  on  Lynnette,  and  he  told  her  if  she  didnÕt  put  the  phone  down  he
               would  kill  her.Ķ  Davidson  said  that  she  yelled  at  the  Defendant  and  reminded  him  that  the  argument
               was  between  them,  and  not  Mrs.  Farley. 
                       At  that  point,  the  Defendant  turned  the  gun  on  Davidson  and  said,  ŌCasey,  I  love  you.  .  .  I
               want  to  be  with  you.  .  .  But  you  donÕt  love  me  any  more.  .  .  If  I  canÕt  have  you,  nobody  will.Ķ The
               Defendant  pulled  the  trigger  and  shot  his  wife  at  Ōpoint  blank  rangeĶ  in  the  stomach  and  chest.
               Nancy  Early  stated  that  Davidson  was  standing  near  her,  when  the  Defendant  shot  Davidson.  Next,
               the  Defendant  Ōbroke  down  the  gun,Ķ  Ōpopped  the  shell  out,Ķ  put  another  shell  in  the  gun,  raised  the
               gun,  pointed  it  at  his  wife  and  pulled  the  trigger,  but  the  gun  snapped.  The  Defendant  left  the  store
               and  Lynnette  Farley  called  the  police. 
                       The  victim  was  life  flighted  to  Erlanger  Hospital  in  Chattanooga,  Tennessee,  where  she
               underwent  extensive  surgery  and  was  in  a  coma  for  two  months. Dr.  Richart,  a  trauma  surgeon  at
               Erlanger  Hospital,  testified  that  he  was  the  surgeon  on  call  when  Casey  Davidson  was  brought  to  the
               hospital. He  stated  that  the  victim  Ōsustained  a  close  range  blast  injury  to  her  left  upper  quadrant
               area  and  left  chest  area. Dr.  Richart  testified  that  a  Ōsignificant  amountĶ  of  Ms.  DavidsonÕs  left
               breast  had  been  blown  away. He  stated  that  she  suffered  injury  to  the  left  lobe  of  her  liver,  a
               disrupted  spleen,  her  left  colon  was  blown  in  half  (which  caused  stool  to  spread  throughout  her
               abdomen),  her  small  bowel  was  severely  damaged,  and  the  tail  of  her  pancreas  was  injured. Dr.
               Richart  also  stated  that  he  found  Ōseveral  metal  fragments  .  .  .  a  yellow  plastic  appearing  cup  and
               some  .  .  .  cardboard  materialĶ  inside  Ms.  Davidson. 
                       Dr.  Richart  testified  in  great  detail,  as  to  the  initial  operations  that  were  performed  on  Ms.
               DavidsonÕs  abdomen  to  control  bleeding  and  stool  contamination,  as  well  as  to  repair  her  left  breast,
               colon  and  small  bowel. Dr.  Richart  also  described  how  Ms.  DavidsonÕs  bowels  were  left  exposed,
               due  to  excessive  swelling  in  her  abdomen,  which  prevented  him  from  Ōsewing  her  closed.Ķ Dr.
               Richart  testified  that  Ms.  Davidson  remained  in  the  intensive  care  unit  for  quite  some  time  and
               endured  several  operations  due  to  multiple  bouts  of  infection. After  dismissing  Ms.  Davidson  from
               the  hospital,  Dr.  Richart  continued  to  see  her  concerning  recurring  infections,  which  were  finally
               alleviated. Dr.  Richart  testified  that  he  was  currently  performing  reconstructive  surgery  on  Ms.
               Davidson,  in  an  effort  to  reconstruct  her  small  bowel,  colon  and  abdomen. He  stated  that  Ms.
               Davidson  Ōstill  has  quite  a  bit  ahead  of  her.Ķ On  cross-examination,  Dr.  Richart  testified  that  it  was
               his  opinion  that  Ms.  Davidson  had  been  shot  with  a  slug,  which  normally  fragments. 



                                                                -3- ANALYSIS
               I.  Admission  of  Medical  Testimony

                       In  his  first  issue,  Defendant  contends  that  the  trial  court  erred  in  denying  his  motion  to  limit
               the  medical testimony  relating  to  the  victimÕs  injuries. He  claims  that  much  of  Dr.  RichartÕs
               testimony  was  not  relevant  to  prove  the  charged  offense  and  was  highly  prejudicial. 
                       First,  we  note  that  the  record  does  not  contain  a  written  motion  in  limine  from  the  Defendant.
               Second,  the  record  shows  that  prior  to  the  start  of  trial,  the  Defendant  brought  before  the  trial  court
               an  oral  motion  in  limine. The  motion  raised  several  issues,  including  the  admissibility  of  Dr.
               RichartÕs  medical  testimony  concerning  the  extent  of  the  victimÕs  injuries,  the  number  of  surgeries
               performed  on  the  victim,  and  the  length  of  the  victimÕs  hospital  stay. The  DefendantÕs  motion
               regarding  the  doctorÕs  testimony  was  brief  and  broad. The  extent  of  the  motion  is  as  follows:
                       Mr.  Harmon  [Defense  Counsel]:  Also,  Your  Honor,  the  State  has  apparently  a  doctor
                       under  subpoena  that  was  a  trauma  surgeon  at  Erlanger  Hospital. We would  be
                       objecting  to  the  doctor  testifying,  because  of  the  relevance  of  it,  how  badly  show  was
                       injured  and  how  long  she  was  hospitalized  and  how  many  surgeries  it  took  and  the
                       length  of  her  hospital  stay. We  feel  like  thatÕs  not  relevant  as  to  whether  or  not  he
                       went  into  that  store  and  shot  his  wife.
                       The  Court: IÕm  going  to  overrule  that  one.
               (emphasis added).  After the trial court overruled the DefendantÕs objection to the doctorÕs
               testimony,  the  defense  proceeded  to  argue  another  issue.
                       During  Dr.  RichartÕs  testimony,  the  Defendant  made  no  contemporaneous  objection  to  any
               specific  testimony  offered  by  the  doctor. We  conclude  that  the  DefendantÕs  failure  to  specifically
               articulate  his  objection  to  Dr.  RichartÕs  testimony,  both  before  and  during  trial,  constitutes  a  waiver
               of  this  issue.  See  Tenn.  R.  App.  P.  36(b). In  State  v.  McGhee,  746  S.W.2d  460,  462  (Tenn.  1988),
               our  supreme  court  held  that in  cases  Ōwhere  the  record  on  a  pretrial  suppression  motion  or  on  a
               motion  in  limine  clearly  presents  an  evidentiary  question  and  where  the  trial  judge  has  clearly  and
               definitively  ruled,Ķ  trial  counsel  need  not  offer  further  objections  to  the  trial  courtÕs  ruling. The
               Court  further  noted  that  in  cases  where  the  Ōissues  are  only  tentatively  suggested  or  the  record  only
               partially  and  incompletely  developed  in  connection  with  a  motion  in  limine,  .  .  .[c]ounsel  necessarily
               take  some  calculated  risks  in  not  renewing  objections.Ķ Id. This  is  the  case  here.
                       The  substance  of  DefendantÕs  motion  in  limine  against  the  testimony  of  Dr.  Richart  was
               particularly  broad; therefore,  the  Defendant  took  a  risk  in  not  renewing  his  objection. We  find  that
               some  of  Dr.  RichartÕs  testimony  was  relevant  to  the  StateÕs  attempted  first  degree  murder  case.
               Testimony  from  the  doctor  regarding  the  fact  that  the  victim  was  shot  at  close  range  with  a  shotgun
               slug,  which  fragmented  and  caused  the  victim  to  suffer  extensive  injuries,  was  relevant  to  prove  that



                                                                -4- the  offense  was an attempt to commit first degree murder as charged in the indictment.  The
               Defendant  needed  to  offer  an  objection  to  the  doctorÕs  testimony,  at  trial,  in  order  to  fully  develop
               the  record  with  regard  to  any  relevancy  issue. Furthermore,  a  contemporaneous  objection  to  the
               doctorÕs  testimony  would  have  permitted  the  trial  court  to  clearly  place  on  the  record  its  reasons  for
               overruling  the  DefendantÕs  objection. Without  a  specific  objection  from  the  Defendant,  we  are
               unable  to  review  this  issue. 
                       In  addition,  we  observe  that  the  DefendantÕs  oral  motion  in  limine  appears  to  object  to  the
               relevancy  of  Dr.  RichartÕs  testimony  to  the  issue  of  identity.  The  DefendantÕs  objection  specifically
               states  that  this  testimony  Ōis  not  relevant  as  to  whether  or  not  he  [Defendant]  went  into  that  store  and
               shot  his  wife.Ķ It  is  the  opinion  of  this  Court,  that  while  the  medical  testimony  presented  was  not
               relevant  to  the  issue  of  identity,  it  was,  in  part,  relevant  to  other  issues,  as  noted  above. Moreover,
               the  DefendantÕs  argument,  on  appeal,  challenges  the  admissibility  of  this  evidence  as  to  any  issue
               at  trial. It  is  well-settled  that  an  appellant  is  bound  by  the  evidentiary  theory  set  forth  at  trial,  and
               may not  change  theories  on  appeal. See  State  v.  Banes,  874  S.W.2d  73,  82  (Tenn.  Crim.  App.
               1993). Thus,  the  Defendant  has  waived  appellate  review  of  this  issue. 
                       However,  even  if  the  trial  courtÕs  admission  of  this  evidence  was  error,  we  find  that  it  was
               harmless  error. As  noted  by  the  State,  the  victim  testified,  without  objection  from  the  defense,  that
               she  had  been  in  a  coma  following  the  shooting,  and  stayed  in  the  hospital  for  at  least  seven  weeks.
               She  also  testified  that  she  had  undergone  twelve  major  surgeries  and  had  been  in  and  out  of  the
               hospital  due  to  injuries  caused  by  this  shooting. Therefore,  we  cannot  say  that  the  admission  of  Dr.
               RichartÕs  testimony  more  probably  than  not  affected  the  juryÕs  verdict,  when  the  substance  of  most
               of  the  evidence  was  before  the  jury  via  the  victimÕs  testimony. Also,  the  victimÕs  testimony,  along
               with  the  testimony  of  the  other  witnesses, overwhelmingly  established  the  DefendantÕs  guilt  of
               attempted  second  degree  murder  beyond  a  reasonable  doubt,  without  the  doctorÕs  testimony. The
               Defendant  is  not  entitled  to  relief  on  this  issue.

               II.  Sufficiency  of  the  Evidence  --  Reckless  Endangerment

                       In  his  next  issue,  the  Defendant  argues  that  the  evidence  was  insufficient  to  convict  him  of
               recklessly  endangering  the  life  of  Nancy  Early. He  contends  that  his  mere  possession  of  a  gun  was
               insufficient  to  establish  the  elements  of  reckless  endangerment. We  disagree  with  DefendantÕs
               analysis  of  the  proof  and  his  legal  arguments.
                       The  Defendant  was  convicted  by  a  jury  of  reckless  endangerment  committed  with  a  deadly
               weapon.  Reckless  endangerment  occurs  when  a  person  Ōrecklessly  engages  in  conduct  which  places
               or  may  place  another  person  in  imminent  danger  of  death  or  serious  bodily  injury.Ķ Tenn.  Code
               Ann.  ¤  39-13-103(a)  (emphasis  added). Reckless  endangerment  is  a  Class  E  felony  when  it  is
               committed  with  a  deadly  weapon. Tenn.  Code  Ann.  ¤  39-13-103(b). 
                       The  Defendant  argues  that  the  evidence  failed  to  establish  that  he  recklessly  engaged  in
               conduct  that  Ōplaces  or  may  place  another  person  in  imminent  danger  of  death  or  serious  bodily



                                                                -5- injury,Ķ  because  Ōhe  never  pointed  the  gun  at  Nancy  Early  and  there  was  no  proof  he  even  knew  she
               was  in  the  store.Ķ In  support  of  his  argument,  the  Defendant  relies  on  two  cases. He  cites  State  v.
               Fox,  947  S.W.2d  865  (Tenn.  Crim.  App.  1996),  wherein  the  reckless  endangerment  with  a  deadly
               weapon  conviction  was  reversed  and  dismissed  because  there  were  no  people  anywhere  near  the
               defendant  at  the  time  he  fired  the  gun  Ōinto  the  air  or  up  into  a  tree  top.Ķ  947  S.W.2d  at  866.  In  Fox,
               a panel of this Court noted that previous  cases had Ōrecognized the potentially ÔabsurdÕ and
               ÔunreasonableÕ  results  that  may  arise  from  permitting  prosecution  of  one  discharging  Ôa  weapon
               under  any  circumstances  where  any  other  human  being  might  possibly  be  present  or  where  a  stray
               bullet  might  possibly  strike  another  person.Õ  Ķ  Id.  (emphasis  added).  The  Fox  court  determined  that
               reckless  endangerment  required  an  offender  to  engage  in  conduct  which  places  or  may  place  another
               person  in  imminent  danger  of  death  or  serious  bodily  injury. Id.  (emphasis  added). Therefore,  the
               absence  of  a  ŌpersonĶ  required  the  reversal  of  the  defendantÕs  conviction.  That  is  not  the  case  here,
               where  the  Defendant  pointed  a  loaded  shotgun  at  one  person  and  shot  another  person  at  close  range,
               while  the  victim  of  reckless  endangerment  was  standing  within  the  DefendantÕs  line  of  fire  and  near
               the  person  who  was  shot.
                       The  Defendant  also  cites  State  v.  Baldwin,  No.  01C01-9612-CR-00530,  1998  WL  426199,
               at  *  3  Davidson  County  (Tenn.  Crim.  App.,  Nashville,  July  29,  1998),  perm.  to  app.  denied.  (Tenn.
               1999).  In  Baldwin,  the  defendant  was  convicted  of  the  attempted  murder  of  a  waitress  in  a  restaurant
               and  of  reckless  endangerment  against  a  customer  in  the  restaurant,  who  was  sitting  behind  the
               Defendant  at  the  time  of  the  shooting. The  State  argued  that 
                       because  the  restaurant  was  small  and  narrow,  and  the  bullet  could  have  ricocheted  off
                       one of the metal appliances, striking Clark, the defendant committed reckless
                       endangerment  by  placing  Eddie  Clark  in  imminent  danger  of  death  or  serious  bodily
                       injury  when  he  shot  Deborah  Martin. 
               Id.,  at  *3. A  panel  of  this  Court  held  that  Ōmere  speculation  that  Clark  might  have  been  hit  by  the
               bullet  is  insufficient  to  prove  beyond  a  reasonable  doubt  that  Clark  was  in  imminent  danger  of  death
               or  serious  bodily  injury.Ķ Id.
                       We  find  that  the  facts  and  analysis  of  Baldwin  are,  likewise,  not  applicable  to  this  case. In
               a  light  most  favorable  to  the  state,  the  evidence  showed  that  the  Defendant  pointed  the  loaded  gun
               at  Lynnette  Farley,  and  then  turned  and  shot  Davidson  in  the  stomach. Nancy  Early  testified  that
               she  and  Davidson  were  standing  next  to  each  other,  when  the  Defendant  entered  the  partition  leading
               to  the  kitchen  area  of  the  store. Early  further  testified  that  the  victim  was  standing  near  her,  when
               the  Defendant  shot  the  victim. Early  also  stated  that,  after  the  gun  fired,  she  moved  closer  to  the
               back  of  the  kitchen.  From  the  evidence  presented  at  trial,  it  is  clear  that  Early  was  in  the  line  of
               DefendantÕs  fire,  within  the  Ōzone  of  danger,Ķ  and  clearly  in  imminent  danger  of  death  or  serious
               bodily  injury. 
                       In  State  v.  Payne,  7  S.W.3d  25  (Tenn  .  1999),  the  Tennessee  Supreme  Court,  adopted  the
               following  definition  of  ŌimminentĶ  from  BlackÕs  Law  Dictionary: 



                                                                -6- Near at hand;  mediate rather than immediate;  close rather than touching;
                       impending;  on the point of happening;  threatening;  menacing;  perilous.
                       Something which is threatening to happen at once, something close at hand,
                       something  to  happen  upon  the  instant,  close  although  not  yet  touching,  and  on  the
                       point  of  happening.
               7  S.W.3d  at  28  (quoting  BlackÕs  Law  Dictionary  750  (6th  ed.1990)). The  court  explained  that  in
               order  Ōfor  the  threat  of  death  or  serious  bodily  injury  to  be  Ôimminent,Õ  the  person  must  be  placed
               in  a  reasonable  probability  of  danger  as  opposed  to  a  mere  possibility  of  danger.Ķ Payne,  7  S.W.3d
               at  28. The  court  further  explained  that  the  Ōzone  of  dangerĶ  is  Ōthat  area  in  which  a  reasonable
               probability  exists  that  the  defendantÕs  conduct  would  place  others  in  imminent  danger  of  death  or
               serious  bodily  injury  if  others  were  present  in  that  zone  or  area.Ķ  Id. The  Payne  court  reasoned  that
               the  state had the duty to Ōshow that a person or class of  persons were in an area in which a
               reasonable  probability  of  danger  existed.Ķ Id. 
                       In  the  present  case,  we  find  that  there  was  more  than  a  mere  possibility  that  Nancy  Early
               might  have  been  hit  by  a  stray  bullet. Mrs.  Early  was  a  few  feet  away  from  Casey  Davidson  at  the
               time  of  the  shooting. Unlike  the  reckless  endangerment  victim  in  Baldwin,  who  was  sitting  behind
               the  defendant  in  that  case,  Early  was  in  front  of  the  Defendant  and  a  reasonable  probability  of  danger
               to  Early  existed.  And,  unlike  Fox,  we  conclude  that  the  evidence  was  sufficient  to  establish  beyond
               a  reasonable  doubt  that  Early  was  in  imminent  danger  of  serious  bodily  injury.  The  Defendant  is  not
               entitled  to  relief  on  this  issue. 

               III.  Excessive  Sentencing

                       In  his  final  issue,  the  Defendant  claims  that  the  trial  court  improperly  applied  the  sentencing
               requirements  in  Tenn.  Code  Ann.  ¤  40-35-101,  et.  seq.,  and  improperly  ordered  the  sentences  in  this
               case  to  run  consecutively  to  a  companion  case. We  find  no  error  in  the  judgment  of  the  trial  court.
                       When  a  defendant challenges  the  length,  range  or  manner  of  service  of  a  sentence,  the
               reviewing court must conduct a de novo review on the record with a presumption that the
               determinations  made  by  the  trial  court  were  correct.  Tenn.  Code  Ann.  ¤  40-35-401(d).  We  condition
               the  presumption  of  correctness  Ōupon  the  affirmative  showing  in  the  record  that  the  trial  court
               considered  the  sentencing  principles  and  all  relevant  facts  and  circumstances.Ķ  State  v.  Ashby,  823
               S.W.2d  166,  169  (Tenn.  1991).  The  burden  of  showing  that a sentence  is  improper  is  on  the
               appealing  party. Tenn.  Code  Ann.  ¤  40-35-401(d)  (sentencing  commission  comments).
                       In reviewing the record, this court must consider (a) the evidence at the trial and the
               sentencing  hearing,  (b)  the  presentence  report,  (c)  the  principles  of  sentencing,  (d)  the  arguments  of
               counsel,  (e)  the  nature  and  characteristics  of  the  offenses,  and  (f)  the  appellantÕs potential  for
               rehabilitation. See  Tenn.  Code  Ann.  ¤  40-35-210; see  also  Tenn.  Code  Ann.  ¤  40-35-102  &  103.
               In  State  v.  Jones,  883  S.W.2d  597,  599-600  (Tenn.  1994),  our  supreme  court  said  that  Ō[t]o  facilitate
               meaningful  appellate  review .  .  . the  trial  court  must  place  on  the  record  its  reasons  for  arriving  at



                                                                -7- the  final  sentencing  decision,  identify  the  mitigating  and  enhancement  factors  found,  state  the
               specific  facts  supporting  each  enhancement  factor  found,  and  articulate  how  the  mitigating  and
               enhancement  factors  have  been  evaluated  and  balanced  in  determining  the  sentence.Ķ
                       Where  one  or  more  enhancement  factors  apply  but  no  mitigating  factors  exist,  the  trial  court
               may  sentence  above  the  presumptive  sentence  but  still  within  the  range. See  Tenn.  Code  Ann.  ¤
               40-35-210(d). Where  both  enhancement  and  mitigating  factors  apply,  the  trial  court  must  start  at
               the  presumptive  sentence  (i.e.,  the  midpoint  of  the  range  for  Class  A  felonies  and  the  minimum
               sentence  in  the  range  for  Class  B,  C,  D  and  E  felonies),  enhance  the  sentence  within  the  range  as
               appropriate  to  the  enhancement  factors  and  then  reduce  the  sentence  within  the  range  as  appropriate
               to  the  mitigating  factors. Tenn.  Code  Ann.  ¤  40-35-210(e). The  weight  afforded  an  enhancement
               or  mitigating  factor  is  left  to  the  discretion  of  the  trial  court  if  the  trial  court  complies  with  the
               purposes  and  principles  of  the  Tennessee  Criminal  Sentencing  Reform  Act  of  1989  and  the  record
               supports  its  findings. State  v.  Hayes,  899  S.W.2d  175,  185  (Tenn.  Crim.  App.  1995). 
                       Here,  the  Defendant  was  sentenced  as  a  Range  III  Persistent  Offender.  The  trial  court  applied
               enhancement  factors  (1),  (8),  and  (13)  to  his  convictions  in  Count  I  (attempted  second  degree
               murder)  and  Count  III  (aggravated  assault).  See  Tenn.  Code  Ann.  ¤  40-35-114  (1),  (8)  &  (13). The
               trial  court  also  considered  the  DefendantÕs  mental  condition  at  the  time  of  the  commission  of  the
               offense,  Tenn.  Code  Ann.  ¤  40-35-113  (8),  as  a  mitigating  factor  with  respect  to  Count  I  and  Count
               III  of  the  indictment. The  Defendant  does  not  challenge  the  applicability  of  these  enhancement  and
               mitigating  factors  on  appeal.  Neither  does  the  Defendant  challenge  his  sentence  for  reckless
               endangerment  in  Count  II,  for  which  he  received  the  minimum  sentence  of  four  (4)  years.  However,
               the  Defendant  claims  that  the  trial  court  failed  to  properly  balance  the  enhancing  and  mitigating
               factors  as  required  by  statute. From  the  record,  it  is  clear  that  the  trial  court  properly  weighed  the
               enhancing  and  mitigating  factors  in  sentencing  the  Defendant.  In  considering  the  sentence  for  Count
               I  and  III,  the  trial  court  stated:
                       ItÕs  not  a  set  of  scales  where  you  just  stack  them  up  on  one  side  and  say,  [w]ell,  IÕve
                       got  all  these  on  this  side,  I  only  have  one  on  the  other  side,  and  bingo,  instantly  itÕs
                       the  maximum  sentence. The  court  is  supposed  to  rationally  weigh  those  things. I
                       think  any  rational  weighing  of  the  factors  in  this  case,  though,  lead  to  the  same
                       conclusion  that  it  would  lead  to  if  you  were  weighing  them. The  enhancing  factors
                       so  overwhelmingly  outweigh  the  mitigating  factors  that  I  feel  that  IÕm  not  only
                       obligated,  but  compelled  to  impose  a  sentence  of  20  years  as  to  Count  I  and  that  will
                       be  the  sentence  in  Count  I.
                                                             * * *
                              Count  3  is  the  offense  of  aggravated  assault. It  carries  a  sentence  of  10  to  15
                       years.  The  enhancing  factors  that  the  State  lists  there,  again  would  be  the  same  as  the
                       first  one,  previous  history  of  criminal  convictions,  behavior,  an  unwillingness  to
                       comply  with the conditions of release into the community, and committing the



                                                                -8- offense  while  on  bail. The  same  mitigating  factor  would  be  applicable. I,  again,
                       think a rational consideration of the enhancing factors when compared to the
                       mitigating  factors  are  such  that  would  justify  the  Court  of  [sic]  imposing  a  sentence
                       of  15  years  for  that  offense  and  IÕm  going  to  do  that. 
                       This Court has previously held that  a defendantÕs Ōsentence is not determined by the
               mathematical  process  of  adding  the  sum  total  of  enhancing  factors  present  then  subtracting  from  this
               figure  the  mitigating  factors  present  for  a  net  number  of  years.Ķ  See  State  v.  Boggs,  932  S.W.2d  467,
               474  (Tenn.  Crim.  App.  1996). A  trial  court  has  discretion  in  determining  the  weight  to  be  afforded
               a  particular  enhancement  or  mitigating  factor. Id.,  at  474-75;  Hayes,  899  S.W.2d  at  185  (citing
               Sentencing  Commission  comments). We  find  no  error  in  the  weight  afforded  the  sentencing  factors
               or  the  sentences  ordered  by  the  trial  court.
                       The  Defendant  also  challenges  the  trial  courtÕs  order  of  consecutive  sentencing. The  trial
               court ordered the Defendant to serve the sentences in the present case consecutively  to his
               convictions  for  aggravated  assault,  kidnaping,  and  unlawful  possession  of  a  weapon,  in  case  #12714.
                The  trial  court  determined  that  the  Defendant  had  a  record  of  extensive  criminal  activity  and  the
               Defendant was a dangerous offender.  See Tenn. Code Ann. 40-35-115(b)(1) and (4).  The
               presentence report fully supports the application of the Ōextensive criminal activityĶ factor.
               However,  when  a  trial  court  uses  the  Ōdangerous  offenderĶ  factor,  it  must  also  decide  whether
               consecutive  sentences  (1)  reasonably  relate  to  the  severity  of  the  offenses  committed;  (2)  serve  to
               protect  the  public  from  further  criminal  conduct  by  the  offender;  and  (3)  are  congruent  with  general
               principles  of  sentencing.  State  v.  Wilkerson,  905  S.W.2d  933,  939  (Tenn.  1995).  Here,  the  trial  court
               failed  to  fully  explore,  on  the  record,  the  Wilkerson  factors.  Yet,  only  one  factor  need  be  proven
               to  support  a  consecutive  sentence.  Tenn.  Code  Ann.  ¤  40-35-115(b).  Thus,  consecutive  sentencing
               was  appropriate  under  Tenn.  Code  Ann.  40-35-115(b).
                       We further find that consecutive sentencing is mandated by Rule 32(c)(3)(C) of the
               Tennessee  Rules  of  Criminal  Procedure,  which  provides  that:
                       Where  a  defendant  is  convicted  of  multiple  sentences  from  one  trial  or  where  the
                       defendant  has  additional  sentences  not  yet  fully  served  as  the  result  of  the  convictions
                       in  the  same  or  other  court  and  the  law  requires  consecutive  sentences,  the  sentence
                       shall  be  consecutive  whether  the  judgment  explicitly  so  orders  or  not. This  rule  shall
                       apply:
                              (A)  To  a  sentence  for  a  fel  ony  committ  ed  while  on  parole  for  a  felony;
                              (B)  To  a  sentence  for  escape  or  for  a  felony  committed  while  on  escape;
                              (C)  To  a  sentence  for  a  felony  where  the  defendant  was  released  on  bail  and
                              the  defendant  is  convicted  of  both  offenses; and



                                                                -9- (D)  Any  other  ground  provided  by  law. 
               Tenn.  R.  Crim.  P.  32(c)(3)(C). In  addition,  Tennessee  Code  Annotated  section  40-20-111(b)
               provides:
                       In  any  case  in  which  a  defendant  commits  a  felony  while  such  defendant  was  released
                       on  bail  .  .  .  and  the  defendant  is  convicted  of  both  such  offenses,  the  trial  judge  shall
                       not  have  discretion  as  to  whether  the  sentence  shall  run  concurrently  or  cumulatively,
                       but  shall  order  that  such  sentences  be  served  cumulatively. 
               Tenn. Code Ann. ¤ 40-20-111(b) (1997).  Under these provisions, consecutive sentencing  is
               mandatory  when  a  defendant  commits  a felony  while  on  bail  and  the  defendant  is  subsequently
               convicted  of  both  offenses. At  the  time  Defendant  committed  the  instant  offenses,  he  was  on  bail
               for  the  offenses  in  case  #12714.  Subsequently,  the  Defendant  was  convicted  for  the  present  offense,
               as  well  as  the  offenses  in  case  #12714. Therefore,  consecutive  sentencing  was  mandatory  in  this
               case. The  Defendant  is  not  entitled  to  relief  on  this  issue.

                                                        CONCLUSION

                       For  the  reasons  set  forth  in  this  opinion,  the  judgment  of  the  trial  court  is  affirmed.
                                                                     ___________________________________ 
                                                                     THOMAS  T.  WOODALL,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  August  15,  2001

                  STATE  OF  TENNESSEE  v.  JAMES  DAVID  ALDER

                      Appeal  from  the  Circuit  Court  for  Franklin  County
                           No.  12714  Buddy  D.  Perry,  Judge


                    No.  M2000-01804-CCA-R3-CD  -  Filed  October  25,  2001


         The  defendant,  James  David  Alder,  appeals  from  his  convictions  and  sentences  which  he  received
         in  the  Franklin  County  Circuit  Court.  After  a  change  of  venue  from  Sequatchie  County  and  a  jury
         trial  in  Franklin  County,  the  trial  court  imposed  the  following  convictions  and  sentences:  aggravated
         assault,  ten  years  (Range  II);  kidnapping,  ten  years  (Range  II);  and  unlawful  possession  of  a  deadly
         weapon,  eleven  months  and  29  days  (Class  A  misdemeanor).  The  trial  court  ordered  the  felony
         sentences  to  run  consecutively  to  each  other  but  concurrently  with  the  misdemeanor,  for  an  effective
         sentence  of  twenty  years.  On  appeal,  the  defendant  complains  that  the  trial  court  erred  (1)  in  refusing
         to  grant  a  mistrial  after  the  victim  testified  that  she  had  obtained  an  order  of  protection  against  the
         defendant  and  (2)  in  imposing  the  sentences.  After  our  review  of  the  record,  the  briefs  of  the  parties,
         and  the  applicable  law,  we  affirm  the  lower  courtÕs  felony  judgments  but  vacate  and  modify  the
         misdemeanor  judgment.

                Tenn.  R.  App.  P.  3;  Judgment  of  the  Circuit  Court  Affirmed  in  Part;
                            Vacated  and  Remanded  in  Part.

         JAMES  CURWOOD  WITT,  JR.,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and
         JOE  G.  RILEY,  JJ.,  joined.
         B.  Jeffery  Harmon,  Jasper,  Tennessee,  for  the  Appellant,  James  David  Alder.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         James  Michael  Taylor,  District  Attorney  General;  and  Steven  Strain,  Assistant  District  Attorney
         General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

                  In  the  summer  of  1998,  the  defendantÕs  then  wife  of  fourteen  years,  Casey  Alder
         Davidson,  left  him.  Before  moving  into  her  motherÕs  home,  she  spent  a  few  days  at  the  Sequatchie
         County  home  of  the  victim,  Marie  Austin.  On  July  16,  1998,  after  Ms.  Davidson  departed  for  her
         motherÕs  residence,  the  defendant  came  to  the  home  of  the  victim,  who  was  talking  on  the  telephone



                           1  Apparently,  the  phone  on  which  M  s.  Davidson  spoke  with  Ms.  Austin  was  restricted  so  that  Ms.  Davidson
                  could  not  call  long  d  istance  to  the  S  equatchie  County  SheriffÕs  Office. She  drove  to  the  SheriffÕs  Office,  but  by  the  time
                  she  had  arrived,  Chief  Lockhart  had  already  gone  to  Ms.  AustinÕs  house.

                                                                          -2- at  the  time  with  her  friend,  Wanda. Upon  seeing  the  defendant,  the  victim  instructed  Wanda  to  call
                  911 if anything happened.  Uninvited, the defendant stuck his head inside the door and asked,
                  ŌWhereÕs  my  wife?Ķ When  told  she  was  not  present,  the  defendant  kicked  the  door  open,  entered,
                  and  Ōput  a  shotgun  up  and  stuck  it  to  [the  victimÕs]  head  and  told  [her]  he  was  going  to  blow  [her]
                  f-------  brains  out.Ķ
                                    After  hanging  up  the  phone,  the  victim  showed  the  defendant  a  note  that  his  wife  had
                  written. In  it,  Ms.  Davidson  stated  that  she  was  going  to  her  motherÕs  house.  The  defendant  pressed
                  the  shotgun  against  the  victimÕs  stomach  and  ordered  her  to  telephone  Ms.  Davidson. When  Ms.
                  Davidson  came  to  the  phone,  the  victim  asked  her  to  come  back  to  the  victimÕs  house,  and  when  Ms.
                  Davidson  asked  whether  the  defendant  was  there,  the  victim  said,  ŌRight  now  would  be  nice.Ķ As
                  the  defendant  continued  to  ŌpokeĶ  the  shotgun  into  her  stomach,  the  victim  urged  Ms.  Davidson  to
                  come. Sensing  that  the  defendant  was  there,  Ms.  Davidson  asked  whether  he  had  a  gun. Because
                  she feared for her life, the victim never acknowledged the defendantÕs armed presence.  After
                  hanging  up  the  phone,  the  victim  asked  the  defendant  what  he  intended  to  do. He  replied,  ŌWhen
                  [Ms.  Davidson]  gets  here,  weÕre  going  out  on  the  carport,  [and  w]hen  she  gets  out,  IÕm  going  to
                  shoot  you  and  let  her  watch  you  die  so  sheÕll  have  to  live  with  it  for  the  rest  of  her  life,  knowing  that
                  she  caused  her  friendÕs  death.Ķ The  defendant  said  that,  next,  he  intended  to  shoot  himself.
                                    The  victim  testified  that  she  believed  the  defendantÕs  threats  and  that  she  was  scared.
                  She  believed,  however,  that  Wanda  had  called  the  police. Indeed,  after  the  defendant  had  held  the
                  victim  at  gunpoint  for  approximately  25  to  30  minutes,  Sequatchie  County  Chief  Deputy  Randall
                  Lockhart  arrived  in  his  car.1 Upon  seeing  the  officer  approach  the  house,  the  defendant  remarked,
                  ŌYouÕll  get  to  watch  this  cop  die before  you.Ķ He  then  instructed  the  victim  to  Ōget  ridĶ  of  the
                  officer.
                                    Seeing  through  a  window the  distressed  look  on  the  victimÕs  face  and  seeing  the
                  defendant  standing  nearby,  Chief  Lockhart  came  into  the  house. Although  the  defendant  tried  to
                  grab  the  victim,  she  fled  into  the  rear  of  the  house  where  her  young  daughter  was  sleeping. Lockhart
                  struggled  with and subdued the defendant.  He wrested away from the defendant a single-shot,
                  twelve-gage  shotgun  and  handed  it  to  Dunlap  Police  Officer  Coy  Swanger,  who  had  just  arrived  on
                  the  scene. The  shotgun  proved  to  be  loaded,  and  the  officers  found  six  more  twelve-gage  shells  in
                  the  defendantÕs  pocket. 
                                    The  defendant  offered  no  proof  in  the  case. 
                                    The  jury  convicted  the  defendant  of  aggravated  assault,  kidnapping,  and  unlawful
                  possession of a weapon.  See Tenn. Code Ann. ¤¤ 39-13-102(a)(1)(B), 39-13-303, 39-17-1307
                  (1997).



                                                                -3- I

                              In  his first appellate issue, the defendant complains that the trial court erred in
               refusing  to  order  a  mistrial. During  cross-examination  of  Marie  Austin,  the  defendantÕs  counsel
               questioned  her  about  whether  her  testimony  at  the  preliminary  hearing  was  inconsistent  with  her  trial
               testimony.  When asked if she had failed to mention during the preliminary hearing that the
               defendant  had  threatened  to  kill  Chief  Lockhart,  she  said  that  this  statement  was  in  her  affidavit  for
               the  arrest  warrant. When  told  that  the  affidavit  did  not  contain  this  information,  she  inquired,  ŌIs  it
               on  my  order  of  protection?Ķ The  defendant  made  no  contemporaneous  objection,  but  following  Ms.
               AustinÕs testimony, the court held a sidebar conference.  Although the conference was not
               contemporaneously  placed  of  record,  the  court,  out  of  the  presence  of  the  jury  and  following  the
               closing of the evidence in the case, memorialized the substance of the sidebar conference by
               indicating  that  the  defendant  had  moved  for  a  mistrial  because  of  the  reference to an  order  of
               protection.  Defense  counsel  stated  that  he  had  objected  because  the  remark  was  Ōnon-responsive  and
               prejudicial.Ķ The  trial  judge  ruled  that  the  answer  on  cross-examination  was  a  Ōfair  response.Ķ The
               trial  judge  stated  that  he  had  denied  the  motion  for  a  mistrial. On  appeal,  the  defendant  maintains
               that  the  trial  court  erred,  not  in  admitting  into  evidence  Ms.  AustinÕs  remark,  but  in  refusing  to  grant
               a  mistrial. 
                              The  entry  of  a  mistrial  is  appropriate  when  the  trial  cannot  continue  for  some  reason,
               or  if  the  trial  does  continue,  a  miscarriage  of  justice  will  occur. State  v.  McPherson,  882  S.W.2d
               365,  370  (Tenn.  Crim.  App.  1994). ŌA  mistrial  is  usually  appropriate  in  a  criminal  case  only  where
               there  is  a  Ômanifest  necessity.ÕĶ  State  v.  Seay,  945  S.W.2d  755,  764  (Tenn.  Crim.  App.  1996). The
               burden  of  showing  manifest  necessity  rests  upon  the  defendant.  Id. The  decision  to  grant  a  mistrial
               lies  within  the  sound  discretion  of  the  trial  court,  and  this  court  will  not  disturb  the  trial  courtÕs
               determination  unless  a  clear  abuse  of  discretion  appears  on  the  record. McPherson,  822  S.W.2d  at
               370.
                               In  the  present  case,  there  is  no  showing  of  an  abuse  of  discretion  in  denying  the
               declaration  of  a  mistrial. The  only  articulated  basis  for  a  mistrial  is  that  the  victimÕs  remark  was
               Ōnon-responsive  and  prejudicial.Ķ The  defendant  cites  no  rule  of  evidence  nor  other  authority  to
               support  his  apparent  belief  that  the  testimony  was  inadmissible. Tennessee  Rules  of  Evidence  402,
               403,  and  404(a)  generally  come  to  mind,  but  the  defendant  cited  them  neither  to  the  trial  court  nor
               to  this  court. Complaining  only  that  the  victim  was  unresponsive  to  his  cross-examination  and  that
               her  remark  was  harmful  to  his  interests  does  not,  without  more,  suggest  the  use  of  inadmissible
               evidence. Nevertheless,  the  trial  court  determined  that  the  remark  was  a  fair  response  to  the  line  of
               cross-examination  being  pursued  Đ  that  is,  that  the  victim  had  never  before  alleged  that  the  defendant
               had  threatened  to  kill  Chief  Lockhart.
                               We  agree  with  the  trial  court  and  cannot  say  that  the  trial  court  erred  in  refusing  to
               order  a  mistrial,  despite  its  failure  to  give  cautionary  instructions  to  the  jury. We  hold  that  the  trial
               court  did  not  abuse  its  discretion. 



                                                                -4- II

                              In his next issue, the defendant complains that the trial court erred in  ordering
               consecutive  felony  sentences  and  in  imposing  a  Class  A  misdemeanor  sentence  for  the  weapon-possession 
                           charge.
                              The  latter  issue  may  be  dealt  with  in  short  order.  The  state  concedes  that  the  weapon-possession 
                           offense  charged  in  count  three  is  a  Class  C  misdemeanor,  not  a  Class  A  misdemeanor.

               See  Tenn.  Code  Ann.  ¤  39-17-1307(a)  (1997). The  authorized  term  of  confinement  for  a  Class  C
               misdemeanor  is  a  term  Ōnot  to  exceed  thirty  (30)  days.Ķ  Tenn.  Code  Ann.  ¤  40-35-111(e)(3)  (1997).
               Accordingly,  the  judgment  for  count  three  must  be  modified  to  reflect  a  conviction  of  a  Class  C
               misdemeanor. Because  the  trial  judge  imposed  a  maximum  sentence  of  eleven  months  and  29  days
               when  he  believed  he  was  sentencing  for  a  Class  A  misdemeanor,  we  discern  no  need  to  remand  the
               case  for  re-sentencing. We  impose  a  sentence  of  30  days  in  count  three.
                              With  respect  to  the  issue  of  consecutive  sentencing,  we  begin  by  noting  that  the  trial
               court  premised  its  imposition  of  consecutive  felony  sentences  upon  its  finding  that  the  defendant  is
               a  Ōdangerous  offender  whose  behavior  indicates  little  or  no  regard  for  human  life.Ķ  See  Tenn.  Code
               Ann.  ¤  40-35-115(b)(4)  (1997)  (enumerating  the  Ōdangerous  offenderĶ  category  as  one  of  the  seven
               categories  that  supports  consecutive  sentencing).
                              When  basing  consecutive  sentencing  upon  the  dangerous  offender  rubric  of  Code
               section  40-35-115(b)(4),  the  trial  court  must  determine  that  the  combined  terms  relate  to  the  severity
               of  the  offenses  and  are  required  to  protect  the  public  from  further  serious  criminal  conduct  of  the
               defendant. State  v.  Lane,  3  S.W.3d  456  (Tenn.  1999).
                              The  defendant  argues  that  consecutive  sentencing,  which  yields  an  effective  sentence
               of  20  years,  is  unrelated  to  the  severity  of  the  offenses.  He  premises  this  argument  upon  the  fact  that
               the  victim  of  the  crimes  was  not  injured.
                              Before  addressing this specific issue, we note that, in finding that an extended
               sentence  was  necessary  to  protect  the  public,  the  trial  court  referred  to  the  following  proof  presented
               at  the  sentencing  hearing. A  few  weeks  after  the  defendant  committed  the  offenses  against  Marie
               Austin,  he  accosted  Ms.  Davidson  at  her  place  of  employment  and  shot  her  with  a  shotgun,  leaving
               her  in  a  coma  for  seven  weeks.  Ultimately,  she  survived  the  attack.  A  few  days  before  the  scheduled
               sentencing  hearing  in  this  case  in  which Ms. Davidson  was  expected  to  (and  did)  testify, the
               defendant  escaped  from  jail  and  was  apprehended  in  the  woods  approximately  250  yards  from  Ms.
               DavidsonÕs  home. 
                              We  believe  this  evidence  supports  the  trial  courtÕs  conclusion  that  the  combined
               sentences  are  proportionate  to  the  severity  of  the  offenses  committed  against  Ms.  Austin,  despite  the
               fact  that  she  was  uninjured. The  trial  judge  clearly  accredited  Ms.  DavidsonÕs  testimony  at  the
               sentencing  hearing  that,  a  few  days  after  the  kidnapping  and  shotgun  assault  of  Ms.  Austin,  the



                                                                -5- defendant  committed  a  murderous  shotgun  assault  against  Ms.  Davidson  that  put  her  into  a  seven-week 
                     coma.  This  episode  illuminates  the  defendantÕs  sinister  intent  when  he  threatened  to  shoot  Ms.
               Austin  in  Ms.  DavidsonÕs  presence  and  suggests  that,  but  for  Chief  LockhartÕs  intervention,  Ms.
               Austin  might  well  have  been  gravely  wounded  or  killed.  Ms.  Austin  believed  the  defendant  would
               carry  out  his  threats  against  her,  and  apparently,  so  did  the  trial  judge. That  conclusion  is  supported
               in  the  record  and  elevates  the  seriousness  of  the  conviction  felonies  to  a  level  that  is  commensurate
               with  the  extended  sentence  imposed.  Cf.  State  v.  Chad  Douglas  Poole,  No.  02C01-9506-CC-00178,
               slip op. at 5-6 (Tenn. Crim. App., Jackson, Jan. 31, 1996) (in determining applicability of
               enhancement  factor  (1),  sentencing  court  may  consider  criminal  convictions  or  behavior  which
               occurred  Ōprior  to  the  sentencing  hearing  as  constituting  a  previous  history  of  criminal  convictions
               or  criminal  behavior,  regardless  of  whether  the  convictions  or  behavior  occurred  before  or  after  the
               criminal  conduct  under  considerationĶ),  affÕd  on  other  grounds,  945  S.W.2d  93  (Tenn.  1997). 
                              Based  upon  the  analyses  given  above,  we  affirm  the  judgments  in  the  felonies  and
               vacate  and  modify,  but  otherwise  affirm,  the  misdemeanor  judgment.


                                                                     ___________________________________ 
                                                                     JAMES  CURWOOD  WITT,  JR.,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                         Assigned  on  Briefs  November  8,  2000

                    KEITH  J.  ALLEN  v.  STATE  OF  TENNESSEE

                      Appeal  from  the  Criminal  Court  for  Shelby  County
                          No.  P-14914  W.  Fred  Axley,  Judge


                    No.  W1999-01522-CCA-R3-PC  -  Filed  January  23,  2001


         The  Defendant  was  convicted  of  first  degree  murder  and  sentenced  to  life  imprisonment.  He  filed
         for  post-conviction  relief  on  the  grounds  of  ineffective  assistance  of  counsel.  After  a  hearing,  the
         trial  court  denied  relief.  In  this  appeal  as  of  right,  the  Defendant  contends  that  the  trial  court  erred.
         We  affirm  the  judgment  of  the  trial  court.

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

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  THOMAS  T.  WOODALL  and  JAMES
         CURWOOD  WITT,  JR.,  JJ.,  joined.
         Mark  A.  Mesler,  Memphis,  Tennessee,  for  the  appellant,  Keith  J.  Allen.
         Michael  E.  Moore,  Solicitor  General;  Patricia  C.  Kussmann,  Assistant  Attorney  General;  William
         L.  Gibbons,  District  Attorney  General;  and  Rosemary  S.  Andrews,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             The  Defendant,  Keith  Allen,  was  indicted  for  first  degree  murder,  and  the  State  sought  the
         death  penalty.  After  a  jury  trial,  the  Defendant  was  convicted  of  murder  in  the  perpetration  of  a
         felony  (robbery)  and  sentenced  to  life  imprisonment.  The  DefendantÕs  conviction  was  affirmed  on
         direct  appeal.  See  State  v.  Keith  J.  Allen,  No.  02-C-01-9307-CR-00166,  1994  WL  456345,  at  *1
         (Tenn.  Crim.  App.,  Jackson,  Aug.  24,  1994). On  May  24,  1995,  the  Defendant  filed  for  post-conviction 
               relief,  alleging  that  he  had  been  denied  the  effective  assistance  of  counsel  at  trial.  After
         a  hearing,  the  trial  court  denied  relief.  The  Defendant  now  appeals,  alleging  that  the  trial  court  erred.
         Upon  our  review  of  the  record  and  relevant  legal  authority,  we  affirm  the  trial  courtÕs  judgment.



                                                                -2- During  the  evidentiary  hearing  on  the  DefendantÕs  petition,  the  Defendant  testified  that  his
               two  trial  lawyersÕ  defense  strategy  was  Ōwhat  got  [him]  convicted.Ķ He  stated  that  his  lawyers 
                              were  supposed  to  have  came  [sic]  out  with  the  fact  that  [the  victim]
                              was  criminally  trespassing  in  [his]  house,  and  [he]  asked  [the  victim]
                              to  leave.  [The  victim]  assaulted  [him]  in  [his]  house  and  [the  victim]
                              recklessly  endangered  [the  DefendantÕs]  life  in  [his]  house  before  [he]
                              got  the  apparatus  and  took  it  against  [the  victim]. That  was  the  line
                              of  defense  [he]  should  [have]  had.
                       The  Defendant  killed  the  fifteen  year  old  victim  by  twenty-eight  blows  with  a  machete.  See
               id. One  of  the  DefendantÕs  trial  lawyers  testified  at  the  post-conviction  hearing  that  the  victimÕs
               hands  had  been  nearly  severed  at  the  wrist  as  he  tried  to  protect  himself;  the  Defendant,  according
               to  this  lawyer,  Ōhad  maybe  one  superficial  wound  which  he  could  have  inflicted  on  himself.Ķ The
               Defendant  wanted  his  attorneys  to  argue  self-defense. Both  lawyers  testified  that  they  did  not  think
               this  was  a  viable  defense. They  made  the  tactical  decision  to  emphasize  instead  the  fact  that  the
               Defendant  had  ingested  a  significant  quantity  of  crack  cocaine  prior  to  killing  the  victim.  According
               to  one  of  the  lawyersÕ testimony,  they  decided  to  employ  this  strategy  Ōbecause  .  .  .  intoxication  can
               mitigate  a  first-degree  murder  to  a  second  degree. And  thatÕs  the  best  we  could  hope  for.Ķ The
               Defendant  also  asserts  that  his  trial  lawyers  failed  to  adequately  investigate  his  case  and  that  they
               repeatedly  urged  him  to  plead  guilty.
                       To  determine  whether  counsel  provided  effective  assistance  at  trial,  the  court  must  decide
               whether  counselÕs  performance  was  within  the  range  of  competence demanded  of  attorneys  in
               criminal  cases. Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.  1975). To  succeed  on  a  claim  that  his
               or  her  counsel  was  ineffective  at  trial,  a  defendant  bears  the  burden  of  showing  that  counsel  made
               errors  so serious that he or she was not functioning as counsel as guaranteed under the Sixth
               Amendment  and  that  the  deficient  representation  prejudiced  the  defendant  resulting  in  a  failure  to
               produce  a  reliable  result.  Strickland  v.  Washington,  466  U.S.  668,  687  (1984);  Cooper  v.  State,  849
               S.W.2d  744,  747  (Tenn.  1993);  Butler  v.  State,  789  S.W.2d  898,  899  (Tenn.  1990). To  satisfy  the
               second  prong,  the  defendant  must  show  a  reasonable  probability  that,  but  for  counselÕs  unreasonable
               error,  the  fact  finder  would  have  had  reasonable  doubt  regarding  the  defendantÕs  guilt. Strickland,
               466  U.S.  at  695. This  reasonable  probability  must  be  Ōsufficient  to  undermine  confidence  in  the
               outcome.Ķ Harris  v.  State,  875  S.W.2d  662,  665  (Tenn.  1994).
                       When  reviewing  trial  counselÕs  actions,  this  Court  should  not  use  the  benefit  of  hindsight  to
               second-guess  trial  strategy  and  criticize  counselÕs  tactics. Hellard  v.  State,  629  S.W.2d  4,  9  (Tenn.
               1982).  CounselÕs  alleged  errors  should  be  judged  at  the  time  they  were  made  in  light  of  all  facts  and
               circumstances. Strickland,  466  U.S.  at  690;  see  Cooper  849  S.W.2d  at  746.
                       If  afforded  a  post-conviction  evidentiary  hearing  by  the  trial  court,  a  defendant  must  do  more
               than  merely  present  evidence  tending  to  show  incompetent  representation  and  prejudice;  he  or  she
               must  prove  factual  allegations  by  clear  and  convincing  evidence. Tenn.  Code  Ann.  ¤  40-30-210(f).
               When  an  evidentiary  hearing  is  held,  findings  of  fact  made  by  that  court  are  conclusive  and  binding



                                                                -3- on  this  Court  unless  the  evidence  preponderates  against  them. Cooper,  849  S.W.2d  at  746  (citing
               Butler,  789  S.W.2d  at  899).
                       After  the  trial  court  heard  testimony  from  the  Defendant  and  from  each  of  his  two  trial
               attorneys,  it  issued  a  comprehensive  order  denying  relief.  Upon  a  thorough  review  of  the  allegations,
               proof, and applicable authority, the trial court concluded that Ōcounsel rendered assistance to
               Petitioner  within  the  range  of  competence  expected  of  an  attorney  in  a  criminal  case,  and  .  .  .
               counselÕs  [sic]  performance  was  not  so  deficient  as  to  prejudice  the  defense  of  a  fair  and  reliable  trial
               as  required  by  Strickland  v.  Washington,  466  U.S.  668  (1984).Ķ
                       Upon  our  review  of  the  record  in  this  case,  we  agree  with  the  trial  courtÕs  findings  of  fact  and
               conclusions  of  law. The  testimony  of  the  DefendantÕs  two  trial  lawyers  makes  clear  that  they
               adequately investigated the DefendantÕs case and prepared for trial; they utilized sound  legal
               judgment  in  deciding  which  trial  strategy  to  follow;  and  they  succeeded  in  their  primary  goal  of
               avoiding  a  death  sentence. The  DefendantÕs  testimony  established  only  that  he  wanted  his  lawyers
               to  rely  on  a  defense  that  they  determined  to  be  unwise.  Even  if  we  accept  the  DefendantÕs  contention
               that  his  lawyers  were  deficient  in  their  choice  of  legal  strategy,  the  Defendant  has  clearly  failed  to
               show  a  reasonable  probability  that  the  jury  would  have  had  reasonable  doubt  regarding  his  guilt  had
               his  lawyers  employed  his  preferred  tactics.
                       The  Defendant  having  failed  to  carry  his  burden  of  proof,  we  find  his  contentions  on  appeal
               to  be  without  merit. The  judgment  of  the  trial  court  is  affirmed.

                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



                           1 In  various  po  rtions  of  the  rec  ord,  the  pe  titionerÕs  name  is  also  spelled  ŌLucius  Allen.Ķ IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                                                 AT  JACKSON

                                                 Assigned  on  Briefs  September  11,  2001

                                        LUCIOUS  ALLEN  v.  STATE  OF  TENNESSEE

                                    Appeal  as  of  Right  from  the  Criminal  Court  for  Shelby  County
                                                   No.  P-23907    Bernie  Weinman,  Judge


                                        No.  W2000-02320-CCA-OT-PC  -  Filed  November  2,  2001


                  The petitioner, Lucious Allen,1 pled guilty in the  Shelby County Criminal Court to four felony
                  offenses  and  was  sentenced  to  a  total  effective  sentence  of  eight  years  with  the  sentence  running
                  concurrently  to  a  previously  imposed  federal  sentence. Subsequently,  the  petitioner  filed  for  post-conviction 
                               relief,  alleging  involuntary  guilty  pleas  and  that  the  trial  court  was  without  jurisdiction
                  to  impose  concurrent  sentencing. On  appeal,  the  petitioner  disputes  the  summary  dismissal  of  his
                  petition  for  post-conviction  relief  without  the  appointment  of  counsel  and  without  an  evidentiary
                  hearing. Upon  review  of  the  record  and  the  partiesÕ  briefs,  we  reverse  the  judgment  of  the  post-conviction 
                               court  and  remand  this  case  to  the  post-conviction  court  for  appointment  of  counsel  and
                  further  proceedings  consistent  with  this  opinion.

                    Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Criminal  Court  is  Reversed  and
                                                                     Remanded.

                  NORMA  MCGEE  OGLE,  J.,  delivered  the  opinion  of  the  court,  in  which  THOMAS  T.  WOODALL  and
                  ROBERT  W.  WEDEMEYER,  JJ.,  joined.
                  Lucious  Allen,  Whiteville,  Tennessee,  pro  se.
                  Paul  G. Summers, Attorney General  and Reporter; Kim  R. Helper,  Assistant Attorney  General;
                  William  L.  Gibbons,  District  Attorney  General;  John  W.  Campbell  and  Daniel  S.  Byer,  Assistant
                  District  Attorneys  General,  for  the  appellee,  State  of  Tennessee.

                                                                      OPINION
                                                             I. Factual  Background

                                    On September 3, 1999, the petitioner entered  guilty pleas in the Shelby  County
                  Criminal  Court to  one  count  of  unlawful  possession  of  a  controlled  substance  with  the  intent  to  sell,
                  two  counts  of  aggravated  assault,  and  one  count  of  kidnapping. Pursuant  to  a  plea  agreement,  he



                           2 We are unable to d  etermine from the petitionerÕs  brief  whether he is alleging mandatory consecutive
                  sentencing  on  the  basis  of  Tenn.  Code  Ann.  ¤  40-35-115(a)  or  (b).

                                                                          -2- received  an  effective  eight  year  sentence  to  be  served  concurrently  with  a  sentence  he  received  in
                  federal  court in  August  1999. Both  the  plea  agreement  and  the  judgments  specifically  include  the
                  provision  for  concurrent  service  of  the  state  and  federal  sentences  and  provide  that  the  Ōactual  place
                  of  confinement  [shall  be]  the  federal  prison.Ķ The  judgments  further  provide  that  the  petitioner  Ōis
                  remanded  into  the  custody  of  the  United  States  Marshall.Ķ 
                                    The  petitioner  timely  filed  a  pro  se  claim  for  post-conviction  relief,  alleging  that  his
                  guilty  pleas were not  knowing  and  voluntary  and  that  the  trial  court  was  without  jurisdiction  to
                  impose  concurrent  sentencing. In  support  of  his  claim,  the  petitioner  asserted  that,  since  entry  of  the
                  judgments  of  conviction,  he  has  been  in  the  custody  of  the  Tennessee  Department  of  Correction. He
                  further  contended  that  his  pleas  were  contingent  upon  the  condition  that  he  be  allowed  to  serve  his
                  state  sentence  concurrently  with  the  federal  sentence  and  that  the  sentences  be  served  in  federal
                  custody. Additi  onally,  the  petitioner  alleged  that  Tenn.  Code.  Ann.  ¤  40-35-115  (1997)  and  Tenn.
                  R.  Crim.  P.  32(c)(3)(C)  mandate  that  his  sentences  be  served  consecutively;  therefore,  the  trial  judge
                  was  without  jurisdiction  to  impose  concurrent  sentences.2 He  argues  that  he  should  be  allowed  to
                  withdraw  his  guilty  pleas  and  proceed  to  trial. The  post-conviction  court  summarily  dismissed  the
                  petition  without  appointment of  counsel  or  an  evidentiary  hearing,  concluding that  the  petitioner
                  Ō[did]  not  allege  any  claims  of  constitutional  magnitude.Ķ 

                                                                     II. Analysis

                                    In  considering  whether  a  post-conviction  petition  states  a  colorable  claim  for  relief,
                  the  post-conviction  court  is  to  take  the  facts  alleged  as  true. See  Tenn.  Code  Ann.  ¤  40-35-206(f)
                  (1997).  ŌA colorable claim is a claim . . . that, if taken as true, in the light most favorable to
                  petitioner,  would  entitle  petitioner  to  relief  under  the  Post-Conviction  Procedure  Act.Ķ Tenn.  Sup.
                  Ct.  R.  28  ¤  2(H). The  petition  must  disclose  the  factual  basis  for  any  grounds  for  relief,  and  a  Ōbare
                  allegation  that  a  constitutional  right  has  been  violated  and  mere  conclusions of  law  shall  not  be
                  sufficient  to  warrant  any  further  proceedings.Ķ Tenn.  Code  Ann.  ¤  40-30-206(d). In  this  case,  the
                  petitionerÕs  claims  are  supported  by  specific  factual  allegations.
                                    We  conclude  that  the  post-conviction  court  erred  by  its  summary  dismissal  of  the
                  petitionerÕs  claims.  The  petitioner  asserts  that  the  representations  of  his  attorney,  the  district  attorney
                  general,  and the trial court regarding concurrent sentencing and the place of confinement were
                  directly  related  to  his  acceptance  of  the  plea  bargain  and  his  guilty  plea. When  a  plea  agreement  is
                  accepted  and  breached,  either  specific  performance  of  the  agreement  is  directed,  or  the  parties  are
                  restored  to  the  status  existing  immediately  before  the  plea  was  entered.  See  Harris  v.  State,  875
                  S.W.2d  662,  666  (Tenn.  1994);  Metheny  v.  State,  589  S.W.2d  943,  945  (Tenn.  Crim.  App.  1979).
                  When  a  guilty  plea  Ōrests  in  any  significant  degree  on  a  promise  or  agreement  of  the  prosecutor,  so
                  that  it  can  be  said  to  be  part  of  the  inducement  or  consideration,  such  promise  must  be  fulfilled.Ķ
                  Santobello  v.  New  York,  404  U.S.  257,  262,  92  S.  Ct.  495,  499  (1971);  see  also  Goosby  v.  State,  917
                  S.W.2d  700,  707  (Tenn.  Crim.  App.  1995).  In  Derrick  E.  Means  v. State,  No.  02C01-9707-CR-



                                                                -3- 00248, 1998 WL 470447, at *2 (Tenn. Crim. App. at Jackson, August 13, 1998), this court
               acknowledged  the  problems  that  arise  when  a  state  court  orders  concurrent  service  of  state  and
               federal  sentences. However, this  court  concluded  that  a  petitioner  who  had  entered  a  guilty  plea
               under  circumstances  similar  to  those alleged  by  the  petitioner  herein  was  entitled  to  withdraw  his
               guilty  plea  and  enter  into  new  plea  negotiations  or  face  trial. Id.  at  *3.

                                                        III. Conclusion

                              In consideration of  the foregoing, the judgment of the post-conviction court is
               reversed  and  the  case  is  remanded  for  appointment  of  counsel  and  further  proceedings  consistent
               with  this  opinion.



                                                                     ___________________________________ 
                                                                     NORMA  McGEE  OGLE,  JUDGE



                           1 It  is  the  policy  of  this  court  to  refrain  from  using  the  name  of  a  minor  who  has  been  the  victim  of  a  sex  crime. IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                                               AT  NASHVILLE

                                                    Assigned  on  Briefs  April  25,  2001

                                        STATE  OF  TENNESSEE  v.  RUSSELL  ALLEN

                                     Appeal  as  of  Right  from  the  Circuit  Court  for  Maury  County
                                                    No.  11,  192    Robert  L.  Jones,  Judge


                                           No.  M2000-01656-CCA-R3-CD  -  Filed  July  10,  2001


                  The  appellant,  Russell  Allen,  was  convicted  in  the  Maury  County  Circuit  Court  of  one count of
                  aggravated  sexual  battery  and  was  sentenced  as  a  Range  I  offender  to  eight  years  incarceration  in  the
                  Tennessee  Department  of  Correction. On  appeal,  the  appellant  raises  the  following  issue  for  our
                  review:  whether  the  trial  court  erred  in  failing  to  grant  the  appellant  a  new  trial  based  upon  newly
                  discovered  evidence. Upon  review  of  the  record  and  the  partiesÕ  briefs,  we  affirm  the  judgment  of
                  the  trial  court.

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

                  NORMA  MCGEE  OGLE,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  ALAN
                  E.  GLENN,  JJ.,  joined.
                  Gary  M.  Howell,  Columbia,  Tennessee,  for  the  appellant,  Russell  Allen.
                  Paul  G.  Summers,  Attorney  General  and  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
                  Mike  Bottoms,  District  Attorney  General;  and  Lawrence  R.  Nickell,  Jr.,  Assistant  District  Attorney
                  General,  for  the  appellee,  State  of  Tennessee.

                                                                      OPINION
                                                             I. Factual  Background

                                    On  the  afternoon  of  May  18,  1999,  the  appellant,  Russell  Allen,  went  to  the  home  of
                  a  co-worker,  Jan  Moody. Only  MoodyÕs  teenage  daughter,  M.M.,  was  home  at  the  time.1 M.M.
                  admitted  the  appellant  into  the  home  because  she  recognized  him  as  a  co-worker  of  her  mother.
                  When  the  appellant  entered  the  home,  he  was  carrying  a  bottle  of  Sun-Drop  cola  and  Crown  Royal
                  whiskey. The  appellant  offered  M.M.  a  drink  of  the  alcohol  and  began  following  her  through  the
                  house. M.M.  refused  the  alcohol  and  told  the  appellant  that  her  mother  would  be  home  shortly. The
                  appellant then pulled a gun from his pocket and began loading it.  Upon seeing the appellantÕs



                                                                -2- actions,  M.M.  became  so  afraid  that  she  knelt,  covered  her  head,  and  began  crying. The  appellant
               placed  the  gun  to  M.M.Õs  head,  told  her  to  remove  her  clothes,  and  ordered  her  to  perform  oral  sex
               on  him. 
                              M.M.  did  as  the  appellant  ordered. After  a  minute  or  two,  M.M.  asked  the  appellant
               if  she  could  stop  because  her  mother  would  soon  be  home. The  appellant  became  repentant  and
               apologized  to  M.M.,  offering  to  give  her  money  and  threatening  to  kill  himself. M.M.  again  asked
               the  appellant  to  leave  and  he  did  so. Immediately  following  the  appellantÕs  departure,  M.M.  called
               her  mother  at  work.  Moody,  the  victimÕs  mother,  testified  that,  during  the  conversation,  her  daughter
               was  incoherent and  hysterical, Ōcrying and screamingĶ at the same  time.  Moody was able to
               understand  the  word  ŌgunĶ  and  told  M.M.  to  call  911.  After  speaking  with  her  mother,  M.M.  called
               911  and  reported  the  assault. The  police  and  Moody  arrived  at  the  residence  shortly  after  the  call.
               Upon  the  arrival  of  the  police,  M.M.  gave  one  of  the  officers  a  bullet  that  she  found  on  the  living
               room  carpet  after  the  appellant  left  the  house. The  bullet  was  determined  to  be  a  .25  caliber  bullet
               designed  for  a  semi-automatic  weapon. 
                              The  appellant  was  indicted  and  tried  for  the  aggravated  rape  of  M.M. At  trial,  M.M.
               testified  that  the  gun  the  appellant  had  on  the  day  of  the  offense  was  a  handgun,  further  explaining
               that  Ōit  was  the  kind  of  gun  where  the  bullets  go  in  where  that  comes  out,  and  the  bullets  go  into  that
               little  round  thing.Ķ M.M.  also  later  testified  that  the  gun  was  similar  to  guns  used  to  play  Russian
               Roulette. She  asserted  that  neither  she  nor  her  mother  ever  kept  a  gun  in  the  house;  therefore,  the
               bullet  must  belong  to  the  appellant. M.M.  surmised  that  the  appellant  dropped  the  bullet  while
               loading  his  gun. The  appellant  testified  that  he  did  not  own  a  .25  caliber  weapon  but  did  admit  that
               he  owned  a  .380  caliber  semi-automatic  pistol. 
                              The jury convicted the appellant of aggravated sexual battery.  The trial court
               sentenced the appellant as a Range I offender to eight years incarceration in the Tennessee
               Department  of  Correction.  Subsequently,  the  appellant  filed  a  motion  for  new  trial  alleging,  among
               other  things,  that,  because  there  had  been  no  preliminary  hearing,  the  appellant  was  unaware  prior
               to  trial  that  M.M.  would  testify  that  the  gun  used  during  the  offense  was  a  revolver. He  further
               alleged  that  he  was  unaware  that  the  semi-automatic  bullet  introduced  by  the  State  would  not  fire
               in  a  revolver. After  trial,  appellantÕs  counsel  was  told  by  a  bailiff  that  there  is  no  such  gun  as  a  .25
               caliber  revolver,  and,  regardless,  the  .25  caliber  semi-automatic  ammunition  would  not  fit  into  a
               revolver  due  to  the  difference  in  gun  designs. The  appellant  contended  that  this  evidence  would  be
               crucial  in  impeaching  the  credibility  of  the  StateÕs  main  witness,  M.M. A  hearing  was  held  on  the
               appellantÕs  motion  for  new  trial. The  trial  court  issued  an  order  denying  the  appellantÕs  motion  for
               new  trial,  finding  that  the  appellant  had  not  met  the  requirements  necessary  for  granting  a  new  trial
               based  upon  newly  discovered  evidence.  The  appellant  requests  that  this  court  review  the  trial  courtÕs
               denial  of  a  new  trial  based  upon  newly  discovered  evidence. 

                                                           II. Analysis

                              In  State  v.  Singleton,  853  S.W.2d  490,  496  (Tenn.  1993)  (citations  omitted),  our
               supreme  court  articulated  the  test  for  granting  a  new  trial  on  the  basis  of  newly  discovered  evidence:



                                                                -3- It  has  long  been  recognized  under  Tennessee  law  that  a  trial  court
                              should  grant  a  defendant  a  new  trial  on  the  basis  of  newly  discovered
                              evidence  when  [(1)]  the  defendant  has  been  reasonably  diligent  in
                              obtaining evidence, [(2)] the materiality  of the new evidence is
                              apparent,  and  [(3)]  the  evidence  is  likely  to  change  the  result  [of  the
                              trial].  It  is  true  that  newly  discovered  impeachment  evidence  will  not
                              constitute  grounds for a new trial, as a general rule.  But if the
                              impeaching evidence is so crucial to the defendantÕs guilt or
                              innocence  that  its  admission  will  probably  result  in  an  acquittal,  a
                              new  trial  may  be  ordered.
               In  order  to  be  entitled  to  a  new  trial  based  on  newly  discovered  evidence,  all  three  prongs  of  the  test
               must  be  met. See  State  v.  Nichols,  877  S.W.2d  722,  737  (Tenn.  1994). Furthermore,  the  decision
               to  Ōgrant[]  or  den[y]  a  new  trial  on  the  basis  of  newly  discovered  evidence  rests  within  the  sound
               discretion  of  the  trial  judge.Ķ State  v.  Caldwell,  977  S.W.2d  110,  117  (Tenn.  Crim.  App.  1997).
               Accordingly,  our  standard  of  review  is  abuse  of  discretion. See  State  v.  Meade,  942  S.W.2d  561,
               565  (Tenn.  Crim.  App.  1996). 
                              Initially, we note that, although the appellant challenges the  trial courtÕs ruling
               regarding  his  motion  for  new  trial,  the  appellant  has  failed  to  include  in  the  record  for  our  review  the
               transcript  of  the  hearing  on  the  motion  for  new  trial. ŌWhen  an  accused  seeks  appellate  review  of
               an  issue  in  this  court,  it  is  the  duty  of  the  accused  to  prepare  a  record  which  conveys  a  fair,  accurate
               and  complete  account  of  what  transpired  with  respect  to  the  issue[]  which  form[s]  the  basis  of  the
               appeal.Ķ State  v.  Taylor,  992  S.W.2d  941,  944  (Tenn.  1999);  see  also  State  v.  Ballard,  855  S.W.2d
               557,  560-61  (Tenn.  1993). Accordingly,  when  this  court  is  presented  with  an  incomplete  record,
               which does not contain a  transcript of the relevant proceedings, this court is precluded from
               considering  the  issue  and  must  conclusively  presume  that  the  trial  courtÕs  ruling  was  correct. See
               State  v.  Griffis,  964  S.W.2d  577,  593  (Tenn.  Crim.  App.  1997);  State  v.  Matthews,  805  S.W.2d  776,
               784  (Tenn.  Crim.  App.  1990). Nevertheless,  from  the  record  before  us,  we  can  determine  that  the
               trial  court  did  not  abuse  its  discretion  in  denying  the  appellantÕs  motion  for  new  trial.
                              The  trial  courtÕs  order  denying  the  appellantÕs  motion  for  new  trial  indicates  that  the
               following  proof  was  presented  at  the  hearing:  an  affidavit  by  counsel  averring  his  ignorance  of  the
               fact  that  there  is  no  such  gun  as  a  .25  caliber  revolver  and  that  even  if  such  weapon  exists,  a  .25
               caliber semi-automatic bullet would not fit into a .25 caliber revolver; an affidavit by Steve
               Thomason,  a  gun  dealer,  maintaining  that  a  bullet  for  a  semi-automatic  pistol  would  not  fit  into  a
               revolver,  even  a  revolver  of  the  same  caliber,  and  expressing  his  doubt  that  a  .25  caliber  revolver
               exists;  Ōtestimony  of  the  victim  [M.M.;]  demonstrations  of  the  loading  of  a  revolver  and  magazine
               (clip)  of  a  semi-automatic  pistol[;]  an  exhibit  from  the  investigating  officerÕs  file[;]  oral  argument
               of  counsel[;]  and  the  entire  record  in  this  case.Ķ 
                              After  reviewing  the  evidence,  the  trial  court  found  that 
                              defense  counsel  was  reasonably  diligent  in  attempting  to  discover  all
                              material and relevant evidence before the trial and that the gun



                                                                -4- evidence  would  have  been  material  in  impeaching  the  testimony  of
                              [M.M.]  about  what  she  remembered  seeing  at  the  time  of  the  offense.
                              However,  the  court  is  not  satisfied  that  the  evidence  concerning  the
                              cartridge  and  types  of  pistols  would  change  the  result  of  the  trial.
                              .  .  .It  appears  that  [M.M.]  may  be  mistaken  about  the  type  of  gun  or
                              that  the  defendant  may  have  attempted  to  load  an  automatic  round
                              into  a  revolver,  which  might  explain  why  it  was  found  on  the  floor.
                              In  any  event,  the  victim  seems  no  less  certain  or  convincing  about  the
                              occurrence  resulting  in  the  defendantÕs  conviction. Therefore,  while
                              this  so  called  newly  discovered  evidence  would  be  admissible  in  cross
                              examination  of  the  victim,  this  court  is  satisfied  that  the  victim  would
                              still  be  sufficiently  credible  to  convince  the  jury  that  the  defendant
                              committed  the  offense. 
                              .  .  .This  convinces  the  court  that  the  jury  would  not  have  reached  a
                              different  conclusion  about  the  required  elements  of  the  offense  merely
                              because the victim could not accurately describe the handgun,
                              especially  in  light  of  the  traumatic  circumstances  of  this  offense.
               See  Caldwell,  977  S.W.2d  at  117;  State  v.  Parchman,  973  S.W.2d  607,  610-11  (Tenn.  Crim.  App.
               1997). 
                               In  support  of  the  trial  courtÕs  findings,  we  observe  that,  at  trial  and  at  the  sentencing
               hearing,  the  victim  consistently  testified  regarding  her  description  of  the  weapon.  Specifically,  M.M.
               consistently  described  the  gun  as  having  Ōthe  kind  of  barrel  that  [comes]  out  of  the  gun,  you  know.
               .  .  .  [L]ike  the  kids  play  Russian  Roulette  with  that  you  spin.Ķ She  was  equally  unfailing  in  her
               assurance  that  neither  she  nor  her  mother  kept  a  gun  in  the  house. As  this  court  stated  in  Parchman,
               973  S.W.2d  at  610, 
                              [a]  new  trial  will  not  be  granted  on  newly  discovered  evidence  when
                              the  effect  is  merely  to  impeach  a  witnessÕ  testimony  at  trial  unless  the
                              impeaching evidence is so crucial to the defendantÕs guilt or
                              innocence  that  its  admission  would  change  the  outcome  of  the  case.
               We  are  not  convinced  that  the  Ōnewly  discovered  evidenceĶ  regarding  the  bullet  is  Ōso  crucialĶ  as
               to  change  the  outcome  of  the  appellantÕs  case. Again,  we  note  that  our  standard  of  review  in  this
               case  is  abuse  of  discretion,  and,  based  upon  the  record  before  us,  we  are  unable  to  conclude  that  the
               trial  court  abused  its  discretion  in  denying  the  appellantÕs  motion  for  new  trial. See  State  v.  Marlon
               D.  Beauregard,  No.  W1999-01496-CCA-R3-CD,  2000  WL  705978,  at  *4-5  (Tenn.  Crim.  App.  at
               Jackson,  May  26,  2000),  perm.  to  appeal  denied,  (Tenn.  2001). 

                                                         III. Conclusion

                              Based  on  the  foregoing,  we  affirm  the  judgment  of  the  trial  court.



                                                                -5-  ___________________________________ 
                                                                     NORMA  McGEE  OGLE,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                              February  2001  Session

                  STATE  OF  TENNESSEE  v.  AMMON  B.  ANDERSON

                     Appeal  from  the  Circuit  Court  for  Cheatham  County
                           No.  13489  Allen  Wallace,  Judge


                     No.  M2000-01183-CCA-R3-CD  -  Filed  April  12,  2001


         The  defendant  was  indicted  for  aggravated  sexual  battery  for  engaging  in  sexual  contact  with  a  ten-year-
            old  girl  with  DownÕs  Syndrome.  He  filed  a  motion  to  dismiss  the  indictment,  based  on  the  loss
         of  the  tape  recording  of  his  interview  with  a  Department  of  ChildrenÕs  Services  caseworker  and  a
         police  officer,  and  a  motion  to  suppress  his  one  paragraph  statement  of  admission,  consisting  of  the
         officerÕs  summary  of  the  interview.  Following  the  trial  courtÕs  denial  of  the  motions,  the  defendant
         entered  a  plea  of  nolo  contendere  to  attempt  to  commit  aggravated  sexual  battery,  reserving  as  a
         certified  question  of  law,  pursuant  to  Rule  37(b)(2)(i)  of  the  Tennessee  Rules  of  Criminal  Procedure,
         whether  the  trial  court  erred  in  denying  his  motion  to  dismiss  based  on  the  loss  of  the  tape  recording
         of  the  interview.  Arguing  that  the  statement  of  admission  is  subject  to  misinterpretation  when  taken
         out  of  the  context  of  the  entire  interview,  the  defendant  contends  that  his  right  to  a  fair  trial  was
         compromised  by  the  loss  or  destruction  of  the  tape  recording.  After  a  thorough  review  of  the  record
         and  of  applicable  law,  we  conclude  that  the  loss  of  the  tape  recording  did  not  unfairly  prejudice  the
         defendantÕs  case.  Accordingly,  we  affirm  the  defendantÕs  conviction  of  attempt  to  commit
         aggravated  sexual  battery.


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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  ROBERT
         W.  WEDEMEYER,  J.,  joined.
         John  B.  Nisbet,  III,  Cookeville,  Tennessee;  William  B.  Lockert,  III,  District  Public  Defender;  and
         Steve  Stack,  Assistant  District  Public  Defender,  for  the  appellant,  Ammon  B.  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Jennifer  L.  Bledsoe,  Assistant  Attorney  General;
         Dan  Mitchum  Alsobrooks,  District  Attorney  General;  and  Robert  S.  Wilson,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION



                           1  It  is  the  policy  of  this  court  to  identify  minor  victims  of  sexual  offenses  by  initials  only.

                           2  The  victim  has  DownÕs  Syndrome.

                           3  Aggravated  sexual  ba  ttery  is  defined  in  Tennessee  Code  Annotated  Section  39-13-504(a)  (1997)  as  Ōunlawful
                  sexual  contact  with  a  victim  by  the  defendant  or  the  defendant  by  a  victim  accompanied  by  any of the following
                  circumstances:  .  .  . (4)  The  victim  is  less  than  thirteen  (13)  years  of  age.Ķ 

                                                                          -2- The  defendant,  indicted  for  aggravated  sexual  battery  of  a  ten-year-old  child,  entered  a  nolo
                  contendere  plea  of  guilty  to  attempt  to  commit  aggravated  sexual  battery,  reserving  as  a  certified
                  question  of  law  whether  the  case  against  him  should  have  been  dismissed  because  the  State  lost  or
                  destroyed  the  tape  recording  of  his  interview  with  social  workers  and  a  police  investigator. After
                  a  thorough  review  of  the  record,  we  conclude  that  the  loss  of  the  tape  recording  did  not  unfairly
                  prejudice  the  defendantÕs  case. Accordingly,  we  affirm  the  defendantÕs  conviction. 

                                                                       FACTS

                           The  victim  in  this  case,  C.B.,1  is  a  mentally  handicapped  child.2  In  August  1999,  the  ten-year-
                        old  victim,  along  with  her  brothers  and  her  mother,  resided  in  the  same  Cheatham  County
                  household  as  the  defendant,  fifty-six-year-old  Ammon  B.  Anderson. According  to  the  State,  the
                  Ōvery sexually aggressiveĶ victim had a habit of masturbating by performing what the district
                  attorney  general  described  as  a  Ōhump  and  bumpĶ  on  the  defendantÕs  leg,  with  the  defendant  doing
                  nothing  to  stop  her. The  defendant  acknowledged  sexual  contact  with  the  victim  in  a  September  22,
                  1999, interview at the Cheatham County Department of ChildrenÕs Services (ŌDCSĶ) with
                  caseworker Susan Roberts and Cheatham County SheriffÕs Deputy Sergeant Floyd Duncan.
                  Although  Roberts  tape-recorded  the  interview,  the  tape  was  later lost.  At  the  conclusion  of  the
                  interview,  however,  Sergeant  Duncan  summarized  the  defendantÕs  admissions  into  the  following
                  written  statement,  signed  by  the  defendant: ŌI remember  5  or  6  times  sexual  contact  with  [C.B.],
                  most  all of it was her riding on top of me and touching my penis.  I should have reported  this
                  behavior  and  gotten  help.Ķ 
                           On December 7, 1999, the Cheatham County Grand Jury indicted the defendant with
                  aggravated  sexual  battery  of  a  child  under  the  age  of  thirteen,  a  Class  B  felony,  for  his  sexual  contact
                  with  the  victim.3


                           The  defendant  filed  motions  to  dismiss  the  indictment,  and  to  suppress  the  written  statement,
                  based  on  the  loss  of  the  tape  recording  of  his  interview  at  DCS. The  trial  court  held  a  hearing  on
                  both  motions  on  April  14,  2000. Patty  Oldham,  team  leader  at  the  Cheatham  County  Department
                  of  ChildrenÕs Services, testified that  former DCS caseworker Susan Roberts, Cheatham  County
                  SheriffÕs  Deputy  Sergeant  Floyd  Duncan,  and  a  student,  Deborah  Pickett,  had  been  present  at  the
                  interview  with  the  defendant. After  the  interview,  Roberts  had  told  Oldham  that  they  had  been  able
                  to  get  a  confession  in  the  case. Although  Roberts  had  tape-recorded  the  interview,  Oldham  had  not
                  been  able  to  locate  the  tape,  and  could  not  explain  what  had  happened  to  it. Roberts  had  given



                           4  It is unclear from the record whether Sergeant Duncan merely sat as a silent ob  server while Roberts
                  interview  ed  the  de  fendant,  or  wheth  er  he  took an  active  ro  le  in  questio  ning. 

                                                                          -3- Oldham the case file when she left the department in December 1999, but Oldham had not
                  inventoried  the  file  and  did  not  know  whether  the  tape  had  been  included  with  other  interview  tapes
                  she  had  received. 
                           The  defendant  testified  that  he  had  been  Ōunder  real  extreme  nervous  conditionĶ  when  he
                  gave  the  approximately  fifteen  to  twenty  minute  interview  at  DCS,  explaining  that  he  was  Ōon  quite
                  a bit of medication for depression and anxiety.Ķ  He remembered signing the one paragraph
                  statement  written  by  Sergeant  Duncan,  but  said  that  he  had  not  read  it,  and  that  Duncan  had  not  read
                  it  to  him. Although  he  acknowledged  that  the  statement  was  Ōpretty  close,Ķ  the  defendant  indicated
                  that  it  did  not  completely  reflect  what  had  been  said  in  the  interview,  in  that  it  did  not  reveal  that
                  the  Ō5  or  6  times  sexual  contactĶ  had  all  been  initiated  by  the  victim,  in  which  she  had  Ōsneak[ed]
                  into  [his]  bed  and  [got]  up  and  straddle[d]  [him]  and  start[ed]  rubbing  .  .  .  .Ķ He  said  that  when  he
                  made  the  statement,  ŌI  should  have  reported  this  behavior  and  gotten  help,Ķ  he  had  been  referring
                  to  getting  help  for  the  victim,  rather  than  himself.
                           The  State  called  Sergeant  Floyd  Duncan,  Jr.,  who  stated  that  he  had  taken  a  statement  from
                  the  defendant  at  the  conclusion  of  the  defendantÕs  interview  at  DCS.  4 He  said  that  he  had  read  the
                  defendant  his  rights  before  the  interview,  and  the  defendant  indicated  that  he  understood  those  rights.
                  Duncan  testified  that  DCS  had  tape-recorded  the  session  for  their  purposes,  and  that  he  had  not  been
                  given  the  tape. At  the  end  of  the  session,  he  had  reduced  the  essence  of  the  defendantÕs  admissions
                  during  the  interview  into  the  one  paragraph  statement,  which  he  had  then  read  to  the  defendant. The
                  defendant  indicated that he understood what  had been read, made no objection to the way the
                  statement  had  been  worded,  and  signed  the  statement. On  cross-examination,  Sergeant Duncan
                  acknowledged  that  they  had  been  aware  that  the  victim  was  an  Ōaggressive  sexual  childĶ  with  a  prior
                  history of sexual abuse, and that that fact had been discussed with the defendant during the
                  interview. 
                           At  the  conclusion  of  the  hearing,  the  trial  court  denied  the  defendantÕs  motions,  ruling  that
                  the  statement  was  admissible,  and  that  how  much  weight,  if  any,  it  should  carry  would  be  a  matter
                  for  the  jury  to  determine. Following  the  denial  of  his  motions,  on  April  17,  2000,  the  defendant
                  entered  a  plea  of  nolo  contendere  to  attempt  to  commit  aggravated  sexual  battery. He  was  sentenced
                  to three years, suspended, and placed on three yearsÕ probation.  The defendant reserved the
                  following  certified  question  of  law: 
                                    Whether the introduction into evidence of the DefendantÕs signed
                                    statement  written  out  by  state  investigators  when  the  State  had  lost  or
                                    destroyed the original tape recording of the interview thereby
                                    preventing Defendant from introducing the exact contents of his



                                                                -4- statement  violates  DefendantÕs  right  to  a  fundamentally  fair  trial  by
                              due  process  standards. 

                       The  defendant  timely  appealed  to  this  court. 

                                                           ANALYSIS

                       Before  we  may  address  the  issue  presented  for  review,  we  must  first  consider  whether  we
               have  jurisdiction  to  hear  this  appeal. See  State  v.  Preston,  759  S.W.2d  647,  651  (Tenn.  1988). In
               Preston,  our  supreme  court  set  forth  the  requirements  that  must  be  met  for  an  issue  to  be  properly
               certified  for  appeal. Under  Rule  37(b)(2)(i),  an  appeal  lies  from  a  guilty  plea  if  the  final  order  or
               judgment  contains  a  statement  of  the  dispositive  certified  question  of  law  reserved  by  the  defendant,
               which  clearly  identifies  the  scope  and  limits  of  the  legal  issue  reserved.  See  id.  at  650;  see  also  State
               v.  Pendergrass,  937  S.W.2d  834,  836-37  (Tenn.  1996).  The  order  or  judgment  must  state  that  the
               certified  question  was  expressly  reserved  as  part  of  a  plea  agreement. It  must  further  state  that  the
               trial  court  and  the  State  consent  to  the  agreement,  and  agree  that  the  issue  is  dispositive  of  the  case.
               Preston,  759  S.W.2d  at  650. However,  if  the  appellate  court  does  not  agree  that  the  question  is
               dispositive,  appellate  review  must  be  denied. Id.
                       The  final  judgment  in  this  case  complies  with  the  requirements  set  forth  in  Preston,  stating
               the  exact  question  of  law  that  the  defendant  reserved,  that  the  State  and  the  trial  judge  consented  to
               the  plea,  and  that  both  the  State  and  the  trial  judge  agreed  that  the  question  was  dispositive  of  the
               case.  An  issue  is  dispositive  if,  based  on  the  resolution  of  the  issue,  this  court  must  either  affirm  the
               conviction,  or  reverse  and  dismiss.  State  v.  Wilkes,  684  S.W.2d  663,  667  (Tenn.  Crim.  App.  1984).
               ŌThat  is  to  say  that,  if  we  should  find  the  appellantÕs  position  correct,  there  would  be  no  case  to
               prosecute  as  there  would  be  no  proof  to  convict.Ķ  State  v.  George  Milton  Brooks,  No.  02C01-9804-
               CC-00116,  1998  WL  775649,  at  *3  (Tenn.  Crim.  App.  Nov.  6,  1998),  perm.  to  appeal  denied  (Tenn.
               1999). The  record  in  this  case  reflects  that  the  State  acknowledged  at  the  guilty  plea  hearing  that
               without  the  statement  of  admission,  it  would  have  no  evidence  to  present  against  the  defendant,
               because  the  victim  would  be  unable  to  testify. We  therefore  conclude  that  we  have  jurisdiction  to
               consider  the  issue  on  appeal.
                       The  defendant  contends  that  the  trial  court erred by  denying  his  motion  to  dismiss  the
               indictment.  He  argues  that  the  loss  of  the  tape  recording  deprived  him  of  evidence  that  was  essential
               to  his  defense,  preventing  him  from  receiving  a  fair  trial. The  State  disagrees,  arguing  that  the
               defendant  has  failed  to  demonstrate  that  his  right  to  a  fair  trial  was  impeded  by  the  loss  of  the  tape
               recording. 
                       In  State  v.  Ferguson,  2  S.W.3d  912,  917  (Tenn.  1999),  our  supreme  court  adopted  a  balancing
               approach  for  courts  to  use  to  determine  when  the  loss  or  destruction  of  evidence  has  deprived  a
               defendant  of  his  fundamental  right  to  a fair  trial. Id.  at  917. Under  this  approach,  the  first  step  is
               to  determine  whether  the  State  had  a  duty  to  preserve  the  evidence.  As  a  general  rule,  Ōthe  State  has



                                                                -5- a  duty  to  preserve  all  evidence  subject  to  discovery  and  inspection  under  Tenn.  R.  Crim.  P.  16,  or
               other  applicable  law.Ķ Id. If  the  proof  shows  that  the  State  had  a  duty  to  preserve  the  evidence,  and
               that  the  State  failed  in  its  duty,  the  court  must  then  consider  the  following  factors  which  bear  upon
               the  consequences  of  the  StateÕs  breach  of  its  duty: (1)  the  degree  of  negligence  involved;  (2)  the
               significance  of  the  destroyed  evidence,  considered  in  light  of  the  probative  value  and  reliability  of
               secondary  or  substitute  evidence  that  remains  available;  and  (3)  the  sufficiency  of  the  other  evidence
               used  to  support  the  conviction. Id. If  the  court  concludes,  after  consideration  of  all  the  factors,  that
               a  trial  without  the  missing  evidence  would  not  be  fundamentally  fair,  the  court  has  the  option  of
               dismissing  the  charges  against  the  defendant. Id. 
                       Under  Ferguson,  therefore,  we  must  first  determine  whether  the  State  had  a  duty  to  preserve
               the  tape  recording. The  defendant  argues  that  it  did,  asserting  that  the  recording  would  have  been
               discoverable, under Tennessee Rule of Criminal Procedure 16(a)(1)(A), as a statement of  the
               defendant.  The  State  disagrees,  arguing  that  no  duty  exists  because  the  defendant  failed  to  show  that
               the  tape  recording  was  Ōmaterially  exculpatory.Ķ The  State  argues  that  the  tape  contained  nothing
               that  would  have  cleared  the  defendant  of  guilt. 
                       In  Ferguson,  a  DWI  case,  the  missing  evidence  was  a  videotape  recording  of  the  defendantÕs
               field  sobriety  tests. The  defendant  argued  that  the  videotape  would  have  provided  support  for  his
               claim  that  he  had  been  experiencing  a  migraine,  which  affected  his  vision  and  coordination,  at  the
               time  of his arrest.  To determine the boundaries of the StateÕs duty to preserve evidence, the
               Ferguson  court  looked  for  guidance  to  a  1984  United  States  Supreme  Court  decision,  quoting  from
               it  as  follows:
                              Whatever  duty  the  Constitution  imposes  on  the  States  to  preserve
                              evidence, that duty must be limited to evidence that might be
                              expected  to  play  a  significant  role  in  the  suspectÕs  defense. To  meet
                              this  standard  of  constitutional  materiality,  evidence  must  possess  an
                              exculpatory value that was apparent before the evidence was
                              destroyed,  and  be  of  such  nature  that  the  defendant  would  be  unable
                              to  obtain  comparable  evidence  by  other  reasonably  available  means.
               Id.  (quoting  California  v.  Trombetta,  467  U.S.  479,  488-89,  104  S.  Ct.  2528,  2533-34,  81  L.  Ed.  2d
               413  (1984)). The  Ferguson  court  found  that  the  exculpatory  value  of  the  videotape  was  Ō  tenuous.Ķ
               2  S.W.3d  at  918. Nonetheless,  it  concluded  that  the  State  had  a  duty  to  preserve  it,  writing:
                              Though  the  videotape  was  probably  of  marginal  exculpatory  value,
                              it  was  at  least  Ōmaterial  to  the  preparation  of  the  defendantÕs  defenseĶ
                              and  might  have  led  the  jury  to  entertain  a  reasonable  doubt  about
                              FergusonÕs  guilt. Because  the  videotape  may  have  shed  light  on  his
                              appearance  and  condition  on  the  morning  in  question,  the  State  had
                              a  duty  to  preserve  the  videotape  as  potentially  exculpatory  evidence.



                                                                -6- Id.
                       The  tape  recording  in  this  case,  similar  to  the  videotape  in  Ferguson,  may  have  Ōshed  lightĶ
               on  the  defendantÕs  condition  and  the  circumstances  surrounding  his  statement  of  admission,  by
               providing  details  and  nuances  that  Sergeant  Duncan  may  have  omitted.  At  the  suppression  hearing,
               the  defendant  testified  that  in  his  interview,  he  had  told  Roberts  and  Duncan  that  when  the  victim
               would  climb  on  top  of  him,  he  would  Ōthrow  her  off  and  tell  her  go  on,Ķ  a  fact  which  was  not
               included  in  the  written  statement  of  admission.  Furthermore,  the  recording  was  clearly  discoverable
               under  Rule 16(a)(1)(A) of the Tennessee Rules of Criminal Procedure, as a relevant recorded
               statement  of  the  defendant  within  the  control  of  the  State.  Therefore,  we  believe  that  the  State  had
               a  duty  to  preserve  the  tape  recording,  and  that  it  breached  that  duty  by  allowing  the  tape  to  be
               destroyed  or  lost.
                       Next,  we  must  determine  the  consequences  of  the  StateÕs  breach  of  its  duty  to  preserve  the
               tape  recording.  The  first  factor  to  be  considered  is  the  degree  of  negligence  involved.  In  this  regard,
               we  note  that  Sergeant  Duncan  testified  that  he  had  not  taken  custody  of  the  tape,  and  that  DCS
               supervisor  Patty  Oldham  made  it  clear  that  the  district  attorney  general  had  never  received  the  tape
               from  DCS. Oldham  stated  that  she  had  not  realized  that  the  tape  was  missing  until  the  case  neared
               trial  and  the  district  attorney  general  asked  her  for  the  case  file. When  she  gathered  the  file,  she  had
               been  unable  to  locate  the  tape  among  the  materials  that  Susan  Roberts  had  turned  over  to  her  when
               she  left  the  department.  Although  the  defendant  suggests  that  DCS  may  have  intentionally  destroyed
               the  tape  in  an  effort  to  prejudice  his  case,  there  is  no  proof  in  the  record  that  the  tapeÕs  loss  was  the
               result  of  anything  other  than  simple  negligence. 
                       The  second  factor  to  consider  is  the  significance  of  the  missing  evidence,  Ōin  light  of  the
               probative  value  and  reliability  of  secondary  or  substitute  evidence.Ķ  According  to  the  defendant,  the
               missing  tape  contained  both  inculpatory  and  exculpatory  or  self-serving  statements. Purely  self-serving 
                       declarations  by  a  defendant  are  generally  not  admissible. State  v.  King,  694  S.W.2d  941,
               945  (Tenn.  1985);  Moon  v.  State,  146  Tenn.  319,  372,  242  S.W.2d  39,  54  (1921);  State  v.  Belser,
               945  S.W.2d  776,  784  (Tenn.  Crim.  App.  1996);  State  v.  Wiseman,  643  S.W.2d  354,  366  (Tenn.
               Crim.  App.  1982).  When  a  defendantÕs  statement  consists  of  both  exculpatory  and  inculpatory
               portions,  however,  and  the  prosecution  introduces  a  part  of  it  into  evidence,  the  defendant  is  then
               entitled  to  introduce  the  entire  statement,  including  any  exculpatory  or  self-serving  portions  that  the
               statement  may  include.  State  v.  Keough,  18  S.W.3d  175,  182  (Tenn.),  cert.  denied,  ___  U.S.  ___,
               121  S.  Ct.  205,  148  L.  Ed.  2d  144  (2000)  (citing  Espitia  v.  State,  199  Tenn.  696,  288  S.W.2d  731,
               733  (Tenn.  1956));  State  v.  Robinson,  622  S.W.2d  62,  71  (Tenn.  Crim.  App.  1980).  Thus,  it  is  clear
               that  the  defendant  would  have  been  entitled  to  introduce  the  whole  of  the  tape  recording,  including
               any  exculpatory  statements  that  he  may  have  made,  upon  the  StateÕs  introduction  of  any  portion  of
               the  tape.
                       What  is  not  quite  as  clear  is  whether  the  defendant  would  have  been  entitled  to  introduce  the
               tape  recording  upon  the  StateÕs  introduction  of  his  statement  of  admission  alone. Rule  106  of  the
               Tennessee  Rules  of  Evidence  states:



                                                                -7- When  a  writing  or  recorded  statement  or  part  thereof  is  introduced  by
                              a  party,  an  adverse  party  may  require  the  introduction  at  that  time  of
                              any  other  part  or  any  other  writing  or  recorded  statement  which  ought
                              in  fairness  to  be  considered  contemporaneously  with  it.
               In  Keough,  the  defendant  gave  oral  and  written  statements  of  admission.  18  S.W.3d  at  181.  His  first
               statement,  which  was  oral,  contained  no  exculpatory  material. When  the  police  detective  who  was
               interviewing  him  was  called  away,  the  defendant  then  gave  a written  statement,  containing  both
               exculpatory  and  inculpatory  portions,  to  different  detectives.  Id.  At  trial,  the  State  presented  the  first
               detective,  who  testified  regarding  the  defendantÕs  oral  statement. The  State  did  not  introduce  the
               written  statement,  and  the  trial  court  refused  to  allow  defense  counsel  to  cross-examine  the  detective
               regarding  the  written  statement. Id.  at  182. On  appeal,  our  supreme  court  concluded  that  Rule  106
               did  not  require  that  the  written  statement  be  introduced  because  the  defendant  had,  in  essence,  given
               two  separate  statements,  one  oral  and  one  written. Id. The  court  noted  that  a  Miranda  warning  had
               been  given  before  each  statement,  and  that  different  detectives  had  conducted  the  two  interviews.
               Id.
                       The  situation  in  the  case  at  bar  differs  from  that  of Keough. Although  it  is  unclear  from  the
               record  whether  Sergeant  Duncan  actively  participated  in  the  DCS  interview  of  the  defendant,  or
               merely  sat  as  a  silent  observer,  it  is  undisputed  that  he  was  present  throughout  the  entire  interview,
               and  that  he  gave  only  one  Miranda  warning,  at  the  beginning  of  the  process.  Presumably,  therefore,
               the  defendant  would  have  been  allowed  to  introduce  the  tape  recording  upon  the  StateÕs  introduction
               of  the  written  statement  of  admission,  on  the  premise  that  the  statement  of  admission,  written  out
               by  Sergeant  Duncan  as  an  attempt  to  summarize  the  defendantÕs  admissions  during  the  interview,
               was  merely  a  continuation  or  culmination  of  the  tape  recorded  interview. 
                       Regardless,  we  conclude  that  the  tape  recording  was  not  that  significant  to  the  defendantÕs
               case.  Unlike  the  videotape  in  Ferguson,  which  showed  FergusonÕs  condition  at  the  time  of  his  DWI
               arrest,  the  evidence  here  was  not  irreplaceable. As  the  State  points  out  in  its  brief,  the  defendant
               would  have  had  the  opportunity  at  trial  to  cross-examine  Sergeant  Duncan,  and  could  have  called
               Susan  Roberts  or  Deborah  Pickett,  both  witnesses  to  the  interview,  to  testify  as  to  what  had  been
               said.  See  State  v.  Caldwell,  696  S.W.2d  541,  542  (Tenn.  Crim.  App.  1985)  (concluding  that  fact  that
               police  officer  did  not  record  everything  defendant  told  him,  including  some  exculpatory  statements,
               did  not  render  recorded  portion  inadmissable,  because  defendant  had  been  able  to  elicit  exculpatory
               material  during  cross-examination  of  police  officer). In  our  view,  the  loss  of  the  tape  did  not
               seriously  hamper  the  defendant  in  presenting  his  claim  that  the  victim  had  initiated  the  contact. 
                       The  third  factor  to  be  considered  is  the  sufficiency  of  the  convicting  evidence. In  this  case,
               the  defendant  signed  a  written  statement  in  which  he  admitted  Ō5  or  6  Ķ  occasions  of  sexual  contact,
               in  which  the  victim  had  ŌriddenĶ  him  and  touched  his  penis.  In  the  suppression  hearing,  he  testified
               that  the  victim  would  Ōget  up  and  straddle  me  and  start  rubbing  and  IÕd  have  to  throw  her  off  and  tell
               her  go  on,  [C.B.],  before  you  get  us  in  some  kind  of  trouble.Ķ The  defendant  further  testified  that



                                                                -8- the  victim  used  to  wake  him  by  playing  with  his  penis. The  evidence  presented  was  sufficient  as  a
               matter  of  law  to  support  the  defendantÕs  conviction  of  attempt  to  commit  aggravated  sexual  battery.

                                                        CONCLUSION

                       After  considering  the  above  factors,  we  conclude  that  the  loss  of  the  tape  recording  did  not
               unfairly  prejudice  the  defendantÕs  case,  such  as  to  deprive  him  of  his  fundamental  right  to  a  fair  trial.
               Accordingly,  the  defendantÕs  conviction  of  attempt  to  commit  aggravated  sexual  battery  is  affirmed.




                                                                     _______________________________________
                                                                     ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  JACKSON

                        Assigned  on  Briefs  December  5,  2000

                 STATE  OF  TENNESSEE  v.  COURTNEY  ANDERSON

                   Direct  Appeal  from  the  Criminal  Court  for  Shelby  County
                     Nos.  97-08497,  97-08498  Joseph  B.  Dailey,  Judge


                    No.  W2000-00244-CCA-R3-CD  -  Filed  January  30,  2001


        The  defendant  was  convicted  by  a  Shelby  County  jury  of  theft  of  property  valued  greater  than  $10,000
        and  forgery. The  trial  court  sentenced  him  to  consecutive  sentences  of  15  years  for  theft  as  a
        persistent  offender  and  six  years  for  forgery  as  a  career  offender.  In  this  appeal  as  a  matter  of  right,
        defendant  alleges  (1)  the  evidence  is  not  sufficient  to  support  the  convictions,  and  (2)  his  sentence
        is  excessive.  After  a  thorough  review  of  the  record,  we  affirm  the  judgment  of  the  trial  court.

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

        JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ROBERT
        W.  WEDEMEYER,  JJ.,  joined.
        William  L.  Johnson,  Memphis,  Tennessee,  for  the  appellant,  Courtney  Anderson.
        Paul  G.  Summers,  Attorney  General  and  Reporter;  Clinton  J.  Morgan,  Assistant  Attorney  General;
        William  L.  Gibbons,  District  Attorney  General;  and  Amy  P.  Weirich,  Assistant  District  Attorney
        General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

             In  this  appeal  as  a  matter  of  right,  the  defendant  claims  that  there  is  insufficient  evidence  to
        sustain  his  theft  and  forgery  convictions,  and  his  sentence  is  excessive.  After  a  thorough  review  of
        the  record,  we  affirm  the  defendantÕs  convictions  and  sentences.






                                   I.  FACTS



                                                               -2- On  December  20,  1996,  someone  rented  a  $30,000  Cadillac  Sedan  Deville  from  Avis  Car
              Rental  under  the  stolen  identity  of  Steven  Michael  Hawks. For  proof  of  identity,  the  person  supplied
              Avis with a major credit card with HawksÕ name, and a Tennessee driverÕs license with the
              defendantÕs  photo  and  HawksÕ  license  and  social  security  numbers. The  vehicle  was  not  returned  at
              the  end  of  the  seven-day  rental  period. 
                      Jack  Bell,  an  employee  at  Whitehaven  Liquor,  testified  that  the  defendant  tried  to  cash  a  check
              on February 1, 1997.  After the defendant handed Bell the check and a driverÕs license, Bell
              recognized  the  check  as  being  drawn  on  a  batch  reported  stolen. Accordingly,  Bell  proceeded  to  his
              office,  phoned  the  drawerÕs  bank,  and  determined  the  check  was  stolen. He  returned  to  the  counter,
              but  the  defendant  was  gone. Bell  phoned  the  police,  and  he  gave  them  the  check  and  the  driverÕs
              license  that  the  defendant  left  on  the  counter. A  copy  of  the  license  was  produced  at  trial,  and  it
              contained  HawksÕ  name,  driverÕs  license  number,  and  social  security  number,  but  it  contained  the
              defendantÕs  photo. Bell  identified  the  defendant  as  the  person  who  tried  to  cash  the  check.
                      During  the  night  hours  on  February  10,  1997,  Memphis  police  officers  noticed  a  Cadillac
              traveling  in  the  opposite  direction  without  use  of  its  headlamps. When  the  officers  turned  on  their
              emergency  lights  to  pursue  the  Cadillac,  it  accelerated  to  a  high  rate  of  speed. The  officers  saw  the
              vehicle  turn  into  a  residence,  and  the  driver  exited  the  vehicle  and  fled  on  foot.  The  officers  arrested
              the  two  passengers,  but  the  driver  was  not  apprehended. The  Cadillac  was  the  vehicle  leased  from
              Avis. 
                      Vickie  Gregory  was  one  of  the  passengers  arrested. At  trial,  she  testified  that  there  were  four
              persons  in  the  car;  the  driver  was  a  friend  of  the  front  passenger;  she  did  not  know  that  the  car  was
              stolen;  and  she  only  saw  the  driver  a  few  times,  so  she  could  not  identify  the  driver  as  the  defendant.
                      Memphis Police Lieutenant Milton D. Jones acquired handwriting samples from the
              defendant. Tom  Vastrick,  an  expert  forensic  document  examiner,  testified  he  was  provided  three
              documents  to  examine. The  provided  documents  were  (1)  the  driverÕs  license,  (2)  the  signed  Avis
              rental  agreement,  and  (3)  the  defendantÕs  handwriting  samples.  Vastrick  opined  that  all  three  samples
              were  written  by  the  same  person.


                                          II. SUFFICIENCY  OF  THE  EVIDENCE
              A. Standard  of  Review

                      Defendant  contends  that  the  evidence  is  insufficient  to  sustain  the  juryÕs  guilty  verdicts  of  theft
              over  $10,000  and  forgery. We  respectfully  disagree.
                      When  a  defendant  challenges  the  sufficiency  of  the  convicting  evidence,  we  must  review  the
              evidence  in  the  light  most  favorable  to  the  prosecution  to  determine  whether  "any  rational  trier  of  fact
              could  have found the essential elements of the crime beyond  a  reasonable  doubt."  Jackson v.



                                                               -3- Virginia,  443  U.S.  307,  318,  99  S.  Ct.  2781,  2789,  61  L.  Ed.  2d  560,  573  (1979).  We  do  not  reweigh
              or  reevaluate  the  evidence  and  are  required  to  afford  the  state  the  strongest  legitimate  view  of  the
              proof  contained  in  the  record  as  well  as  all  reasonable  and  legitimate  inferences  which  may  be  drawn
              therefrom.  State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978).  It  is  the  defendant's  burden  to  show
              this  court  why  the  evidence  is  insufficient  to  support  the  verdict  returned  by  the  trier  of  fact  in  his  or
              her  case. State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.  1982).
                      Although the  evidence  of  the  defendantÕs  guilt  is  circumstantial  in  nature,  circumstantial
              evidence  alone  may  be  sufficient  to  support  a  conviction.  State  v.  Tharpe,  726  S.W.2d  896,  899-900
              (Tenn.  1987); State  v.  Gregory,  862  S.W.2d  574,  577  (Tenn.  Crim.  App.  1993). However,  in  order
              for  this  to  occur,  the  circumstantial  evidence  must  be  not  only  consistent  with  the  guilt  of  the  accused
              but  it  must  also  be  inconsistent  with  innocence  and  must  exclude  every  other  reasonable  theory  or
              hypothesis  except  that  of  guilt. Tharpe,  726  S.W.2d  at  900.  In  addition,  Ōit  must  establish  such  a
              certainty  of guilt of the accused as to convince the mind beyond a reasonable doubt that [the
              defendant]  is  the  one  who  committed  the  crime.Ķ Id.  (quoting  Pruitt  v.  State,  460  S.W.2d  385,  390
              (Tenn.  Crim.  App.  1970)).
                      While  following  the  above  guidelines,  this  court  must  remember  that  the  jury  decides  the
              weight  to  be  given  to  circumstantial  evidence  and  that  Ō[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.Ķ  Marable  v.  State,  313  S.W.2d  451,  457  (Tenn.  1958);

              see  also  Gregory,  862  S.W.2d  at  577;  State  v.  Coury,  697  S.W.2d  373,  377  (Tenn.  Crim.  App.  1985);
              Pruitt,  460  S.W.2d  at  391.

              B. Analysis

                      Prior  law  contained  numerous  separate  offenses  involving  theft. See Tenn.  Code  Ann.  ¤¤
              39-3-1103 (1982) (grand and petit larceny); 39-3-1106 (1982) (larceny from the person);
              39-3-1112,1113  (1982)  (receiving  and  concealing  stolen  property);  39-3-1118  (1982)  (fraudulent
              appropriation  by  one  having  custody);  and  39-3-1121  (1982)  (embezzlement). The  1989  Criminal
              Code  abolished  the  distinctions  among  these  various  offenses  and  denominated  them  as  the  single
              offense  of  "theft". Tenn.  Code. Ann.  ¤  39-14-101  (1997). 
                      In  order  for  the  defendant  to  be  convicted  of  theft,  the  state  must  prove  that  the  defendant,
              acting  Ōwith  intent  to  deprive  the  owner  of  property,  .  .  . knowingly  obtain[ed]  or  exercise[d]  control
              over  the  property  without  the  owner's  effective  consent.Ķ Tenn  Code  Ann.  ¤  39-14-103.
                      In  order  for  the  defendant  to  be  convicted  of  forgery,  the  state  must  prove  the  defendant
              Ōforge[d]  a  writing  with  intent  to  defraud  or  harm  another.Ķ Tenn.  Code  Ann.  ¤  39-14-114(a). 
                      The  evidence  clearly  shows  that  someone  forged  HawksÕ  signature  to  the  Avis  agreement  and
              committed  theft  by  unlawfully  obtaining  the  automobile  and  exercising  control  over  it  long  after  the



                                                               -4- lease  expired. The  only  real  issue  in  this  case  is  whether  the  state  proved  the  defendantÕs  identity  as
              the  perpetrator. We  conclude  the  defendantÕs  identity  was  sufficiently  established. 
                      The  defendant  was  identified  as  the  person  in  possession  of  the  fraudulent  driverÕs  license
              which had his picture on it, but other information identifying Hawks.  The forensic document
              examiner  testified  that  the  signatures  on  the  driverÕs  license  and  Avis  rental  agreement  matched  the
              handwriting  of  the  defendant. The  jury  could,  therefore,  conclude  that  the  defendant  was  the  person
              who forged the Avis agreement and obtained the automobile.  The jury could  also reasonably
              conclude  that  the  defendant  obtained  the  automobile  by  Ōdeception,Ķ  thereby  establishing  that  he  did
              not  have  AvisÕ  Ōeffective  consentĶ  to  have  the  vehicle.  See  Tenn.  Code  Ann.  ¤  39-11-106(9)(A).  The
              jury  could  further  conclude  that  the  defendant  unlawfully  exercised  control  over  the  automobile  both
              immediately  after  the  taking  and  after  the  rental  period  terminated. 
                      This  issue  is  without  merit.


                                                      III. SENTENCING

                      The  defendant  challenges  both  the  length  and  consecutive  nature  of  his  sentences. For  the
              offense  of  theft  over  $10,000,  a  Class  C  felony,  the  defendant  was  sentenced  as  a  Range  III  persistent
              offender  to  the  maximum  term  of  15  years.  For  the  offense  of  forgery,  a  Class  E  felony,  the  defendant
              was  sentenced  to  six  years  as  a  career  offender. We  see  no  reason  to  disturb  the  sentences  imposed
              by  the  trial  court.

              A. Standard  of  Review

                      This  courtÕs  review  of  the  sentence  imposed  by  the  trial  court  is  de  novo  with  a  presumption
              of correctness.  Tenn. Code Ann. ¤ 40-35-401(d).  This presumption is conditioned upon an
              affirmative  showing  in  the  record  that  the  trial  judge  considered  the  sentencing  principles  and  all
              relevant  facts  and  circumstances. State  v.  Ashby,  823  S.W.2d  166,  169  (Tenn.  1991). If  the  trial
              court  fails  to  comply  with  the  statutory  directives,  there  is  no  presumption  of  correctness  and  our
              review  is  de  novo. State  v.  Poole,  945  S.W.2d  93,  96  (Tenn.  1997).

              B. Length  of  Sentences

                      In his brief, the defendant contends he Ōtakes issue with the length of the sentences.Ķ
              However, he offers no argument about or reference to enhancement or mitigating factors.
              Furthermore,  he  does  not  challenge  the  trial  courtÕs  determinations  that  he  was  a  persistent  offender
              with  regard  to  the  offense  of  theft  over  $10,000,  and  a  career  offender  with  regard  to  the  offense  of
              forgery. The  defendant  had  at  least  15  prior  felony  convictions. We  also  note  that  six  years  was  the
              only  possible  punishment  for  the  Class  E  felony  of  forgery  as  a  career  offender.  See  Tenn.  Code  Ann.
              ¤  40-35-108(c). We  see  no  reason  to  disturb  the  length  of  each  sentence. 



                                                               -5- C. Consecutive  Sentencing

                      The  defendant  further  alleges  error  in  the  imposition  of  consecutive  sentences.  The  trial  court
              applied  multiple  convictions  factor  one  (professional  criminal)  and  factor  two  (extensive  record  of
              criminal  activity). See  Tenn  Code  Ann.  ¤  40-35-115(b)(1),  (2). Defendant  claims  that  there  is  no
              evidence  that  he  was  a  professional  criminal,  but  he  overlooks  his  testimony  during  the  sentencing
              hearing. When  asked  if  his  career  was  identity  theft,  he  replied  that  it  was  his  career  Ōat  that  present
              time.Ķ He  went  on  to  explain  that  he  was  in  the  business  of  producing  fraudulent  driverÕs  licenses
              and  had  a  contact  in  the  department  of  motor  vehicles  who  assisted  him. The  record  shows  that
              defendant,  age 31, had been convicted  of at least 15 felonies  since the age of 18.  Thus, it is
              abundantly  clear  that  he  has  an  extensive  history  of  criminal  activity,  which  alone  makes  consecutive
              sentencing  proper.
                      Specific  findings  that  an  extended  sentence  is  necessary  to  protect  society  and  is  reasonably
              related  to  the  severity  of  the  offenses  are  prerequisites  to  consecutive  sentencing  under  the  Ōdangerous
              offenderĶ  category  in  Tenn.  Code  Ann.  ¤  40-35-115(b)(4).  State  v.  Wilkerson,  905  S.W.2d  933,  939
              (Tenn.  1995). However,  such  specific  factual  findings  are  not  required  for  the  other  categories  of
              Tenn.  Code  Ann.  ¤  40-35-115(b).  State  v.  Lane,  3  S.W.3d  456,  461  (Tenn.  1999). Nevertheless,  the
              general  principles  of  sentencing  require  that  the  length  of  sentence  be  Ōjustly  deserved  in  relation  to
              the  seriousness  of  the  offenseĶ  and  Ōbe  no  greater  than  that  deserved  for  the  offense  committed.Ķ  Id.

              at  460  (citing  Tenn.  Code  Ann.  ¤¤  40-35-102(1)  and  103(2)).
                      We  conclude  the  trial  court  properly  exercised  its  discretion  when  it  sentenced  the  defendant
              to  consecutive sentences, for an effective sentence of 21 years.  Furthermore, we find that the
              aggregate  sentence  was  justly  deserved  and  was  no  greater  than  that  deserved  for  the  offenses  the
              defendant  committed. See  Lane,  3  S.W.3d  at  460. 
                      This  issue  is  without  merit.


                                                      IV. CONCLUSION

                      Based  upon  the  foregoing,  we  hold  there  was  sufficient  evidence  to  sustain  defendantÕs
              convictions  for  theft  over  $10,000  and  forgery,  and  the  trial  court  correctly  sentenced  the  defendant.
              Thus,  the  judgment  of  the  trial  court  is  affirmed.

                       . 
                                                                    ___________________________________ 
                                                                    JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  July  11,  2001

                 STATE  OF  TENNESSEE  v.  COURTNEY  ANDERSON

                   Direct  Appeal  from  the  Criminal  Court  for  Shelby  County
            No.  97-09924,  97-01093-97,  97-08272-73,  97-09654-60  Joseph  B.  Dailey,  Judge


                    No.  W2000-02071-CCA-R3-CD  -  Filed  August  13,  2001



         The  Appellant,  Courtney  Anderson,  was  indicted  by  a  Shelby  County  Grand  Jury  on  multiple  counts
         of  theft  of  property,  forgery,  and  one  count  of  misdemeanor  possession  of  a  handgun.  Under  the
         terms  of  a  plea  agreement,  Anderson  pled  guilty  to  a  reduced  number  of  the  charged  offenses  and
         was  sentenced  to  an  extended  term  in  the  Department  of  Correction. The  resulting  convictions
         reflect  class  C,  D  and  E  grade  felony  offenses. The  trial  court  found  Anderson  to  be  a  career
         offender  for  all  convictions  and  ordered  consecutive  sentences.  In  this  appeal,  Anderson  contends
         that  the  effective  sentence  imposed  by  the  trial  court  is  excessive. After  review,  we  find  that
         AndersonÕs  designation  as  a  career  offender  for  the  class  C  felony  convictions  was  error.
         Furthermore,  we  are  unable  to  reconcile  the  effective  sentence  pronounced  by  the  trial  court  with  the
         sentences  reflected  by  the  judgment  of  conviction  documents  presented  on  appeal.  Accordingly,  we
         remand  for  clarification  or  correction  of  the  sentence  imposed  and  for  resentencing  on  the  class  C
         felony  convictions.


             Tenn.  R.  App.  P.  3;  Judgment  of  the  Criminal  Court  Reversed  and  Remanded.

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH,  J.  and  ALAN  E.
         GLENN,  J.,  joined.
         William  L.  Johnson,  Memphis,  Tennessee,  for  the  Appellant,  Courtney  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  Kim  R.
         Helper,  Assistant  Attorney  General;  Amy  Weirich,  Assistant  District  Attorney  General,  for  the
         Appellee,  State  of  Tennessee.



                                                                -2- OPINION
                                                      Factual  Background

                       During  the  eleven-month  period  between  April  1996  and  February  1997,  the  Appellant,  by
               means  of  forgery,  fraudulently  obtained  personal  credit  cards,  cash,  jewelry,  car  rentals,  apartment
               leases  and  other  numerous  services  and  property. See  Appendix  A. As  a  result  of  these  unlawful
               activities,  the  Appellant  was  indicted  by  a  Shelby  County  Grand  Jury  on  eight  counts  of  felony  theft
               of  property,  seventeen  counts  of  forgery  and  one  count  of  misdemeanor  possession  of  a  handgun  in
               a  public  place. The  Appellant proceeded  to  trial  on  one  count  of  class  C  theft  and  one  count  of
               forgery. Following  his  jury  conviction  for  these  offenses,  he  received  consecutive  sentences  of
               fifteen  years  for  theft  as  a  persistent  offender  and  six  years  for  forgery  as  a  career  offender. See
               Appendix  A  (97-08497;  97-08498). After  his  convictions  were  affirmed  by  this  court  on  direct
               appeal,  the  Appellant  negotiated  a  plea  agreement  on  the  remaining  charges. See  State  v.  Coutney
               Anderson,  No.W2000-00244-CCA-R3-CD  (Tenn.  Crim.  App.  at  Jackson,  Jan.  30,  2001).
                       Prior to the sentencing hearing, the State filed notice of its intent to seek enhanced
               punishment  Ōas  a  multiple  offender  pursuant  to  Tenn.  Code  Ann.  ¤  40-35-106,  a  persistent  offender
               pursuant  to  Tennessee  Code  Annotated,  40-35-108,  as  applicable.Ķ Attached  to  the  notice  was  a
               compilation  of  the  AppellantÕs  prior  record  of  indictments  with  the  dates  and  courts  of  conviction.
               In  addition,  the  State  attached  to  this  form  supporting  documents  which  included  the  respecitve
               indictment  and  judgment  of  conviction  for  each  listed  conviction.  We  note,  however,  that  the  StateÕs
               compiled  list  of  convictions  cannot  be  reconciled  with  the  supporting  documents,  e.g.,  the  number
               of  convictions  and  the  class  of  convictions  are  in  dispute  and  a  number  of  the  indictments  are  not
               supported  by  proof  of  a  conviction. See  Appendix  B.
                       A  sentencing  hearing  was  held  on  July  21,  2000. The  following  colloquy  occurred  at  the
               hearing.
                       ASSISTANT  DISTRICT  ATTORNEY:  .  .  . According  to  my  records,  he  should  be
                       facing  sentencing  today  on  ten  E  felonies. ItÕs  the  StateÕs  position  that  he  is  career
                       on  those;  six  D  felonies;  four  C  felonies;  and  one  A  misdemeanor. And,  again,
                       according  to  the  proof  that  we  have  submitted,  he  would  be  career  on  all those
                       felonies.
                       COURT:  Including  the  C  felonies?
                       ASSISTANT  DISTRICT  ATTORNEY:  Yes.
                       .  .  .
                       COURT:  .  .  .Do  you  take  issue  to  that,  Mr.  Johnson?



                           1  Generally,  failure  to  timely  object  to  an  error  at  trial  precludes  review  of  the  error  on  a  ppeal. See  Tenn.  R.
                  App.  P.  36(a);  see  also  Waterhouse  v.  Perry,  260  S.W.2d  176  (Tenn.  1953)  (a  party  cannot  complain  of  a  situation  as
                  error  when  he,  himself,  created  the  situation). The  error  cannot  be  ignored  or  considered  waived,  however,  when  the
                  error  results  in  an  illegal  sentence. Ō[A]  judgment  imposed  by  a  trial  court  in  direct  contravention  of  express  statutory
                  provisions  regarding  sentencing  is  illegal  and  is  subject  to  being  set  aside  at  any  time,  even  if  it  has  become  final.Ķ  State
                  v.  Mahler,  735  S.W.2d  226,  228  (Tenn.  1987)  (citing  State  v.  Burkhart,  566  S.W.2d  871,  873  (Tenn.  1978).

                                                                          -3- MR.  JOHNSON:  No,  Your  Honor,  we  have  had  an  opportunity  to  count  them  and  we
                           counted  them  again  this  morning  to  make  sure  that  we  had  them  all  covered. We  do
                           not  take  issue  with  that,  Your  Honor.1


                           COURT:  So  thereÕs  no  question,  then,  that  on  his  four  C  felonies  he  will  receive  15
                           years  at  60  percent;  his  six  D  felonies,  12  years  at  60  percent  in  each  one;  and  his  ten
                           E  felonies,  six  years  at  60  percent;  and  on  the  A  misdemeanor,  11  months,  29  days
                           is  going  to  be  the  sentence  on  that  based  on  his  prior  record. So  the  only  question
                           remaining  is  whether  they  are  to  be  served  concurrently  or  consecutively  or  some
                           combination  thereof.
                           At  the  conclusion  of  the  hearing,  the  trial  court  found  the  Appellant  to  be  a  career  offender
                  for  all  class  C,  D,  and  E  felony  convictions. The  record  confirms  the  trial  courtÕs  finding  that  the
                  Appellant  is  a  career  offender  with  respect  to  the  class  D  and  E  felonies.
                           With  respect  to  class  C  felonies,  a  defendant  may  be  sentenced  as  a  Ōcareer  offender,Ķif  he
                  has  Ō[a]ny  combination  of  six  (6)  or  more  class  A,  B,  or  C  prior  felony  convictions.Ķ Tenn.  Code
                  Ann.  ¤  40-35-108(a)(1). Our  review  of  the  record  indicates  that  the  Appellant  has  only  three  prior
                  class  C felony convictions. See  Appendix B.  Because the Appellant was found to be a career
                  offender  for  all  class  C  felony  convictions,  no  sentencing  hearing  was  conducted  as  the  maximum
                  sentence  for  the  offense  was  the only  sentence  available. Accordingly,  on  remand,  a  sentencing
                  hearing  will  be  necessary  to  determine  the  AppellantÕs  appropriate  sentence  as  a  range  III,  persistent
                  offender,  with  respect  to  the  class  C  felonies.
                           At  the  conclusion  of  the  sentencing  hearing,  the  trial  court  initially  imposed  an  effective
                  sentence of Ō171 years and 11 months and  29 days.Ķ  This sentence was later modified to Ōan
                  effective  sentence  of  168  years,  11  months  and  29  days,  based  upon  the  StateÕs  recalculat[ion]Ķ  of
                  the  sentences. On  appeal,  the  Appellant  asserts  that  he  was  sentenced  to  Ō168  years  11  months  29
                  days  consecutive  to  21  years  for  a  total  of  189  years  and  29  days. The  State,  on  appeal,  contends  that
                  the  trial  court  sentenced  the  Appellant  Ōto  serve  an  effective  sentence  of  162  years  11  months  and
                  29  days.Ķ Our  calculation  from  the  record  before  us  suggests  the  Appellant  received  an  effective
                  sentence  of  141  years  11  months  29  days. See  Appendix  A. To  further  compound  the  confusion,
                  the  State  announced  at  the  sentencing  hearing  that  the  Appellant  was  entering  21  guilty  pleas,  i.e.,

                  ten  E  felonies,  six  D  felonies,  four  C  felonies  and  one  A  misdemeanor. On  appeal,  the  State  asserts
                  that  the  Appellant  Ōpled  guilty  to  at  least  19  offenses.Ķ The  State  acknowledged,  however:



                                                                -4- There  are  only  19  judgment  forms  in  the  technical  record.  (I,  1-47;  122-140).  Based
                       solely on those judgment forms, the State calculates that AndersonÕs effective
                       sentence is properly calculated at 141 years, 11 months, 29 days, taking into
                       consideration  the  concurrent  and  consecutive  sentences  on  such  judgment  forms. If
                       case  numbers  97-09658  &  59  are  two  cases  Anderson  was  previously  tried  and  found
                       guilty  on,  as  indicated  in  page  8  of  the  sentencing  hearing  transcript,  obviously  they
                       will  not  affect  this  sentence. However,  if  those  case  numbers  are  a  part  of  this  plea,
                       as  indicated  on  pp.2  and  3  of  the  sentencing  hearing  transcript,  and  the  judgment
                       forms  were  left  out  of  the  record,  they  could  change  the  above  calculation.

                                                        CONCLUSION

                       For  the  foregoing  reasons,  we  find  that  the  AppellantÕs  classification  as  a  career  offender  for
               his  class  C  felony  convictions  was  error. Furthermore,  we  are  unable  to  determine  from  the  record
               the  number  of  convictions  entered  in  this  case  or  the  effective  sentence  arising  from  the  convictions.
               Accordingly,  we  remand  for  clarification  or  correction  of  the  respective  sentences  imposed  and  for
               resentencing  with  respect  to  the  AppellantÕs  class  C  felony  convictions.




                                                                     ___________________________________ 
                                                                     DAVID  G.  HAYES,  JUDGE



                                                                -5- APPENDIX  A
                                      Current  Offenses  as  Sentenced  by  the  Trial  Court
                                  (As  grouped  by  the  prosecutor  at  the  sentencing  hearing)

               Group  1


                Case  #         Date           Offense        Class          Sentence       Manner
                97-01093      7-2-00         Theft           D              12  years        Consecutive

                97-01094      7-2-00         Theft           D              12  years        Consecutive

                97-01095      7-2-00         Forgery        E               6  years         Consecutive

                97-01096      7-2-00         Forgery        D              12  years        Consecutive

                97-01097      7-2-00         Forgery        D              12  years        Consecutive

               Group  2


                97-06852      7-2-00         Forgery        E               6  years         Concurrent
                                                                                                    97-06853

                97-06853      7-2-00         Forgery        E               6  years         Concurrent
                                                                                                    97-06852

                97-06854      7-2-00         Forgery        E               6  years         Consecutive

                97-06855      7-2-00         Forgery        D              12  years        Consecutive

                97-06856      7-2-00         Forgery        E               6  years         Consecutive

                97-06857      7-2-00         Theft           E               6  years         Consecutive


               Group  3


                97-08272      7-2-00         Forgery        E               6  years         Consecutive

                97-08273      7-2-00         Forgery        D              12  years        Consecutive



                                                                -6- Group  4


                97-09654      7-2-00         Theft           C               15  years        Concurrent
                                                                                                    97-09655

                97-09655      7-2-00         Forgery        C               15  years        Concurrent
                                                                                                    97-09654

                97-09656      7-2-00         Forgery        E               6  years         Consecutive

                97-09657      7-2-00         Forgery        E               6  years         Consecutive

                97-09660      7-2-00         Forgery        E               6  years         Consecutive

               Group  5


                97-09924      7-2-00         Possession
                                                  Weapon        A
                                                                  misdemeanor  11  months  29
                                                                                   days            Consecutive


               Prior  convictions  stemming  from  jury  trial  but  occurring  within  the  same  time-frame  as  Groups  1
               through  5


                97-08497      12-3-99        Forgery        E               6  years         Consecutive

                97-08498      12-3-99        Theft           C               15  years        Consecutive



                                                                -7- APPENDIX  B
                                                    Prior  Criminal  History
                Case  #                            Offense                                            Class
                93-01620                         Motor  Vehicle  -  Habitual                          E

                92-11377                         Theft  over  $1,000                                  D

                Illegible  Case  Number           Forgery                                            E

                ***                               Forgery                                            E

                92-11375                         Forgery  over  $500                                 E

                92-11374                         Forgery  over  $500                                 E

                92-11373                         Forgery  over  $500                                 E

                92-02804                         Theft  over  $10,000                                C

                92-02803                         Theft  over  $1,000                                  D

                90-12843                         Theft  over  $10,000                                C

                93-00146                         Theft  over  $1,000                                  D

                90-13173                         Theft  over  $1,000                                  D

                90-16350                         Forgery  over  $500                                 E

                90-16351                         Forgery  over  $500                                 E

                90-16352                         Forgery  over  $500                                 E

                90-16353                         Forgery                                            E

                *** 92-02802                    Indictment  charges  theft  over  $10,000             C

                Indiana  Charge                  Forgery
                       ***  We  did  not  consider  these  indictments,  as  no  judgment  sheets  were  found  in  the  record
               to  reflect  whether  a  conviction  was  entered.



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  June  13,  2001

                   JERRY  ANDERSON  v.  STATE  OF  TENNESSEE

                    Direct  Appeal  from  the  Criminal  Court  for  Lake  County
                          No.  00-CR-8071  Lee  Moore,  Judge


                     No.  W2000-03141-CCA-R3-CO  -  Filed  June  26,  2001


         Petitioner  appeals  the  denial  by  the  trial  court  of  his  writ  of  habeas  corpus  and  writ  of  certiorari.
         Petitioner  contended  in  his  petition  that  he  previously  pled  guilty  in  the  Criminal  Court  of  Madison
         County  to  the  offenses  of  facilitation  of  first  degree  murder,  conspiracy  to  commit  especially
         aggravated  robbery,  and  arson,  and  received  an  effective  sentence  of  60  years.  He  further  contended
         that  court  did  not  have  jurisdiction  to  try  him  as  an  adult;  his  rights  to  double  jeopardy  were  violated
         as  a  result  of  his  transfer  to  the  Criminal  Court;  and  he  received  ineffective  assistance  of  trial
         counsel.  On  appeal,  he  claims  the  trial  court  erred  in  dismissing  his  petition  without  appointing
         counsel,  without  conducting  a  hearing,  and  by  failing  to  make  findings  of  fact  and  conclusions  of
         law.  We  affirm  the  judgment  of  the  trial  court. 

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

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  NORMA  MCGEE  OGLE,  J.,  and
         CORNELIA  A.  CLARK,  SP.  J.,  joined.
         Jerry  Anderson,  Tiptonville,  Tennessee,  Pro  Se.

         Paul  G.  Summers,  Attorney  General  and  Reporter;  Laura  McMullen  Ford,  Assistant  Attorney
         General;  and  C.  Phillip  Bivens,  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                 BACKGROUND

             Petitioner,  while  a  juvenile,  was  charged  with  first  degree  murder,  conspiracy  to  commit
         especially  aggravated  robbery  and  arson.  On  July  10,  1996,  the  Juvenile  Court  of  Madison  County
         conducted  a  transfer  hearing  and  transferred  him  to  the  Criminal  Court  of  Madison  County  to  be  tried
         as  an  adult.  On  January  20,  1998,  petitioner  pled  guilty  to  facilitating  first  degree  murder,  conspiracy
         to  commit  especially  aggravated  robbery,  and  arson,  and  received  an  effective  sentence  of  60  years.



                                                                -2- He  alleges  in  the  present  petition  that  on  May  2,  2000,  he  filed  a  petition  for  post-conviction
               relief  in  the  Criminal  Court  of  Madison  County,  which  petition  was  dismissed  based  upon  the  statute
               of  limitations.  Apparently,  petitioner  did  not  appeal  the  dismissal  of  his  petition  for  post-conviction
               relief. 
                       On  October  5,  2000,  he  filed  the  instant  petition  seeking  habeas  corpus  relief  in  the  Criminal
               Court  of  Lake  County,  the  county  of  his  incarceration. In  the  alternative,  petitioner  sought  a  writ  of
               certiorari  relating  to  the  actions  of  the  Juvenile  Court  and  Criminal  Court of  Madison County.
               Specifically,  petitioner  alleged  that  the  Criminal  Court  of  Madison  County  lacked  jurisdiction  to  try
               him  as  an  adult;  his  right  against  double  jeopardy  was  violated  by  the  transfer  from  Juvenile  Court
               to  Criminal  Court;  and  he  was  deprived  of  the  effective  assistance  of  counsel. The  trial  court
               concluded that the petitioner's allegations did not merit habeas corpus or certiorari relief and
               dismissed  the  petition  without  a  hearing  or  appointment  of  counsel. 
                       We  affirm  the  judgment  of  the  trial  court. 


                                                      HABEAS  CORPUS

                       Article  I,  ¤  15  of  the  Tennessee  Constitution  guarantees  the  right  to  seek  habeas  corpus  relief.
               Tenn.  Code  Ann.  ¤¤  29-21-101  et  seq.  codifies  the  applicable  procedures  for  seeking  a  writ. While
               there  is  no  statutory  time  limit  in  which  to  file  for  habeas  corpus  relief,  Tennessee  law  provides  very
               narrow  grounds  upon  which  such  relief  may  be  granted. Taylor  v.  State,  995  S.W.2d  78,  83  (Tenn.
               1999). A  habeas  corpus  petition  may  be  used  only  to  contest  void  judgments  which  are  facially
               invalid  because  (1)  the  convicting  court  was  without  jurisdiction  or  authority  to  sentence  a  defendant;
               or  (2)  defendantÕs  sentence  has  expired. Archer  v.  State,  851  S.W.2d  157,  164  (Tenn.  1993). 
                       PetitionerÕs primary contention is that the Criminal Court of Madison County lacked
               jurisdiction  to  try  him  as  an  adult  since  he  had  been  put  in  jeopardy  at  the  juvenile  hearing. Thus,
               he  claims  his  right  against  double  jeopardy  was  violated.  In  order  to  secure  habeas  corpus  relief,  the
               lack  of  jurisdiction  must  appear  upon  the  face  of  the  judgment  or  in  the  record  of  the  case  in  which
               the  judgment  was  rendered. State  v.  Ritchie,  20  S.W.3d  624,  630-31  (Tenn.  2000). Regardless  of
               whether  habeas  corpus  is  a  proper  method  to  attack  the  transfer  from  a  juvenile  court,  petitioner  in
               this  case  has  failed  to  allege  facts  entitling  him  to  relief. 
                       Petitioner  alleged  that  jeopardy  attached  in  the  juvenile  hearing  because  the  juvenile  judge
               heard  testimony  from  various  witnesses  concerning  the  facts  of  the  charges. He,  therefore,  argues
               that  the  case  was  heard  on  its  merits. In  order  to  properly  conduct  a  transfer  hearing  to  ascertain
               probable  cause,  it  is  necessary  for  the  juvenile  judge  to  hear  facts  surrounding  the  charges.  See  Tenn.
               R.  Juv.  P.  24. There  is  no  double  jeopardy  violation  where  the  juvenile  court  judge  hears  testimony
               in  order  to  determine  probable  cause  to  transfer  the  juvenile  to  criminal  court. See  Shanta  Fonton
               McKay  v.  State  of  Tennessee,  No.  M2000-00016-CCA-R3-PC,  2000  WL  1606587,  *3  (Tenn.  Crim.
               App.  filed  October  27,  2000,  at  Nashville),  perm  to  app.  denied  (Tenn.  2001);  State  of  Tennessee



                                                                -3- v.  James  Hyde,  No.  02C01-9710-CC-00420,  1999  WL  460072  (Tenn.  Crim.  App.  filed  July  8,  1999,
               at  Jackson),  perm.  to  app.  denied  (Tenn.  1999). 
                       Petitioner  also  contended  in  his  petition  that  he  was  deprived  of  the  effective  assistance  of
               counsel  in  the  trial  court.  This  claim  was  waived  by  the  failure  to  timely  file  a  petition  seeking  post-conviction 
                          relief. Habeas  corpus  is  not  the  appropriate  vehicle  to  challenge  ineffective  assistance
               of  counsel. See  Passarella  v.  State,  891  S.W.2d  619,  627-28  (Tenn.  Crim.  App.  1994). 
                       Petitioner  next  argues  the  trial  court  erred  in  dismissing  the  petition  without  a  hearing  and
               without  appointing  counsel. We  disagree. A  petition  for  habeas  corpus  relief  may  be  summarily
               dismissed  if  it  is  apparent  from  the  petition  that  the  petitioner  would  not  be  entitled  to  any  relief.
               Tenn.  Code  Ann.  ¤  29-21-109;  Passarella,  891  S.W.2d  at  627. Likewise,  the  court  need  not  appoint
               counsel  if,  upon  the  face  of  the  petition,  there  are  no  grounds  for  relief. See  Earl  Thomas  Mitchell,
               Jr.  v.  Howard  Carlton,  Warden,  No.  03C01-9704-CR-00125,  1998  WL  8505,  at  *2  (Tenn.  Crim.
               App.  filed  January  12,  1998,  at  Knoxville). 
                       In  addition,  petitioner  argues  the  trial  court  erred  by  dismissing  the  petition  without  making
               findings  of  fact  and  conclusions  of  law  pursuant  to  Tenn.  Code  Ann.  ¤  40-30-206(f).  Firstly,  the  trial
               court  issued  a  two-page  order  in  which  it  analyzed  all  claims  for  relief  being  sought  by  the  petitioner
               and  concluded  as  a  matter  of  law  that  the  petition  should  be  dismissed. Secondly,  Tenn.  Code  Ann.
               ¤  40-30-206(f)Õs  requirement  to  set  forth  conclusions  of  law  only  applies  to  petitions  for  post-conviction 
                          relief,  not  habeas  corpus  petitions. 


                                                   WRIT  OF  CERTIORARI

                       Petitioner  finally  contends  the  trial  court  erred  in  dismissing  his  request  for  certiorari  review.
               In  the  petition  he  asked  the  Criminal  Court  of  Lake  County  to  review  by  certiorari  the  actions  of  the
               Juvenile  Court  and  Criminal  Court  of  Madison  County  relating  to  his  transfer  to  be  tried  as  an  adult.
               The  Criminal  Court  of  Lake  County  does  not  have  the  authority  to  review  by  certiorari  the  actions
               of  the  Juvenile  Court  or  Criminal  Court  of  Madison  County.  See  generally  Tenn.  Code  Ann.  ¤  27-8-
               101. 


                                                        CONCLUSION

                       Based  upon  a  thorough  review  of  the  record,  we  affirm  the  judgment  of  the  trial  court. 



                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



                           1  The  petitionerÕs  na  me  is  spelled  ŌJeffrey  Ķ  in  some  plead  ings  and  ŌJeffery  Ķ  in  others. IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                                                 AT  JACKSON

                                                    Assigned  on  Briefs  April  11,  2001

                               JEFFREY  LYNN  ANDERSON  v.  STATE  OF  TENNESSEE

                                        Direct  Appeal  from  the  Criminal  Court  for  Dyer  County
                                          Nos.  C99-2,  C99-3,  C99-4    J.  Steven  Stafford,  Judge


                                          No.  W2000-01782-CCA-R3-PC -  Filed  April  27,  2001


                  The  petitioner originally  pled  guilty  to  felony  reckless  endangerment,  evading  arrest  in  a  motor
                  vehicle,  and  two  counts  of  theft  over  $1,000.  The  petitioner  sought  post-conviction  relief,  which  was
                  denied  by  the  post-conviction  court. In  this  appeal,  the  petitioner  contends  his  trial  counsel  provided
                  ineffective  assistance  of  counsel. After  a  thorough  review  of  the  record,  we  conclude  that  the  post-conviction 
                               court  correctly  denied  post-conviction  relief. 


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

                  JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ROBERT
                  W.  WEDEMEYER,  JJ.,  joined.
                  Danny  H.  Goodman,  Jr.,  Dyersburg,  Tennessee,  for  the  appellant,  Jeffrey  Lynn  Anderson.
                  Paul  G.  Summers,  Attorney  General  and  Reporter;  Kim  R.  Helper,  Assistant  Attorney  General;
                  and  C.  Phillip  Bivens,  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                                                      OPINION

                           This  is  an  appeal  from  the  denial  of  post-conviction  relief. The  petitioner  originally  pled
                  guilty  on  April  23,  1999,  to  felony  reckless  endangerment,  evading  arrest  in  a  motor  vehicle,  and  two
                  counts  of  theft  over  $1,000.  1 He  also  agreed  to  a  revocation  of  probation  on  other  cases. In  all,  he
                  received  an  agreed  effective  sentence  of  seven  years. The  petitioner  appeals  the  denial  of  post-conviction 
                               relief,  claiming  that  his  trial  counsel  provided  ineffective  assistance  of  counsel. We
                  affirm  the  judgment  of  the  post-conviction  court. 



                                                                -2- FACTS

                       At  the  post-conviction  hearing,  the  petitioner  testified  that  he  was  a  paranoid  schizophrenic
               when  he  pled  guilty  to  these  crimes.  He  further  testified  that  while  awaiting  trial  in  jail,  he  attempted
               suicide. The  petitioner  conceded  that  he  received  a  mental  evaluation  from  Pathways  Healthcare  in
               October 1998, but asserted that trial counsel should have secured another  mental evaluation.
               Furthermore,  the  petitioner  stated  he  could  not  understand  the  plea  offer  because  of  his  schizophrenic
               mental  condition.
                       The  record  reveals  that  subsequent  to  the  October  1998  mental  evaluation,  the  trial  court
               ordered  a  thirty-day  inpatient  mental  evaluation.  See  Tenn.  Code  Ann.  ¤  33-7-301(a).  However,  the
               Department  of  Mental  Health,  pursuant  to  the  statute,  declined  to  conduct  an  inpatient  evaluation
               since  the  October  1998  evaluation  did  not  recommend  an  inpatient  evaluation. See  id. Thus,  a
               further  mental  evaluation  was  not  performed. 
                       Jim  Horner,  the  District  Public  Defender,  testified  that  the  defendant  received  a  mental
               evaluation  from  Pathways  in  October  1998,  which  found  the  defendant  was  competent  to  stand  trial
               and  that  the  insanity  defense  was  unsupportable.  Horner  further  testified  that  he  discussed  available
               options  with  the  defendant,  and  he  recommended  that  the  defendant  accept  the  plea  offer  of  an
               effective  seven-year  sentence  as  a  Range  I  offender,  which  was  the  minimum  sentence  for  which  the
               defendant  was  eligible  if  properly  sentenced  as  a  Range  II  offender. Horner  stated  that  he  did  not
               further  seek an inpatient mental evaluation after it was denied and lacked knowledge that the
               defendantÕs  suicide  attempt  occurred  after  his  mental  evaluation  by  Pathways. It  was  HornerÕs
               further  opinion  that  the  petitioner  could  offer  no  viable  defense  to  the  charges,  and  that  he  should
               accept  the  plea  offer.
                       Tod  Taylor,  the  Assistant  District  Public  Defender,  testified  that  he  personally  met  with  the
               defendant  at  least  three  times  to  discuss  his  case. Taylor  did  not  recall  whether  the  defendant
               informed  him  of  his  suicide  attempt. However,  Taylor  asserted  that  the  defendant  pled  guilty
               voluntarily.


                                       INEFFECTIVE  ASSISTANCE  OF  COUNSEL
               A. Standard  of  Review

                       The  court  reviews  a  claim  of  ineffective  assistance  of  counsel  according  to  the  standards  of
               Baxter  v.  Rose,  523  S.W.2d  930  (Tenn.  1975),  and  Strickland  v.  Washington,  466  U.S.  668,  104
               S.Ct.  2052,  80  L.Ed.2d  674  (1984). The  appellant  has  the  burden  to  prove  that  (1)  the  attorneyÕs
               performance  was  deficient,  and  (2)  the  deficient  performance  resulted  in  prejudice  to  the  petitioner
               so  as  to  deprive  him  of  a  fair  trial. Strickland  v.  Washington,  466  U.S.  at  687,  104  S.Ct.  at  2064;
               Goad  v.  State,  938  S.W.2d  363,  369  (Tenn.  1996).



                                                                -3- B. Analysis

                       The  defendant  asserts  that  his  trial  attorneys  were  ineffective  because  they  failed  to  obtain
               an  inpatient  mental  evaluation,  as  was  ordered  by  the  court,  and  they  allowed  the  defendant  to  plead
               guilty  despite  his  mental  condition. We  respectfully  disagree.
                       The  post-conviction  court  entered  extensive  findings  of  fact.  The  post-conviction  court  noted
               that  following  the  October  1998  mental  evaluation,  Pathways  submitted  a  letter  stating  the  defendant
               was  competent  to  stand  trial  and  that  an  insanity  defense  could  not  be  supported. The  court  further
               found  that  there  was  no  basis  for  granting  an  additional  evaluation,  even  if  the  defendant  had
               requested  one. Additionally,  the  post-conviction  court  found  that  the  petitioner  failed  to  establish
               that  he  was  incompetent  at  the  time  of  the  plea. Accordingly,  the  post-conviction  court  found  that
               the  petitioner  did  not  establish  that  his  trial  attorneys  were  deficient,  and  further  failed  to  establish
               any  prejudice. 
                       The  trial  judge's  findings  of  fact  on  post-conviction  hearings  are  conclusive  on  appeal  unless
               the  evidence  preponderates  otherwise. State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999). The  trial
               courtÕs  findings  of  fact  are  afforded  the  weight  of  a  jury  verdict,  and  this  Court  is  bound  by  the  trial
               courtÕs  findings  unless  the  evidence  in  the  record  preponderates  against  those  findings. Henley  v.
               State,  960  S.W.2d  572,  578  (Tenn.  1997);  Alley  v.  State,  958  S.W.2d  138,  147  (Tenn.  Crim.  App.
               1997).  This  Court  may  not  reweigh  or  reevaluate  the  evidence,  nor  substitute  its  inferences  for  those
               drawn  by  the  trial  judge. Henley,  960  S.W.2d  at  578-79;  Massey  v.  State,  929  S.W.2d  399,  403
               (Tenn.  Crim.  App.  1996). Questions  concerning  the  credibility  of  witnesses  and  the  weight  and
               value  to  be  given  to  their  testimony  are  resolved  by  the  trial  court,  not  this  court. Burns,  6  S.W.3d
               at  461. The  burden  of  establishing  that  the  evidence  preponderates  otherwise  is  on  petitioner.
               Henley,  960  S.W.2d  at  579. 
                       In  this  case,  the  evidence  fully  supports  the  findings  of  the  post-conviction  court. Petitioner
               has  failed  to  establish  deficient  performance  of  trial  counsel  and  has  failed  to  establish  prejudice  as
               a  result  of  their  performance. Thus,  this  issue  is  without  merit.


                                                     VOLUNTARY  PLEA

                       Although not  specifically  argued on appeal,  petitioner  contended  at  his  post-conviction
               hearing  that his guilty  plea was involuntary.  The post-conviction court found no evidence of
               incompetency,  and  the  record  supports  this  conclusion. Furthermore,  our  examination  of  the  guilty
               plea  proceeding  reveals  that  the  trial  court  meticulously  advised  the  petitioner  of  his  constitutional
               rights  and  insured  that  the  plea  was  voluntary. The  petitioner  offered  no  evidence  at  the  post-conviction 
                           hearing,  other  than  his  blind  assertion,  to  contradict  the  presumption  that  his  plea  was
               voluntarily  entered. The  petitioner  is  not  entitled  to  relief  on  this  basis.



                                                                -4- CONCLUSION

                       We conclude that the  petitioner has failed to demonstrate  that he received ineffective
               assistance  of  counsel,  or  that  his  guilty  plea  was  involuntarily  entered. Accordingly,  the  judgment
               of  the  trial  court  is  affirmed.

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                          Assigned  on  Briefs  April  25,  2001

                  STATE  OF  TENNESSEE  v.  KENNETH  ANDERSON

                    Appeal  from  the  Circuit  Court  for  Montgomery  County
                        No.  40129  Robert  W.  Wedemeyer,  Judge


                     No.  M2000-00754-CCA-R3-CD  -  Filed  May  31,  2001


         The  Defendant,  Kenneth  Anderson,  appeals  as  of  right  from  the  revocation  of  his  probation  by  the
         trial  court.  On  appeal,  he  asserts  that  the  trial  court  erred  by  ordering  him  to  serve  the  balance  of  his
         sentence  in  incarceration  after  finding  that  he  had  violated  his  probation.  We  find  no  error;  thus,  we
         affirm  the  judgment  of  the  trial  court.

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

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  NORMA  MCGEE  OGLE  and  ALAN
         E.  GLENN,  JJ.,  joined.
         Gregory  D.  Smith,  Clarksville,  Tennessee,  for  the  appellant,  Kenneth  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Peter  M.  Coughlan,  Assistant  Attorney  General;
         Mike  McCowen,  District  Attorney  General;  and  C.  Daniel  Brollier,  Jr.,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             On  August  12,  1999,  the  Defendant  pled  guilty  to  aggravated  burglary  and  received  an  eight
         year  sentence  as  a  Range  II  offender,  to  be  served  on  probation.  On  November  18,  1999,  the  State
         filed  a  violation  of  probation  warrant  against  the  Defendant,  alleging  that  he  had  violated  his
         probation  by  (1)  failing  to  obey  all  laws;  (2)  failing  to  report  all  arrests;  (3)  failing  to  maintain
         employment;  (4)  failing  to  obtain  permission  before  leaving  Tennessee;  (5)  failing  to  report  to  his
         probation  officer;  and  (6)  failing  to  pay  court  costs.  After  a  probation  revocation  hearing  on  March
         10,  2000,  the  trial  judge  found  that  the  Defendant  had  violated  his  probation  and  ordered  the
         Defendant  to  serve  his  eight  year  sentence  in  incarceration.
             A  trial  judge  is  vested  with  the  discretionary  authority  to  revoke  probation  if  a  preponderance
         of  the  evidence  establishes  that  a  defendant  violated  the  conditions  of  his  or  her  probation.  Tenn.
         Code  Ann.  ¤¤  40-35-310,  -311(e);  State  v.  Mitchell,  810  S.W.2d  733,  735  (Tenn.  Crim.  App.  1991).



                                                                -2- The  trial  judge  must,  however,  adduce  sufficient  evidence  during  the  probation  revocation  hearing
               to  allow  him  or  her  to  make  an  intelligent  decision. See  Mitchell,  810  S.W.2d  at  735.
                       When  a  probation  revocation  is  challenged,  the  appellate  courts  have  a  limited  scope  of
               review. For  an  appellate  court  to  be  warranted  in  finding that  a  trial  judge  abused  his  or  her
               discretion  by  revoking  probation,  it  must  be  established  that  the  record  contains  no  substantial
               evidence  to  support  the  trial  judgeÕs  conclusion  that  a  probation  violation  occurred,  and  that  because
               of  the  violation,  probation  should  be  revoked. See  State  v.  Harkins,  811  S.W.2d  79,  82  (Tenn.
               1991);  State  v.  Stubblefield,  953  S.W.2d  223,  226  (Tenn.  Crim.  App.  1997). 
                       After  a  review  of  the  transcript  of  the  DefendantÕs  probation  revocation  hearing,  we  are
               unable  to  conclude  that  no  substantial  evidence  supports  the  trial  judgeÕs  conclusion  that  a  probation
               violation  occurred. At  the  hearing,  the  State  established  that  the  Defendant  stopped  reporting  to  his
               probation  officer  after  his  first  two  visits. Since  being  placed  on  probation,  the  Defendant  was
               arrested  for  writing  a  bad  check,  shoplifting,  and  simple  possession  of  marijuana.  He  failed  to  report
               any  of  these  arrests  to  his probation  officer. The  shoplifting  arrest  resulted  in  a  conviction  in
               Christian  County,  Kentucky,  which  was  proved  by  a  certified  copy  of  the  conviction  from  Christian
               County. That  conviction  also  served  as  the  basis  for  the  allegation  that  the  Defendant  left  Tennessee
               without  permission. A  Clarksville  police  officer  testified  about  arresting  the  Defendant  on  an
               outstanding  warrant  for  writing  a  bad  check  and  subsequently  finding  a  small  marijuana  cigarette  in
               the  DefendantÕs  ashtray. The  officer  testified  that  the  marijuana  resulted  in  a  conviction  for  simple
               possession  of  a  controlled  substance,  and  a  certified  copy  of  the  general  sessions  judgment  was
               entered  into evidence, reflecting that the Defendant pled guilty to the offense.  However, the
               Defendant  had  not  signed  that  judgment,  and  defense  counsel  argued  that  it  was  invalid  on  its  face.
               The  Defendant  asserted  that  he  did  not  pled  guilty  to  simple  possession,  but  he  also  admitted  that  the
               police  officer  found  the  marijuana  in  his  car. He  claimed  that  his  car  had  recently  been  in  a  repair
               shop  and  that  he  did  not  know  how  the  marijuana  got  there. The  Defendant  further  testified  that  the
               bad  check  was  written  in  January  of  1999,  before  he  pled  guilty  to  the  instant  offense,  and  that  the
               charge was dismissed  because  the  check  had  been  disposed  of  in  a  prior  agreement  involving
               multiple  bad  checks. He  said  that  he  did  not  report  this  arrest  to  his  probation  officer  because  he
               thought  the  matter  had  already  been  resolved. Nevertheless,  the  Defendant  admitted  that  he  was
               arrested  for  shoplifting  in  Kentucky,  that  he  pled  guilty  to  that  offense,  and  that  he  did  not  report  the
               arrest  and  conviction  to  his  probation  officer. He  explained  that  he  was  in  Kentucky  because  the
               stores  in  Kentucky  are  closer  to  his  home  than  the  stores  in  Tennessee. The  Defendant  said  that  he
               called  his  probation  officer  after  he  missed  one  appointment,  but  he  did  not  contact  her  after  that
               because  he  was  afraid  she  had  a  warrant  out  for  him  and  he  did  not  want  to  be  arrested. He  also
               admitted that he has two prior felony convictions, that he has multiple prior misdemeanor
               convictions,  and  that  he  violated  his  probation  on  other  convictions  on  more  than  one  occasion. 
                       Considering this evidence, especially the DefendantÕs admissions  that he violated his
               probation,  we  conclude  that  there  was  more  than  enough  evidence  for  the  trial  judge  to  intelligently
               determine  that  the  Defendant  violated  his  probation.  Upon  finding  a  violation  of  probation,  the  trial
               judge  clearly  had  the  discretionary  authority  to  revoke  the  DefendantÕs  probation  and  order  him  to



                                                                -3- serve  his  sentence  in  incarceration. See  Tenn.  Code  Ann.  ¤¤  40-35-310,  311(e);  State  v.  Hunter,  1
               S.W.3d  643,  647  (Tenn.  1999). We  find  no  abuse  of  discretion. We  thus  find  no  error  with  the
               revocation  of  the  DefendantÕs  probation. 
                       The  Defendant also asserts on appeal that his appointed counsel was ineffective at his
               revocation hearing because counsel failed to subpoena or notify defense witnesses; failed to
               subpoena  records;  and  failed  to  prepare  for  the  hearing. He  asks  this  Court  to  grant  him  a  new
               hearing  in  which  he  can  present  evidence. However,  while  a  defendant  is  entitled  to  minimal  due
               process  rights  at  a  probation  revocation  hearing,  he  or  she  does  not  generally  have  a  constitutional
               right  to  counsel  at  such  a  hearing. See  Gagnon  v.  Scarpelli,  411  U.S.  778,  790  (1973);  State  v.
               Wade,  863  S.W.2d  406,  408  (Tenn.  1993);  David  Cox  v.  State,  No.  03C01-9712-CC-00532,  1999
               WL 83992, at *2 (Tenn. Crim. App.,  Knoxville, Feb. 19, 1999).  Moreover, other than bare
               allegations,  the  Defendant  has  made  no  showing  of  how  counsel  was  ineffective  or  how  counselÕs
               ineffectiveness  would  have  changed  the  outcome  of  his  revocation  hearing. To  succeed  on  a  claim
               that  his  or  her  counsel  was  ineffective,  a  defendant  bears  the  burden  of  showing  that  counsel  made
               errors  so serious that he or she was not functioning as counsel as guaranteed under the Sixth
               Amendment  and  that  the  deficient  representation  prejudiced  the  defendant  resulting  in  a  failure  to
               produce  a  reliable  result. Strickland  v.  Washington,  466  U.S.  668,  687  (1984);  State  v.  Burns,  6
               S.W.3d  453,  461  (Tenn.  1999).  At  the  hearing,  the  DefendantÕs  counsel  cross-examined  the  StateÕs
               witnesses and questioned the Defendant about the alleged probation violations.  Because the
               Defendant  admitted  probation  violations,  we  are  not  persuaded  that  any  other  actions  of  counsel
               would  have  changed  the  result  of  the  proceeding. This  issue  has  no  merit.
                       The  judgment  of  the  trial  court  is  affirmed.



                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                             December  5,  2000  Session

                   STATE  OF  TENNESSEE  v.  LEE  O.  ANDERSON

                    Direct  Appeal  from  the  Circuit  Court  for  Fayette  County
                        No.  4786-A  Jon  Kerry  Blackwood,  Judge


                    No.  W2000-00671-CCA-R3-CD  -  Filed  February  9,  2001


         The  defendant  was  found  guilty  by  a  Fayette  County  jury  of  simple  possession  of  a  controlled
         substance,  a  Class  A  misdemeanor;  delivery  of  a  controlled  substance  in  an  amount  of  .5  grams,  to
         wit  cocaine,  a  Class  B  felony;  and  delivery  of  a  controlled  substance  in  an  amount  less  than  .5  grams,
         to  wit  cocaine,  a  Class  C  felony. Tenn  Code  Ann.  ¤  39-17-417(a)  &  (c). The  defendant  was
         sentenced  to  concurrent  sentences  of  eleven  months  and  twenty-nine  days,  thirty  years,  and  fifteen
         years,  respectively,  with  fines  totaling  $4250.  The  defendant  now  brings  this  appeal  claiming  that:
         1)  the  trial  court  erred  by  denying  his  motion  in  limine  that  sought  to  preclude  the  State  from
         introducing  evidence  regarding  proof  of  the  defendantÕs  sale  of  a  controlled  substance  as  applied  to
         this  case,  2)  that  the  trial  court  erred  because  it  denied  the  defendantÕs  requests  to  charge  the  jury
         with  special  instructions  regarding  the  delivery  of  a  controlled  substance  and  simple  possession  or
         casual  exchange,  and  3)  the  trial  court  erred  by  not  granting  the  defendantÕs  motion  for  a  mistrial
         because  the  State  indicated  during  opening  statements  that  it  would  prove  that  the  defendant  had  sold
         cocaine,  and  made  repeated  references  during  trial  to  the  offense  of  sale  of  cocaine.  After  a  review
         of  the  record,  we  conclude  that  the  issues  raised  by  the  defendant  in  this  appeal  are  without  merit.
         The  judgment  of  the  trial  court  is  affirmed.

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

         JOHN  EVERETT  WILLIAMS,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  ROBERT
         W.  WEDEMEYER,  JJ.,  joined.
         C.  Michael  Robbins,  Memphis,  Tennessee,  for  the  appellant,  Lee  O.  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Lucian  D.  Geise,  Assistant  Attorney  General;
         Elizabeth  T.  Rice,  District  Attorney  General;  and  Colin  A.  Campbell,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.



                                                                -2- OPINION

                       In  July  1999,  the  defendant,  Lee  O.  Anderson,  was  indicted  by  a  Fayette  County  Grand  Jury
               on  two  counts  of  delivery  of  a  controlled  substance  less  than  .5  grams,  to  wit  cocaine,  and  one  count
               of  delivery  of  a  controlled  substance  in  an  amount  equal  to  .5  grams,  to  wit  cocaine. On  December
               1,  1999,  the  defendant  was  found  guilty  by  a  Fayette  County  jury  of  simple  possession  of  a  controlled
               substance,  a  Class  A  misdemeanor;  delivery  of  a  controlled  substance  in  an  amount  of  .5  grams,  to
               wit  cocaine,  a  Class  B  felony;  and  delivery  of  a  controlled  substance  in  an  amount  less  than  .5  grams,
               to  wit  cocaine,  a  Class  C  felony. Tenn  Code  Ann.  ¤  39-17-417(a)  &  (c). The  defendant  was
               ultimately  sentenced  to  concurrent  sentences  of  eleven  months  and  twenty-nine  days,  thirty  years,
               and  fifteen  years,  respectively,  with  fines  totaling  $4250. On  January  4,  2000,  the  defendant  filed
               a  motion  for  a  new  trial. The  motion  was  denied  on  March  20,  2000. On  March  23,  2000,  the
               defendant  filed  a  notice  of  appeal,  and  this  appeal  followed.

                                                             FACTS

                       On  November  21,  1998,  the  defendant  was  approached  by  an  undercover  police  officer  who
               was  working  as  part  of  a  drug  sting  operation  that  was  being  conducted  by  law  enforcement  officials.
               During  the  first  of  three  sales  the  defendant  made  to  the  undercover  police  officer,  the  defendant  sold
               $35  worth  of  crack  cocaine  to  the  undercover  officer,  which  was  later  tested  and  found  to  weigh  .1
               grams. 
                       On  November  25,  1998,  the  same  undercover  officer  made  contact  with  the  defendant  a
               second  time  and  asked  the  defendant  to  sell  him  $60  worth  of  crack  cocaine.  The  defendant  told  the
               undercover  officer  to  drive  his  car  to  the  same  area  where  the  defendant  had  sold  crack  cocaine  to
               the  officer  four  days  earlier.  After  a  brief  wait,  the  defendant  met  the  officer  and  sold  the  officer  $60
               worth  of  crack  cocaine. To  play  the  role  of  a  thankful  drug  user  who  appreciated  the  defendant
               getting  the  crack  cocaine  for  him,  the  undercover  officer  gave  the  defendant  some  of  the  drugs.
               When  the  crack  cocaine  was  later  tested,  it  weighed  .3  grams.
                       Finally,  on  November  28,  1998,  the  same  undercover  officer  was  flagged  down  by  the
               defendant. On  this  third  occasion,  the  defendant  and  the  undercover  officer  returned  to  the  area
               where  the  previous  two  drug  transactions  occurred. When  the  two  arrived,  the  undercover  officer
               told  the  defendant  that  he  wanted  to  buy  $100  worth  of  crack  cocaine. The  defendant  then  got  out
               of  the  undercover  officerÕs  car,  left  for  a  short  time,  and  then  returned.  When  the  defendant  returned
               with  the  crack  cocaine,  the  defendant  found  someone  else  in  the  car  with  the  undercover  officer.  The
               defendant  proceeded  to  run  the  other  person  off,  telling  that  person  that  the  undercover  officer  was
               Ōhis  customer.Ķ The  transaction  then  occurred,  ending  with  the  undercover  officer  again  giving  the
               defendant  some  of  the  crack  cocaine. When  the  crack  cocaine  was  later  tested,  it  weighed  .5  grams.
                       On  July  26,  1999,  the  defendant  was  indicted  by  a  Fayette  County  Grand  Jury  for  two  counts
               of  delivery  of  a  controlled  substance  in  an  amount  less  than  .5  grams,  to  wit  cocaine,  and  one  count
               of  delivery  of  a  controlled  substance  in  an  amount  equal  to  .5  grams,  to  wit  cocaine. The  defendant



                                                                -3- was  subsequently  arrested,  and  on  December  1,  1999,  the  defendant  was  found  guilty  by  a  Fayette
               County  jury  of  simple  possession  of  a  controlled  substance,  a  Class  A  misdemeanor;  delivery  of  a
               controlled  substance  in  an  amount  of  .5  grams,  to  wit  cocaine,  a  Class  B  felony;  and  delivery  of  a
               controlled  substance  in  an  amount  less  than  .5  grams,  to  wit  cocaine,  a  Class  C  felony. Tenn  Code
               Ann.  ¤  39-17-417(a)  &  (c). The  defendant  was  ultimately  sentenced  to  concurrent  sentences  of
               eleven  months  and  twenty-nine  days,  thirty  years,  and  fifteen  years,  respectively,  with  fines  totaling
               $4250. On  January  4,  2000,  the  defendant  filed  a  motion  for  a  new  trial. The  motion  was  denied
               on  March  20,  2000. On  March  23,  2000,  the  defendant  filed  a  notice  of  appeal,  and  this  appeal
               followed.

                                                           ANALYSIS

                                                      1. Motion  in  Limine
                       The  defendant  first  contends  that  the  trial  court  erred  by  denying  his  motion  in  limine  that
               sought  to  preclude  the  State  from  introducing  evidence  regarding  the  defendantÕs  sale  of  controlled
               substances  as  applied  to  this  case. We  do  not  agree.
               A. Standard  of  Review
                       Evidence  is  relevant  if  it  has  Ōany  tendency  to  make  the  existence  of  any  fact  that  is  of
               consequence  to  the  determination  of  the  action  more  probable  or  less  probable  than  it  would  be
               without  the  evidence.Ķ  Tenn.  Rule.  Evid.  401. Further,  the  trial  court  has  discretion  in  determining
               whether evidence meets the test for relevancy set out in Rule 401 of the Tennessee  Rules of
               Evidence. State  v.  Forbes,  918  S.W.2d  431,  449  (Tenn.  Crim.  App.  1995). It  is  also  within  the  trial
               courtÕs  discretion  to  determine  the  probative  value  and  danger  of  unfair  prejudice  regarding  the
               evidence. State  v.  Burlison,  868  S.W.2d  713,  720-21  (Tenn.  Crim.  App.  1993). Absent  a  clear
               showing that the trial court abused its discretion, this Court will not overturn a trial courtÕs
               determination  on  relevancy. State  v.  Williamson,  919  S.W.2d  69,  78-79  (Tenn.  Crim.  App.  1995).
               B. Analysis
                       The  defendant  filed  a  motion  in  limine  seeking  to  exclude,  first,  Ōany  evidence  of  the  prior
               felony  convictions  of  the  defendant  for  purposes  of  impeachment  ...  or  for  any  other  purpose  at  the
               guilt/innocence  stage  of  the  trial,Ķ  and,  second,  Ōan  order  ...  directing  that  the  State  not  introduce  any
               evidence,  direct  or  circumstantial,  documentary,  testimonial,  or  real,  as  to  an  agreed  offer  and
               acceptance  for  good  consideration  concerning  the  three  counts  of  the  indictment  alleging  unlawful
               and  knowing  delivery  of  cocaine.Ķ 
                       After  a  hearing  on  the  motion,  the  trial  court  granted  the  defendantÕs motion  in  limine
               regarding  the  defendantÕs  prior  convictions,  finding  that  Ōthe  prejudicial  effects  outweigh[ed  the]
               probative  value.Ķ While  the  defendant  argued  vehemently  that  the  ŌsaleĶ  aspects  of  the  uncharged
               crime  were  irrelevant,  and  that  the  trial  court  was  harming  the  defendantÕs  defense  strategy  by



                                                                -4- allowing  such  evidence,  the  trial  court  ultimately  denied  the  second  part  of  the  defendantÕs  motion
               in  limine  and  allowed  the  State  to  introduce  evidence  of  the  ŌsaleĶ  aspects  of  the  crimes  charged.
               The  trial  court  found  that  the  aspects  of  the  sale  were  Ōrelevant  to  the  entire  crime.Ķ The  trial  court
               stated,  however,  that  if  the  facts  of  the  case  did  not  show  the  Ōsale  aspectsĶ  of  the  charged  crimes
               to  be  relevant,  it  would  reconsider  its  decision. 
                       In  the  defendantÕs  brief,  the  defendant  again raises  the  issue  of  relevancy,  pointing  out
               Tennessee  Rule  of  Evidence  401.  The  defendant  quotes  Rule  401,  that  Ōevidence  is  relevant  ...  when
               it  makes  a  fact  of  consequence  more  or  less  probable  than  would  be  the  case  without  the  evidence.Ķ
               The  defendant  further  argues  that  the  trial  court  did  not  make  its  ruling  on  the  Ōsale  aspectĶ  portion
               of  the  motion  in  limine  based  upon  relevancy. The  motion  in  limine  hearing  transcript  reflects
               otherwise,  however. As  we  have  already  pointed  out,  the  trial  court  did  make  its  ruling  based  upon
               relevancy. When  the  trial  court  made  its  finding  of  rel  evancy,  it  found  that  both  the  sale  aspect  and
               delivery  aspect  were  intimately  related.
                       Our  review  of  the  record  supports  the  trial  courtÕs  findings. The  sales  aspects  of  the  crimes
               charged  did  in  fact  make  the  crimes  charged  more  probable  than  they  would  have  been  had  the  case
               been  tried  without  such  evidence. Further,  our  review  of  the  record  has  failed  to  yield  any  evidence
               that  the  admission  of  the  sales  aspects  of  the  crimes  charged  was  unfairly  prejudicial.  We  do  not  find
               any  abuse  of  the  trial  court  with  regards  to  this  issue. This  issue  is  without  merit. 
                                                   2. Special  Jury  Instructions
                       The  defendant  next  contends  that  the  trial  court  erred  because  it  denied  the  defendantÕs
               requests  to  charge  the  jury  with  special  instructions  regarding  the  delivery  of  a  controlled  substance,
               and  simple  possession  or  casual  exchange. We  do  not  agree. 
               Analysis
                       We  begin  our  analysis  by  noting  that  when  a  trial  court  correctly  charges  the  applicable  law,
               it  is  not  error  for  it  to  deny  all  or  any  part  of  a  special  request  as  long  as  the  charge  is  given  fully  and
               fairly. Edwards  v.  State,  540  S.W.2d  641,  649  (1976);  Tillery  v.  State,  565  S.W.2d  509,  511  (Tenn.
               Crim.  App.  1978). The  defendant  specifically  contends  that  the  trial  court  erred  when  it  failed  to
               charge  the  jury  as  requested,  and  further  contends  that  this  failure  resulted  in  a  jury  that  was  not  able
               Ōto  intelligently  assess  whether  this  was  a  casual  exchange  or  an  unlawful  delivery.Ķ 
                       The  defendant  first  requested  special  jury  instructions  regarding  the  delivery  of  a  controlled
               substance. The  trial  court  gave  a  full  and  fair  instruction  to  the  jury  on  the  delivery  of  a  controlled
               substance. However,  the  court  did  not  charge  the  jury  by  using  the  language  requested  by  the
               defendant,  that  Ōthe  State  must  have  proven  beyond  a  reasonable  doubt  that  the  defendant  had  a  pre-existing 
                        design  or  plan  to  accomplish  the  delivery.Ķ Our  review  of  the  record  indicates  that  the  trial
               court  did  charge  the  jury  with  the  requirement  that  the  State  prove  the  defendantÕs  guilt  beyond  a
               reasonable  doubt. Further,  the  trial  court  explained  the  meaning  of  reasonable  doubt. The  charge



                                                                -5- of  reasonable  doubt  was  given  prior  to  the  trial  court  setting  forth  jury  instructions  on  the  specific
               crimes  alleged,  and  in  the  body  of  the  jury  instructions  of  the  specific  crimes  alleged. Further,  the
               trial  court  gave  a  full  and  fair  explanation  of  the  meaning  of  beyond  a  reasonable  doubt  prior  to
               giving  instructions to  the  jury  on  the  crimes  the  defendant  was  alleged  to  have  committed. 
                       Having  found  no  problems  regarding  the  first  portion  of  the  language  specifically  requested
               by  the  defendant,  we  turn  our  attention  to  the  second  part  of  the  language  the  defendant  specifically
               requested  that  the  trial  court  charge  the  jury  with. The  defendant  specially  requested  that  the  trial
               court  charge  the  jury  with  language  that  delivery  could  only  be  found  if  the  State  proved  Ōthat  the
               defendant  had  a  pre-existing  design  or  plan  to  accomplish  the  delivery.Ķ The  trial  court  was  correct
               in  denying  this  charge  to  the  jury. The  Tennessee  Legislature  has  defined  delivery  as  Ōthe  actual,
               constructive,  or  attempted  transfer  from  one  person  to  another  of  a  controlled  substance,  whether  or
               not  there  is  an  agency  relationship.Ķ Tenn.  Code  Ann.  ¤  39-17-402(6). Nowhere  in  this  language
               does  the  legislature  set  forth  that  delivery  can  only  be  found  if  the  State  proves  Ōthat  the  defendant
               had  a  pre-existing  design  or  plan  to  accomplish  the  delivery.Ķ Such  an  instruction  would  have  been
               incorrect. 
                       The  defendant  also  requested  special  jury  instructions  regarding  simple  possession  or  casual
               exchange. As  with  the  trial  courtÕs  instruction  on  delivery,  the  trial  court  gave  a  full  and  fair
               instruction  to  the  jury  on  simple  possession  or  casual  exchange. The  defendant  contends,  however,
               that  the  trial  court  erred  because  it  did  not  instruct  the  jury  in  its  charge  that  a  Ōcasual  exchange  is
               a  spontaneous  passing  of  a  small  amount  of  drugs.Ķ  The  trial  court,  however,  instructed  the  jury  that
               an  ŌÔexchangeÕ  means  to  part  with,  give,  or  transfer  a  substance  in  consideration  of  something
               received  as  an  equivalent. ÔCasualÕ  means  without  design. The  term  Ôcasual  exchangeÕ  does  not
               exclude  a  transaction  in  which  money  is  involved.Ķ 
                       The  definition  of  casual  exchange  is  not  set  forth  in  Tennessee  Code  Annotated  section  39-
               17-402. Therefore  we  turn  elsewhere  for  guidance  in  determining  the  meaning  of  this  phrase.. The
               Tennessee  Supreme  Court has specifically said  that  Ō[c]asual  means  without  design.Ķ State  v.
               Helton,  507  S.W.2d  117,  120  (1974).  In  State  v.  Brown,  this  Court  set  forth  that  Ōa  casual  exchange
               is  one  that  occurs  without  design  ...  and  contemplates  a  spontaneous  passing  of  a  small  amount  of
               drugs.Ķ  State  v.  Brown,  CCA  No.  01C01-9711-CC-00518,  *5  (Tenn.  Crim.  App.  filed  September
               24,  1999,  at  Nashville). (emphasis  added). The  definition  of  a  casual  exchange  is  clear. A  casual
               exchange  is  an  exchange  that  is  without  design. 
                       The defendantÕs request for a jury instruction directing that a casual exchange Ōis a
               spontaneous  passing  of  a  small  amount  of  drugsĶ  clearly  shows  that  he  is  somewhat  confused
               regarding  the definition of what a casual exchange is, and under what circumstances a casual
               exchange  is  usually  found.  Indeed,  a  casual  exchange  may  be  inferred  when  a  small  amount  of  drugs
               is  passed,  see  Loveday  v.  State,  546  S.W.2d  822  (Tenn.  Crim.  App.  1976),  and  indeed  Ōa  common
               example  of  a  casual  exchange  is  the  spontaneous  passing  of  a  small  amount  of  drugs  at  a  party.Ķ
               State  v.  Copeland,  983  S.W.2d  703,  708  (Tenn.  Crim.  App.  1998). While  these  examples  illustrate
               when  a  casual  exchange  may  be  found,  they  are  not  the  definition  set  forth  for  a  casual  exchange.



                                                                -6- Our  review  of  this  issue  has  failed  to  show  that  the  trial  court  erred  by  not  using  the  exact
               language  requested  by  the  defendant  when  the  trial  court  charged  the  jury  with  the  law  concerning
               delivery  and  simple  possession  or  casual  exchange. The  court  did  correctly  charge  the  jury  with  the
               applicable  law,  and  the  charge  was  fully  and  fairly  given. This  issue  is  without  merit.

                                                           3. Mistrial
                       The  defendant  next  contends  that  the  trial  court  erred  by  not  granting  the  defendantÕs  motion
               for  a  mistrial  because  the  State  indicated  during  opening  statements  that  it  would  prove  that  the
               defendant  had  sold  cocaine,  and  made  repeated  references  during  trial  to  the  offense  of  sale  of
               cocaine. We  do  not  agree. 
               A. Standard  of  Review
                       The  determination  of  whether  to  grant  a  mistrial  rests  within  the  sound  discretion  of  the  trial
               court.  State  v.  Smith,  871  S.W.2d  667,  672  (Tenn.  1994). The  reviewing  court  should  not  overturn
               that  decision  absent  an  abuse  of  discretion. State  v.  Hall,  947  S.W.2d  181,  184  (Tenn.  Crim.  App.
               1997). The  burden  of  establishing  the  necessity  for  mistrial  lies  with  the  party  seeking  it. State  v.
               Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).  No abstract formula should be
               mechanically  applied  in  making  this  determination,  and  all  circumstances  should  be  taken  into
               account. State  v.  Mounce,  859  S.W.2d  319,  322  (Tenn.  1993).
               B. Analysis
                       The  defendant  contends  that  the  trial  court  erred  by  not  granting  the  defendantÕs  motion  for
               a mistrial because  the State indicated during opening  statements that it would prove that the
               defendant  had  sold  cocaine,  and  made  references  during  trial  to  the  offense  of  sale  of  cocaine. Our
               review  of  the  record  reflects  that  the  trial  court  gave  a  curative  instruction  to  the  jury,  setting  forth
               that  statements  made  by  counsel  were  not  evidence;  that  proof  would  be  shown  through  the  evidence
               presented  during  the  trial;  and  that  the  jury  was  to  disregard  statements  as  to  the  defendantÕs  guilt
               on  the  crime  of  sale  of  cocaine. As  this  Court  and  the  Tennessee  Supreme  Court  have  held  in  the
               past,  a  jury  is  presumed  to  have  followed  instructions  given  by  the  court. State  v.  Nesbit,  978
               S.W.2d  872,  885  (Tenn.  1998);  State  v.  Alvarado,  961  S.W.2d  136,  147  (Tenn.  Crim.  App.  1996).
                       The  defendant  has  failed  to  show  that  the  jury  failed  to  follow  the  curative  instruction  given
               by  the  trial  court. Further,  the  defendant  has  failed  to  carry  the  burden  of  establishing  the  necessity
               for  a  mistrial. The  trial  court  was  correct  in  issuing  a  curative  instruction  regarding  the  StateÕs
               comments  on the defendantÕs guilt as to  the sale of cocaine, and was correct in denying  the
               defendantÕs  motion  for  a  mistrial. This  issue  is  without  merit.

                                                        CONCLUSION



                                                                -7- After  a  thorough  review  of  the  record,  we  conclude  that  the  issues  set  forth  in  this  appeal  are
               without  merit. The  judgment  of  the  trial  court  is  affirmed. 


                                                                     ___________________________________ 
                                                                     JOHN  EVERETT  WILLIAMS,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                         Assigned  on  Briefs  August  21,  2001

                 STATE  OF  TENNESSEE  v.  SCOTT  RAY  ANDERSON

                    Direct  Appeal  from  the  Circuit  Court  for  Blount  County
                      Nos.  C-11636,  37,  38  D.  Kelly  Thomas,  Jr.,  Judge


                            No.  E2000-03040-CCA-R3-CD
                                September  19,  2001

         The  defendant  appeals  the  judgment  entered  by  the  Circuit  Court  of  Blount  County  revoking  his
         community  corrections  sentence.  The  sole  issue  on  appeal  is  whether  the  court  abused  its  discretion
         in  ordering  the  defendant  to  serve  the  remainder  of  his  sentence  in  the  penitentiary.  After  careful
         review,  we  affirm  the  trial  courtÕs  judgment. 

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

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and  JOHN
         EVERETT  WILLIAMS,  J.,  joined.
         Steve  McEwen,  Mountain  City,  Tennessee  (on  appeal);  Raymond  Mack  Garner,  District  Public
         Defender;  and  Shawn  G.  Graham,  Assistant  District  Public  Defender  (at  trial),  for  the  appellant,
         Scott  Ray  Anderson.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Peter  M.  Coughlan,  Assistant  Attorney  General;
         Michael  L.  Flynn,  District  Attorney  General;  and  William  R.  Reed,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                                  DISCUSSION

             The  defendant,  Scott  Ray  Anderson,  pled  guilty  to  three  charges  of  theft  of  property  over
         $1000,  a  Class  D  felony.  On  September  27,  1999,  the  trial  court  imposed  an  effective  sentence  of
         ten  years,  with  168  days  to  be  served  in  local  confinement  and  the  balance  in  community  corrections.
         After  an  eligibility  report  was  filed  with  the  court,  the  defendant  was  released  periodically  under  the
         supervision  of  the  Community  Corrections  Program  to  attend  scheduled  Alcoholics  Anonymous
         meetings  and  anger  management  classes.  The  defendant  was  released  from  jail  on  April  25,  2000,
         and  was  then  placed  in  the  ETHRA  Community  Corrections  Program  to  serve  the  remainder  of  his
         sentence. 



                           1  The  order  of  in  carceratio  n  states  that  the defend  ant  was  se  ntenced to  six  wee  kends  in jail  as  a  result  of  h  is
                  unscheduled absences. However, we note that,  at  the  revocatio  n  hearing  ,  both  the  d  efendan  t  and  his  co  mmunity
                  corrections  supervisor  testified  that  the  six-weekend  jail  sentence  was  the  result  of  his  arrest  for  aggravated  assault  on
                  August  6,  2000.

                                                                          -2- On  August  15,  2000,  the  trial  court  entered  an  order  of  incarceration  ordering  the  defendant
                  to serve six weekends in jail as a result of three unexcused absences from his day treatment
                  program.1 In  the  revocation  warrant  filed  on  October  6,  2000,  the  State  alleged  that  the  defendant
                  had  violated  the  terms  of  his  community  corrections  sentence  by: (1)  being  arrested  for  aggravated
                  assault  on  August  6,  2000;  (2)  failing  to  complete  the  six  weekends  in  jail  as  ordered  by  the  trial
                  court  on  August  15,  2000;  (3)  failing  to  maintain  employment;  (4)  failing  to  pay  court  costs;  (5)
                  failing  to pay any supervision fees; and (6)  failing to report to scheduled group  meetings since
                  September  26,  2000. The  defendant  was  arrested,  and  a  hearing  was  held  on  November  27,  2000,
                  to  determine  whether  his  community  corrections  sentence  should  be  revoked. 
                           Pat  Ballard,  the  defendantÕs  community  corrections  supervisor,  testified  that  the  defendant
                  had  been  under  her  supervision  while  in  jail  on  furloughs  and  for  four  months  after  his  release  from
                  jail  on  April  25,  2000. She  indicated  that  the  defendant  had  initially  made  significant  progress  in  the
                  program,  but  she  began  seeing  a  change  in  late  July. By  late  September,  he  had  stopped  coming  to
                  his group meetings, and the last time he had reported to her was on September 26, 2000.  The
                  defendant  failed  to  provide  her  with  any  employment  records  after  July  22,  and  had  not  paid  any
                  court costs or supervision fees.  Furthermore, she stated that, because of his new arrest for
                  aggravated  assault  on  August  6,  2000,  he  had  been  ordered  to  serve  six  weekends  in  jail. She  could
                  not  recall  how  many  weekends  the  defendant  had  actually  served  but  stated  that  he  had  not  served
                  all  of  them.  She told the court that the defendantÕs  ŌrelapseĶ was  the result of his addiction to
                  ŌhuffingĶ  paint  and  his  lack  of  focus  on  sobriety. She  believed,  however,  that  he  was  still  a  good
                  candidate  for  rehabilitation  and  recommended  that  he  be  placed  in  a  different  treatment  program
                  while  incarcerated  for  six  months  and  then  be  placed  in  a  structured  halfway  house.
                           The  defendant  also  testified  on  his  behalf  at  the  revocation  hearing. He  admitted  that  Ms.
                  BallardÕs  allegations  were  truthful,  that  he  had  been  on  probation  several  times  in  the  past,  and  that
                  his prior probation had been revoked for failure to attend his treatment meetings. He admitted
                  having  a  substance  abuse  problem  and  claimed  that  he  needed  Ōmore  structured  help.Ķ However,
                  he  recognized  that  his  prior  attempts  at  rehabilitation  had  failed. When  testifying  as  to  the  charges
                  brought against him for aggravated assault, he explained that because the charges had been
                  dismissed,  he  had  assumed  that  he  did  not  have  to  report  to  jail  after  his  third  weekend. He  could
                  not  explain  why  he  had  stopped  going  to  his  counseling  meetings,  other  than  to  say  that  he  had
                  started  ŌhuffingĶ  paint  again  and  could  not  control  his  addiction. As  for  not  paying  his  fees  and
                  costs,  the  defendant  said  that  he  had  fallen  behind  on  paying  his  debts  while  he  was  incarcerated  and,
                  later,  after  he  was  working,  he  returned  to  using  addictive  substances  Ōand  just  never  paid.Ķ
                           At  the  conclusion  of  the  hearing,  the  trial  court  revoked  the  defendantÕs  conditional  sentence,
                  finding  that  his  violations  were  significant. The  court  also  found  that  the  defendant  had  Ōdropped



                                                                -3- out  and  relapsed  and  use[d]  controlled  Đ  illegal  substances  while  on  Community  Corrections.Ķ The
               court  stated: ŌThere  just  comes  a  point  when  too  much  is  too  much. And  thereÕs  a  good  argument
               today  that  that  point  came  a  long  time  ago,  but  it  has  definitively  come  now,  if  it  hadnÕt  come  a  long
               time  ago.Ķ The  court  then  ordered  the  defendant  to  serve  his  original  jail  sentence  in  confinement
               less  time  already  served. 

                                                             ANALYSIS

                       The  defendant  argues  that  the  trial  court  abused  its  discretion  in  revoking  his  community
               corrections  sentence.  He  further  contends  that  the  court  erred  in  not  following  the  recommendations
               of  his  community  corrections  supervisor,  given  Ms.  BallardÕs  experience  and  confidence  in  his
               chances  for  success. In  light  of  the  evidence  presented,  we  find  this  argument  without  merit. 
                       The  primary  purpose  of  the  Community  Corrections  Act  of  1985  is  to  Ō[e]stablish  a  policy
               within  the  state  to  punish  selected,  nonviolent  felony  offenders in front-end  community  based
               alternatives to incarceration, thereby reserving secure confinement facilities for violent felony
               offenders[.]Ķ Tenn.  Code  Ann.  ¤  40-36-103(1)  (1997). The  program  offers  a  flexible  alternative
               beneficial  to  both  the  defendant  and  society. State  v.  Griffith,  787  S.W.2d  340,  342  (Tenn.  1990).
                       Once  the  defendant  violates  the  terms  of  his  community  corrections  sentence,  the  trial  court
               may  revoke  the  sentence  and  impose  a  new  one.  Tennessee  Code  Annotated  Section  40-36-106(e)(4)
               grants  the  trial  court  the  authority  to  resentence  a  defendant  following  the  revocation  of  the  original
               sentence. The court Ōmay resentence the defendant to any  appropriate sentencing alternative,
               including  incarceration,  for  any  period  of  time  up  to  the  maximum  sentence  provided  for  the  offense
               committed,  less  any  time  actually  served  in  any  community-based  alternative  to  incarceration.Ķ
               Tenn.  Code  Ann.  ¤  40-36-106(e)(4)  (Supp.  2000).
                       Revocation  of  a  community  corrections  sentence  occurs  upon  finding  by  a  preponderance  of
               the  evidence  that  the  defendant  has  violated  the  conditions  of  the  agreement. State  v.  Harkins,  811
               S.W.2d  79,  82  (Tenn.  1991). ŌThe  judgment  of  a  trial  court  in  this  regard  will  not  be  disturbed  on
               appeal  unless  it  appears  that  there  has  been  an  abuse  of  discretion.Ķ  Id.  For  a  reviewing  court  to  find
               an  abuse  of  discretion,  it  must  be  shown  that  the  record  contains  no  substantial  evidence  to  support
               the  trial  judgeÕs  conclusion. Id. 
                       As  the  record  clearly  shows,  the  defendant  had  been  before  the  trial  court  on  many  occasions
               since  his  substance  abuse  and  other  problems  began  at  age  fifteen. The  judge  himself  recalled
               ordering  sentences  more  lenient  than  what  the  State  had  recommended  when  the  defendant  had
               appeared  before  him. On  cross-examination,  the  defendant  acknowledged  that  he  had  spent  most
               of  his  adult  l  ife  in  custody. He  also  admitted  that  previous  probations  had  been  revoked  for  failure
               to  comply  with  the  terms  of  his  sentences.  While  acknowledging  that  he  had  an  uncontrollable  drug
               addiction  and  needed  help,  the  defendant  admitted  to  not  following  his  treatment  plans.  Perhaps,  the
               most significant testimony in this regard came from the defendantÕs community corrections



                                                                -4- supervisor  who  testified  that  he  had  made  progress  in  the  program  at  first  but  then  lost  his  focus  on
               sobriety  and  stopped  attending  his  scheduled  meetings.
                       The evidence presented and the defendantÕs own admissions demonstrate his constant
               disregard  for  the  leniency  of  the  court.  The  record  firmly  supports  the  courtÕs  determination  that  the
               defendant  failed  to  comply  with  the  terms  of  his  community  corrections  sentence.

                                                      CONCLUSION

                       We conclude that the court did not abuse its discretion in revoking the defendantÕs
               community  corrections placement and ordering him to serve the remainder of his sentence in
               confinement. Accordingly,  we  affirm  the  judgment  of  the  trial  court. 


                                                                     ___________________________________ 
                                                                     ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  February  6,  2001

                 THOMAS  ANDERSON,  JR.  v.  STATE  OF  TENNESSEE

                  Direct  Appeal  from  the  Circuit  Court  for  Williamson  County
                         No.  1299-441  Timothy  L.  Easter,  Judge


                    No.  M2000-01737-CCA-R3-PC  -  Filed  November  21,  2001


         The  petitioner  appeals  the  denial  of  post-conviction  relief  from  his  conviction  for  theft  of  property
         valued  less  than  $1000  but  greater  than  $500,  a  Class  E  felony,  arguing  that  the  post-conviction  court
         erred  in  finding  that  he  received  effective  assistance  of  trial  counsel.  After  a  careful  review  of  the
         record,  we  conclude  that  the  petitioner  failed  to  meet  his  burden  of  demonstrating  ineffective
         assistance  of  counsel.  Accordingly,  we  affirm  the  judgment  of  the  post-conviction  court. 

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

         JERRY  L.  SMITH,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and  JOE  G.
         RILEY,  JJ.,  joined.
         Judy  A.  Oxford,  Franklin,  Tennessee,  for  the  appellant,  Thomas  Anderson,  Jr.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Elizabeth  T.  Ryan,  Assistant  Attorney  General;
         Ronald  L.  Davis,  District  Attorney  General;  and  Derek  K.  Smith,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION
                             FACTUAL  BACKGROUND


             The  petitioner,  Thomas  Anderson,  Jr.,  was  indicted  with  a  codefendant,  John  Nicholas
         Patton,  on  one  count  of  automobile  burglary  and  two  counts  of  theft  over  $1000  for  stealing  two
         cameras,  cash,  and  a  leather  jacket  from  the  automobile.  As  part  of  a  plea  agreement,  Patton  testified
         on  behalf  of  the  State  at  the  petitionerÕs  trial,  relating  that  the  petitioner  had  given  him  the  cameras
         to  sell  at  a  camera  shop,  and  that  he  had  given  the  petitioner  $100  of  the  proceeds  from  the  sale.  On
         July  28,  1994,  the  petitioner  was  convicted  by  a  Williamson  County  Circuit  Court  jury  of  the  lesser-included 
              offense  of  theft  less  than  $1000  but  over  $500,  a  Class  E  felony.  The  trial  court  sentenced
         him  as  a  Range  III,  persistent  offender  to  six  years  in  the  Department  of  Correction,  imposed  an  $800



                                                                -2- fine,  and  ordered  that  he  pay  $850  in  restitution. The  petitionerÕs  conviction  and  sentence  were
               affirmed  on  direct  appeal  to  this  court.  See  State  v.  Thomas  Anderson,  No.  01C01-9504-CC-00103,
               1997  WL  781887  (Tenn.  Crim.  App.  Dec.  18,  1997),  perm.  to  appeal  denied  (Tenn.  Dec.  14,  1998).
                       On  December  14,  1999,  the  petitioner  filed  a  pro  se  petition  for  post-conviction  relief,
               alleging,  inter  alia,  that  he  was  denied  the  effective  assistance  of  trial  counsel.  On  January  26,  2000,
               following  the  appointment  of  post-conviction  counsel,  the  petitioner  filed  an  amended  petition,
               alleging  that  his  trial  counsel  was  ineffective  in  three  areas:  (1)  for  failing  to  adequately  investigate
               and  present  a  theory  of  defense;  (2)  for  failing  to  effectively  cross-examine  Patton  at  trial;  and  (3)
               for  failing  to  make  an  effective  closing  argument. Specifically,  the  petitioner  alleged  that  trial
               counsel  should  have  investigated  and  presented  evidence  to  show,  inter  alia,  that  Patton  had  sold
               cameras  to  the  same  camera  store  in  the  past,  that  he  owed  the  petitioner  money  from  their  jointly
               owned  disc  jockey  business,  and  that  the  money  the  petitioner  received  from  him  was  in  partial
               payment  of  that  business  debt. The  petitioner  further  alleged  that  trial  counsel  failed  to  cross-examine 
                        Patton  regarding  his  prior  transactions  with  the  camera  shop,  his  conflicting  stories  to  the
               police,  promises  made  in  exchange  for  his  testimony,  and  whether  he  had  been  coerced  by  the  police
               to implicate the petitioner in the crime.  Finally, the petitioner alleged that trial counsel was
               ineffective  for  failing  to  argue  PattonÕs  lack  of  credibility  and  the  lack  of  evidence  to  support  the
               conviction  in  his  closing  arguments  to  the  jury. 
                       An  evidentiary  hearing  was  held  on  June  1,  2000.  The  petitioner  testified  that  he  was
               initially  represented  by  another  lawyer. Trial  counsel  took  over  after  he  rejected  the  plea  offer  that
               the  first  lawyer  brought  him  from  the  State. He  said  that  trial  counsel  met  with  him  only  twice  to
               discuss  his  case,  and  that  on  the  several  other  occasions  he  attempted  to  talk  with  counsel,  counsel
               failed  to  return  his  phone  calls. He  estimated  the  total  time  he  spent  with  trial  counsel  as  less  than
               one  hour. He  acknowledged  on  cross-examination,  however,  that  he  had  been  able  to  tell  trial
               counsel  everything  about  his  case  that  he  thought  he  needed  to  tell  him. 
                       The  petitioner  expressed  his  dissatisfaction  at  trial  counselÕs  failure  to  expose  Patton  at  trial
               as  a  liar.  He  acknowledged  that  trial  counsel  had  done  a  Ōgood  jobĶ  of  attacking  PattonÕs  credibility,
               but  faulted  him  for  failing  to  use  Ōall  the  outletsĶ  at  his  disposal  to  show  that  Patton  was  not  a
               credible  witness.  The  petitionerÕs  primary  complaint  was  that  trial  counsel  had  not  explained  at  trial
               the  petitionerÕs  reason  for  accepting  money  from  Patton. He  said  that  he  had  informed  trial  counsel
               that  Patton  told  him  that  he  had  inherited  some  cameras  from  his  grandfather  and  had  asked  that  he
               drive  him  to  Nashville  to  sell  them. The  petitioner  said  that  he  explained  that  Patton  owed  him
               money  from  their  disc  jockey  business  and  had  agreed  to  share  the  camera proceeds  with  him  in
               exchange  for  the  ride  and  as  partial  payment  of  the  business  debt. He  testified  that  trial  counsel  had
               suggested  that  he  attempt  to  get  Patton  to  admit  to  these  facts  in  conversation  and  that  he  tape-record
               the  conversation  but  that  he  had  been  unable  to  do  so. 
                       The  petitioner  complained  that  trial  counsel  failed  to  investigate  PattonÕs  prior  dealings  with
               the  camera  shop  and  failed  to  cross-examine  him  regarding  the  money  he  owed  the  petitioner,  the
               promises  he  had  been  made  for  his  testimony,  and  whether  he  had  been  coerced  by  the  police  to



                                                                -3- implicate  the  petitioner  in  the  crimes. On  cross-examination,  however,  the  petitioner  testified  that
               he  was  not  sure  that  he  had  told  trial  counsel  that  Patton  owed  him  money. He  also  acknowledged
               that  trial  counsel  had  been  able  to  bring  out  PattonÕs  conflicting  accounts  of  the  incident,  and  the  fact
               that  his  burglary  charge  had  been  dismissed  as  part  of  his  plea  agreement.
                       Brenda  Jenkins,  the  petitionerÕs  long-time  girlfriend,  testified  that  she  had  accompanied  the
               petitioner  and  Patton  to  the  camera  shop  in  Nashville,  where  she  and  the  petitioner  had  waited  in  the
               car  while  Patton  conducted  his  business  in  the  shop. She  said  she  had  earlier  heard  Patton  mention
               that  he  owed  money  to  the  petitioner  and  had  also  heard  him  say  that  he  would  pay  the  petitioner
               when  he  went  to  Nashville. On  cross-examination,  she  testified  that  she  had  not  heard  Patton
               mention  any  specific  amount  of  money  that  he  owed. She  had  not  seen  Patton  with  any  cameras,
               neither  when  he  got  into  the  car  as  they  picked  him  up,  nor  when  he  got  out  to  go  inside  the  camera
               shop. 
                       Trial  counsel  testified  that  he  was  employed  with  the  Twenty-First  Judicial  District  Public
               DefenderÕs  Office  and  that  he  had  been  licensed  to  practice  law  since  1976. After  graduation  from
               law  school,  he  had  worked  in  private  practice  for  a  year  and  a  half  before  becoming  an  assistant
               district  attorney. After  four  and  a  half  years  as  an  assistant  district  attorney,  he  had  again  been  in
               private  practice  from  1984  until  1992,  when  he  joined  the  public  defenderÕs  office. Trial  counsel
               said  that  his  main  focus  had  been  criminal  law  and  that  he  had  handled  over  10,000  criminal  cases
               in  his  career.
                       Trial  counsel  explained  that  the  petitionerÕs  case  was  originally  assigned  to  another  lawyer
               with  the  public  defenderÕs  office,  who  handled  the  initial  review  date  and  conducted  two  extensive
               interviews  with  the  petitioner.  After  the  petitioner  rejected  the  plea  offered  by  the  State,  trial  counsel
               was  assigned  to  the  case. He reviewed  with  his  colleague  her  notes  of  the  case  and  met  with  the
               petitioner  in  person  three  or  four  times,  including  Ōat  least  an  hourĶ  right  before  trial,  for  a  total  time
               of  over  two  hours. He  also  talked  with  the  petitioner  by  phone  once  or  twice. The  fact  situation,
               he  said,  was  fairly  simple  and  did  not  require  much  time. He  could  not  recall  any  time  that  the
               petitioner  asked  to  speak  with  him  that  he  had  refused. He  said  that  he  and  the  petitioner  had  never
               had  any  difficulty  in  communicating  with  each  other  and  that  the  petitioner  had  appeared  happy  with
               his  representation. The  petitioner  had  not  made  any  complaints  to  him  and  had,  in  fact,  later  sought
               his  representation  on  another  matter. 
                       Trial  counsel  testified  that  he  had  advised  the  petitioner  against  testifying  at  trial  because  of
               his  lengthy  criminal  record. He  said  that  the  petitioner  did  not  want  to  testify  and  agreed  with  his
               defense  strategy  in  the  case,  which  consisted  of  using  Jenkins  as  a  witness  on  the  petitionerÕs  behalf,
               and  attempting  to  attack  PattonÕs  credibility. Trial  counsel  believed  that  the  first  time  that  the
               petitioner  mentioned  that  Patton  owed  him  money  was  after  Patton  testified,  during  a  break  in  the
               trial.  On  cross-examination,  he  admitted  that  the  petitioner  might  have  mentioned  earlier  that  Patton
               owed  him  money.  He  was  sure,  however,  that  he  had  not  heard  any  of  the  details  about  the  debt  or
               the  disc  jockey  business  until  that  day. Trial  counsel  said  that  he  had  not  thought  it  particularly
               relevant  that  Patton  owed  the  petitioner  money. His  belief  was  that  the  jury  convicted  the  petitioner



                                                                -4- because  of  the  evidence  that  he  had  driven  Patton  to  the  camera  store  and  shared  in  the  proceeds
               from  the  sale,  as  well  as  testimony  from  Patton  that  he  had  seen  the  petitioner  wearing  a  brown
               jacket  similar  to  the  one  that  had  been  stolen  from  the  victimÕs  automobile.
                       Trial  counsel  testified  that,  in  an  attempt  to  discredit  PattonÕs  testimony,  he  had  brought  out
               PattonÕs  prior  worthless  check  convictions,  as  crimes  of  dishonesty,  on  cross-examination. He  had
               also  attempted  to  show  that  the  petitioner  was  not  involved  by  pointing  out that it  was  Patton  who
               went  into  the  camera  store  and  negotiated  the  entire  sale,  while  the  petitioner  waited  outside. Trial
               counsel  did  not  remember  the  petitioner  having  told  him  that  Patton  had  gone  to  the  camera  store
               on  prior  occasions  and  said  that  even  if  he  had,  he  would  not  have  found  that  fact  particularly
               relevant  to  the  defense. He  said  that  the  petitioner  never  told  him  of  having  heard  a  police  officer
               say  that  Patton  had  been  coerced  into  implicating  the  petitioner  in  the  crime  and  that  if  he  had,  he
               would  have  pursued  it  at  trial. 
                       On  June  16,  2000,  the  post-conviction  court  entered  an  order  denying  the  petition  for  post-conviction 
                           relief. With  regard  to  the  petitionerÕs  first  claim  of  ineffective  assistance,  the  post-conviction 
                          court  found  that  trial  counsel  adequately  communicated  and  met  with  the  petitioner  prior
               to  trial  and  sufficiently  investigated  the  case  to  formulate  a  defense.  The  court  further  found  that
               evidence  that  Patton  owed  money  to  the  petitioner,  even  if  established,  would  not  have  altered  the
               outcome  of  the  case. On  the  petitionerÕs  second  claim  of  ineffective  assistance,  the  court  found  that
               trial  counsel  Ōaggressively  pursued  the  credibility  issues  weighing  against  Mr.  Patton  during  cross-examination,Ķ 
                              Ōstudiously  exposedĶ  his  prior  criminal  history,  Ōattacked  the  inconsistencies  in
               statementsĶ  he  had  given  the  police,  and  in  general  ŌhammeredĶ  him  regarding  his  inconsistent
               statements and Ōpotential coercions by police to implicate the Petitioner.Ķ Finally, the post-conviction 
                          court  found  that  there  was  no  evidence  to  support  the  petitionerÕs  claim  that  trial  counsel
               was  ineffective  for  making  an  inadequate  closing  argument. The  court  found  that  trial  counselÕs
               closing  argument,  contrary  to  the  petitionerÕs  allegations,  was  Ōlaced  with  referencesĶ  to  PattonÕs
               lack  of  credibility. The  court  further  found  that  trial  counsel  effectively  argued  the  juryÕs  role  as  the
               sole  judges  of  the  credibility  of  witnesses  and  Ōadequately  attacked  the  investigationĶ  of  the  police
               department  and  Ōthe  StateÕs  agreement  it  had  made  with  Mr.  Patton  in  exchange  for  his  testimony.Ķ
                       Following  the  post-conviction  courtÕs  denial  of  relief,  the petitioner  filed  a  timely  appeal  to
               this  court,  raising  the  sole  issue  of  whether  the  post-conviction  court  erred  in  finding  that  he  received
               the  effective  assistance  of  trial  counsel.
                                       POST-CONVICTION  STANDARD  OF  REVIEW
                       The  petitioner  bringing  a  post-conviction  petition  bears  the  burden  of  proving  the  allegations
               asserted  in  the  petition  by  clear  and  convincing  evidence. See  Tenn.  Code  Ann.  ¤  40-30-210(f).
               Moreover,  the  post-conviction  courtÕs  findings  of  fact  are  conclusive  on  appeal  unless  the  evidence
               preponderates  against  the  judgment.  Tidwell  v.  State,  922  S.W.2d  497,  500  (Tenn.  1996);  Campbell
               v.  State,  904  S.W.2d  594,  596  (Tenn.  1995);  Cooper  v.  State,  849  S.W.2d  744,  746  (Tenn.  1993).



                                                                -5- INEFFECTIVE  ASSISTANCE  OF  COUNSEL
                                                     A. Standard  of  Review
                       We  are  required  to  observe  the  following  standard  of  review  in  cases  alleging  ineffective
               assistance  of  counsel. When  a  petitioner  seeks  post-conviction  relief  on  the  basis  of  ineffective
               assistance,  the  petitioner  must  prove  Ōthat  (a)  the  services  rendered  by  trial  counsel  were  deficient
               and  (b)  the  deficient  performance  was  prejudicial.Ķ Powers  v.  State,  942  S.W.2d  551,  558  (Tenn.
               Crim.  App.  1996). To  satisfy  the  deficient  performance  prong  of  this  test,  the  petitioner  must
               establish that the service rendered or the advice given was below Ōthe range of competence
               demanded  of  attorneys  in  criminal  cases.Ķ Baxter  v.  Rose, 523  S.W.2d 930,  936  (Tenn.  1975).
               Furthermore, to demonstrate the prejudice required, the petitioner must show that there is a
               reasonable  probability  that,  but  for  counsel's  deficient  performance,  the  result  of  the  proceeding
               would  have  been  different. Strickland  v.  Washington,  466  U.S.  668,  694,  104  S.  Ct.  2052,  2068,
               80  L.  Ed.  2d  674  (1984). ŌBecause  a  petitioner  must  establish  both  prongs  of  the  test  to  prevail  on
               a  claim  of  ineffective  assistance  of  counsel,  failure  to  prove  either  deficient  performance  or  resulting
               prejudice  provides  a  sufficient  basis  to  deny  relief  on  the  claim.Ķ  Henley  v.  State,  960  S.W.2d  572,
               580  (Tenn.  1997). As  a  matter  of  fact,  Ōa  court  need  not  address  the  components  in  any  particular
               order  or  even  address  both  if  the  [petitioner]  makes  an  insufficient  showing  of  one  component.Ķ Id.
                                                     B. Specific  Allegations
                       The  petitioner  argues  on  appeal  that  trial  counsel  was  ineffective  for  failing  to  investigate  and
               develop  the  defense  that  would  have  explained  why  he  accepted  money  from  Patton,  namely,  that
               Patton owed him money from their disc jockey business.  He  contends that trial counsel was
               deficient  for  failing  to  investigate  and  pursue  this  defense,  failing  to  question  Patton  about  the  debt
               on  cross-examination,  and  failing  to  argue  the  defense  in  closing. The  petitioner  argues  that  were
               it  not  for  these  alleged  deficiencies  in  counselÕs  performance,  the  outcome  of  the  trial  might  have
               been  different.
                       Having reviewed the entire record in this case, including the videotapes of the post-conviction 
                           evidentiary  hearing  and  the  petitionerÕs  trial,  we  conclude  that  the  evidence  does  not
               support  the  petitionerÕs  claims  of  ineffective  assistance  of  counsel.  Trial  counsel  testified  at  the
               evidentiary  hearing  that  he  met  with  the  petitioner  at  least  three  times  prior  to  trial  and  spoke  with
               him  by  telephone  at  least  once  or  twice. In  addition,  he  reviewed  with  his  colleague  the  notes  of  her
               earlier  interviews  with  the  petitioner  and  received  and  reviewed  discovery  from  the  State. He  said
               that  the  facts  were  not  complicated  and  that  the  petitioner  agreed  with  his  defense strategy  of
               attacking  PattonÕs  credibility. The  videotape  of  the  trial  reveals  that  trial  counsel  cross-examined
               Patton  at  length  regarding  the  promises  he  had  been  made  for  his  testimony,  his  prior  inconsistent
               statements  to  the  police,  and  his  prior  convictions.  The  tape  further  reveals  that  trial  counsel  argued
               PattonÕs  lack  of  credibility,  and  the  lack  of  evidence  supporting  the  petitionerÕs  role  in  the  crime,  to
               the  jury. 
                       As  for  the  petitionerÕs  claim  that  trial  counsel  should  have  presented  evidence  that  Patton
               owed  him  money  in  order  to  explain  why  he  shared  in  the  proceeds  of  the  camera,  neither  trial



                                                                -6- counsel  nor  the  petitioner  was  able to testify  with  certainty  at  the  evidentiary  hearing  that  the
               petitioner  informed  trial  counsel  of  the  debt  prior  to  trial.  Moreover,  trial  counsel  testified  that  even
               if  the  petitioner  had  told  him  that  Patton  owed  him  money,  he  was  certain  that  the  petitioner  had  not
               given  him  any  of  the  details  that  he  provided  at  the  evidentiary  hearing. Trial  counsel  also  said  that
               he  would  not  have  found  the  mere  fact  that  Patton  owed  the  petitioner  money  particularly  relevant
               for  his  defense. This  court  does  not  second-guess  the  strategic  and  tactical  choices  made  by  trial
               counsel  relating  to  the  defense  unless  those  choices  are  shown  to  be  due  to  inadequate  preparation.
               See  Henley,  960  S.W.2d  at  579;  Hellard  v.  State,  629  S.W.2d  4,  9  (Tenn.  1982).  Here,  the  evidence
               does  not preponderate against the post-conviction courtÕs finding  that trial counsel  adequately
               investigated  the  case,  formulated  an  appropriate  defense,  effectively  cross-examined  Patton,  and
               presented  an  effective  closing  argument  to  the  jury. 
                       Furthermore,  the  petitioner  failed  to  demonstrate  that,  were  it  not  for  counselÕs  alleged
               deficiencies  in performance,  the  outcome  of  his  trial  would  have  been  different. As  the  post-conviction 
                           court  observed  in  its  order  denying  relief,  the  jury  in  this  case  obviously  accredited
               PattonÕs  testimony,  in  spite  of  trial  counselÕs  demonstration  of  the  inconsistencies  in  his  prior
               statements  to  police,  his  prior  convictions  for  crimes  of  dishonesty,  and  the  details  of  his  plea  bargain
               agreement  with  the  State. It  is  unlikely  that  evidence  that  Patton  owed  the  petitioner  money  for  a
               prior  debt  would  have  changed  the  juryÕs  verdict  in  this  case. Thus,  we  conclude  that  the  petitioner
               not  only  failed  to  demonstrate  that  counselÕs  performance  was  deficient  but  also  failed  to  show  how
               any  alleged  deficiency  in  counselÕs  performance  prejudiced  his  case. 


                                                        CONCLUSION

                       After  a  careful  review  of  the  entire  record,  we  conclude  that  trial  counsel  provided  competent
               representation  in  this  case,  and  that  the  post-conviction  court  therefore  properly  dismissed  the
               petition  for  post-conviction  relief.  Accordingly,  we  affirm  the  judgment  of  the  post-conviction  court.



                                                                     ___________________________________ 
                                                                     JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  February  6,  2001

                 STATE  OF  TENNESSEE  v.  FLOYD  ALLEN  ANGLEA 
                          AND  PHYLLIS  MAE  ANGLEA

                     Appeal  from  the  Criminal  Court  for  Sumner  County
                        No.  34-1999  Jane  W.  Wheatcraft,  Judge


                     No.  M1999-00236-CCA-R3-CD  -  Filed  July  25,  2001


         In  this  felony  drug  possession  case,  the  state  appeals  from  the  trial  courtÕs  order  suppressing  as
         evidence  all  items,  including  marijuana,  seized  during  a  search  of  the  defendantsÕ  home.  It  contends
         that  the  trial  court  erred  in  determining  that  the  affidavit  for  the  search  warrant  did  not  establish
         probable  cause  to  warrant  a  search.  Based  upon  the  record  before  us,  we  are  constrained  to  affirm
         the  trial  court.

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

         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  JOE  G.  RILEY,
         JJ.,  joined.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Todd  R.  Kelley,  Assistant  Attorney  General;
         Lawrence  Ray  Whitley,  District  Attorney  General;  and  Dee  David  Gay,  Assistant  District  Attorney
         General,  for  the  appellant,  State  of  Tennessee.
         Cynthia  M.  Fort  (on  appeal),  and  Glenn  R.  Funk  (at  trial),  Nashville,  Tennessee,  for  the  appellees,
         Floyd  Allen  Anglea  and  Phyllis  Mae  Anglea.


                                   OPINION

             The  record  indicates  that  the  genesis  of  the  search  of  the  defendantsÕ  home  was  the  traffic
         stop  and  arrest  of  Michael  Johnson  and  his  assertion  that  he  bought  the  marijuana  found  in  his  car
         from  Floyd  Anglea  on  the  day  before  at  the  defendantsÕ  home.  He  told  police  how  the  sales  were
         arranged  and  that  he  bought  marijuana  from  Floyd  Anglea  at  the  defendantsÕ  home  on  several
         occasions.  The  record  indicates  that  the  police  prepared  an  affidavit  containing  this  information  and
         also  information  regarding  the  AngleasÕ  prior  marijuana  involvement  as  shown  from  court  cases,  law
         enforcement,  and  other  informants.  A  search  warrant  was  issued.  The  state  asserts  that  probable
         cause  exists  to  justify  the  warrant  being  issued.



                           1  A  search  warrant  and  affidavit  are  contained  in  the  record  on  appeal  that  has  been  certified  by  the  trial  court
                  as  Ōdesignated  papers  on  fileĶ  in  the  trial  courtÕs  office  in  this  case. It  may  well  be  that  the  warrant  is  a  copy  of  the
                  warrant  executed  by  the  police  in  this  case  and  filed  with  the  clerk  of  the  court  hav  ing  jurisdiction  over  the  offen  se. See
                  Tenn.  R.  Crim.  P.  41  (d);  State  v.  Johnson,  854  S.W.2d  897,  900  (Tenn.  C  rim.  App.  1  993). However,  the  record  does
                  not  reflect  the  source  of  the  warrant. As  a  practical  matter,  the  burden  is  on  the  state  at  a  suppression  hearing  to  prove
                  that  a  search  wa  s  reasonab  le,  a  burden  easily  met  when  the  state  proves  that  a  search  warrant  was  issued  that  authorized
                  the  search.  This  means  that  the  warrant  is  properly  made  an  exhibit  at  the  hearing. Without  a  transcript  of  the  hearing,
                  though,  we  do  not  know  what  occurred  in  this  case.

                                                                          -2- Regardless  of  the  stateÕs  position,  we  believe  that  the  stateÕs  appeal  is  doomed  to  fail  in  this
                  case  given  the  deficiency  of  the  record. The  trial  courtÕs  order  suppressing  the  evidence  states  that
                  Ō[t]he  reasons  for  granting  the  motion  are  stated  in  detail  upon  the  record  in  open  Court  and  such
                  findings  are  to  be  incorporated  by  reference  in  this  order.Ķ Thus,  what  transpired  at  the  suppression
                  hearing  was  material  to  the  trial  courtÕs  ruling  on  the  motion  to  suppress. However,  no  transcript
                  or  other  document  exists  in  the  record  to  show  the  courtÕs  stated  reasons  at  the  suppression  hearing.
                           The  record  also  reflects  that  the  state  moved  for  the  trial  court  to  reconsider  its  findings  but
                  filed  a  notice  of  appeal  pursuant  to  Rule  3(c),  T.R.A.P.,  before  the  trial  court  ruled  on  the  motion.
                  The  trial  courtÕs  purported  order  denying  the  stateÕs  motion  to  reconsider  was  entered  three  weeks
                  after  the  state  had  filed  its  notice  of  appeal. However,  once  the  state  began  its  appeal  as  of  right  and
                  invoked  the  jurisdiction  of  the  court  of  criminal  appeals  by  filing  its  notice  of  appeal,  the  trial  court
                  had  no  jurisdiction  to  act  in  the  case,  and  its  order  denying  the  motion  to  reconsider  is  a  nullity.  See
                  State  v.  Pendergrass,  937  S.W.2d  834,  837  (Tenn.  1996);  State  v.  Cash,  867  S.W.2d  741,  747  (Tenn.
                  Crim.  App.  1993). Thus,  we  may  not  rely  upon  that  order.
                           Finally,  we  note  that  the  state  gave  notice  that  no  transcript  would  be  filed  because  it  viewed
                  the  only  issue  on  appeal  to  be  whether  the  search  warrant  affidavit  contains  sufficient  probable  cause,
                  noting that the Ōsearch warrant has been designated as part of the record for purposes of this
                  appeal.Ķ1  However,  the  fact  that  the  trial  courtÕs  ruling  was  contingent  upon  the  reasons  expressed
                  at  the  suppression  hearing  leads  us  to  believe  that  what  occurred  at  the  hearing  is  material  to  the
                  appeal.  We  note  that  the  trial  judge  ordering  the  suppression  is  the  same  judge  who  issued  the  search
                  warrant. We  are  not  at  liberty  to  look  to  documents  outside  the  record  for  reasons  for  the  change  of
                  position.
                           Under  the  foregoing  circumstances,  the  record  requires  the  following  conclusions: The  state
                  has  failed  to  present  a  complete  record  of  the  proceedings  that  occurred  in  the  trial  court  regarding
                  the  suppression  issue  as  is  required  for  proper  appellate  review. See  State  v.  Miller,  737  S.W.2d
                  556,  558  (Tenn.  Crim.  App.  1987). Absent  a  proper  record,  we  are  to  presume  the  trial  courtÕs  ruling
                  to  be  correct. See  State  v.  Jones,  623  S.W.2d  129,  131  (Tenn.  Crim.  App.  1991). Therefore,  we
                  presume  that  the  trial  courtÕs  ruling  is  supported  by  appropriate evidence  and  conclude  that  the
                  suppression  order  must  be  affirmed.


                                                                                 ___________________________________ 
                                                                                 JOSEPH  M.  TIPTON,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                             February  13,  2001  Session

              STATE  OF  TENNESSEE  v.  KENNETH  LAMONT  ANTHONY

                   Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                          No.  98-C-1985  Seth  Norman,  Judge


                     No.  M2000-00839-CCA-R3-CD  -  Filed  April  27,  2001


         The  Defendant,  Kenneth  Anthony,  was  convicted  by  a  Davidson  County  jury  of  first  degree  pre-meditated 
               murder  and  attempted  second  degree  murder.  For  these  offenses,  the  Defendant  received
         a  sentence  of  imprisonment  for  life  and  a  concurrent  sentence  of  ten  years  in  the  Tennessee
         Department  of  Correction,  respectively.  On  appeal,  the  Defendant  challenges  the  sufficiency  of  the
         evidence  with  regard  to  the  first  degree  premeditated  murder  conviction.  Finding  sufficient  evidence
         in  the  record  to  support  the  DefendantÕs  convictions,  we  affirm  the  judgment  of  the  trial  court.

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and
         ALAN  E.  GLENN,  J.,  joined.
         Richard  McGee,  Nashville,  Tennessee,  for  the  Appellant,  Kenneth  Anthony.
         Paul  G.  Summers,  Attorney  General  and  Reporter,  Glen  C.  Watson,  Assistant  Attorney  General,
         Victor  S.  Johnson,  III,  District  Attorney  General,  and  Pamela  S.  Anderson,  Assistant  District
         Attorney  General,  for  the  Appellee,  State  of  Tennessee.



                                   OPINION
                                    I.  Facts

             The  evidence  presented  to  the  jury  at  trial,  when  viewed  in  a  light  most  favorable  to  the
         prosecution,  can  be  summarized  as  follows:  At  about  1:30  a.m.  on  May  17,  1998,  Tony  Moore  and
         Teresa  Day  were  walking  together  on  the  sidewalk  on  South  Seventh  Street  in  Nashville,  Tennessee.
         The  Defendant  was  walking  on  the  same  sidewalk  but  in  the  opposite  direction.  According  to  one
         witness  who  was  sitting  on  a  porch  step  within  a  few  feet  of  the  shooting,  when  the  Defendant  met
         Moore  and  Day,  he  said,  ŌI  heard  you  was  looking  for  me,Ķ  and  began  shooting  at  Moore  and  Day.



                           1  The police  recovered  five  .25  caliber  shell  casings  at  the  scene,  and  one  additional  shell  casing  was  later
                  recovere  d  from  inside MooreÕs  blood  y  shirt.

                                                                          -2- At  least  six  shots  1  were  fired  in  rapid  succession. Moore  was  shot  once  in  the  chest  and  died  about
                  two  days  later. He  was  not  physically  able  to  give  a  statement  to  the  police  prior  to  his  death. Day
                  was  shot  in  both  knees  and  feet. She  later  identified  the  Defendant  as  the  shooter. The  witness  who
                  heard  the  DefendantÕs  statement  immediately  prior  to  the  shooting  was  also  able  to  identify  the
                  Defendant  as  the  shooter. No  weapons  were  found  in  the  possession  of  either  victim.

                                                                    II. Analysis

                           In  this  appeal,  the  DefendantÕs  sole  issue  concerns  the  sufficiency  of  the  evidence  pertaining
                  to  premeditation  by  the  Defendant,  which  is  an  element  of  the  offense  for  which  he  was  convicted.
                  The  Defendant  argues  that  the  record  contains  insufficient  evidence  for  any  rational  trier  of  fact  to
                  have  found  beyond  a  reasonable  doubt  the  essential  element  of  premeditation  by  the  Defendant  in
                  the  shooting  death  of  Tony  Moore. Following  our  careful  review  of  the  record,  we  respectfully
                  disagree.
                           When  an  accused  challenges  the  sufficiency  of  the  evidence,  an  appellate  courtÕs  standard
                  of  review  is  whether,  after  considering  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,  324  (1979);  State  v.  Duncan,  698  S.W.2d  63,  67  (Tenn.
                  1985);  Tenn.  R.  App.  P.  13(e). This  rule  applies  to  findings  of  guilt  based  upon  direct  evidence,
                  circumstantial  evidence,  or  a  combination  of  both  direct  and  circumstantial  evidence.  State  v.  Dykes,
                  803  S.W.2d  250,  253  (Tenn.  Crim.  App.  1990),  overruled  on  other  grounds  by  State  v.  Hooper,  29
                  S.W.3d  1  (Tenn.  2000).
                           In  determining  the  sufficiency  of  the  evidence,  this  Court  should  not  re-weigh  or  re-evaluate
                  the  evidence. State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990). Nor  may  this
                  Court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from  the  evidence.  State  v.  Buggs,
                  995  S.W.2d  102,  105  (Tenn.  1999);  Liakas  v.  State,  286  S.W.2d  856,  859  (Tenn.  1956). Questions
                  concerning  the  credibility  of  the  witnesses, the weight and value of  the evidence, as well as all
                  factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact. Liakas,  286  S.W.2d  at  859.
                  This Court must afford the State of Tennessee the strongest legitimate view of the evidence
                  contained  in  the  record,  as  well  as  all  reasonable  inferences  which  may  be  drawn  from  the  evidence.
                  State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992). Because  a  verdict  of  guilt  against  a  defendant
                  removes  the  presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal
                  defendant  bears  the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty
                  verdict. Id.
                           First degree murder is defined, in part, as Ōthe premeditated and intentional killing of
                  another.Ķ Tenn.  Code  Ann.  ¤  39-13-202(a)(1). ŌPremeditationĶ  is  described  as  Ōan  act  done  after
                  the exercise of reflection and judgment.Ķ  Id.  ¤ 39-13-202(d).  To find a defendant guilty of



                                                                -3- premeditated  murder,  the  jury  must  determine  that  Ōthe  intent  to  kill  was  formed  prior  to  the  act
               itselfĶ  and  that  Ōthe  accused  was  sufficiently  free  from  excitement  and  passion  as  to  be  capable  of
               premeditation.Ķ  Id.  ŌÔIntentionalÕ  refers  to  a  person  who  acts  intentionally  with  respect  to  the  nature
               of  the  conduct  or  to  a  result  of  the  conduct  when  it  is  the  personÕs  conscious  objective  or  desire  to
               engage  in  the  conduct  or  cause  the  result.Ķ Id.  ¤  39-11-302(a).
                       Because  premeditation  entails  proof  of  a  state  of  mind  about  which  there  may  be  no  direct
               evidence,  Ōcases  have  long  recognized  that  the  necessary  elements  of  first-degree  murder  may  be
               shown by circumstantial evidence.Ķ  State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).
               Premeditation  is  a  question  of  fact  to  be  determined  by  the  jury.  State  v.  Suttles,  30  S.W.3d  252,  261
               (Tenn.  2000). And,  the  jury  may  infer  premeditation  from  the  manner  and  circumstances  of  the
               killing. See  State  v.  Pike,  978  S.W.2d  904,  914  (Tenn.  1998);  State  v.  Bland,  958  S.W.2d  651,  660
               (Tenn.  1997);  State  v.  Bordis,  905  S.W.2d  214,  222  (Tenn.  Crim.  App.  1995). Our  supreme  court
               has  enumerated  several  factors  that  may  support  the  existence  of  premeditation  and  deliberation,
               including:  (1)  declarations  by  the  defendant  of  an  intent  to  kill,  (2)  evidence  of  procurement  of  a
               weapon,  (3)  the  use  of  a  deadly  weapon  upon  an  unarmed  victim,  (4)  the  particular  cruelty  of  the
               killing,  (5)  infliction  of  multiple  wounds,  (6)  preparation  before  the  killing  for  concealment  of  the
               crime,  (7)  destruction  or  secretion  of  evidence  of  the  murder,  and  (8)  calmness  immediately  after  the
               killing. State  v.  Nichols,  24  S.W.3d  297,  302  (Tenn.  2000). 
                       The jury in this case was correctly  instructed as follows concerning the definition of
               premeditation:
                              A ŌpremeditatedĶ act is one done after the exercise of reflection and
                       judgment. Premeditation  means  that  the  intent  to  kill  must  have  been  formed  prior
                       to  the  act  itself.  It  is  not  necessary  that  the  purpose  to  kill  preexist  in  the  mind  of  the
                       accused  for  any  definite  period  of  time. The  mental  state  of  the  accused  at  the  time
                       he allegedly decided to kill must be carefully  considered in order to determine
                       whether  the  accused  was sufficiently  free  from  excitement  and  passion  as  to  be
                       capable  of  premeditation. If  the  design  to  kill  was  formed  with  premeditation,  it  is
                       immaterial  that  the  accused  may  have  been  in  a  state  of  passion  or  excitement  when
                       the  design  was  carried  into  effect. Furthermore,  premeditation  can  be  found  if  the
                       decision  to  kill  is  first  formed  during  the  heat  of  passion,  but  the  accused  commits
                       the  act  after  the  passion  has  subsided. 
               See  Tenn.  Code  Ann.  ¤  39-13-202(d);  T.P.I.  -  Crim.  7.01(b).
                       In  his  brief,  the  Defendant  points  out  certain  aspects  of  the  testimony  of  several  witnesses  to
               support  his  argument  that  the  evidence  of  premeditation  is  insufficient. First,  he  notes  that  one  of
               the  eyewitnesses  to  the  shooting,  Shanika  Beard,  did  not  hear  the  Defendant  or  either  of  the  victims
               make  any  statements  prior  to  the  shooting. Secondly,  the  Defendant  points  out  that  the  eyewitness
               who  testified  that  she  heard  the  Defendant  say,  ŌI  heard  you  was  looking  for  me,Ķ  was  not  sure  of
               how  much  time  passed  between  the  statement  and  the  first  shot;  the  witness  was  also  not  sure  who
               fired  the  first  shot. Third,  the  Defendant  asserts  that  because  both  eyewitnesses  who  testified  Ōtook



                                                                -4- coverĶ  immediately  upon  hearing  the  initial  shots,  neither  could  state  whether  either  victim  was
               armed  or  whether  (if  armed)  he  or  she  may  have  fired  the  first  shots  they  heard. Finally,  the
               Defendant  claims  that  inflammatory  remarks  by  Detective  Kyle  Anderson  caused  the  jury  to  convict
               the  Defendant  of  premeditated  murder  in  the  absence  of  sufficient  evidence  of  premeditation. The
               pertinent  portion  of  Detective  AndersonÕs  testimony  is  as  follows:
                       DEFENSE  COUNSEL: Why  would  it  be  a  problem  for  her  to  talk  with  you  on  the
                       front  porch?
                       DETECTIVE  ANDERSON:  .  .  .  I  am  actually  surprised  that  you  would  ask  that.
                       But, obviously, people who live in a high-crime neighborhood, in which not
                       everybody  sees  the  police  as  their  friend,  are,  of  course,  scared  of  retribution  from
                       people  like  your  client,  for  helping  having  him  arrested. Citizens  are  not  always
                       rewarded.
                       DEFENSE  COUNSEL: So  you  would  characterize  this  place  as  a  high-crime  area?
                       DETECTIVE  ANDERSON: Yes.
                       DEFENSE  COUNSEL: Dangerous,  in  other  words?
                       DETECTIVE ANDERSON:  Well, because people like your clients are killing
                       people  there,  yes.
                       In  this  case,  the  jury  heard  evidence  from  which  they  could  reasonably  and  rationally  infer
               that  the  Defendant  acted  with  premeditation. The  Defendant  used  a  deadly  weapon. He  fired  the
               weapon  several  times  at  point-blank  range  at  the  two  victims.  The  victims  were  apparently  unarmed.
               The  Defendant  apparently  approached  the  victims  in  a  calm  manner  on  the  sidewalk,  and  when  he
               was  close  to  them  he  stated,  ŌI  heard  you  was  looking  for  me,Ķ  and  opened  fire. After  the  shooting,
               the  Defendant  left  the  scene. It  is  both  rational  and  reasonable  that  the  jury  concluded  from  the
               evidence  that  the  Defendant  shot  Tony  Moore  intentionally  and  with  premeditation. As  the  State
               points  out  in  its  brief,  the  existence  of  the  element  of  premeditation  is  a  question  for  the  jury  that  may
               be  established  by  proof  of  the  circumstances  surrounding  the  killing. Bland,  958  S.W.2d  at  660.
                       Considering  the  entire  record  in  this  case,  we  cannot  conclude  that  Detective  AndersonÕs
               comments  pertaining  to  the  high  crime  area  where  the  killing  occurred  and  the  issue  of  retribution
               affected  the  juryÕs  verdict. Detective  Anderson  was  answering  the  questions  of  defense  counsel
               when  he  made  the  allegedly  ŌinflammatoryĶ  remarks  about  people  in  the  neighborhood  fearing
               retribution  from  people  Ōlike  your  clientĶ  and  that  the  place  of  the  killing  was  a  high  crime  area
               because  Ōpeople  like  your  clients  are  killing  people  there,  yes.Ķ  Although  we  agree  with  counsel  for
               the  Defendant  that  these  comments  by  Detective  Anderson  were  not  necessary  to  fully  answer  the
               questions  asked  of  him,  we  cannot  conclude  that  these  comments  affected  the  verdict  of  the  jury.
               As stated above, there is ample evidence in the record from which a jury  could find that the
               Defendant  killed  Tony  Moore  intentionally  and  with  premeditation.


                       Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.



                                                                -5-  ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  April  11,  2001

                  STATE  OF  TENNESSEE  v.  RANDALL  ANTHONY

                   Direct  Appeal  from  the  Criminal  Court  for  Madison  County
                          No.  91-335  Donald  H.  Allen,  Judge

                      No.  W2000-02234-CCA-R3-CD  -  Filed  July  6,  2001


         In  September  1991,  the  Defendant  pled  guilty  to  aggravated  assault  and  possession  of  a  weapon  with
         intent  to  employ  it  in  the  commission  of  aggravated  assault.  The  Defendant  was  sentenced  to  six
         years  for  the  aggravated  assault  conviction  and  to  two  years  for  the  weapon  conviction. The
         sentences  were  to  run  consecutively,  for  an  effective  sentence  of  eight  years,  with  six  months  to  be
         served  in  jail  and  the  remainder  to  be  served  on  intensive  probation.  Following  several  probation
         violation  reports,  the  trial  court  revoked  the  DefendantÕs  probation.  The  Defendant  now  appeals,
         arguing  that  the  trial  court  erred  in  revoking  his  entire  eight-year  probated  sentence  when  his  six-year
         sentence  had  expired  prior  to  the  issuance  of  the  probation  revocation  warrant.  Finding  that  the
         probation  revocation  warrant  was  not  timely  filed  as  to  the  aggravated  assault  conviction,  we  reverse
         the  judgment  of  the  trial  court  revoking  the  DefendantÕs  probation  for  that  count.  Finding  that  the
         probation  revocation  warrant  was  timely  filed  as  to  the  weapons  conviction,  we  affirm  the  judgment
         of  the  trial  court  revoking  the  DefendantÕs  probation  for  that  count.

         Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Criminal  Court  Affirmed  in  Part,
                            Reversed  in  Part  and  Remanded

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN
         EVERETT  WILLIAMS,  JJ.,  joined.
         Vanessa  D.  King,  Assistant  Public  Defender,  Jackson,  Tennessee,  for  the  Appellant,  Randall
         Anthony.
         Paul  G.  Summers,  Attorney  General  and  Reporter,  Mark  E.  Davidson,  Assistant  Attorney  General,
         James  G.  Woodall,  District  Attorney  General,  R.  Leigh  Grinalds,  Assistant  District  Attorney  General
         and  Shaun  Alan  Brown,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.

                                   OPINION

             On  September  9,  1991,  pursuant  to  a  plea  agreement,  the  Defendant  pled  guilty  to  aggravated
         assault,  a  Class  C  felony,  and  to  possession  of  a  weapon  with  intent  to  employ  it  in  the  commission
         of  aggravated  assault,  a  Class  E  felony.  The  Defendant  was  sentenced  to  six  years  for  the  aggravated



                                                                -2- assault conviction and to two years for the weapon conviction.  The sentences were to run
               consecutively,  for  an  effective  sentence  of  eight  years,  with  six  months  to  be  served  in  jail  and  the
               remainder  to  be  served  on  intensive  probation. A  probation  order  was  filed  on  September  24,  1991,
               setting  out  the  conditions  of  probation  and  providing  that  Ō[t]he  expiration  of  this  probationary
               sentence  is  the  10  th  day  of  March,  1999.Ķ (emphasis  in  original). The  plea  agreement  provided  that
               the  Defendant  was  to  report  to  jail  on  October  24,  1991,  to  serve  the  six  months.
                       The  trial  court  entered  an  order  on  April  1,  1992  suspending  the  balance  of  the  six  months
               in  jail  and  granting  the  Defendant  intensive  probation.  On  June  3,  1992,  a  probation  violation  report
               was  filed  alleging  that  the  Defendant  tested  positive  for  marijuana  and  cocaine. The  probation
               officer  did  not  request  a  hearing  date  Ōpending  the  clientÕs  participation  in  out-patient  treatment  and
               to  allow  further  monitoring  of  his  behavior.Ķ On  October  7,  1992,  the  trial  court  ordered  that  the
               Defendant  be  transferred  from  intensive  probation  to  regular  probation,  effective  retroactively  to
               October  1,  1992. On  October  30,  1996,  another  probation  violation  report  was  issued  against  the
               Defendant  alleging  that  he  changed  his  residence  without  notifying  his  probation  officer  and  that  he
               failed  to  report  to  the  probation  officer. The  trial  court  issued  an  arrest  warrant  for  the  Defendant
               on  October  28,  1996,  which  was  served  on  the  Defendant  on  December  18,  1996. On  January  6,
               1997,  the  Defendant  admitted  to  absconding  in  violation  of  his  probation,  and  the  trial  court  ordered
               a  transfer  from  regular  to  intensive  probation. On  January  28,  1997,  an  additional  probation  order
               was  filed  which  again  set  the  expiration  of  the  DefendantÕs  probationary  eight-year  sentence  as
               March  10,  1999. On  March  4,  1997,  another  probation  violation  report  was  filed  alleging  that  the
               Defendant  admitted  to  using  marijuana  and  cocaine. Again,  the  DefendantÕs  probation  officer
               requested  no  court  date  Ōto  allow  client  to  try  and  obtain  treatment  .  .  .  .Ķ On  October  14,  1997,  the
               trial  court  ordered  that  the  Defendant  be  transferred  from  intensive  to  regular  probation. On  June
               22,  1998,  a  probation  violation  report  was  filed  alleging  that  the  Defendant  was  over  ninety  days
               delinquent  in  paying  his  supervision  fees. Another  probation  violation  report  was  filed  on  August
               27,  1998  alleging  that  the  Defendant  had  committed  a  domestic  assault.  On  November  5,  1998,  the
               trial  court  issued  a  warrant  for  the  DefendantÕs  arrest  after  receiving  a  probation  violation  report
               stating  that  the  Defendant  had  absconded. 
                       Eventually,  the  Defendant  was  arrested  on  the  November  5,  1998  warrant,  and  the  trial  court
               conducted  a  probation  revocation  hearing  on  September  5,  2000. At  the  hearing,  Jim  Midyett,  the
               DefendantÕs  probation  officer,  testified  that  in  November  1998,  the  Defendant  was  classified  as  an
               absconder. According  to  MidyettÕs  records,  July  14,  1998  was  the  last  time  that  the  Defendant
               reported  to  probation. Midyett  also  testified  that  the  Defendant  had  not  paid  his  supervision  fees.
                       Jimmy  Collins,  the  DefendantÕs  stepfather,  testified  that  he  has  known  the  Defendant  since
               1980  or  1981. Collins  testified  that  the  Defendant  has  a  drinking  problem  and  that  the  Defendant
               should  receive  long-term  drug  treatment  rather  than  incarceration. 
                       The  Defendant  testified  at  his  probation  revocation  hearing. When  asked  why  he  stopped
               reporting  to  his  probation  officer,  the  Defendant  replied,  ŌWell,  actually,  it  was  mostly  I  was  just  Đ
               I  was  getting  drunk  and  staying  drunk  and  doing  drugs  and  just  my  stupidity.Ķ At  the  time  he  was



                                                                -3- arrested,  the  Defendant  was  working  maintenance  at  the  Payless  Motel. The  Defendant  admitted,
               ŌI  did everything  IÕve been accused of.Ķ The Defendant testified that he wanted help for his
               alcoholism. 
                       The  trial  court  revoked  the  DefendantÕs  probation  after  a  hearing  on  September  5,  2000,
               finding  that  the  Defendant  failed  to  report  and  failed  to  pay  supervision  fees.  The  trial  court  ordered
               that  the  Defendant  serve  his  effective  eight-year  sentence  in  the  Department  of  Correction,  with
               credit  for  jail  time  actually  served. 
                                                           ANALYSIS
                       A  trial  court  may  revoke  a  sentence  of  probation  if  it  determines  by  a  preponderance  of  the
               evidence  that  the  conditions  of  probation  have  been  violated.  Tenn.  Code  Ann.  ¤  40-35-311(e).  The
               decision  to  revoke  probation  is  in  the  sound  discretion  of  the  trial  judge. State  v.  Mitchell,  810
               S.W.2d  733,  735  (Tenn.  Crim.  App.  1991).  The  judgment  of  the  trial  court  will  be  upheld  on  appeal
               unless  there  has  been  an  abuse  of  discretion. State  v.  Grear,  568  S.W.2d  285,  286  (Tenn.  1978);
               State  v.  Williamson,  619  S.W.2d  145,  146  (Tenn.  Crim.  App.  1981). To  find  an  abuse  of  discretion
               in  a  probation  revocation  case,  an  appellate  court  must  determine  that  the  record  is  void  of  any
               substantial  evidence  that  would  support  the  trial  courtÕs  decision  that  a  violation  of  the  conditions
               of  probation  occurred.  Grear,  568  S.W.2d  at  286;  State  v.  Delp,  614  S.W.2d  395,  398  (Tenn.  Crim.
               App.  1980).  Proof of a probation violation is sufficient if it allows the trial court to make a
               conscientious  and  intelligent  judgment. State  v.  Milton,  673  S.W.2d  555,  557  (Tenn.  Crim.  App.
               1984). In  State  v.  Lewis,  917  S.W.2d  251  (Tenn.  Crim.  App.  1995),  this  Court  held: 
                       The  trial  court  may  exercise  its  authority  over  a  suspended  sentence  Ōat  any  time
                       within  the  maximum  time  which  was  directed  and  ordered  by  the  court  for  such
                       suspension.Ķ  Tenn.  Code  Ann.  ¤  40-35-310.  If  a  petition  to  revoke  is  initiated  within
                       the  term  of  the  sentence,  any  limitation  of  the  time  within  which  to  act  is  tolled.
               Id.  at  256. Moreover,  when  a  Defendant  is  on  probation  on  two  consecutive  sentences  and  violates
               his  probation  before  completion  of  the  first  term,  the  trial  court  has  the  authority  to  revoke  all
               probation  and  order  service  of  the  original  sentences.  See  State  v.  Hunter,  1  S.W.3d  643,  646  (Tenn.
               1999). 
                       In  revoking  the  DefendantÕs  probation,  the  trial  court  stated  that  the  Defendant  has  Ōviolated
               the  terms  and  conditions  of  his  probation  in  a  substantial  way,  those  being  that  heÕs  not  reported  as
               directed.Ķ  The Defendant concedes that the trial court had sufficient grounds to revoke his
               probation;  however,  he  argues  that  the  trial  court  did  not  have  authority  to  do  so  because  one  of  his
               sentences  had  ended  before  the  probation  revocation  warrant  was  issued.  Specifically,  the  Defendant
               argues  that he had  already  served  his  six-year  sentence  for  aggravated  assault  before  the  final
               probation  revocation  warrant  was  issued  and  that  the  trial  court  therefore  only  had  authority  to
               revoke  his  probation  for  the  remaining  two-year  sentence. We  agree.



                           1  The  judgment  for  count  one  indicates  that  the  Defendant  was  sentenced  to  Ō6  yearsĶ  TDOC  with  probation  for
                  Ō5  Years  6  Months.Ķ

                           2  We  note  that  even  if  we  ŌtollĶ  the  running  of  the  six-year  sentence  from  the  date  of  the  first  warrant  until  the
                  trial  court  ruled  on  that  warrant,  this  would  only  ŌextendĶ  the  Defend  antÕs  sentence  a  pproximately  85  days,  res  ulting  in
                  the  second  warrant  still  being  untimely  filed.

                                                                          -4- The  Defendant  was  convicted  on  September  9,  1991  of  aggravated  assault  and  possession
                  of  a  weapon  with  intent  to  use  it  in  the  commission  of  an  assault. The  Defendant  was  sentenced  to
                  six  years  for  aggravated  assault  and  to  two  years  for  weapon  possession. It  was  clearly  stated  in  the
                  original  probation  order  that  the  probation  would  not  expire  until  March  10,  1999.  However,  the  two
                  sentences  were  to  be  served  consecutively,  for  an  effective  sentence  of  eight  years,  which  explains
                  the  date  of  March  10,  1999  as  the  date  that  probation  would  expire. Although  it  is  not  entirely  clear
                  from  the  record,  it  does  appear  that  at  the  time  the  Defendant  entered  his  guilty  pleas,  the  trial  court
                  intended  that  the  aggravated  assault  sentence  in  count  one  would  be  served  first. We  reach  this
                  conclusion  primarily  because  the  six-month  jail  sentence  is  impliedly  part  of  the  judgment  pertaining
                  to  count  one.1 Because  the  Defendant  was  ordered  to  report  to  jail  on  October  24,  1991,  it  stands  to
                  reason that this would be as a result of the conviction in count one, and therefore he would be
                  serving  the  sentence  in  count  one  first. Thus,  it  is  logical  to  conclude  that  had  all  gone  as  planned,
                  the  DefendantÕs  probation  for  the  aggravated  assault  conviction  was  to  expire  on  March  10,  1997,
                  followed  by  two  more  years  of  probation  for  the  weapon  conviction.
                           As is often the case, all did not go as planned.  The  Defendant received two probation
                  violation  reports  before  a  probation  violation  warrant  was  filed  on  December  19,  1996. This  warrant
                  was  disposed  of  when  the  trial  court  entered  a  new  probation  order  on  January  28,  1997. However,
                  the trial court did not revoke the DefendantÕs probation.  The Defendant received four more
                  probation  violation  reports  after  this  new  order. On  November  5,  1998,  more  than  six  years  from
                  the  beginning  of  the  six-year  sentence  for  the  aggravated  assault  conviction,  a  probation  violation
                  warrant  was  issued  alleging  that  the  Defendant  had  absconded. This  warrant  was  timely  filed  before
                  the  expiration  of  the  DefendantÕs  probation  for  the  weapons  possession  conviction,  but  not  before
                  the  expiration  of  the  DefendantÕs  probation  for  the  aggravated  assault  conviction.  Therefore,  the  trial
                  court  had  authority  only  to  revoke  the  DefendantÕs  probation  on  the  weapons  possession  conviction
                  based  on  the  warrant  filed  on  November  5,  1998.
                           The  State  argues  in  its  brief  that  the  filing  of  probation  revocation  reports  sufficiently  tolled
                  the  running  of  the  DefendantÕs  sentence for  the aggravated assault conviction.  We respectfully
                  disagree. However,  we  agree  with  the  StateÕs  argument  that  the  expiration  of  a  term  of  probation
                  is  stayed  by  the  filing  of  a  violation  warrant,  and  the  probationary  term  remains  in  effect  until  the
                  trial  court  rules  on  the  violation  warrant. State  v.  Clark,  970  S.W.2d  516,  518  (Tenn.  Crim.  App.
                  1998). In  this  case,  there  were  only  two  warrants  filed. The  first  warrant  was  filed  and  ruled  upon
                  within  the  six-year  probated  sentence  for  the  aggravated  assault  charge.2 The  trial  court  did  not
                  extend  the  term  of  probation  for  that  conviction. The  second  warrant  was  filed  after  the  six-year
                  probated  sentence  for  the  aggravated  assault  conviction  had  expired,  but  prior  to  the  expiration  of
                  the  two-year  probated  sentence  for  the  weapon  conviction. 



                                                                -5- We  reverse  the  trial  courtÕs  revocation  of  probation  in  count  one  and  affirm  the  trial  courtÕs
               revocation  of  probation  in  count  two. The  case  is  remanded  to  the  trial  court  for  the  entry  of  an
               appropriate  amended  order  requiring  the  Defendant  to  serve  only  the  two-year  sentence  in  count  two
               in  the  Tennessee  Department  of  Correction.
                       Accordingly, the  judgment  of  the  trial  court  is REVERSED  IN  PART,  AFFIRMED  IN
               PART,  and  REMANDED.






                                                                     ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                             October  16,  2001  Session

              STATE  OF  TENNESSEE  v.  MICHAEL  JOSEPH  ARBUCKLE

                     Appeal  from  the  Criminal  Court  for  Sumner  County
                         No.  325-1999  Jane  Wheatcraft,  Judge


                    No.  M2000-02885-CCA-R3-CD  -  Filed  December  5,  2001


         A  Sumner  County  jury  convicted  the  Defendant,  Michael  Joseph  Arbuckle,  of  one  count  of  driving
         under  the  influence,  one  count  of  driving  under  the  influence,  per  se,  and  one  count  of  driving  under
         the  influence,  second  offense.  Following  a  sentencing  hearing,  the  trial  court  merged  the  convictions
         and  sentenced  the  Defendant  to  eleven  months  and  twenty-nine  days,  with  all  but  sixty  days
         suspended.  In  this  appeal,  the  Defendant  contends  that  the  trial  court  erred  in  (1)  denying  his  motion
         to  suppress  the  results  of  a  blood  alcohol  test,  (2)  admitting  the  blood  alcohol  test  results  despite
         incomplete  evidence  of  the  chain  of  custody,  (3)  admitting  the  blood  alcohol  test  results  despite  a
         lack  of  relevance,  and  (4)  finding  that  sufficient  evidence  existed  for  a  reasonable  jury  to  find  the
         Defendant  guilty.  We  affirm  the  judgment  of  the  trial  court.

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

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and  JERRY  L.
         SMITH,  JJ.,  joined.
         Mark  C.  Scruggs,  Nashville,  Tennessee,  for  the  appellant,  Michael  Joseph  Arbuckle.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Thomas  E.  Williams,  III,  Assistant  Attorney
         General;  Lawrence  Ray  Whitley,  District  Attorney  General;  and  Lytle  Anthony  James,  Assistant
         District  Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION


             At  3:30  a.m.  on  December  15,  1998,  Sumner  County  SheriffÕs  Deputies  Tully  Birdwell  and
         Aaron  Pickard  noticed  a  broken  tail  light  on  a  car  driven  by  the  Defendant,  Michael  Joseph
         Arbuckle.  The  officers  initiated  a  traffic  stop  in  order  to  inform  the  Defendant  of  his  broken  tail
         light.  After  approaching  the  vehicle,  the  officers  noticed  that  the  Defendant  was  slurring  his  speech
         and  smelled  strongly  of  alcohol.  The  Defendant  stated  that  he  had  one  beer  approximately  an  hour
         before  the  officers  stopped  him.  Deputy  Birdwell  asked  the  Defendant  to  exit  the  car  in  order  to



                                                                -2- perform  field  sobriety  tests.  After  the  tests,  Deputy  Birdwell  and  Deputy  Pickard  concluded  that  the
               Defendant  was  intoxicated  and  placed  him  under  arrest  for  driving  under  the  influence.
                       The  Defendant  agreed  to  take  a  blood  alcohol  test,  which  was  administered  at  Sumner
               Regional  Medical  Center  approximately  one  hour  and  fifteen  minutes  after  the  initial  traffic  stop.
               The  test  revealed  a  blood  alcohol  content  of  .14%.

                                                  REASONABLE  GROUNDS

                       First,  the  Defendant  contends  that  the  trial  court  erred  in  denying  his  motion  to  suppress
               because  the  officers  did  not  have  reasonable  grounds  to  believe  that  the  Defendant  was  driving  under
               the  influence;  therefore,  the  officers  were  precluded  from  requesting  that  he  take  a  blood  alcohol  test.
               Due  to  the  DefendantÕs  failure  to  provide  an  adequate  record  for  our  review  of  this  issue,  we  must
               affirm  the  ruling  of  the  trial  court.
                       When  a  party  seeks  appellate  review  there  is  a  duty  to  prepare  a  record  which  conveys  a  fair,
               accurate  and  complete  account  of  what  transpired  with  respect  to  the  issues  forming  the  basis  of  the
               appeal. See  State  v.  Bunch,  646  S.W.2d  158,  160  (Tenn.  1983);  State  v.  Ballard,  855  S.W.2d  557,
               561  (Tenn.  1993)  (holding  failure  to  include  transcript  precludes  appellate  review);  State  v.  Oody,
               823  S.W.2d  554,  559  (Tenn.  Crim.  App.  1991)  (holding  trial  court's  ruling  presumed  correct  in  the
               absence  of  an  adequate  record  on  appeal). Where  the  record  is  incomplete  and  does  not  contain  a
               transcript  of  the  proceedings  relevant  to  an  issue  presented  for  review,  or  portions  of  the  record  upon
               which  the  party  relies,  an  appellate  court  is  precluded  from  considering  the  issue. See State  v.
               Roberts,  755  S.W.2d  833,  836  (Tenn.  Crim.  App.  1988). Absent  the  necessary  relevant  material  in
               the  record  an  appellate  court  cannot  consider  the  merits  of  an  issue. See  Tenn.  R.  App.  P.  24(b).
                       In the present case, the trial courtÕs Order Denying the Motion to Suppress clearly
               incorporates  the  findings  made  on  the  record  during  the  hearing  on  the  motion. However,  the
               Defendant  has  failed  to  provide  these  findings  for  our  review.  Curiously,  the  Defendant  has  provided
               only  the  testimony  of  Deputy  Birdwell  in  the  transcript  of  the  hearing  contained  in  the  record. The
               transcript  is  referred  to  as  "Excerpt  From  the  Transcript  of  the  Proceedings,"  and  includes  only  the
               testimony  of  Deputy  Birdwell.
                       Regardless  of  the  reason  for  the  apparent  omission,  without  a  proper  record  for  our  review,
               we  must  presume  that  the  findings  of  the  trial  court  are  correct. See  Oody,  823  S.W.2d  at  559.
               However,  even  a  cursory  review  of  the  incomplete  record  before  us  reveals  that  Deputy  Birdwell
               detected  a  strong  odor  of  alcohol,  slurred  speech,  and  confusion  on  the  part  of  the  Defendant  after
               initiating  a  traffic  stop. During  the  trial  of  this  matter  the  State  presented  the  testimony  of  Deputy
               Pickard  who,  through  his  observations  of  the  Defendant  during  the  traffic  stop,  also  concluded  that
               the  Defendant  was  intoxicated. When  reviewing  a  trial  court's  ruling  on  a  motion  to  suppress,  an
               appellate  court  may  also  consider  the  evidence  presented  during  the  subsequent  trial. See State  v.
               Henning,  975  S.W.2d  290,  299  (Tenn.  1998);  State  v.  Johnson,  988  S.W.2d  414,  421  (Tenn.  Crim.
               App.  1998).



                                                                -3- The  Defendant  has  failed  to  properly  preserve  this  issue  for  appeal,  and  we  must  therefore
               affirm  the  ruling  of  the  trial  court.

                                                    CHAIN  OF  CUSTODY

                       Next,  the  Defendant  contends  that  the  trial  court  improperly  admitted  the  results  of  the  blood
               alcohol  test  despite  the  incomplete  chain  of  custody  of  the  blood  sample.  The  Defendant  asserts  that
               the  blood  sampleÕs  chain  of  custody  was  incomplete  without  the  testimony  of  the  hospital  employee
               who  drew  the  blood  from  the  Defendant  and  the  Tennessee  Bureau  of  Investigation  employee  who
               received  the  sample  at  the  T.B.I.  crime  laboratory.
                       It  is  well-established  that  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.  See  State
               v.  Goodman,  643  S.W.2d  375,  381  (Tenn.  Crim.  App.  1982). However,  the  failure  to  call  all  of  the
               witnesses  who  handled  the  evidence  does  not  necessarily  preclude  its  admission  into  evidence.  See
               State  v.  Johnson,  673  S.W.2d  877,  881  (Tenn.  Crim.  App.  1984). While  the  State  is  not  required  to
               establish  facts  which  exclude  every  possibility  of  tampering,  the  circumstances  established  must
               reasonably  assure  the  identity  of  the  evidence  and  its  integrity. See  State  v.  Ferguson,  741  S.W.2d
               125,  127  (Tenn.  Crim.  App.  1987). This  issue  addresses  itself  to  the  sound  discretion  of  the  trial
               court,  and  the  court's  determination  will  not  be  disturbed  in  the  absence  of  a  clearly  mistaken
               exercise  of  such  discretion. See  State  v.  Beech,  744  S.W.2d  585,  587  (Tenn.  Crim.  App.  1987).
                       Deputy  Birdwell  testified  that  he  observed  the  DefendantÕs  blood  being  drawn  by  a  hospital
               attendant,  took  the  sample  from  the  attendant,  and  sealed  the  sample  in  a  protective  box. Deputy
               Birdwell  then  placed  the  box  in  the  Police  DepartmentÕs  evidence  locker  to  be  mailed  to  the  T.B.I.
               crime  laboratory.  Deputy  Pickard  also  testified  that  he  was  present  when  the  Defendant's  blood  was
               drawn,  and  he  observed  Deputy  Birdwell  place  the  blood  sample  in  a  protective  box  and  seal  the  box.
               Agent  Harrison  of  the  T.B.I.  testified  regarding  the  procedure  for  receiving  and  documenting  blood
               samples  and  stated  that  any  irregularities  in  the  shipping  or  receiving  of  the  sample  would  have  been
               noted  on  the  Request Form  and  Alcohol  Report  that  was  admitted  into  evidence. There  is  no
               evidence of tampering, loss, substitution, mistake, or any other irregularities concerning the
               DefendantÕs  blood  sample.
                       The  trial  court  did  not  err  or  abuse  its  discretion  in  admitting  the  results  of  the  blood  sample
               because  the  State  established  the  identity  and  integrity  of  the  evidence  through  a  sufficient  chain  of
               custody. This  issue  is  without  merit.

                                 RELEVANCY  OF  BLOOD  ALCOHOL  TEST  RESULTS

                       The  Defendant  also  challenges  the  relevancy  of  the  blood  alcohol  test  results.  The  Defendant
               asserts  that  because  the  blood  was  drawn  more  than  an  hour  after  the  Defendant  was  stopped  by
               police,  the alcohol content of his blood  at the time  the blood was drawn has no relevance  in
               considering  whether  he  was  intoxicated  at  the  time  of  the  traffic  stop. The  Defendant  contends  that
               the  State  is  required  to  produce  evidence  that  would  show  that,  at  the  time  the  Defendant  was  driving
               his  car,  he  was  under  the  influence  of  alcohol  or  had  a  blood  alcohol  content  of  above  .10%.



                                                                -4- The  Defendant  did  not  contest  the  relevance  of  the  blood  alcohol  test  during  his  trial. The
               failure  to  take  available  action  to  prevent  or  nullify  an  alleged  error  waives  the  issue. See  Tenn.  R.
               App.  P.  36(a). Thus,  by  failing  to  make  a  contemporaneous  objection  to  the  relevancy  of  the  blood
               alcohol  test  results,  the  Defendant  waived  the  issue. See  Tenn.  R.  Evid.  103(a)(1);  State  v.  Rhoden,
               739  S.W.2d  6,  11  (Tenn.  Crim.  App.  1987).

                                                        SUFFICIENCY

                       Finally, the Defendant contends that the evidence presented by the State at trial was
               insufficient  to  support  a  finding  of  guilt  beyond  a  reasonable  doubt. We  must  respectfully  disagree
               and  affirm  the  judgment  of  the  trial  court.
                       Tennessee  Rule  of  Appellate  Procedure  13(e)  prescribes  that  Ō[f]indings  of  guilt  in  criminal
               actions  whether  by  the  trial  court  or  jury  shall  be  set  aside  if  the  evidence  is  insufficient  to  support
               the  findings  by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt.Ķ Evidence  is  sufficient  if,  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.  See  Jackson  v.  Virginia,
               443  U.S.  307,  319  (1979);  State  v.  Smith,  24  S.W.3d  274,  278  (Tenn.  2000). In  addition,  because
               conviction  by  a  trier  of  fact  destroys  the  presumption  of  innocence  and  imposes  a  presumption  of
               guilt,  a  convicted  criminal  defendant  bears  the  burden  of  showing  that  the  evidence  was  insufficient.
               See  McBee  v.  State,  372  S.W.2d  173,  176  (Tenn.  1963);  see  also  State  v.  Buggs,  995  S.W.2d  102,
               105-06  (Tenn.  1999);  State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992);  State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982).
                       In  its  review  of  the  evidence,  an  appellate  court  must  afford  the  State  Ōthe  strongest  legitimate
               view of the evidence as well as all reasonable and legitimate inferences that may be drawn
               therefrom.Ķ Tuggle,  639  S.W.2d  at  914;  see  also  Smith,  24  S.W.3d  at  279. The  court  may  not  Ōre-weigh 
                      or  re-evaluate  the  evidenceĶ  in  the  record  below. Evans,  838  S.W.2d  at  191;  see  also  Buggs,
               995  S.W.2d  at  105. Likewise,  should  the  reviewing  court  find  particular  conflicts  in  the  trial
               testimony,  the  court  must  resolve  them  in  favor  of  the  jury  verdict  or  trial  court  judgment. Tuggle,
               639  S.W.2d  at  914. All  questions  involving  the  credibility  of  witnesses,  the  weight  and  value  to  be
               given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact,  not  the  appellate  courts.
               See  State  v.  Morris,  24  S.W.3d  788,  795  (Tenn.  2000);  State  v.  Pappas,  754  S.W.2d  620,  623  (Tenn.
               Crim.  App.  1987).
                       After  stopping  the  Defendant  for  operating  a  vehicle  with  a  broken  tail  light,  Deputies
               Birdwell  and  Pickard  observed  a  strong  odor  of  alcohol  and  noticed  that  the  DefendantÕs  speech  was
               slurred.  Both  officers  stated  that  the  Defendant  was  confused  about  where  he  was  and  where  he  was
               going. After  conducting  field  sobriety  tests,  Deputy  Birdwell  determined  that  the  Defendant  was
               intoxicated  and  asked  him  to  submit  to  a  blood  alcohol  content  test. The  Defendant  consented  and
               the  test  revealed  a  blood  alcohol  content  of  .14%.  Deputy  Pickard  also  testified  that,  based  upon  his
               observation  of  the  Defendant,  he  believed  the  Defendant  to  be  intoxicated.



                                                                -5- Based on the above facts, we find sufficient evidence to support the jury  finding the
               Defendant  guilty beyond a reasonable doubt of driving under the influence, driving under the
               influence,  per  se,  and  driving  under  the  influence,  second  offense. The  judgment  of  the  trial  court
               is  affirmed.

                                                        CONCLUSION

                       Accordingly,  for  the  foregoing  reasons,  we  AFFIRM  the  judgment  of  the  trial  court.

                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  July  11,  2001

                 BOBBY  J.  ARMSTRONG  v.  STATE  OF  TENNESSEE

                   Direct  Appeal  from  the  Circuit  Court  for  Madison  County
                          No.  C00-237  Roy  B.  Morgan,  Judge


                     No.  W2000-02598-CCA-R3-PC  -  Filed  July  19,  2001



         The  Appellant,  Bobby  J.  Armstrong,  appeals  from  the  dismissal  of  his  petition  for  post-conviction
         relief.  ArmstrongÕs  convictions  stem  from  his  guilty  pleas  to  two  counts  of  felony  murder  and  two
         resulting  consecutive  sentences  of  life  without  the  possibility  of  parole.  In  this  appeal,  Armstrong
         raises  the  following  issues  for  our  review:  (1)  whether  the  guilty  plea  was  knowingly,  intelligently
         and  voluntarily  made;  and  (2)  whether  trial  counsel  was  ineffective  for  failing  to  request  a
         competency  hearing  to  determine  ArmstrongÕs  mental  condition.  After  review,  we  find  ArmstrongÕs
         guilty  plea  was  knowing,  intelligent  and  voluntary  and  that  he  received  effective  assistance  of
         counsel.  As  such,  we  affirm  the  judgment  of  the  Madison  County  Circuit  Court.

                  Tenn.  R.  App.  P.  3;  Judgment  of  the  Circuit  Court  is  Affirmed.

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  ALAN  E.
         GLENN,  JJ.,  joined.
         Ramsdale  O'DeNeal,  Jr.,  Jackson,  Tennessee,  for  the  Appellant,  Bobby  J.  Armstrong.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  J.  Ross  Dyer,
         Assistant  Attorney  General;  Al  Earls,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of
         Tennessee.


                                   OPINION
                                Factual  Background

             On  September  4,  1997,  Madison  County  Police  Officers  found  the  bodies  of  victims,  Doris
         and  Delois  Turner,  inside  their  home.  The  cause  of  death  was  determined  to  be  blunt  force  trauma
         to  the  head.  The  victims  often  hired  the  Appellant  to  do  Ōhandy-man  workĶ  around  their  home.
         After  questioning  from  the  police,  the  Appellant  confessed  to  the  crimes,  explaining  that  he  went  to



                                                                -2- the  Turner  residence  to  borrow  $20  to  purchase  crack  cocaine  but  after  he  saw  that  the  victims  had
               more  than  $20  he  decided  to  Ōget  it  all.Ķ The  Appellant  then  bludgeoned  the  victims  to  death  by
               striking  them  multiple  times  in  the  head  with  a  hammer. Testimony  indicated  that  the  AppellantÕs
               previous  history  included  fourteen  felony  convictions  and,  at  the  time  of  the  offenses,  he  was  on
               probation.  Following  indictments  for  two  counts  of  felony  murder,  the  State  gave  notice  of  its  intent
               to  seek  the  death  penalty.

                                                           ANALYSIS

                       In  order  to  succeed  on  a  post-conviction  claim,  the  Appellant  bears  the  burden  of  showing,
               by  clear  and  convincing  evidence,  the  allegations  set  forth  in  his  petition. Tenn.  Code  Ann.  ¤
               40-30-210(f). When  this  court  undertakes  review  of  a  lower  court's  decision  on  a  petition  for
               post-conviction  relief,  the  lower  court's  findings  of  fact  are  given  the  weight  of  a  jury  verdict  and  are
               conclusive  on  appeal  absent  a  finding  that  the  evidence  preponderates  against  the  judgment. State
               v.  Keith,  978  S.W.2d  861,  864  (Tenn.  1998).  This  court  may  not  reweigh  or  reevaluate  the  evidence
               or substitute its inferences for those drawn by the post-conviction court. Further, questions
               concerning  the  credibility  of  witnesses  and  the  weight  to  be  given  their  testimony  are  for  resolution
               by  the  post-conviction  court. Black  v.  State,  794  S.W.2d  752,  755  (Tenn.  Crim.  App.  1990).

                                            A. Knowing,  Intelligent  and  Voluntary

                       In the present case, the Appellant first contends that his plea was not Ōknowingly,
               intelligently  and  voluntarily  made,  and  that  he  did  not  have  an  understanding  of  the  nature  of  the
               charges  and  the  consequences  of  his  plea.Ķ  Specifically,  the  Appellant  asserts  that  his  guilty  plea  was
               the  Ōresult  of  ignorance  due  to  his  limited  intelligence  and  mental  retardation.Ķ 
                       When  determining  whether  a  guilty  plea  was  knowing  and  voluntary,  this  court  must  look
               to  the  totality  of  the  circumstances.  State  v.  Turner,  919  S.W.2d  346,  353  (Tenn.  Crim.  App.1995).
               The  established  test  for  determining  the  validity  of  the  guilty  plea  is  "whether  the  plea  represents  a
               voluntary  and  intelligent  choice  among  the  alternative  courses  of  action  open  to  the  defendant."  Hill
               v.  Lockhart,  474  U.S.  52,  56,  106  S.  Ct.  366,  369  (citing  North  Carolina  v.  Alford,  400  U.S.  25,  31,
               91  S.  Ct.  160,  164  (1970)). In  order  for  a  plea  to  be  deemed  knowingly  and  voluntarily  entered,  an
               accused  must  be  informed  of  the  rights  and  circumstances  involved  and  nevertheless  choose  to  waive
               or  relinquish  those  rights. State  v.  Mackey,  553  S.W.2d  337,  340  (Tenn.1977). Post-conviction
               relief  may  only  be  granted  if  a  conviction  or  sentence  is  void  or  voidable  because  of  a  violation  of
               a  constitutional  right. See  Tenn.  Code  Ann.  ¤  40-30-203.
                       At  the  hearing,  the  post-conviction  court  found  the  Appellant's  guilty  plea  to  have  been
               knowingly, voluntarily and intelligently made.  In denying the AppellantÕs petition, the post-conviction 
                           court  reasoned  as  follows:
                       As to coercion or pressure, the Court finds specifically that the defendant had
                       discussions  with  his  attorney  and  with  those  assisting  defense  counsel,  even  coming



                           1  The defense  team experts included the head of the  Vanderbilt forensic psychiatry department,  a clinical
                  psychologist,  a  neurolog  ist  and  a  pha  rmacologist.

                                                                          -3- from  Nashville,  a  capital  case  specialist  for  example,  to  make  sure  that  this  defendant
                           had  a  thorough  understanding  of  the  charges  against  him,  the  offer  being  made  by  the
                           State and the alternatives of going to trial versus entering the plea agreement.
                           ThereÕs  been  no  indication  today  by  clear  and  convincing  evidence  that  this  petitioner
                           did  not  understand  what  he  was  doing,  nor  did  he  enter  a  plea  merely  because  of
                           being  pressured  or  coerced. The  transcript  which  is  an  exhibit  to  this  proceeding
                           today  indicates  very  clearly  that  the  court  went  over  with  this  defendant  his  rights
                           which  included  the  right  to  continue  with  a  not  guilty  plea  and  proceed  to  trial.
                  We  agree  with  the  post-conviction  courtÕs  reasoning  and  also  find  the  AppellantÕs  petition  to  be
                  without  merit.
                           The  record  indicates  that  the  trial  court  questioned  the  Appellant  extensively  as  to  whether
                  his  plea  was  made  with  knowledge  and  understanding. When  asked  if  he  was  satisfied  with  his
                  counsel's  performance,  the  Appellant  replied  that  he  was  satisfied. At  the  post-conviction  hearing,
                  the Appellant offered no expert proof  as to the extent of his  limited intelligence. Although the
                  Appellant  now  argues  that  his  Ōmental  conditionĶ  prevented  him  from  making  a  knowing,  intelligent
                  and  voluntary  plea,  the  record  indicates  that  trial  counsel  consulted  numerous  experts  who  concluded
                  that  the  Appellant,  who  had  Ōsome  mental  retardation,Ķ  was  more  than  capable  of  understanding
                  right  from  wrong,  the  proceedings  against  him,  and  the  consequences  of  his  decisions.1  Additi  onally,
                  trial  counsel  testified  that  he  spent  Ōmore  time  with  [the  Appellant]  than  [he]  would  have  on  just  a
                  run-of-the-mill  case.Ķ Although  the  Appellant  testified  that  he  felt  ŌscaredĶ  and  Ōpressured,Ķ  he  also
                  testified  that  he  understood  his  attorney  and  the  charges  against  him. Even  more  importantly,  the
                  trial  court  explained  the  possible  sentencing  ranges  to  the  Appellant,  who  stated  that  he  understood
                  his  options,  before  accepting  his  plea. We  conclude  that  the  record  fully  supports  the  findings  of  the
                  post-conviction court which found that the Appellant failed to prove, by clear and convincing
                  evidence,  that  his  guilty  plea  was  entered  into  without  knowledge,  intelligence  or  voluntariness.  This
                  issue  is  without  merit.

                                                     B. Ineffective  Assistance  of  Counsel

                           To succeed in a challenge for ineffective assistance of counsel, the Appellant must
                  demonstrate  that  counselÕs  representation  fell  below  the  range  of  competence  demanded  of  attorneys
                  in criminal cases.  Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).  Under Strickland v.
                  Washington,  466  U.S.  668,  686,  104  S.  Ct.  2052,  2064  (1984),  the  Appellant  must  establish  (1)
                  deficient  representation  and  (2)  prejudice  resulting  from  the  deficiency. A  reviewing  court  need  not
                  consider  the  two  prongs  of  Strickland  in  any  particular  order. Strickland  v.  Washington,  466  U.S.
                  at  697,  104  S.  Ct.  at  2069. Furthermore,  if  the  Appellant  fails  to  establish  one  prong,  a  reviewing
                  court  need  not  consider  the  other. Id. The  issues  of  deficient  performance  by  counsel  and  possible



                                                                -4- prejudice  to  the  defense  are  mixed  questions  of  law  and  fact;  thus,  our  review  of  this  case  is  de  novo.

               State  v.  Burns,  6  S.W.3d  453,  461  (Tenn.  1999).
                       The  Appellant  contends  that  trial  counsel  was  ineffective  for  failing  to  move  the  trial  court
               for  a  competency  hearing  to  determine  the  AppellantÕs  mental  condition.  Specifically,  the  Appellant
               contends  that  because  Dr.  WilsonÕs  report  concluded  that  he  had  Ōsome  mental  retardation,Ķ  trial
               counsel  was  ineffective  for  neglecting  to  request  a  competency  hearing. We  disagree. At  the  post-conviction 
                           hearing,  the  trial  court  found  trial  counsel  to  be  effective  and  reasoned  as  follows:
                       The  court  so  finds,  that  there  was  a  thorough  investigation  on  behalf  of  this  case  by
                       [trial  counsel],  numerous  visits  with  the  defendant,  and  more  importantly,  the  court
                       finds  that  defense  counsel  made  every  effort  to  obtain  the  expertsÕ  evaluations  and
                       reports  necessary  to  make  a  fair  evaluation  of  this case. There  were  numerous
                       experts ranging from pharmacologists to mitigation specialists, to clinical
                       psychologists,  not  limited  just  to  those  three  categories  but  numerous  ones  employed
                       on behalf of the [Appellant].  The court finds clearly that the defendant had
                       competent  and  effective  counsel  that  did  their  job  and  did  it  well.
               Trial  counsel  petitioned  the  court  for  several  experts  who  examined  the  Appellant  prior  to  the  plea
               hearing. All  of  these  experts  agreed  that  the  Appellant  was  competent  to  stand  trial. Although  Dr.
               WilsonÕs  report  did  indicate  some  retardation,  the  report  also  indicated  that  the  Appellant  was
               capable  of  making  clear  judgments  and  could  decide  between  right  and  wrong. As  such,  we  do  not
               find  trial  counselsÕ  decision  against  requesting  a  competency  hearing  to  be  deficient. Because  the
               Appellant  failed  to  prove  the  first  prong  of  Strickland,  we  need  not consider  the  second  prong.
               Strickland  v.  Washington,  466  U.S.  at  697,  104  S.  Ct.  at  2069.  As  the  trial  court  properly  concluded,
               trial  counsel  provided  an  effective  representation  and  was  in  no  manner  deficient. This  issue  is  also
               without  merit.

                                                        CONCLUSION

                       We  find  that  the  Appellant  knowingly,  intelligently  and  voluntarily  entered  his  plea  of  guilty
               to  two  counts  of  felony  murder  and  that  trial  counsel  was  not  deficient  for  failing  to  request  a
               competency  hearing. Accordingly,  we  affirm  the  judgment  of  the  Madison  County  Circuit  Court.







                                                                     ___________________________________ 
                                                                     DAVID  G.  HAYES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  October  17,  2001

                STATE  OF  TENNESSEE  v.  QUENTIN  D.  ARMSTRONG

                     Appeal  from  the  Criminal  Court  for  Davidson  County
                          No.  99-B-1107  Steve  Dozier,  Judge


                    No.  M2001-00227-CCA-R3-CD  -  Filed  October  25,  2001


         The  Defendant,  Quentin  D.  Armstrong,  was  convicted  of  two  counts  of  aggravated  assault  in  the
         Criminal  Court  of  Davidson  County.  The  trial  court  merged  the  second  count  into  the  first  and
         sentenced  the  Defendant  to  six  years.  In  his  appeal  as  of  right,  the  Defendant  contends  that  (1)  the
         evidence  was  insufficient  to  support  his  convictions  for  aggravated  assault  and  (2)  the  trial  court
         erred  in  refusing  to  instruct  the  jury  concerning  self-defense.  We  affirm  the  judgment  of  the  trial
         court.

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

         DAVID  H.  WELLES,  J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  JOE  G.  RILEY,
         JJ.,  joined.
         Michael  A.  Colavecchio,  Nashville,  Tennessee,  for  the  appellant,  Quentin  D.  Armstrong.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Patricia  C.  Kussmann,  Assistant  Attorney
         General;  Victor  S.  Johnson,  District  Attorney  General;  and  Rachelle  Laisnez,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION


             On  October  1,  1996,  the  Defendant  and  his  girlfriend  Deborah  Bright,  the  victim,  were  at  the
         home  of  a  friend  in  Nashville. The  two  began  to  argue  about  a  set  of  scales  belonging  to  the
         Defendant  that  the  victim  had  apparently  broken.  The  victim  eventually  walked  away  from  the
         argument  and  went  to  a  nearby  store  to  buy  candy  and  a  beer. When  the  victim  returned,  the
         Defendant  was  sitting  on  a  front  porch  swing,  and  she  sat  down  next  to  him. Suddenly,  the
         Defendant  struck  the  victim  in  the  face  with  a  beer  bottle,  breaking  the  bottle  and  permanently
         scarring  and  damaging  the  victimÕs  face  and  eye.



                                                                -2- Sharon  Bright,  the  victimÕs  sister,  who  was  also  sitting  on  the  porch  with  the  victim  and  the
               Defendant,  ran  to  a  nearby  pay  phone  and  called  for  an  ambulance  while  the  Defendant  left  the  scene.
               At  the  emergency  room,  a  piece  of  glass  was  removed  from  the  victimÕs  face. The  victimÕs  injuries
               required  twenty  stitches.
                       The  victim  and  Ms.  Sharon  Bright  testified  at  trial  that  the  Defendant  struck  the  victim
               without  warning  and  that  the  victim  did  not  provoke  the  Defendant  in  any  way. Officer  Kyle
               Anderson,  who  responded  to  the  emergency  call  from  the  victimÕs  sister,  testified  that  the  victim
               informed  him  that  she  and  the  Defendant  had  been  having  a  long  argument  during  the  preceeding
               three  days. Charles  Scott,  a  private  investigator,  testified  for  the  defense  that  the  victim  informed
               him  that  she  and  the  Defendant  were  fighting  and  she  was  Ōkicking  his  ass,  and  he  hit  me  with  a
               bottle.Ķ Mr.  ScottÕs  testimony  was  admitted  as  impeachment  of  the  victimÕs  testimony  by  a  prior
               inconsistent  statement.

                                            SUFFICIENCY  OF  THE  EVIDENCE

                       The  Defendant  raises  a  challenge  to  the  sufficiency  of  the  convicting  evidence  as  an  issue  on
               appeal;  however,  he  fails  to  address  the  issue  in  his  brief. Rule  10(b)  of  the  Tennessee  Rules  of  the
               Court  of  Criminal  Appeals  provides  that  issues  that  are  not  supported  by  argument,  citation  to
               authorities,  or  appropriate  references  to  the  record  will  be  treated  as  waived  in  this  Court. Any
               challenge  to  the  sufficiency  of  the  convicting  evidence  has  been  waived  by  the  DefendantÕs  failure
               to address the issue on appeal.  However, we conclude that the evidence presented at trial is
               sufficient  to  support  the  conviction.
                       Tennessee  Rule  of  Appellate  Procedure  13(e)  prescribes  that  Ō[f]indings  of  guilt  in  criminal
               actions  whether  by  the  trial  court  or  jury  shall  be  set  aside  if  the  evidence  is  insufficient  to  support
               the  findings  by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt.Ķ Evidence  is  sufficient  if,  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.  See  Jackson  v.  Virginia,
               443  U.S.  307,  319  (1979);  State  v.  Smith,  24  S.W.3d  274,  278  (Tenn.  2000). In  addition,  because
               conviction  by  a  trier  of  fact  destroys  the  presumption  of  innocence  and  imposes  a  presumption  of
               guilt,  a  convicted  criminal  defendant  bears  the  burden  of  showing  that  the  evidence  was  insufficient.
               See  McBee  v.  State,  372  S.W.2d  173,  176  (Tenn.  1963);  see  also  State  v.  Buggs,  995  S.W.2d  102,
               105-06  (Tenn.  1999);  State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992);  State  v.  Tuggle,  639
               S.W.2d  913,  914  (Tenn.  1982).
                       In  its  review  of  the  evidence,  an  appellate  court  must  afford  the  State  Ōthe  strongest  legitimate
               view of the evidence as well as all reasonable and legitimate inferences that may be drawn
               therefrom.Ķ Tuggle,  639  S.W.2d  at  914;  see  also  Smith,  24  S.W.3d  at  279. The  court  may  not  Ōre-weigh 
                      or  re-evaluate  the  evidenceĶ  in  the  record  below.  Evans,  838  S.W.2d  at  191;  see  also  Buggs,
               995  S.W.2d  at  105. Likewise,  should  the  reviewing  court  find  particular  conflicts  in  the  trial
               testimony,  the  court  must  resolve  them  in  favor  of  the  jury  verdict  or  trial  court  judgment. Tuggle,
               639  S.W.2d  at  914. All  questions  involving  the  credibility  of  witnesses,  the  weight  and  value  to  be
               given  the  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact,  not  the  appellate  courts.



                                                                -3- See  State  v.  Morris,  24  S.W.3d  788,  795  (Tenn.  2000);  State  v.  Pappas,  754  S.W.2d  620,  623  (Tenn.
               Crim.  App.  1987).
                       The Defendant was convicted of aggravated assault  causing serious bodily injury and
               aggravated  assault  by  use  of  a  deadly  weapon.  See  Tenn.  Code  Ann.  ¤  39-13-102(a)(1)(A);  ¤  39-13-
               102(a)(1)(B). The  Defendant  broke  a  beer  bottle  on  the  face  of  the  victim  causing  permanent
               scarring  and  damage. The  victimÕs  left  tear  duct  no  longer  functions. The  victim  suffered  extreme
               physical  pain  and  permanent  disfigurement.
                       We  find  sufficient  evidence  to  support  the  DefendantÕs  conviction  for  aggravated  assault
               beyond  a  reasonable  doubt.

                                                        SELF-DEFENSE

                       Next,  the  Defendant  challenges  the  trial  courtÕs  refusal  to  charge  the  jury  concerning  self-defense. 
                        We  find  no  merit  to  the  Defendant's  contention.  Although  it  is  well-settled  that  an  accused
               is  entitled  to  an  affirmative  instruction  on  every  issue  fairly  raised  by  the  evidence,  there  is  no
               requirement  that  the  court  charge  on  matters  not  raised  by  the  proof. See  State  v.  Leaphart,  673
               S.W.2d  870,  873  (Tenn.Crim.App.  1983);  Lester  v.  State,  212  Tenn.  338,  346,  370  S.W.2d  405,  409
               (1963); Hicks v. State, 533 S.W.2d 330, 331 (Tenn.Crim.App.1975).  To support a claim of
               self-defense  under  Tennessee  law,  the  accused  must  show  that  he  reasonably  believed  that  he  was
               in  Ōimminent  danger  of  death  or  serious  bodily  injury.Ķ Tenn.  Code  Ann.  ¤  39-11-611(a). He  must
               also  establish  that  he  reasonably  believed  that  the  use  of  force  was  Ōimmediately  necessary  to  protect
               against  the  otherÕs  use  or  attempted  use  of  unlawful  force.Ķ Id. 
                       There is no evidence in the record to establish that the Defendant was acting upon a
               reasonable  belief  of  imminent  danger  of  death  or  serious  bodily  harm. Indeed,  the  only  evidence  to
               suggest  the  DefendantÕs  state  of  mind  is  the  victimÕs  testimony  that  the  Defendant  was  angry  with
               her. Evidence  suggesting  that  the  Defendant  and  the  victim  had  been  arguing  is  not  enough  to
               warrant  an  instruction  concerning  self-defense.
                       The  Defendant  relies  on  Charles  ScottÕs  testimony  that  the  victim  told  him  that  she  was
               Ōkicking  [the  DefendantÕs]  assĶ  when  the  Defendant  hit  her  with  a  bottle. We  first  note  that  the
               record clearly reflects that Mr. ScottÕs testimony was admitted for the limited purpose of the
               impeachment  of  the  victimÕs  testimony  by  a  prior  inconsistent  statement.  Our  cases  clearly  establish
               that  prior  inconsistent  statements  offered  to  impeach  a  witness  are  to  be  considered  only  on  the  issue
               of  credibility,  and  not  as  substantive  evidence  of  the  truth  of  the  matter  asserted  in  such  statements.
               See  State  v.  Reece,  637  S.W.2d  858,  861  (Tenn.  1982);  McFarlin  v.  State,  214  Tenn.  613,  617,  381
               S.W.2d  922,  924  (1964).
                       However,  even  if  Mr.  ScottÕs  testimony  were  to  be  treated  as  substantive  testimony,  the  trial
               courtÕs refusal to instruct on self-defense was still proper.  Mr. ScottÕs testimony in no way
               established  the  DefendantÕs  state  of  mind  at  the  time  of  the  incident.  Mr.  ScottÕs  testimony  does  not



                                                                -4- suggest  that  the  Defendant  took  the  action  he  did  because  he  was  in  fear  of  death  or  serious  bodily
               harm.
                       Therefore,  we  find  that  the  evidence  presented  at  trial  did  not  fairly  raise  the  issue  of  self-defense 
                       and  the  trial  court  did  not  err  in  refusing  to  instruct  the  jury  accordingly. This  issue  has  no
               merit.

                                                        CONCLUSION

                       Accordingly,  after  a  thorough  review  of  the  record,  we  find  that  the  evidence  presented  at
               trial  was  sufficient  to  support  the  DefendantÕs  conviction  for  aggravated  assault  and  that  the  trial
               court  did  not  err  in  refusing  to  instruct  the  jury  concerning  self-defense. The  judgment  of  the  trial
               court  is  AFFIRMED.

                                                                     ___________________________________ 
                                                                     DAVID  H.  WELLES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                          Assigned  on  Briefs  May  23,  2001

                   STATE  OF  TENNESSEE  v.  LATROY  W.  ASKEW

                      Appeal  from  the  Criminal  Court  for  Knox  County
                      Nos.  66762A  and  67088B  Ray  L.  Jenkins,  Judge


                            No.  E2000-02010-CCA-R3-CD
                                  July  6,  2001


         The  defendant,  Latroy  W.  Askew,  appeals  from  the  order  of  the  Knox  County  Criminal  Court  which
         revoked  DefendantÕs  probation  and  required  him  to  serve  his  sentence  in  the  Tennessee  Department
         of  Correction.  Having  reviewed  the  record  and  the  briefs  submitted  by  the  parties,  we  affirm  the
         judgment  of  the  trial  court.

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

         THOMAS  T.  WOODALL,  J.,  delivered  the  opinion  of  the  court,  in  which  GARY  R.  WADE,  P.J.,  and
         ROBERT  W.  WEDEMEYER,  J.,  joined.
         William  C.  Talman,  Knoxville,  Tennessee,  for  the  appellant,  Latroy  W.  Askew.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Mark  A.  Fulks,  Assistant  Attorney  General;
         Randall  E.  Nichols,  District  Attorney  General;  and  Robert  L.  Jolley,  Jr.,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             On  September  16,  1999,  the  defendant,  Latroy  W.  Askew,  pled  guilty  to  three  counts  of
         aggravated  assault,  a  Class  C  felony,  and  one  count  of  reckless  endangerment,  a  Class  E  felony.  He
         was  sentenced  as  a  Range  I  standard  offender  to  concurrent  terms  of  three  years  for  each  count  of
         aggravated  assault  and  a  term  of  two  years  for  the  reckless  endangerment  conviction,  which  was
         ordered  to  be  served  consecutively  for  an  effective  sentence  of  five  (5)  years.  He  was  placed  on
         probation  for  the  entire  term  of  the  effective  sentence.
             On  October  12,  1999,  a  probation  violation  warrant  was  filed  alleging  that  Defendant  had
         violated  probation  by  using  illegal  drugs  on  or  about  September  20,  1999,  four  days  after  he  had  pled
         guilty  and  was  placed  on  probation.  The  State  filed  a  petition  to  revoke  DefendantÕs  probation  and,
         following  a  hearing,  the  trial  court  granted  the  StateÕs  request  but  ordered  his  sentence  of  five  (5)



                                                  2 years  to  be  served  in  split  confinement,  with  thirty  (30)  days  to  be  served  in  the  Knox  County  Jail
            and  the  remaining  portion  of  the  sentence  to  be  served  on  Ōenhanced  probation.Ķ
                  On  March  28,  2000,  the  State  filed  another  petition  for  revocation  of  probation,  alleging  that
            Defendant  had  violated  the  terms  of  his  probation  in  two  respects:  Defendant  was  found  in  the
            company  of  a  person  named  Demetrius  White,  and  he  was  arrested  on  March  28,  2000  for  aggravated
            assault. This  petition  was  later  dismissed  on  May  5,  2000. 
                  On  May  17,  2000,  a  third  petition  to  revoke  probation  was  filed  which  alleged  that  the
            Defendant  had  violated  the  terms  of  his  probation  by  (1)  violating  curfew  on  two  occasions,  (2)
            testing  positive  for  illegal  drugs,  (3)  being  three  months  delinquent  on  his  probation  fees,  and  (4)
            failing  to  pay  court  costs.  At  the  evidentiary  hearing  on  this  petition,  the  sole  testimony  came  from
            the  officer  responsible  for  supervising  Defendant  under  the  Ōenhanced  probationĶ  program. She
            testified  that  Defendant  had  tested  positive  for  ŌTHCĶ  on  March  2,  2000,  which  indicated  use  of
            illegal  drugs  (marijuana),  and  that  he  had  violated  his  curfew  on  at  least  one  occasion  while  on
            probation. In  addition,  she  testified  that  Defendant  had  not  been  truthful  with  her  regarding  his
            whereabouts  when  she  discovered  he  was  in  violation  of  his  curfew,  and  that  she  had  previously
            supervised  Defendant  while  he  was  a  juvenile  on  probation  when  she  worked  for  the  juvenile  court.
                  In  this  appeal,  Defendant  concedes  that  he  violated  probation  and  that  a  violation  of  probation
            provides  the  trial  court  with  adequate  justification  to  revoke  probation  in  its  entirety. However,
            Defendant  contends  that  the  trial  courtÕs  judgment,  which  ordered  him  to  serve  a  five-year  sentence
            in  the  Department  of  Correction  because  of  a  curfew  violation  and  a  positive  result  on  his  drug
            screen,  was  unduly  harsh. In  the  event  that  the  trial  courtÕs  revocation  of  his  probation  is  upheld,
            Defendant  asserts  that  the  more  appropriate  punishment  would  be  a  sentence  for  split  confinement,
            consisting  of  six  (6)  months  in  the  county  jail  with  the  balance  on  probation,  or  service  of  his
            sentence  in  the  Knox  County  Community  Corrections  program. We  disagree.
                  Tennessee  Code  Annotated  section  40-35-311(d)  provides,  in  relevant  part,  as  follows:
                  If  the  trial  judge  should  find  that  the  defendant  has  violated  the  conditions  of
                  probation  and  suspension  by  a  preponderance  of  the  evidence,  the  trial  judge  shall
                  have  the  right  by  order  duly  entered  upon  the  minutes  of  the  court,  to  revoke  the
                  probation  and  suspension  of  sentence  and  cause  the  defendant  to  commence  the
                  execution  of  the  judgment  as  originally  entered,  or  otherwise  in  accordance  with
                  section  40-35-310  .  .  .  .
            Tenn.  Code  Ann.  ¤  40-35-311(d)  (1997). Tennessee  Code  Annotated  section  40-35-310  further
            provides  that:
                  The  trial  judge  shall  possess  the  power,  at  any  time  within  the  maximum  time  which
                  was  directed  and  ordered  by  the  court  for  such  suspension,  after  proceeding  as
                  provided  in  section  40-35-311,  to  revoke  and  annul  such  suspension,  and  in  such
                  cases,  the  original  judgment  so  rendered  by  the  trial  judge  shall  be  in  full  force  and



                                                  3 effect  from  the  date  of  the  revocation  of  such  suspension,  and  shall  be  executed
                 accordingly.  .  .  .
           Tenn.  Code  Ann.  ¤  40-35-310  (1997).
                 A  trial  judge  may  revoke  a  sentence  of  probation  or  a  suspended  sentence  upon  a  finding  that
           the  defendant  has  violated  the  conditions  of  his  probation  or  suspended  sentence  by  a  preponderance
           of  the  evidence.  Tenn.  Code  Ann.  ¤  40-35-311  (1997).  The  judgment  of  the  trial  court  in  this  regard
            will  not  be  disturbed  on  appeal  unless  it  appears  that  there  has  been  an  abuse  of  discretion.  State  v.
            Harkins,  811  S.W.2d  79,  82  (Tenn.  1991)  (citing  State  v.  Williamson,  619  S.W.2d  145,  146  (Tenn.
            Crim.  App.  1981)). In  order  for  a  reviewing  court  to  find  an  abuse  of  discretion  in  a  probation
            revocation  case,  it  must  be  established  that  the  record  contains  no  substantial  evidence  to  support  the
            conclusion  of  the  trial  judge  that  a  violation  of  the  conditions  of  probation  has  occurred.  Id.  (citing
            State  v.  Grear,  568  S.W.2d  285,  286  (Tenn.1978)).  The  proof  of  a  probation  violation  need  not  be
            established  beyond  a  reasonable  doubt,  it  is  sufficient  if  it  allows  the  trial  judge  to  make  a
           conscientious  and  intelligent  judgment. Id.  (citing  State  v.  Milton,  673  S.W.2d  555,  557  (Tenn.
            Crim.  App.  1984)).
                  We  find  that  the  record  presents  substantial  evidence  to  support  the  conclusion  of  the  trial
           judge  that  Defendant  violated  the  conditions  of  his  probation  and  that  his  sentence  should  be  served
            in  the  Department  of  Correction.  We  further  conclude  that  the  trial  court  did  not  abuse  its  discretion.
            Defendant  is  not  entitled  to  relief  on  this  issue.

                                            CONCLUSION

                  The  judgment  of  the  trial  court  revoking  DefendantÕs  probation  and  suspended  sentence  and
            ordering  him  to  serve  his  original  sentence  of  five  years  in  the  Department  of  Correction  is  hereby
            AFFIRMED.

                                                      ___________________________________ 
                                                      THOMAS  T.  WOODALL,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                              January  9,  2001  Session

                 STATE  OF  TENNESSEE  v.  RICHARD  HALE  AUSTIN

                   Direct  Appeal  from  the  Criminal  Court  for  Shelby  County
                   No.  B-58357  C.  Creed  McGinley,  Judge,  by  designation


                     No.  W1999-00281-CCA-R3-DD  -  Filed  March  6,  2001



         In  1977,  Richard  Hale  Austin  was  found  guilty  by  a  Shelby  County  jury  of  accessory  before  the  fact
         to  the  first  degree  murder  of  Julian  Watkins. AustinÕs  conviction  stemmed  from  his  role  in
         commissioning  the  murder  of  Watkins,  a  reserve  deputy  sheriff.  The  jury  subsequently  found  the
         presence  of  aggravating  factor  (i)(4),  murder  for  remuneration,  and  imposed  a  sentence  of  death.  In
         1997,  Austin  was  granted  habeas  corpus  relief  in  the  form  of  a  new  sentencing  hearing  by  the  Sixth
         Circuit  Court  of  Appeals.  At  the  re-sentencing  hearing,  twenty-two  years  after  his  original  trial,  a
         jury  again  found  the  presence  of  the  (i)(4)  aggravating  factor  and  again  imposed  a  sentence  of  death.
         It  is  from  this  sentencing  decision  that  Austin  appeals.  In  this  appeal,  Austin  presents  numerous
         issues  for  our  review,  including  (1)  the  disqualification  of  the  Tennessee  Supreme  Court;  (2)
         challenges  to  the  selection  of  various  jurors;  (3)  the  admission  and  exclusion  of  evidence;  (4)  the
         introduction  of  victim  impact  evidence;  (5)  prosecutorial  misconduct  during  closing  argument;  (6)
         the  propriety  of  the  jury  instructions;  (7)  whether  application  of  the  (i)(4)  aggravator  violates  State
         v.  Middlebrooks;  (8)  prejudice  due  to  the  delay  in  imposing  a  sentence  of  death;  (9)  the
         constitutionality  of  TennesseeÕs  death  penalty  statutes;  and  (10)  whether  the  jury  imposed  a
         proportionate  sentence.  After  a  careful  review  of  the  record,  we  affirm  the  imposition  of  the  sentence
         of  death.

                  Tenn.  R.  App.  P.  3;  Judgment  of  the  Criminal  Court  Affirmed.

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  JOHN  EVERETT
         WILLIAMS,  JJ.,  joined.
         Frank  J.  Glankler,  Jr.  and  Robert  L.  Hutton,  Memphis,  Tennessee,  for  the  Appellant,  Richard  Hale
         Austin.
         Paul  G.  Summers,  Attorney  General  and  Reporter,  Michael  Moore,  Solicitor  General,  Amy  L.
         Tarkington,  Assistant  Attorney  General,  William  L.  Gibbons,  District  Attorney  General,  and  John
         Campbell  and  Thomas  Henderson,  Assistant  District  Attorneys  General,  for  the  Appellee,  State  of
         Tennessee.



                           1  See  Richard  H  .  Austin  v.  State,  No.  02C01-9310-CR-00238  (Tenn.  Crim.  App.  at  Jackson,  May  3,  1995),
                  perm.  to  appeal  denied,  (Tenn.  N  ov.  6,  199  5);  Richard  Austin  v.  State,  No.  02C01-9102-CR-00009  (Tenn.  Crim.  App.
                  at  Jackson  ,  Aug.  14,  1  991),  perm.  to  appeal  denied,  (Tenn.  1  991);  Richard  H  ale  Austin  v.  Sta  te,  No.  17  (Tenn.  Crim.
                  App.  at  Jackson  ,  Dec.  10  ,  1986), perm.  to  appeal  denied,  (Tenn.  1987);  Richard  Hale  Austin  v.  State  ,  No.  33  (Tenn.
                  Crim.  App.  at  Jackso  n,  Apr.  17  ,  1985),  perm.  to  appeal  denied,  (Tenn.  1  985). 

                           2  In  a  subsequent  opinion,  the  district  court  rejected  se  veral  other  issu  es  raised  by  the Appellan  t  in  his  habeas
                  petition. See  Austin  v.  Be  ll,  927  F.Supp.  1058  (M  .D.  Tenn.  1996).

                           3  Chief  Justice  Anderson,  pursuant  to  his  authority  under  TENN.  CODE  ANN.  ¤  17-2-116,  designated  the
                  Honorable  Creed  McGinley  to  preside  over  the  AppellantÕs  re-sentencing.

                                                                          -2- OPINION


                           The  Appellant,  Richard  Hale  Austin,  appeals  as  of  right,  his  sentence  of  death. In  1977,  the
                  Appellant  was  convicted  by  a  Shelby  County  jury  of  accessory  before  the  fact  in  the  premeditated
                  murder  of  Julian  Watkins  and  was  sentenced  to  death. The  AppellantÕs  conviction  and  sentence  of
                  death  were  affirmed  on  direct  appeal.  See  State  v.  Austin,  618  S.W.2d  738  (Tenn.),  cert.  denied,  454
                  U.S. 1128, 102 S. Ct. 980 (1981).  The denials of his requests for post-conviction relief were
                  likewise  affirmed.1 The  Appellant  subsequently  petitioned  for  a  federal  writ  of  habeas  corpus  and
                  moved  for  summary  judgment. The  federal  district  court  partially  granted  his  motion  and  issued  the
                  writ,  holding  that  (1)  trial  counsel  was  ineffective  at  both  the  guilt  and  sentencing  phases,  and  (2)
                  the reasonable doubt instruction was unconstitutional and it was reasonably likely that the jury
                  interpreted the instructions as preventing any juror from considering a mitigating circumstance
                  unless  the  jury  unanimously  found  that  circumstance.2 Austin  v.  Bell,  938  F.  Supp.  1308  (M.D.
                  Tenn.  1996). The  State  sought  appeal  to  the  Sixth  Circuit  Court  of  Appeals  from  the  district  courtÕs
                  ruling  granting  the  Appellant  relief  on  the  issues  of  ineffective  assistance  of  counsel  and  reasonable
                  doubt  instruction. The  Sixth  Circuit  reversed  the  district  courtÕs  holdings  on  all  grounds  with  the
                  exception that the court affirmed the district courtÕs finding that counsel was ineffective at the
                  penalty  phase. See  Austin  v.  Bell,  126  F.3d  843  (6  th  Cir.  1997),  cert.  denied,  523  U.S.  1079,  118  S.
                  Ct.  1526  and  523  U.S.  1088,  118  S.  Ct.  1547  (1998).  The  case  was  remanded  to  the  Shelby  County
                  Criminal  Court  for  a  new  sentencing  hearing.3


                           Upon  remand,  the  State  filed  notice  of its intent  to  seek  the  death  penalty  based  upon  two
                  aggravating  circumstances:  (1)  that  the  defendant  committed  the  murder  for  remuneration  or  the
                  promise of remuneration or employed another to commit the murder for remuneration, or the
                  promise of remuneration; and (2) that the murder was committed for the purpose of avoiding,
                  interfering  with,  or  preventing  a  lawful  arrest  or  prosecution  of  the  defendant  or  another. TENN.
                  CODE  ANN.  ¤¤  39-2402(i)(4)  and  (6)  (1977). A  new  sentencing  hearing  was  held  on  March  1,  1999.
                  At the conclusion of the sentencing hearing, the jury found the presence of one aggravating
                  circumstance,  i.e.,  that  the  defendant  committed  the  murder  for  remuneration  or  the  promise  of



                                                                -3- remuneration or employed another to commit the murder for remuneration.  The jury further
               determined  that  the  mitigating  circumstances  did  not  outweigh  the  aggravating  circumstance  and
               imposed  a  sentence  of  death.  The  trial  court  approved  the  sentencing  verdict.  The  Appellant  appeals
               presenting  for  our  review  the  following  issues:
                       I. Whether  the  trial  court  erred  by  denying  the  AppellantÕs  motion  to  disqualify  the
                       Tennessee  Supreme  Court  and/or  the  State  Attorney  General  from  future  proceedings
                       in this case and whether the court erred in quashing subpoenas issued by the
                       Appellant  regarding  this  claim  (AppellantÕs  Issues  III  and  IV);
                       II. Whether  the  trial  court  properly  controlled the selection  of  numerous  jurors
                       (AppellantÕs  Issues  VI  and  XVI);
                       III. Whether  the  trial  court  erred  by  refusing  to  admit  substantive  evidence  on  the
                       grounds  that  such  evidence  was  hearsay  (AppellantÕs  Issues  I  and  V);
                       IV. Whether  the  trial  court  erred  by  admitting  testimony  of  Marilyn  Lee  Pryor
                       recalling  threats  of  violence  against  her  by  the  Appellant  (AppellantÕs  Issue  XVII);
                       V. Whether  the  trial  court  erred  by  permitting  the  State  to  cross-examine  Levi
                       Haywood  as  to  the  treatment  of  ŌsnitchesĶ  in  the  jail  (AppellantÕs  Issue  XVIII);
                       VI.  Whether the trial court erred by compelling Jack Blankenship to testify
                       (AppellantÕs  Issue  XIX);
                       VII.   Whether the introduction of victim impact evidence constituted error
                       (AppellantÕs  Issue  XIV);
                       VIII.  Whether the State committed prosecutorial misconduct during closing
                       argument  by  commenting  on  matters  not  in  evidence  (AppellantÕs  Issue  VII);
                       IX. Whether  the  trial  court  erred  by  refusing  to  instruct  the  jury  as  to  the  fairness  of
                       the imposition  of a  sentence  of death  in light  of  the  sentences  received by  co-defendants 
                                   Terry  Casteel  and  Jack  Charles  Blankenship  (AppellantÕs  Issue  II);
                       X.  Whether  the  trial  court  properly  refused  to  instruct  the  jury  to  consider  a  sentence
                       of  life  without  the  possibility  of  parole  as  a  sentencing  option  (AppellantÕs  Issue  IX);
                       XI. Whether  the  trial  court  properly  refused  to  instruct  the  jury  regarding  parole
                       eligibility  and  properly  addressed  the  juryÕs  question  regarding  parole  eligibility
                       (AppellantÕs  Issue  XV);



                                                                -4- XII.  Whether the application of aggravating circumstance (i)(4), murder for
                       remuneration,  violates  State  v.  Middlebrooks  (AppellantÕs  Issue  XIII);
                       XIII.  Whether  the  trial  court  properly  refused  to  impose  a  life  sentence  in  light  of  the
                       twenty-year  delay  in  the  imposition  of  a  sentence  of  death  (AppellantÕs  Issue  VIII);
                       XIV. Whether  TennesseeÕs  death  penalty  statutes  are  constitutional  (AppellantÕs
                       Issue  XII);  and
                       XV.   Whether the jury imposed an arbitrary and disproportionate sentence
                       (AppellantÕs  Issues  X  and  XI).
                       After  review,  we  find  no  error  of  law  requiring  reversal. Accordingly,  we  affirm  the  juryÕs
               imposition  of  the  sentence  of  death.


                                                      Factual  Background

                       For  background  purposes,  we  have  excerpted,  from  the  opinion  of  the  Sixth  Circuit  Court
               of  Appeals,  the  following  summary  of  facts  establishing  the  AppellantÕs  guilt  for  the  1977  murder
               of  Julian  Watkins:
                       In  early  1977,  the  [Memphis  Police  Department]  suspected  illegal  gambling  at  [the
                       AppellantÕs]  pool  hall  and  employed  [Julian  C.]  Watkins,  a  reserve  deputy  sheriff,
                       to  investigate. Based  on  WatkinsÕ  testimony,  the  [S]tate  obtained  indictments  and
                       arrest  warrants  for  Austin,  his  wife,  and  several  employees  and  associates,  including
                       Terry  Casteel,  the  manager  of  the  pool  hall. Watkins  was  to  be  the  chief  witness
                       against  them.
                       After  their  arrests,  Austin,  [Jack  Charles]  Blankenship,  and  Casteel  met.  During  their
                       meeting, Austin  and  Blankenship  spoke  separately,  Austin  then  asked  Casteel  to
                       drive  Blankenship  to  WatkinsÕ  house.  Casteel  and  Blankenship  did  not  find  Watkins
                       there, but returned on the morning of May 23,  1977, when Blankenship killed
                       Watkins. After  the  murder,  Blankenship  was  seen  with  a  large  sum  of  money. The
                       police  arrested  him  on  May  24,  1977.  Blankenship  pleaded  guilty  and  was  sentenced
                       to  life  in  prison.
                       Austin  and  Casteel  were  indicted  for  murder. Their  trials  were  severed  after  Casteel
                       agreed  to  testify  for  the  State  that  Austin  hired  him  to  kill  Watkins.
               Austin,  126  F.3d  at  845  n.  1. 



                           4  Ms.  Watkins-Cupp  stated  the  present  ages  of  their  children:  ŌRandy  is  thirty-seven. Bart  is  thirty-three. And
                  Steve  is  thirty.Ķ The  children  were  fifteen,  eleven,  and  eight  years  of  age,  respectively,  at  the  time  of  their  father  Õs
                  murder.

                                                                          -5- Proof  at  the  Re-Sentencing  Hearing

                           On  March  1,  1999,  a  re  -sentencing  hearing  was  held  in  the  Criminal  Court  of  Shelby  County.
                  Carolyn Watkins-Cupp,  the  widow  of  the  victim,  testified  that  she  and  Julian  Watkins  had  been
                  married  for  sixteen  and  one-half  years  and  had  three  children  together  at  the  time  of  his  murder  in
                  1977.  4 Julian  Watkins  owned  Shelby  Body  Works,  a  body  shop  and  wrecker  service. Ms.  Watkins-Cupp 
                         described  Julian  Watkins  as  Ōa  very  loving  man.  .  .  .  He  was  generous. He  was  a  hard  worker.Ķ
                  Julian  Watkins  was  also  very  involved  in  the  Shelby  County  community,  performing  charitable  work
                  and  volunteering  as  a  reserve  deputy  with  the  Shelby  County  SheriffÕs  Department. Ms.  Watkins-Cupp 
                          testified that his murder ŌdevastatedĶ their family. ŌItÕs left a big void in our lives.Ķ
                  Specifically,  she  explained  that  she  met  the  victim  when  she  was  ten  years  old. The  two  Ōgrew  up
                  together. Went  to  school  together. Church  together. They  lived  next  door  to  us.Ķ Ms.  Watkins-Cupp 
                         added  that  her  children  have  struggled  to  understand  what  happened  and  Ōwhy  their  daddy  was
                  no  longer there.Ķ Ms.  Watkins-Cupp  stated  that  her  husbandÕs  murder  forced  her  to  close  their
                  business  at  the  end  of  1977. 
                           Ms.  Watkins-Cupp  recalled  the  events  of  May  23,  1977. On  this  morning,  she  woke  the
                  children,  fed  them,  and  took  them  to  school  at  Glenmore  Academy. Meanwhile,  Julian  Watkins
                  drove  to  work  at  the  Shelby  Body  Works. She  then  drove  to  a  local  carwash  to  have  the  automobile
                  cleaned. While  at  the  carwash,  Ms.  Watkins-Cupp  received  a  call  from  one  of  their  employees  via
                  a  two-way  radio  requesting  that  she  come  to  the  shop. When  she  arrived  at  the  business,  one  of  the
                  employees  informed  her  that  her  husband  had  been  shot. She  was  then  escorted  outside  where  the
                  body  of  her  lifeless  husband  lay  slain  on  the  ground.
                           Bart Watkins, the victimÕs son, testified that he was twelve years old at the time of his
                  fatherÕs murder.  Bart Watkins recalled that on the preceding evening of May 22, 1977, at
                  approximately 10:30 p.m., he and his two brothers were alone at the familyÕs residence on
                  Homewood  Road  when  a  man  knocked  on  their  door.  The  children  were  not  alarmed  because,  at  that
                  time,  Julian  Watkins  had  a  storage  lot  for  cars  behind  the  house  and  it  was  common  for  people  to
                  come  and  get  things  out  of  their  vehicles. Randy,  the  oldest  son,  answered  the  door. The  man  asked
                  whether  Julian  Watkins  lived  here. Randy  responded  affirmatively  and  the  man  replied  that  he  was
                  having  car  trouble  and  that  he  needed  his  vehicle  towed. Randy  informed  the  man  that  his  father  was
                  not  at  home  but  that  he  could  Ōget  [him]  a  wrecker  if  [he]  need[ed]  someone  to  tow  [his]  car.Ķ The
                  man  asked  to  use  the  telephone. Randy  escorted  the  man  to  the  unattached  garage  where  the  man
                  was  permitted  access  to  a  telephone.  The  man  talked  on  the  telephone  for  about  five  minutes. He
                  informed  Randy  that  he  no  longer  needed  a  tow  and  then  he  left. Bart  recalled  that  the  man  was
                  driving  a  white  Ford  sedan.



                           5  ŌAll  of  these  undercover  investigations  that  M  r.  Watkins  participated  in  with  these  various  sixteen  or  seventeen
                  people, basically  theyÕre people playing  pool against  one another, sometimes for a couple of hundred dollars or
                  sometimes  for  ten  dollars  or  there  were  card  games  and  some  people  playing  dice  together.Ķ Ō[T]here  was  no  casino  with
                  a  whole  bu  nch  of  peo  ple  betting  at  a  c  rap  table  o  r  anything  of  that  na  ture.Ķ

                           6  Indictments  were  requested  on  March  31,  1977.  The  resulting  indictments,  re  turned  on  A  pril  19,  19  77, named
                  seventeen  p  ersons  as  b  eing  involved in  illegal  gamblin  g  at  The  G  olden  Cue. 

                           7  Mr.  Cupp  explained  that  Three-Card  Monte  is  a  card  game  involving  one  red  ace  and  two  black  aces. The
                  object  is  to  Ōp  ick  which  one  is  which.Ķ

                           8  During cross-exam  ination of State  Õs witness, Sandra McClain,  the defense team elicited that other co-defendants 
                             charged  with  the  same  type  gambling  offenses  received  punishments  as  minor  as  a  two  hundred  and  fifty
                  dollar  fine.

                                                                           -6- The  following  day,  May  23,  Ms.  Watkins-Cupp  picked  her  three  children  up  from  school  and
                  drove  to  the  familyÕs  residence. Once  inside  the  house,  Ms.  Watkins-Cupp  explained  to  the  children
                  that  their  father  had  been  murdered. At  this  time,  Randy  informed  his  mother  of  the  man  who  was
                  at the residence the previous evening.  The investigating officers subsequently questioned the
                  children  as  to  the  identity  of  their  unidentified  visitor. From  Randy  and  BartÕs  description  of  the
                  visitor,  police  officers  were  able  to  draw  a  composite  of  the  man  using  an  Identikit.  Bart  and  Randy
                  Watkins also later recognized the man from a police line-up.  This man was identified as Jack
                  Charles  Blankenship.
                           Floyd  Alton  Cupp,  a  retired  officer  from  the  Memphis  Police  Department,  testified  that  in
                  May  1977,  he  was  assigned  to  the  Vice  Squad  working  on  a  gambling  investigation  at  The  Golden
                  Cue. Poppy  Popenheimer  owned  The  Golden  Cue  and  the  Appellant,  Richard  Austin,  managed  the
                  club.   Because Cupp was easily recognizable as law enforcement, Julian Watkins, a fully
                  commissioned  reserve  deputy,  was  asked  to  work  undercover  for  the  police  department. As  part  of
                  his  undercover  assignment,  Julian  Watkins  would  frequent  The  Golden  Cue,  where  he  would  shoot
                  pool,  play  cards  and  gamble  when  the  opportunity  arose. As a result  of  WatkinsÕ  visits  to  The
                  Golden  Cue,  officers  recorded  numerous  accounts  of ill  egal gambling  activity.5 Eventually,  the
                  police  officers  asked  that  indictments  be  returned  against  individuals  at  the  establishment,  including
                  the  Appellant.6 Armed  with  the  indictments,  members  of  the  Vice  Squad  conducted  a  raid  of  The
                  Golden  Cue  on  April  20,  1977. Upon  executing  the  raid,  officers  discovered  the  Appellant,  Julian
                  Watkins,  and  another  individual  in  a  back  office  playing  Three  Card  Monte.7 At  this  time,  Julian
                  Watkins  identified  himself  as  a  police  officer. Mr.  Cupp  stated  that,  without  the  testimony  of  Julian
                  Watkins,  there would be no case against the Appellant.  Mr. Cupp admitted that the gambling
                  charges  against  the  Appellant  and  the  others  were  relatively  minor  criminal  offenses.8

                  Notwithstanding,  a  person  convicted  of  gambling  charges  is  unable  to  hold  an  amusement  license.
                           Through  the  testimony  of  Sandra  McClain,  a  clerk  for  the  Criminal  Courts  of  Shelby  County,
                  the  State  introduced  indictments  charging  the  Appellant  with  numerous  gambling  offenses  occurring
                  on  dates  between  February  24,  1977,  and  March  5,  1977. Of  particular  note  is  indictment  B-57321,
                  charging  the  Appellant  and  B.  J.  Popenheimer,  Ōas  operators  of  premises  located  at  1803  Winchester



                           9  Blankenship  was  serving  a  sentence  for  a  previous  murder  prior  to  his  escape.

                                                                          -7- Road .  .  .  ,  [with  ]  unlawfully  and  knowingly  maintain[ing]  a  gambling  premises  .  .  .  Ķ  and  indictment
                  B-57992, charging the Appellant and Joann Skelton Austin with Ōkeeping a room at 1803
                  Winchester  .  .  .  as  owners  for  the  purpose  of  aiding  and  assisting  the  playing  of  a  game  of  Three  Card
                  Monte.  .  .  .Ķ See  generally  TENN.  CODE  ANN.  ¤  39-2004. 
                           Richard W. Jewell, a communications supervisor with the Bartlett Police Department,
                  testified  that  in  1977,  he  was  employed  with  the  Shelby  County  SheriffÕs  Department. On  May  23,
                  1977,  Jewell  and  his  partner  were  dispatched  to  the  Shelby  Body  Works  at  8:56  a.m. Upon  arriving
                  at  the  location,  Officers  Jewell  and  Swain  observed  the  body  of  Julian  Watkins  with  several  small
                  caliber  gunshot  wounds  to  his  head,  neck,  chest,  and  stomach  area. After  the  officers  secured  the
                  scene,  one  of  the  employees  provided  the  officers  with  a  description  of  the  assailant.
                           Memphis  Police  Lieutenant  Otis  Anderson  was  assigned  to  uniform  patrol  on  May  24,  1977,
                  along  with  his  partner  Officer  Danny  Presley. At  approximately  1:00  a.m.  that  morning,  the  officers
                  made  a  traffic  stop  of  a  vehicle  because  the  driver  was  suspected  of  driving  under  the  influence. The
                  officers  noticed  a  strong  odor  of  alcohol  on  the  driverÕs  breath.  The  driver  subsequently  failed  a  field
                  sobriety  test. After  the  driver  exited  the  vehicle,  the  officers  found  a  loaded  .22  caliber pistol  under
                  the  driverÕs  side  seat. The  driver  identified  himself  as  Jack  Charles  Blankenship  and  attempted  to
                  bribe  the  officers  with  one  thousand  dollars  to  let  him  go. Lieutenant  Anderson  recalled  that  an
                  individual  named  Jack  Charles  Blankenship  had  recently  escaped  from  the  penal  farm.9 Additional
                  investigation  revealed  that  the  license  plate  on  the  vehicle  driven  by  Blankenship  did  not  match  the
                  vehicle.
                           Mike Bonham, a former detective with the Shelby County SheriffÕs Department, was
                  assigned  to  investigate  the  murder  of  Julian  Watkins.  Bonham  was  informed  of  BlankenshipÕs  arrest
                  and  visited  him at John  Gaston  Hospital. Bonham  recognized  Blankenship  from  the  composite
                  provided  by  the  Watkins  children. He  also  discovered  that  the  license  plate  on  the  vehicle  driven
                  by  Blankenship  had  been  altered  by use  of  a  magic marker  from 1BN202  to  1BN808. Although
                  never  implicated  by  Blankenship,  the  Appellant  surfaced  as  a  suspect  in  WatkinsÕ  murder  on  May
                  25,  1977.
                           Marilyn  Lee  Pryor  was  employed  as  a  cashier/cook  at  The  Golden  Cue  in  May  1977. Ms.
                  Pryor  testified  that  the  Appellant  was  her  employer  and  he  permitted  her  to  sleep  in  one  of  the  rooms
                  at  the  club. Julian  Watkins  was  never  mentioned  at  the  pool  hall  as  being  the  person  responsible  for
                  the  April  1977  raid. Indeed,  it  was  not  until  Julian  Watkins  came  into  The  Golden  Cue  sometime
                  after  the  raid  that  Ms.  Pryor  learned  of  his  law  enforcement  identity. After  this  visit,  the  Appellant
                  Ōwas  laughing  and  carrying  on  about  how  cute  Mr.  Watkins  looked. He  had  a  gun  and  he  even  made
                  the  comment  to  me  at  that  time  that  he  was  an  S-O-B,  and  that  he  should  have  his  brains  shot  out.Ķ



                          10  Ms.  Pryor  admitted  that  she  and  Terry  Casteel  were  engaged  to  be  married  prior  to  the  victimÕs  murder. By
                 October  1977,  th  ey  had  end  ed  their  enga  gement. 

                          11  Prior  to  moving  to  Memphis,  the  Appellant  resided  in  Scranton,  Arkansas,  with  his  wife  and  his  four  children.
                 Because  of  marital  difficulties,  Casteel  left  Arkansas  and  came  to  Me  mphis.

                                                                        -8- Pryor  recalled  that  on  the  night  prior  to  the  murder of Julian Watkins,  a  man  fitting  the
                 description  of  Jack  Charles  Blankenship  came  into  The  Golden  Cue.  He  later  left  with  Terry  Casteel,
                 a  manager  at  the  club,  and  the  Appellant.10 Prior  to  daylight,  the  Appellant  returned  to  the  club
                 alone. Terry  Casteel  returned  the  next  morning  and  he  and  the  Appellant  left. The  Appellant  told
                 Ms.  Pryror  that  Ōhe  .  .  .  and  Terry  had  to  take  care  of  some  business,  and  he  would  come  back,  and
                 when  he  came  back  I  could  go  home.Ķ Later  that  day,  two  Vice  Squad  officers  came  in  The  Golden
                 Cue,  inquiring  as  to  the  AppellantÕs  whereabouts. The  Appellant  was  not  there. The  officers  then
                 questioned  Ms.  Pryor  as  to  whether  a  man  about  five  feet  tall  with  brown  hair  had  been  into  the  club.
                 When  she  responded  affirmatively,  the  officers  informed  her  that  she  would  be  subpoenaed  to  come
                 to  the  Shelby  County  Court  for  a  statement. That  evening,  Ms.  Pryor  received  a  phone  call  from  the
                 Appellant  during which he  told  her  not  to  worry  about  the  subpoena  because  she  did  not  know
                 anything. The  next  morning,  Terry  Casteel  and  Mary  Scivilia  came  to  The  Golden  Cue,  woke  Ms.
                 Pryor,  and  told  her  that  they  were  taking  her  to  her  home  in  Greenwood,  Mississippi. Ms.  Pryor
                 informed  them  about  the  subpoena,  but  they  assured  her  that  she  did  not  have  to  go. Upon  reaching
                 Greenwood,  Pryor  notified  the  police  officers  of  her  whereabouts;  the  officers  drove  to  Mississippi
                 to  retrieve  Ms.  Pryor. After  testifying  on  behalf  of  the  State,  Ms.  Pryor  was  subsequently  contacted
                 by  the  Appellant  at  her  home  in  Greenwood. When  she  informed  him  that  she  had  provided  a
                 statement,  the  Appellant  told  her  that  Ō[she]  was  a  stupid,  cold,  bitch  and  that  [she]  should  have  been
                 killed,  too.Ķ
                          Terry  Lee  Casteel  testified  that,  in  1977,  he  entered  a  guilty  plea  to  the  murder  of  Julian
                 Watkins  and  received  a  sentence  of  twenty  years. He  was  paroled  after  serving  six  years  of  this
                 sentence. Casteel  related  that,  in  the  spring  of  1977,  he  came  to  Memphis  from  Arkansas.11 Upon
                 arriving  in  Memphis,  Casteel  rented  a  motel  room  and  went  to  a  few  pool  halls. He  learned  that  the
                 Appellant,  a  well-known  pool  player,  owned  The  Golden  Cue. Casteel  secured  employment  at  The
                 Golden  Cue,  assisting  the  Appellant  with  managerial  duties. Casteel  testified  that  he  was  present
                 on the day  The  Golden  Cue  was  raided  by  the  police  and  was  present  when  the  Appellant  was
                 arrested.  The  AppellantÕs  wife,  Joann,  was  also  arrested  for  running  a  gaming  establishment.  Casteel
                 subsequently  was  able  to  bail  Joann  Austin  from  jail  with  funds  on  hand  at  the  club. Joann  was  then
                 able  to  secure  sufficient  funds  to  make  the  AppellantÕs  bail. After  the  raid,  business  at  The  Golden
                 Cue suffered and the Appellant was visibly upset, blaming Julian Watkins for his troubles.
                 Specifically, the Appellant expressed his concern over a possible penal farm sentence.  He
                 commented  that,  ŌI  need  to  do  something  about  it. I  need  to  take  care  of  him.Ķ 
                          One  night,  at  the  AppellantÕs  residence,  the  Appellant  asked  Casteel  about  committing  an
                 undetectable  murder. Casteel  replied  that  he  would  probably  get  a  cross  bow,  because  it  would  be
                 silent  and  hard  to  trace. The  Appellant  asked  where  he  could  purchase  a  cross  bow  and  discussed
                 contacting  Troy  Bullock. A  cross  bow  was  never  purchased. Shortly  after  the  attempt  to  purchase



                          12  Casteel  testified  that  he  had  changed  the  202  on  the  license  plate  to  808  with  a  magic  marker  after  Julian
                 Watkins  was  murdered.

                                                                         -9- a  cross  bow,  the  Appellant  received  a  telephone  call  informing  him  that  Jack  Charles  Blankenship
                 was in town and that he had escaped from prison.  Subsequently, the Appellant arrived at The
                 Golden  Cue  and  announced  to  Casteel  that  he  was  going  to  meet  somebody  at  Lamar  and  Pendleton.
                 The  Appellant  also  advised  Casteel  that,  if  he  was  not  back  by  a  certain  time,  Ōtell  Joann  where  I
                 went.Ķ Casteel,  concerned  for  the  AppellantÕs  safety  and  with  the  AppellantÕs  approval,  decided  to
                 accompany  the  Appellant. The  Appellant  was  driving  his  1976  Cadillac. Arriving  at  Lamar  and
                 Pendleton,  the  Appellant  pulled  into  the  parking  lot  of  a  lounge  and  the  two  men  waited. Shortly
                 thereafter, Jack Charles Blankenship arrived and got out of his vehicle.  Blankenship and the
                 Appellant  confirmed  each  otherÕs  identity. The  men  proceeded  back  to  The  Golden  Cue,  where  the
                 Appellant  introduced  Casteel  as  his  brother. After  about  fifteen  minutes,  the  three  men  went  inside.
                 The  Appellant  and  Blankenship  proceeded  to  the  AppellantÕs  office. Casteel  remained  outside.
                 After  about  thirty  minutes,  the  two  men  emerged. Blankenship  commented  that  he  was  tired  and
                 needed a place to stay.  The Appellant informed Blankenship that his wife  owned a trailer in
                 Mississippi.  He  then  instructed  Casteel  to  drive  Blankenship  to  the  trailer.  As  the  men  left  Memphis
                 in  a  1972  dark-blue  Ford  LTD,12 Blankenship  asked  Casteel  to  show  him  where  Julian  Watkins
                 lived. The  men  also  stopped  at  a  store  so  Blankenship  could purchase  a  case  of  beer. Despite
                 directions  from  the  Appellant,  Casteel  and  Blankenship  were  unable  to  find  the  trailer. Casteel
                 called  the  Appellant  who  advised  Casteel  that  he  would  drive  down  there  and  show  him  the  way  to
                 the  trailer. The  Appellant,  accompanied  by  Joann,  arrived  and  directed  Casteel  and  Blankenship  to
                 the  trailer.  The  Appellant,  Joann,  and  Casteel  left  Blankenship  at  the  trailer  and  returned  to  the
                 AppellantÕs  residence.
                          At  6:30  a.m.  the  following  morning,  Casteel  was  awakened  by  the  Appellant  and  the  two  men
                 drove  to  the  trailer.  Once  at  the  trailer,  the  Appellant  asked  Casteel  to  drive  Blankenship  to  WatkinsÕ
                 body  shop. At  the  business,  Blankenship  exited  the  vehicle  and  entered  the  shop. Approximately
                 three  minutes  later,  Blankenship  came  out  of  the  shop  accompanied  by  Julian  Watkins.  The  two  men
                 walked  back  to  the  vehicle. Julian  Watkins  was  standing  at  the  front  of  the  car  and  bent  over  as  if
                 he  were  looking  for  damage  of  some  kind. As  Watkins  raised  up,  Blankenship  pulled  the  gun  out
                 of  his  pocket  and  shot  Watkins  in  the  temple. Blankenship  fired  five  more  shots  at  the  victimÕs  neck
                 and  chest. The  gun  was  emptied  before  Julian  Watkins  Ōhit  the  ground.Ķ Blankenship  got  back
                 inside  the  vehicle  and  Casteel  pulled  out  of  the  parking  lot,  heading  back  toward  the  trailer. 
                          The Appellant was waiting at the trailer when Casteel and Blankenship returned.
                 Blankenship  reported  to  the  Appellant  that  he  Ō[didnÕt]  have  to  worry  about  the  son  of  the  bitch  no
                 more.Ķ Blankenship  added  that  Ō[it]  felt  good  to  kill  that  snitching  son  of  a  bitch.Ķ The  Appellant
                 then  paid  Blankenship  one  thousand  dollars. Blankenship  counted  the  money,  put  it  in  his  pocket,
                 and  then  reloaded  his  gun. The  Appellant  and  Casteel  drove  back  to  The  Golden  Cue. A  few  days
                 after  the murder, the Appellant  advised  Casteel  that  he  was  wanted  for  questioning  and  that  he
                 should  leave  town. Casteel  complied  and  initially  went  to  Florence,  Alabama. Casteel  eventually
                 made  his  way  to  Florida,  where  he  received  a  telephone  call  from  the  AppellantÕs  wife.  Shortly  after



                          13  Casteel  testified  at  the  AppellantÕs  first  trial  in  October  1977. Casteel  was  still  charged  with  first  degree
                 murder  at  this  time. Casteel  eventually  entered  a  guilty  plea  to  second  degree  murder.

                          14  Mr.  Causey  related  that  he  could  not  recall  any  case  Ōwhere  anybody  accused  of  gambling  [was  sentenced
                 to]  the  five  year  m  aximum  that  you  could  g  et.Ķ

                                                                        -10- receiving  this  telephone  call,  Casteel  returned  to  Memphis. On  January  6,  1978,  Memphis  Police
                 Officers  arrested  Casteel. At  the  time  of  his  arrest,  Casteel  denied  any  knowledge  of  the  murder  of
                 Julian  Watkins. Several  days  after  his  arrest  and  upon  being  informed  that  he  would  be  released  due
                 to  lack  of  evidence,  Casteel  informed  officers  about  the  murder.13 


                          As  mitigation  evidence,  the  Appellant  presented  evidence  that  co-defendant  Terry  Casteel,
                 who  was  charged  with  first  degree  murder  and  accessory  before  the  fact  of  murder  for  the  death  of
                 Julian  Watkins,  entered  a  guilty  plea  to  second  degree  murder  on  February  2,  1978.  Casteel  received
                 a sentence of twenty years confinement.  The Appellant also introduced the testimony of Levi
                 Haywood.  Haywood  had  met  Terry  Casteel  at  the  Shelby  County  Jail,  where  both  were  incarcerated.
                 Casteel  informed  Haywood  that  he  had  been  beaten  by  the  police  because  he  refused  to  implicate  the
                 Appellant  in  the  murder  of  Julian  Watkins. Casteel  admitted  to  Haywood  that  he  later  implicated
                 the  Appellant  to  save  himself  from  Ōburning.Ķ He  also  conceded  that  he  regretted  Ōly[ing]  on  that
                 dude.Ķ Haywood  testified  that  he  and  the other inmates  knew  that  Casteel  was  a  Ōsnitch.Ķ He
                 admitted  that  a  ŌsnitchĶ  Ōmay  get  beat  upĶ  and  they  may  even  be  killed  while  in  prison. 
                          James  D.  Causey,  a  Shelby  County  attorney,  testified  that  in  1977,  he  was  asked  to  review
                 the  indictments  of  the  Appellant  with  respect  to  the  gambling  charges. Mr.  Causey  stated  that  the
                 Appellant  was  indicted  for  both  professional  gambling  and  for  gaming. It  was  his  opinion  that  the
                 StateÕs  case  against  the  Appellant  on  these  charges  was  not  strong  and  Ōit  would  have  been  very
                 difficult . . . to have gotten a conviction of [the Appellant] for professional gambling.Ķ
                 Notwithstanding,  Causey  continued,  had  the  proof  been  such  to  warrant  a  conviction,  neither  crime
                 was  considered  a  ŌseriousĶ  offense  and  the  likely  punishment  would  merely  be  a  fine.14 On  cross-examination, 
                                 Mr.  Causey  conceded  that  Ōnine  times  out  of  ten,Ķ  gambling  charges  are  settled  without
                 a  trial  and  the  agreed  punishment  is  a  fine. He  also  admitted,  however,  that  a  person  could  lose  their
                 business  license  if  convicted  of  a  gambling  offense.
                          Joann  Austin  Skelton,  the  AppellantÕs  former  wife,  admitted  that  the  AppellantÕs  brother,
                 A.C.  Austin,  had  threatened  her  in  the  past;  specifically,  after  the  Appellant  was  charged  with  the
                 murder  of  Julian  Watkins  and  the  Appellant  and  Joann  separated. She  recalled  nothing  about  the
                 murder. She  did  admit  that  the  business  license  to  The  Golden  Cue  was  originally  in  her  name  and
                 was  later  transferred  to  Joe  Popenheimer. She  stated  that,  as  far  as  she  knew,  the  license  was  never
                 in  the  AppellantÕs  name. 
                          Gloria  Shettles,  a  private  investigator  employed  by  the  AppellantÕs  defense  counsel,  testified
                 that  from  1976  until  1990  she  was  employed  by  the  Board  of  Paroles. Although  she  was  not  his
                 parole  officer,  Ms.  Shettles  did  have  occasion  to  prepare  a  report  on  Terry  CasteelÕs  behalf. She
                 stated  that  Casteel  was  taken  into  custody  on  July  6,  1977,  and  pled  guilty  on  February  20,  1978.



                          15  Terry  Casteel  was  paroled  July  24,  1984.

                                                                        -11- Shettles  admitted  that  Casteel  was  not  paroled  early  but  had  served  the  requisite  percentage.15 Ms.
                 Shettles  further  testified  that  Terry  CasteelÕs  prison  file  contained  two  letters,  one  dated  February  2,
                 1978,  by  the  District  Attorney  GeneralÕs  Office,  expressing  that,  after  Casteel  had  served  four  to  five
                 years  of  good  time  in  the  penitentiary,  Ōwe  would  not  oppose  executive  clemency,Ķ  although  the
                 District  AttorneyÕs  Office  would  not  initiate  clemency.  The  second  letter,  dated  March  28,  1984,
                 also  from  the  District  Attorney  GeneralÕs  Office  to  the  State  Board  of  Pardons  and  Paroles,  related
                 that,  in  the  BoardÕs  consideration  of  early  release  for  Mr.  Casteel,  the  Board  should  remain  cognizant
                 of  CasteelÕs  cooperation  in  the  StateÕs  prosecution  against  the  Appellant  and  also  that  CasteelÕs  role
                 in  the  murder  of  Julian  Watkins  was  Ōless  substantial  then  [sic]  that  of  either  of  his  co-defendants,
                 and  that  to  the  best  of  our  knowledge,  Mr.  Casteel  has  no  significant  prior  criminal  behavior.Ķ 
                          Troy  Bullock,  a  resident  of  Jonesboro,  Arkansas,  testified  that  in  1977,  he  was  the  manager
                 of  Terminex  in  Arkansas  when  the  Appellant  introduced  him  to  Terry  Casteel. He  stated  that  he  and
                 the  Appellant  discussed  Ōbig  stakesĶ  gambling  at  various  Jonesboro  locations. Four  or  five  days
                 after  this  initial  meeting,  Terry  Casteel  telephoned  Bullock  and  inquired  about  a  cross  bow. When
                 Bullock  asked  why  Casteel  needed  a  cross  bow,  Casteel  replied,  ŌI  got  some  silent  hunting  to  do.Ķ
                 Bullock informed Casteel  that cross bows were illegal and stated that he did not want to get
                 involved. Several  weeks  later,  Bullock  attended  a  quarterly  Terminex  meeting  in  Memphis. At  this
                 meeting, Bullock received a message to contact Jack Charles Blankenship.  Bullock knew
                 Blankenship  from  his  childhood  and  also  knew  that  he  had  escaped  from  prison. After  his  meetings
                 were  concluded  for  the  day,  Bullock  went  to  The  Golden  Cue. Because  the  Appellant  was  not  at  the
                 club  on  this  occasion, Bullock  told  Casteel  about  his  message  from  Blankenship  and  his  concerns
                 over  contacting  him. He  informed  Casteel  that  Blankenship  was  a  convicted  murderer  who  had
                 escaped  from  prison. Bullock  stated  that  he  had  too  much  at  stake  to  risk  contacting  Blankenship.
                 He  wadded  up  BlankenshipÕs  telephone  number  and  Ōdropped  it.Ķ Casteel  picked  the  paper  up  and
                 stated  ŌI  will  take  care  of  this.  .  .  .  IÕm  taking  care  of  RichardÕs  business.Ķ 
                          Brenda  Morrison is employed at Riverbend Maximum Security Institution as an inmate
                 relations  coordinator. Ms.  Morrison  testified  that  the  Appellant  is  housed  in  the  unit  she  is  assigned
                 to  oversee. She  first  encountered  the  Appellant  in  the  1980's  while  still  at  the  Main  Prison,  Ōthe  old
                 Tennessee  State  Penitentiary.Ķ  The  Appellant  spent  twelve  years  at  the  Main  Prison,  which  was  later
                 closed  by  court  order  due  to  its  state  of  disrepair. The  Appellant  was  the  first  man  on  death  row  at
                 the  Main  Prison. Morrison  testified  regarding  the  conditions  at  the  Main  Prison:
                          .  .  .the  conditions  were  very  bad.  .  .  .  [T]he  heat  in  the  summer-t  ime  was  very,  very,
                          bad. The  coldness  in  winter-time,  IÕve  had  inmates  tell  me  they  had  to  chip  ice  out
                          of  their  toilets  to  be  able  to  flush  them.  .  .  .
                          A  lot  of  [inmates]  would  put  like  pieces  of  cardboard  over  the  top  of  their  toilet  and
                          set  their  trays  on  top  of  that  [to  eat].



                          16  Morrison  admitted  on  cross-examination  that,  at  Riverbend,  death  row  inmates  work  six  hou  rs  a  day,  thirty
                 hours  a  week. In  addition,  they  have  recrea  tion  time  and,  occasionally, have  group  meals  and  religious  programs.
                 Inmates  are  also  allowed  to  sign  up  at  least  three  times  a  week  for  access  to  the  law  library  and  are  also  permitted
                 televisions  in  their  cell,  with  no  restriction  on  television  usage.

                                                                        -12- Morrison  added  that  the  Main  Prison  had  problems  with  both  rodents  and  roaches. The  Appellant
                 was  first  assigned  to  Unit  One,  administrative  segregation. In  Unit  One,  an  inmate  would  spend
                 twenty-three  hours  a  day  in  his  cell. The  Appellant  never  complained  nor  was  he  ever  a  disciplinary
                 problem. Once  transferred  to  Unit  Six,  the  Appellant  would  get  one  hour  for  exercise. Eventually,
                 he  was  able  to  stay  out  a  little  bit  longer. In  October  1989,  the  Appellant  was  transferred  to  the  new
                 facility  at  Riverbend.16  At  the  new  facility, the Appellant  works  as  a  teacherÕs  aid. ŌHe  helps
                 students  with  their  GED  program,  like  a  tutor. And  helps  students  get  ready  for  taking  the  GED
                 test.Ķ  Additionally,  she  has  observed  the  Appellant  to  be  Ōvery  respectfulĶ  to  herself  and  to  other
                 officers.  She  further  commented:
                          Richard  Austin  is  a  very  good  inmate.  He  has  never  been  a  problem  for  management.
                          He  gets  along  well  with  his  peers. He  tries  to  help  other  inmates. Even  back  a  few
                          months  back,  IÕm  not  sure  exactly  when  the  date,  because  thereÕs  Ô96  there,  he  had
                          his  father  die  and  his  brother  die,  and  even  through  all  that,  that  was  like  within  a
                          five-day  period,  he  was  still  trying  to  help  other  inmates  with  their  schooling. So
                          heÕs  very  dedicated  to  helping,  you  know,  his  peer  group  with  their  education.
                          Charles  Tracy,  a  correctional  teacher  at  Riverbend,  stated  that  he  has  been  acquainted  with
                 the  Appellant  since  1984. The  Appellant  now  works  for  him  at  the  prison  as  a  teacherÕs  aid.  As  part
                 of  his  job  duties,  the  Appellant  is  responsible  for  delivering  lessons  to  individual  students  in  his  pod,
                 conducting  classes,  and  assisting  students  if  they  have  problems. 
                          The  video  taped  depositions  of  Hardin  Green  and  John  Owen  were  introduced  for  the  jury.
                 Hardin  Green  and  John  Owen  are  retired  correctional  officers  from  the  Tennessee  Department  of
                 Correction. While  employed,  both  men  were  assigned  to  death  row  at  the  Tennessee  State  Prison
                 in Nashville.  In addition to relating the AppellantÕs exemplary behavior, the former guards
                 explained  how  the  Appellant  protected  the  guards  during  a  prison  riot  that  occurred  in  1985. At  this
                 time,  inmates  in  the  general  population  started  a  riot  and  gained  control  of  the  interior  of  the  prison.
                 When  the  inmates  on  death  row  heard  the  rioting  prisoners,  ŌSteve  Pickle,Ķ  a  death  row  inmate,
                 started  a  fire.  Meanwhile,  inmates  from  the  general  population  were  trying  to  gain  access  to  death
                 row. The  Appellant  told  the  inmates  from  the  general  population,  Ōwe  donÕt  need  you  in  here.  We
                 donÕt  want  you  in  here,  we  donÕt  want  our  officers  hurt,  we  are  appealing  our  stuff  and  you  are  going
                 to  sentence  us  to  the  death  penalty  if  you  come  in  here.  .  .  .Ķ Both  Hardin  Green  and  John  Owen
                 opined  that  the  Appellant  not  only  saved  their  lives  that  day  but  also  the  lives  of  the  five  other
                 officers  assigned  to  death  row. 
                          T.J.  Walker,  an  inmate  serving a life  sentence  at the Northeastern  Correctional  Facility,
                 testified  that  he  resided  on  death  row  at  Riverbend  Prison  with  the  Appellant  between  1990  until



                          17  Walker  explained  that  Ōto  chalk  it  me  ans  IÕm  not  p  aying  you.Ķ

                          18  On  redire  ct  examinatio  n,  Blanken  ship  explain  ed  that,  at  the  time  he  de  nied  the  Ap  pellantÕs  involve  ment  in
                 the  murder,  he  thought  he  was  being  a  Ōs  tand-up  pe  rson,  and  a  snitch  couldn  Õt  live  in  the  penitentia  ry.Ķ

                          19  Blankenship  explained  that  the  Appellant  subtracted  twenty  dollars  from  the  contracted  price  of  the  murder
                 for  a  case  of  Schlitz  brand  beer  that  he  had  purchased  for  Blankenship  the  previous  evening.

                                                                        -13- 1998. During  this  time,  the  Appellant  tutored  Walker  in  preparation  for  the  GED  examination.  The
                 Appellant  was  well-respected  by  the  other  inmates. When  a  new  inmate  would  come  onto  the  pod,
                 the  Appellant  would  assist  them  in  any  way  he  could. In  some  situations,  if  the  new  inmate  did  not
                 have  any  possessions,  the  Appellant  would  order  them  something  from  the  store.  Walker  recalled
                 that  at  one  point,  as  a  result  of  gambling,  another  inmate  became  indebted  to  Walker  in  the  amount
                 of  six  hundred  sixty-five  dollars. At  some  point,  the  other  inmate  told  Walker  to  Ōchalk  itĶ17  and
                 called  him  some  derogatory  names. Walker  made  up  his  mind  to  kill  this  inmate. The  Appellant,
                 however,  discouraged  WalkerÕs  intentions. Walker  testified  that  the  AppellantÕs  actions  in  this
                 instance  were  indicative  of  his  role  as  a  peacemaker  on  death  row. 
                          Jack  Charles  Blankenship  testified  that,  contrary  to  his  prior  statements,  he  met  Terry  Casteel
                 and  the  Appellant  on  the  evening  prior  to  the  murder  of  Julian  Watkins.  Blankenship  confirmed
                 CasteelÕs  version  of  the  events  surrounding  the  murder,  recanting  his  previous  version  of  the  facts
                 in which he denied any involvement of the Appellant in soliciting the murder of Watkins.18

                 Blankenship  testified  that,  after  the  Appellant  paid  him  $980  for  the  murder,19  he  Ōditched  the  car
                 . . . ,Ķ purchased a sandwich, and called a cab.  Later that evening he returned for the vehicle.
                 Blankenship  then  Ōjust  started  boozing  it  up. Going  from  one  beer  joint  to  another.Ķ He met  a
                 woman  at  the  Mousetrap  who  later  gave  him  a  place  to  sleep  that  night. Blankenship  was  arrested
                 the  next  afternoon. Sandra  McClain,  a  clerk  for  the  Criminal  Court  of  Shelby  County,  introduced
                 records  reflecting  that  Blankenship  was  charged  with  the  premeditated  murder  of  Julian  Watkins.
                 Blankenship  entered  a  plea  of  guilty  and  was  sentenced  to  life  in  the  state  penitentiary. 
                          Reverend  Joseph  Ingle,  a  minister  with  the  United  Church  of  Christ,  testified  that  he  has  been
                 engaged  in  prison  ministry  since  1974. He  stated  that  he  has  had  a  pastoral  relationship  with  the
                 Appellant  for  almost  twenty-two  years. He  remembered  the  Appellant  as  being  the  Ōfirst  prisoner
                 [in  the  Tennessee  State  Prison]  in  what  was  called  the  new  death  row,  because  the  old  law  was  struck
                 down  in  1977.Ķ Reverend  Ingle  added  that  the  prison  was  built  in  1898  and  proceeded  to  describe
                 the antiquated conditions at the former facility.  He corroborated the testimony of correctional
                 officers  that  the  Appellant  never  complained  about  the  conditions.  Reverend  Ingle  added  that  at  the
                 new  facility,  Riverbend,  the  Appellant  has  reached  ŌAĶ  level  classification  because  of  his  exemplary
                 behavior. He  explained  that  ŌAĶ  level  entitles  an  inmate  to  participate  in  classes  and  a  data  entry
                 program. In  describing  the  Appellant,  Reverend  Ingle  stated,  Ō[The  Appellant]  doesnÕt  wear  his
                 religion on his sleeve.  He practices it.  HeÕs a very kind man, and heÕs deeply respected by
                 everybody  on  death  row,  and  admired  by  everyone,  because  of  the  quality  of  life  heÕs  lived  since  heÕs
                 not  only  been  at  Riverbend,  but  also  on  death  row  at  the  Tennessee  State  Prison.Ķ 



                          20  On  cross-examination,  Dr.  Cunningham  related  that  the  Appellant  had  an  I.Q.  of  87.  This  would  place  the
                 Appellant  in  the  lower  range  of  ŌaverageĶ  for  intelligence.

                                                                        -14- Jimmy  Edwards  Jr.,  the  eighteen-year-old  great-nephew  of  the  Appellant,  testified  that  he
                 frequently  visits  his  uncle  in  prison. He  described  his  uncle  as  being  Ōone  of  the  nicest  guys  IÕve
                 ever  met. To  think  that  he  did  what  he  was  convicted  of,  is  just  unconscionable. I  donÕt  think  he  did
                 it. HeÕs  caring. HeÕs  gentle.Ķ Marcia  Birdsong,  the  AppellantÕs  stepdaughter,  testified  that  during
                 the  five  years  that  her  mother,  Joann,  was  married  to  the Appellant,  the  Appellant  was  a  Ōgreat
                 stepfather.Ķ She  described  the  Appellant  as  Ōkind  and  so  generous  and  honest.Ķ She  recalled  that
                 her  motherÕs  parents  were  elderly  and  did  not  have  running  water  nor  bathrooms  in  their  home. The
                 Appellant  had  plumbing  installed  in  their  home. When  her  grandfather  was  dying,  the  Appellant
                 bought  him  a  new  bed  so  that  he  would  be  more  comfortable. More  recently,  the  Appellant  offered
                 her  comfort  after  her  husband  died  of  leukemia.  Midge  Edwards,  the  AppellantÕs  sister,  testified  that
                 she  and  the  Appellant  were  two  of  eight  children  in  their  family. The  Appellant  was  the  fourth  child
                 born. She  stated  that  the  Appellant  liked  to  watch  ball  games  and  playing  pool  was  his  favorite
                 thing. In  fact,  he  was  Ōreal  goodĶ  at  playing  pool  and  ŌheÕs  even  played  with  Minnesota  Fats  a  long
                 time  ago.Ķ Ms.  Edwards  also  explained  that  the  Appellant  is  a  diabetic  and  has  a  lot  of  problems
                 with  his  blood  sugar.  Jimmy  Edwards,  the  AppellantÕs  nephew,  testified  that  he  was  twenty-three
                 years  old  when  his  uncle  was  sent  to  prison. He  explained  that,  while  he  was  growing  up,  he  had
                 been  very  close  to  his  uncle. 
                          Dr.  Mark  Cunningham,  a  clinical  and  forensic  psychologist,  testified  that  he  evaluated  the
                 Appellant  relative  to  the  AppellantÕs  Ōprison  adjustmentĶ  and  the  influence  that  he  has  upon  other
                 inmates  in  the  prison  setting. As  a  result  of  his  evaluation,  Dr.  Cunningham  opined  that 
                          [r]egarding  the  likelihood  of  his  making  a  continued  positive  adjustment  to  a  prison
                          setting,  I  think  the  likelihood  of  that  is  very  high  that  he  will  continue  to  have  a  good
                          adjustment  to  incarceration. Regarding  his  likelihood  of  committing  acts  of  serious
                          violence while incarcerated.  I think the likelihood of that is low to very low.
                          Regarding  the  impact  that  he  is  likely  to  continue  to  have  on  other  inmates,  I  think
                          the  nature  of  his  influence  on  other  inmates  has  been  to  encourage  their  prosocial
                          activities  in  terms  of  education  and  to  deter  their  expressions  of  violence.
                          In conducting his evaluation, Dr. Cunningham spent an Ōextensive amount of time,Ķ
                 approximately  ten  hours,  directly  interviewing  the  Appellant. During  this  time,  he  administered  an
                 intelligence test, a personality assessment inventory, and an academic achievement test to the
                 Appellant.20 Dr.  Cunningham  also  reviewed  the  AppellantÕs  Ōprison  records,  disciplinary,  work
                 related prison recordsĶ  and interviewed  family members and prison guards.  Dr. Cunningham
                 summarized  his  findings  as  follows:
                          [T]his  case  is  different  from  many  in  that  he  has  an  established  track  record  in  prison
                          across  the  past  twenty-two  years. And  so  thereÕs  a  significant  pattern  that  can  be
                          identified  thatÕs  specific  to  his  being  incarcerated  in  prison. First  he  had  a  single



                          21  This  write  up  involved  the  Appellant  refusing  to  come  out  of  his  cell  to  work.

                          22  We  note  that  Dr.  CunninghamÕs  testimony  regarding  statistics  used  in  formulating  his  conclusions  and  records
                 of  the  App  ellantÕs  behav  ior  while  in  priso  n  were  con  tained  in  app  roximately  sixty-fo  ur  pages  o  f  typed  transcrip  t.

                                                                        -15- disciplinary  write  up  across  these  twenty-two  years.  [  21  ]  HeÕs been productively
                          involved  in  work  roles  as  an  inmate. He  has  hadŅcontinues  to  have  a  continuing
                          close  relationship  with  his  family. 
                          .  .  .
                          First  there  was  a  riot  in  1986,  as  I  recall,  where  his  actions  rather  than  being  ones  of
                          inciting or worsening that situation were, in fact, to actively intercede, to keep
                          inmates  who  were  rioting  from  coming  into  the  death  row  area,  where  there  was  staff
                          that  had  been  trapped.
                          Richard  Austin  also  has  a  history  of  warning  staff  members  of  impending  trouble  or
                          violence  from  other  inmates. This  isnÕt  a  matter  of  telling  on  somebody  after  the  fact
                          in  order  to  get  some  advantage  for  himself,  but  instead,  to  signal  to  the  officers  that
                          something  is  about  to  happen  so  that  preventive  steps  can  be  taken  so  that  officer  is
                          not  injured,  so  that  an  inmate  who  was  going  to  act  out  so  doesnÕt  suffer  those  long
                          term  bad  consequences. And  so  that  order  is  maintained  on  the  unit.
                          HeÕs  been  involved  in  directly  counseling  other  inmates  against  the  use  of  violence.
                          .  .  .  His  role  as  a  GED  tutor  is  one  of  mentoring  and  positively  influencing  other
                          inmates.  And then the correctional officers . . . in their deposition testimony
                          describing  him  as  having  a  positive  impact  on  other  inmates  and  their  behavior.
                 In  support  of  his  conclusions,  Dr.  Cunningham  noted  the  AppellantÕs  age,  fifty-nine-years-old,  and
                 that  an  Ōinmate  sixty  years  old  is  exceedingly  unlikely  to  commit  acts  of  serious  violence  in  prison.Ķ
                 Dr.  Cunningham  also  exhaustively  discussed  statistics  regarding  inmate  behavior  and  related  the
                 AppellantÕs  exemplary  and  nonviolent  behavior  since  his  incarceration.22


                          At the close  of  the  proof,  the  jury  was  instructed  on  the  following  statutory  aggravating
                 factors:
                          (1) [T]he defendant committed the murder  for remuneration, for the promise of
                          remuneration,  or  employed  another  to  commit  the  murder  for  remuneration  or  the
                          promise  of  remuneration.
                          (2)  [T]he  defendant  committed  the  murder  for  the  purpose  of  avoiding,  interfering
                          with  or  preventing  a  lawful  arrest  or  prosecution  of  the  defendant  or  another.
                          The  jury  was  also  instructed  that  it  should  consider  any  mitigating  circumstances  supported
                 by  the  proof,  which  may  include  but  are  not  limited  to:



                          23  The  AppellantÕs  subpoenas  were  issued  on  September  29,  1998. The  present  Attorney  General,  Paul  G.
                 Summers,  was  not  sworn  into  office  until  January  1999.

                                                                        -16- (1)  Any  lingering  or  residual  doubt  you  may  have  as  to  whether  the  defendant  is
                          guilty  of  the  crime  of  which  he  has  been  convicted.
                          (2)  The  defendantÕs  contributions  to  prison  life  through  being  a  positive  influence  to
                          other  prisoners.
                          (3)  The  defendantÕs  helpfulness  to  prison  officials  or  efforts  to  save  the  life  of  guards
                          during  a  prison  riot;
                          (4)  The  defendantÕs  relative  culpability  for  the  offense.
                          (5)  Any  other  mitigating  factor  which  is  raised  by  the  evidence  produced  by  either  the
                          prosecution  or  defense. That  is,  you shall  consider  any  aspect  of  the  defendantÕs
                          character  or  record  or  any  aspect  of  the  circumstances  of  the  offense  favorable  to  the
                          defendant  which  is  supported  by  the  evidence.
                          Following  submission  of  the  instructions,  the  jury  retired  to  consider  their  verdict. After
                 deliberations, the jury found that the State had proven the aggravating circumstance that the
                 defendant  committed  the  murder  for  remuneration  or  the  promise  of  remuneration  or  employed
                 another  to  commit  the  murder  for  remuneration  or  the  promise  of  remuneration  beyond  a  reasonable
                 doubt.  The jury further found that the aggravating circumstance outweighed the mitigating
                 circumstances  beyond  a  reasonable  doubt. In  accordance  with  their  verdict,  the  jury  sentenced  the
                 Appellant  to  death  for  the  murder  of  Julian  Watkins.

                         I. Disqualification  of  Tennessee  Supreme  Court  and/or  State  Attorney  General

                          During  the  pendency  of  the  re-sentencing  hearing,  the  Appellant  filed,  in  the  Shelby  County
                 Criminal Court, a ŌMotion to Disqualify Supreme Court and/or Attorney General from Future
                 Proceedings  in  this  Cause.Ķ The  substance  of  the  motion  was  based  upon  the  AppellantÕs  allegation
                 that  the  Tennessee  Supreme  CourtÕs  constitutional  directive  to  appoint  the  Attorney  General  results
                 in  a  biased  tribunal  and  violates  the  constitutionally  mandated  separation  of  powers. See  TENN.
                 CONST.  Art.  VI,  sec.  5;  TENN.  CODE  ANN.  ¤  8-6-101  (1993).  Contemporaneously,  the  Appellant
                 issued  subpoenas  to  the  justices  of  the  supreme  court;  Court  of  Criminal  Appeals  Judge  Paul  G.
                 Summers;23  Mr.  Charles  Ferrell,  Director,  Administrative  Office  of  the  Courts;  and  Attorney  General
                 Knox  Walkup.  The  trial  court  denied  the  motion  and  quashed  the  subpoenas,  finding  that  the  motion
                 was  premature. This  court  denied  the  AppellantÕs  application  for  extraordinary  review  pursuant  to
                 Tenn.  R.  App.  P.  10,  holding  that  none  of  the  persons  subpoenaed  had  any  involvement  in  the  case
                 at  the  trial  level. See  State  v.  Richard  Hale  Austin,  No.  02C01-9811-CR-00341  (Tenn.  Crim.  App.
                 at  Jackson,  Nov.  9,  1998). The  Tennessee  Supreme  Court  denied  the  AppellantÕs  application  for



                                                           -17- extraordinary  appeal  from  this  courtÕs  order.  See  State  v.  Richard  Hale  Austin,  No.  02S01-9811-CR-00112 
                     (Tenn.  at  Jackson,  Feb.  1,  1999).
                     Following  the  reimposition  of  the  death  penalty,  the  Appellant  filed  a  motion  in  this  court
              seeking  leave  to  issue  subpoenas  and  take  testimony,  or,  in  the  alternative,  to  remand  the  case  to  the
              trial  court  to  take  testimony. In  his  motion,  the  Appellant  asserted  that  through  the  issuance  of
              subpoenas  he  Ōwould  be  able  to  developĶ  the  Ōpolitical  interconnectednessĶ  Ōof  the  Tennessee
              Supreme  Court  and  the  present  Attorney  General,  Honorable  Paul  Summers.Ķ He  alleged  that  the
              present  Attorney  General  is  a  Ōfavorite  sonĶ  of  the  supreme  court  and  a  Ōde  facto  employeeĶ
              Ōbeholden  to  the  court.Ķ Essentially,  the  Appellant  argued  that  the  circumstances  surrounding  the
              appointment  of  Paul  Summers  as  Attorney  General  are  crucial  Ōto  proving  a  due  process  violation
              as  to  the  lack  of  an  unbiased  and  impartial  Supreme  Court.Ķ This  court  denied  the  AppellantÕs
              motion,  finding  that  this  court  was  without  jurisdiction  to  entertain  the  motion.  See  State  v.  Richard
              Hale Austin, No. W1999-00281-CCA-R3-PD (Tenn. Crim. App. at Jackson, Dec. 3, 1999).
              Additi  onally,  this  court  noted  that  Ōa  claim  involving  disqualification  or  recusal  of  the  Tennessee
              Supreme  CourtĶ  may  not  appropriately  be  considered  by  either  the  trial  court  or  this  court.  Id.  (citing
              Tenn.  Sup.  Ct.  R.  10,  Canon  3(E)(1)(a);  State  v.  Benson,  973  S.W.2d  202  (Tenn.  1998)  (allegations
              of  judgeÕs  impartiality  or  bias  concerning  a  party  or  a  partyÕs  lawyer  must  be  brought  to  the  attention
              of  the  judge(s)  so  challenged)). 
                     The Appellant now complains of the prior rulings of the trial court and this court.
              Specifically,  he  alleges  that  had  he  been  permitted  to  develop  proof  at  the  hearing  before  the  trial
              court,  he 
                     would  have  been  able  to  demonstrate  that  the  Supreme  Court  instructed  Mr.  Knox
                     Walkup,  who  at  the  time  was  Attorney  General,  to  resign,  telling  him  that  he  would
                     not  be  reappointed. Furthermore,  the  proof  would  have  demonstrated  that  the  Court
                     had  previously  made  a  private  agreement  to  appoint  Mr.  Paul  Summers  as  the  next
                     Attorney  General,  notwithstanding  the  fact  that  the  Supreme  Court  publicly  asserted
                     it  had  a  purportedly  neutral  selection  process  to  select  a  new  Attorney  General.  All
                     of  these  facts  demonstrate  the  political  interconnectedness  of  the  Supreme  Court  and
                     the  Attorney  General.

                     As  determined  by  prior  panels  of  this  court  and  by  the  trial  court  in  this  matter,  this  court  is
              unable to undertake review of the AppellantÕs challenge.  Although the Appellant raises
              constitutional  claims  against  TennesseeÕs  method  of  selecting  the  Attorney  General,  in  essence,  the
              Appellant  seeks  recusal  of  the  current  Justices  of  the  Tennessee  Supreme  Court  based  on  their
              ŌfavoritismĶ  toward  current  Attorney  General  Summers. Indeed,  his  argument  before  this  court,  as
              in  his  prior  motions,  appears  to  assert  approval  of  former  Attorney  General  Walkup.  Thus,  this  court
              will  treat  this  issue  as  one  addressing  the  supreme  courtÕs  recusal  and  not  as  a  constitutional
              challenge  to  the  method  of  appointment. 



                                                           -18- The  right  to  a  fair  trial  before  an  impartial  tribunal  is  a  fundamental  constitutional  right.  See
              Benson,  973  S.W.2d  at  205  (citing  Chapman  v.  California,  386  U.S.  18,  23  n.  8,  87  S.  Ct.  824,  828
              n.  8  (1967)  (internal  citations  omitted)).  Article  VI,  ¤  11  of  the  Tennessee  Constitution  provides  that
              Ō[n]o  Judge  of  the  Supreme  of  Inferior  Courts  shall  preside  on  the  trial  of  any  cause  in  the  event  of
              which  he  may  be  interested.Ķ Benson,  973  S.W.2d  at  205. The  purpose  of  this  constitutional
              provision  is  to  guard  against  the  prejudgment  of  the  rights  of  litigants  and  to  avoid  situations  in
              which  the  litigants  might  have  cause  to  conclude  that  the  court  had  reached  a  prejudged  conclusion
              because  of  interest,  partiality,  or  favor. Id.  (citing  Chumbley  v.  PeopleÕs  Bank  &  Trust  Co.,  57
              S.W.2d  787,  788  (Tenn.  1933)). A  judgeÕs  determination  of  whether  he  or  she  will  disqualify  him
              or  herself  from  sitting  in  a  case  is  a  matter  within  that  judgeÕs  discretion. See  generally Kinard  v.
              Kinard,  986  S.W.2d  220  (Tenn.  App.  1998);  Young  v.  Young,  971  S.W.2d  386  (Tenn.  App.  1997);
              State  v.  Connors,  995  S.W.2d  146  (Tenn.  Crim.  App.  1995); Wiseman  v.  Spaulding,  573  S.W.2d
              490,  493  (Tenn.  App.  1978)(citing  State  of  Tenn.  ex  rel.  Phillips  v.  Henderson,  Warden,  423  S.W.2d
              489  (Tenn.  1968)). Thus,  the  AppellantÕs  motion  must  be  brought  to  the  attention  of  the  justices
              whom  he  has  challenged. See  generally  Tenn.  Sup.  Ct.  R.  10,  Canon  3(E)(1)(a). Cf.  Holder  v.
              Tennessee  Judicial  Selection  Commission,  937  S.W.2d  877,  879  (Tenn.  1996)  (justices  disqualified
              themselves  prior  to  hearing);  Pierce  v.  Tharp,  461  S.W.2d  950,  953-54  (Tenn.  1970),  cert.  denied,
              402  U.S.  929,  91  S.  Ct.  1527  (1971)  (motion  to  recuse  justices  should  have  been  brought  after
              certiorari  was  granted  but  before  argument  heard);  Chumbley  v.  PeopleÕs  Bank  &  Trust  Co.,  57
              S.W.2d  at  787  (supreme  court  justices  determined  propriety  of  own  recusal);  Hooker  v.  Sundquist,
              No.  01A01-9709-CH-00533  (Tenn.  at  Nashville,  Feb.  16,  1999)  (motion  to  recuse  justices  filed  after
              application  for  permission  to  appeal  filed). 
                     Neither the trial court nor this court has the prerogative or  authority to arrive at any
              conclusion  regarding  the  alleged  impartiality  or  bias  of  each  challenged  justice.  The  Appellant  has
              yet  to  present  the  motion  to  the  supreme  court.  He  is  not  yet  precluded  from  presenting  his  challenge
              to  the  court  and  may  properly  file  his  motion  after  the  court  has  accepted  review  of  his  case.
              Although  no  precise  procedure  is  contemplated  by  the  Canons  nor  established  through  case  law,  the
              accepted  practice  when  seeking  the  disqualification  of  a  judge  is  through  the  filing  of  a  motion  for
              recusal  with  supporting  affidavits  of  prejudice. See  generally 46  AM.  JUR.2D  Judges  ¤¤  194-
              214(1994  &  Supp.  2000).  There  is  no  authority  for  the  issuance  of  subpoenas,  or  any  other  discovery
              procedures,  in  support  of  oneÕs  motion  to  disqualify  a  judge. Id. 
                     Accordingly, for the reasons set forth herein,  we decline the AppellantÕs invitation to
              disqualify  the  justices  of  the  Tennessee  Supreme  Court  from  participation  in  the  review  of  his  appeal.
              The  Tennessee  Supreme  Court  is  the  proper  court  before  whom  the  AppellantÕs  complaint  should
              to  be  lodged.

                                               II. Jury  Selection  Process

                                                 A. Individual  Voir  Dire

                     Immediately  prior  to  the  AppellantÕs  trial,  the  Shelby  County  case  of  State  v.  William
              Groseclose  and  Ronald  Rickman  was  retried. The  Groseclose/Rickman  case  was,  similarly,  a



                                                           -19- twenty-two-year  old  retrial  of  a  murder  for  hire. On  retrial,  both  Groseclose  and  Rickman  received
              life  sentences. The  ŌnewĶ  sentences  were  reported  by  the  media  as  well  as  the  publicÕs  adverse
              response  to  the  more  lenient  sentences.  Based  on  these  events,  counsel  requested  individual  voir  dire
              of  prospective  jurors  for  the  purpose  of  determining  the  impact  of  any  collateral  consequences
              stemming  from  the  Groseclose/Rickman  verdicts.  The  trial  court  denied  the  request.  The  Appellant
              now  contends  that  his  rights  to  an  impartial  jury  and  due  process  were  violated  as  guaranteed  by  the
              Sixth  and  Fourteenth  Amendment  of  the  United  States  Constitution.
                     The  prevailing  practice  is  t  o  examine  jurors  collectively.  State  v.  Jefferson,  529  S.W.2d  674,
              681  (Tenn.  1975);  State  v.  Oody,  823  S.W.2d  554,  563  (Tenn.  Crim.  App.  1991);  State  v.  Hopper,
              695 S.W.2d 530, 539 (Tenn. Crim. App. 1985).  Indeed, even in a capital  case, there is no
              requirement  that  death  qualification  of  a  capital  jury  must  be  conducted  by  individual,  sequestered
              voir  dire.  State  v.  Stephenson,  878  S.W.2d  530,  540  (Tenn.  1999)  (citing  State  v.  Smith,  857  S.W.2d
              1,  19  (Tenn.),  cert.  denied,  510  U.S.  996,  114  S.  Ct.  561  (1993);  State  v.  Porterfield,  746  S.W.2d
              441,  447  (Tenn.),  cert.  denied,  486  U.S.  1017,  108  S.  Ct.  1756  (1988)).  Moreover,  as  a  general  rule,
              it  is  within  the  trial  courtÕs  discretion  to  allow  individual  voir  dire  of  prospective  jurors.  Stephenson,
              878  S.W.2d  at  540  (citing  State  v.  Howell,  868  S.W.2d  238,  247  (Tenn.  1993),  cert.  denied,  510  U.S.
              1215,  114  S.  Ct.  1339  (1994);  State  v.  Harris,  839  S.W.2d  54,  65  (Tenn.  1992),  cert.  denied,  507
              U.S.  954,  113  S.  Ct.  1368  (1993)). The  ultimate  goal  of  voir  dire  is  to  insure  that  jurors  are
              competent,  unbiased  and  impartial,  State  v.  Cazes,  875  S.W.2d  253,  262  (Tenn.  1994),  cert.  denied,
              513  U.S.  1086,  115  S.  Ct.  743  (1995);  Howell,  868  S.W.2d  at  247,  and Ō[i]ndividual  voir  dire  is
              mandated  only  when  there  is  a  Ôsignificant  possibili  tyÕ  that  a  juror  has  been  exposed  to  potentially
              prejudicial  material.Ķ  Howell,  868  S.W.2d  at  247;  Harris,  839  S.W.2d  at  65  (citing  Porterfield,  746
              S.W.2d  at  447). The  mere  fact  that  prospective  jurors  know  something  about  a  case  at  the  time  of
              impaneling  is  not  unusual,  nor  is  it  sufficient  to  invoke  individual  voir  dire,  where  the  trial  court
              takes  the  necessary  steps  to  ensure  that  the  accused  receives  a  fair  trial  by  a  panel  of  impartial  and
              indifferent  jurors.
                     The  record  does  not  reflect  that  the  re-sentencing  of  the  Appellant  was  going  to  be  a  high
              profile  case. Indeed,  the  record  reveals  that  only  one  juror  had  to  be  removed  for  cause  because  he
              had  already  formed  an  opinion  about  the  case,  this  j  uror  also  being  the  victimÕs  cousin.  Additi  onally,
              although  defense  counsel  introduced  as  exhibits  newspaper  articles  regarding  the
              Groseclose/Rickman  re-sentencing,  defense  counsel  failed  to  question  the  jurors  about  the  impact
              of  this  case  on  the  AppellantÕs  re-sentencing. Irregardless  of  defense  counselÕs  failure,  the  media
              attention  paid  to  the  Groseclose/Rickman  case  is  of  little  import  regarding  the  necessity  of  individual
              voir  dire  in  the  present  case. We  cannot  conclude  that  pretrial  knowledge  of  matters  arising  from
              unrelated  crimes  mandates  individual  voir  dire. Cf.  State  v.  Mann,  959  S.W.2d  503,  531  (Tenn.
              1997)  (Appendix)  (jurors  do  not  live  in  a  vacuum). Any  concerns  which  may  remain  regarding  the
              impact  of publicity  arising  from  the  Groseclose/Rickman  re-sentencing  were  dispelled  by  the  trial
              judgeÕs  instruction  to  the  venire:



                                                           -20- You  must  base  your  verdict  only  upon  the  law  that  is  presented  here  in  court.  I  mean
                     the  evidence  as  presented  here  in  court  through  witnesses  that  are  placed  under  oath,
                     exhibits,  and  the  law  that  I  charge  you.
                     And  the  reason  IÕm  touching  on  that  now  is  that  [you]  cannot  base  [your]  decision
                     upon  what  you  might  have  heard  somewhere  or  what  you  might  have  read  in  the
                     newspapers. And  the  attorneys  will  touch  on  this  later,  but  IÕm  sure  each  of  you
                     understand,  that  we  cannot  have  our  judicial  system  operate  based  upon  what  weÕve
                     seen  or  heard  or  any  preconceived  ideas.
              The  jury  is  presumed  to  follow  the  instructions  of  the  court.  Accordingly,  we  cannot  conclude  that
              the  trial  court  abused  its  discretion  in  denying  individual  voir  dire. See  generally  Porterfield,  746
              S.W.2d  at  446-47  (if  no  prejudicial  information  is  elicited  during  voir  dire  and  if  the  jurors  assert
              they  can  disregard  the  pretrial  publicity,  there  is  no  error  in  denying  individual  voir  dire).  This  issue
              is  without  merit.

                                               B.  Rehabilitation  of  Jurors

                     The  Appellant  next  contends  that  he  was  denied  an  impartial  jury  because  the  trial  court
              denied  the  Appellant  the  opportunity  to  rehabilitate  potential  jurors  who  were  excused  for  cause  on
              motion  of  the  State  because  of  their  opposition  to  the  death  penalty. Specifically,  the  Appellant
              challenges  the  removal  for  cause  of  Jurors  Hilliard,  Eslahi,  Buffaloe,  Massey,  Brown,  and  Corken,
              and  of  Alternate  Jurors  Brooks  and  Hudson. 
                     Tenn.  R.  Crim.  P.  24(b)  gives  the  trial  judge  the  right  to  excuse  a  juror  for  cause  without
              examination  of  counsel.  State  v.  Hutchinson,  898  S.W.2d  161,  167  (Tenn.  1994),  cert.  denied,  516
              U.S.  846,  116  S.  Ct.  137  (1995)  (citing  State  v.  Alley,  776  S.W.2d  506  (Tenn.  1989);  State  v.
              Strouth,  620  S.W.2d  467,  471  (Tenn.  1981),  cert.  denied,  455  U.S.  983,  102  S.  Ct.  1491  (1982)).
              In  determining  when  a  prospective  juror  may  be  excused  for  cause  because  of  his  or  her  views  on
              the  death  penalty,  the  standard  is  Ōwhether  the  jurorÕs  views  would  prevent  or  substantially  impair
              the performance of his duties as a juror in accordance with his instructions and his oath.Ķ
              Wainwright  v.  Witt,  469  U.S.  412,  424,  105  S.  Ct.  844,  852  (1985). The  Supreme  Court  further
              observed that Ōthis standard likewise does not require that a jurorÕs biases be proved with
              Ôunmistakable  clarity.ÕĶ  Id. However,  the  trial  judge  must  have  the  Ōdefinite  impressionĶ  that  a
              prospective  juror  could  not  follow  the  law. Hutchinson,  898  S.W.2d  at  167  (citing  Wainwright  v.
              Witt,  469  U.S.  at  425-26,  105  S.  Ct.  at  853). Finally,  the  trial  courtÕs  finding  of  bias  of  a  juror
              because  of  his  or  her  views  concerning  the  death  penalty  are  accorded  a  presumption  of  correctness,
              and  the  Appellant  must  establish  by  convincing  evidence  that  the  trial  courtÕs  determination  was
              erroneous  before  an  appellate  court  will  overturn  that  decision. Alley,  776  S.W.2d  at  518.
                     The  challenged  removals  for  cause  were  based  on  the  following  responses  by  the  respective
              jurors  when  questioned  whether  they  could  Ōsign  [their]  name  to  a  verdict  sentencing  the  defendant
              to  deathĶ:



                          24  The ŌJasper  ca  seĶ  involved the  dragging death of  a  forty-nine-year-old  African-American  man  by  three
                 members  of  a  white  supremacist  gang. The  African-American  man  was  chained  behind  a  pickup  truck  and  pulled  for
                 three  miles  ov  er  a  bump  y  East  Tex  as  road. T  he  incident  re  ceived  natio  nwide  pub  licity.

                                                                        -21- JUROR  HILLIARD:  No.  .  .  .  I  donÕt  believe  in  [the  death  penalty].  .  .  .  I  would  stand
                          by  my  own  [personal  convictions.]
                          JUROR  ESLAHI:  No,  sir.  .  .  .  ThatÕs  correct,  [I  donÕt  believe  in  the  death  penalty]
                          .  .  . I  would  have  to  stand  by  my  personal  feelings.
                          JUROR  BUFFALOE:  No.  .  .  .  I  would  have  to  refuse.
                          JUROR MASSEY: Well, let me say it  like this, when it come [sic] to the death
                          penalty,  if  someone  else  does  something,  if  somebody  say  that,  IÕm  in  favor  of  the
                          death  sentence. Sure. But  I  canÕt  sit  there  and  sign  my  name  to  something  like  that.
                          .  .  .  No. I  canÕt  do  that.
                          JUROR  BROWN:  No.  .  .  .  Well,  I  couldnÕt  determine  and  just  judge  and  say  that  I
                          could,  you  know,  give  somebody  the  death  penalty.  .  .  .  No,  I  wouldnÕt  [consider  the
                          death  penalty.]
                          JUROR  CORKEN:  .  .  .IÕll  make  a  statement  here. All  my  life  I  thought  I  could,  but
                          when  I  really  get  down  to  it,  I  couldnÕt. I  would  not  be  able  to  vote  for  the  death
                          penalty. ThatÕs  the  truth.  .  .  .
                          ALTERNATE  JUROR  BROOKS:  I  just  Đ  I  couldnÕt  put  anybody  to  death.
                          ALTERNATE  JUROR  HUDSON:  I  donÕt  think  I  can  do  that.  .  .  .  I  think  I  would
                          have  to  stand  beside  my  own  personal  feelings.
                          After  reviewing  the  answers  of  the  excluded  jurors,  we  conclude  that  their  answers  left  Ōno
                 leeway  for  rehabilitation.Ķ Strouth,  620  S.W.2d  at  471;  see  also  Alley,  776  S.W.2d  at  517-18. In
                 each  instance,  either  the  court  or  the  prosecutor  extensively  questioned  the  prospective  jurors  as  to
                 whether  they  could  apply  the  law  to  the  evidence  and  consider  all  forms  of  punishment  in  this  case.
                 Each  juror  was  consistent  in  responding  that  he  or  she  would  not  impose  the  death  penalty. These
                 jurors  met  the  standard  for  dismissal. See  Hutchinson,  898  S.W.2d  at  167. There  is  no  error.

                                                         C. Jasper  Case  Hypothetical

                          As  additional  error  within  the  voir  dire  process,  the  Appellant  asserts  that  the  trial  court  erred
                 by  prohibiting  questioning  of  potential  Juror  Clothier  with  respect  to  a  recent  homicide  in  Jasper,
                 Texas.24   By using the Jasper case  as a hypothetical, the Appellant asserts that he could have
                 determined  whether  Juror  Clothier  would  be  competent,  unbiased  and  impartial  in  following  the  law
                 and  capable  of  rendering  a  capital  verdict  in  a  heinous  case. The  record  does  not  indicate  that  the



                          25  During  jury  selection,  the  following  colloquy  occurred  between  defense  counsel  Hutton  and  potential  Juror
                 McMillon:
                          HUTTON:  Well,  letÕs  give  you  an  exam  ple. Ther  eÕs  a  real  famo  us  one  in  T  exas  a  cou  ple  of  days  ago.
                          A  real  horr  ible  case. In  a  c  ase  like  that,  cou  ld  you  impo  se  the  death  p  enalty  where  so  mebody  Đ
                          JUROR  McMILLON:  Nope.
                          HUTTON:  Ņdrags  somebody  to  death?
                          JUROR  McMILLON:  Nope.
                 After  further  voir  dire  examination  of  potential  Juror  McMillon,  the  court  excused  Juror  McMillon  for  cause  and  was
                 replaced  by  potential  Juror  Clothier. The  following  voir  dire  of  this  juror  ensued:
                          GENERAL  HENDERSON:  The  law  says  in  Tennessee  and  I  believe  the  judge  will  tell  you  at  the  end
                          that  if  the  State  proves  at  least  one  aggravating  circumstance  beyond  a  reasonable  doubt,  and  we  prove
                          the  aggravating  circumstance  outweighs  any  mitigating  evidence  in  the  case  b  eyond  a  reasonable
                          doubt,  and  law  says  the  punishment  shall  be  dea  th. If  you  find  yourse  lf  in  that  situation  where  weÕve
                          proven  that  aggravating  circumstanc  e  beyond  a  reasonab  le  doubt,  and  weÕve  proven  that  it  outweighs
                          any  mitigating  evidence  beyond  a  reasonab  le  doubt,  would  you  be  able  to  sign  your  name  to  a  verdict
                          imposing  the  death  pen  alty?
                          JUROR  CLOTHIER:  I  donÕt  think  I  could.
                          GENERAL  HENDERSON:  Okay. And  again,  itÕs  not  something  most  people  think  about  in  their
                          ordinary  course  of  life. You  understand  that  under  certain  circumstances  the  law  says  the  punishment
                          shall  be  death?
                          JUROR  CLOTHIER:  Yes.
                          GENERAL  HENDERSON:  If  you  were  a  part  of  the  jury  and  found  this  was  one  of  those  cases  where
                          the  law  .  .  .  says  the  punishment  shall  be  death,  would  yo  u  be  able  to  follow  that  law  and  sign  your
                          name  to  the  verdict  or  would  yo  u  stand  by  yo  ur  own  personal  feelings  a  nd  say,  no. I  ca  nÕt  do  that.  .
                          .  . 
                          JUROR  CLOTHIER:  Even  though  I  felt  like  that  maybe  death  was  deserved  in  that  specific  case,
                          because of  my  religious beliefs, IÕm not sure that I could actually  sign Đ sign something to put
                          someone  else  to  death.
                          GENERAL  HENDERSON:  And  thatÕs  why  I  bring  it  up. A  lot  of  people  say  sometimes  they  think
                          that  theyÕre  in  favor  of  the  death  penalty  or  that  they  think  itÕs  a  good  thing,  but  in  Tennessee  we
                          require  all  twelve  jurors  to  sign  their  name  to  a  piece  of  paper  sentencing  the  defendant  to  death  by
                          electrocution. And  weÕre  looking  for  twelve  people  who  can  do  tha  t  .  .  .  .  [D]o  you  think  you  can  do
                          that?
                          JUROR  CLOTHIER:  I  donÕt  kno  w  that  I  can  in  this  ca  se.  .  .  .  [N]o. I  can  not.
                                                                                                                      (continued  ...)

                                                                        -22- trial  court  prevented  defense  counsel  from  questioning  Juror  Clothier  regarding  the  Jasper,  Texas,
                 case.25   Indeed,   the   record   reveals   that   Juror   Clothier   considered   the



                          25  (...continued)
                          GENERAL  HENDERSON:  Is  there  anything  a  bout  this  case,  would  it  make  any  difference  what  case
                          it  was?
                          JUROR  CLOTHIER:  I  donÕt  know  . I  mean  they  brought  up  the  Jasper,  Texas,  thing. I  think
                          thatÕs  terrible. And  I  think  tha  t  person  probably  does  deserve  death. B  ut  I  donÕt  know  that  if
                          I  was  on  that  jury  that  I  could  sign  it.

                          .  .  .
                          THE  COURT:  Mr. Hutton,  let  me  let  you  address  this  juror.
                          MR.  HUTTON:  Ms.  Clothier,  I  donÕt  want  to  sound  like  a  tape  recorder.  .  .  but  I  think  itÕs  more
                          important  that  jurors  ultimately  realize  that  they  are  the  judges. Okay? The  State  never  tells  you,  you
                          must  impose  the  death  p  enalty.  .  .  . 
                          Unless  you  personally  believe  that  an  aggravator  found  by  all  of  you  outweighs  any  mitigation  that  you
                          find.  The  mitiga  tion  doesn  Õt  have  to  be  p  roved  by  everybod  y. Anything  put  fo  rth  in  the  evidence  that
                          you  believe  is  mitigating,  you  have  the  right  as  a  juror  to  weigh  against  what  the  State  had  proved  as
                          an  aggravator.
                          .  .  .
                          So  my  question  is,  can  you  think  of  a  case,  where  like  the  J  asper  murder  case,  where  you  could  do
                          that? Where  you  could  find,  well,  this  is  a  horrib  le  crime. ItÕs  a  hor  rible  murder. ThereÕs  nothing  I
                          find  thatÕs  mitigating. And  therefore,  I  could  give  the  death  sentence.
                          And  I  mean,  it  doe  snÕt  have  to  be  every  ca  se.  Doesn  Õt  have  to  be  many  cases. The  question  is,  can  you
                          think  of  a  possibility?  Say  the  Jasper  case. Or  you  kno  w,  if  a  close  relative  were  murd  ered.  .  .  .
                 (Emphasis  Added). At  this  time,  the  State  objected  to  defense  counselÕs  voir  dire  asserting  that  Ō[t]ha  tÕs  an  impossib  le
                 hypothetical. If  a  close  relative  were  murdered,  she  wouldnÕt  be  on  the  jury.Ķ Th  e  court  then  re  gained  co  ntrol  of  voir
                 dire  and  asked  M  s.  Clothier,  ŌWould  you  be  open  to  considering  all  forms  of  punishment?Ķ Juror  Clothier  replied
                 affirmatively. General  Henderson,  again,  posed  the  question  to  Clothier  as  to  whether  she  would  be  able  to  sign  her  name
                 to  a  verdict  imposing  death. Clothier  replied  that  she  could  not. The  juror  was  then  excused.

                                                                        -23- Texas  case  when  formulating  her  responses  to  General  Henderson. Additionally,  defense  counsel
                 did  include  the  Jasper,  Texas,  reference  in  his  questioning  of  the  potential  juror. Thus,  it  is  unclear
                 how  the  court  denied  defense  counsel  from  making  reference  to  the  Jasper,  Texas,  hypothetical.  This
                 claim  is  without  merit.

                                              D. Examination  as  to  JurorÕs  Belief  in  the  Bible

                          Finally,  within  his  many  claims  regarding  the  impaneling  of  an  impartial  jury,  the  Appellant
                 claims  that  Ō[t]he  trial  court  committed  error  in  refusing  to  allow  questioning  of  whether  prospective
                 Juror  ScottÕs  belief  in  the  Bible  would  impact  her  ability  to  render  a  fair  decision.Ķ During  voir  dire
                 examination,  potential  Juror  Scott  stated,  ŌWell,  all  the  decisions  I  make  are  based  upon  the  Bible,
                 because  I believe it to be the truth.Ķ Juror Scott continued to explain, ŌI  believe that in certain
                 circumstances  [the  death  penalty]  is  warranted.Ķ She  added  that  her  religious  beliefs  would  not
                 affect  her  decision  regarding  the  Appellant. Defense  counsel  then  inquired:
                          .  .  .  Can  you  put  aside  your  beliefs  in  the  Bible,  and  the  Bible  as  you  believe  it,  IÕm
                          not  challenging  that. I  respect  everybodyÕs  opinion  on  that. Can  you  put  that  aside



                                                           -24- in  this  case  or  after  hearing  the  proof,  do  you  have  a  belief  that  when  you  go  back  in
                     the  jury  room  somehow  whatÕs  in  the  Bible  is  going  to  impact  the  decision  that  you
                     give  to  Mr.  Austin  in  this  case?
              The  State  objected  and  the  court  sustained,  holding  ŌYou  can  ask  their  general  philosophy. I  think
              the  Constitution  would  prohibit  you  from  inquiring  into  religious  preferences.Ķ  Under  the  authority
              of  Morgan  v.  Illinois,  504  U.S.  719,  112  S.  Ct.  2222  (1992),  the  Appellant  contends  that,  since  Juror
              Scott  stated  that  everything  she  does  is  guided  by  the  Bible,  he  had  an  absolute  right  to  determine
              whether  or  not  her  religious  beliefs  in  the  Bible  would  affect  her  decision  in  the  present  case. 
                     The  right  to  question  venire  members  is  not  unlimited,  but  must,  of  necessity,  be  limited  to
              inquiries  that  are  material  and  relevant  to  the  specific  case  being  tried. See  generally  Layman  v.
              State,  429  S.W.2d  832,  836  (Tenn.  Crim.  App.  1968). Generally,  a  trial  court  may  properly  limit
              inquiry  into a venire  memberÕs  religious  beliefs  in  those  instances  where  religious  issues  are
              expressly  presented  in  the  case,  where  a  religious  organization  is  a  party  to  the  litigation  or  where
              the inquiry is a necessary predicate to the exercise of peremptory challenges. See generally
              Yarborough  v.  United  States,  230  F.2d  56,  63  (4  th  Cir.  1956),  cert.  denied,  351  U.S.  969,  76  S.  Ct.
              1034  (1956);  Brandborg  v.  Lucas,  891  F.  Supp.  352  (E.D.  Tex.  1995);  State  v.  Via,  704  P.2d  238,
              248  (Ariz.  1985),  cert.  denied,  475  U.S.  1048,  106  S.  Ct.  1268  (1986);  Coleman  v.  United  States,
              379  A.2d  951,  954  (D.C.  Ct.  App.  1977);  Rose  v.  Sheedy,  134  S.W.2d  18,  19  (Mo.  1939);  Corey
              Schriod  Smith  v.  State,  No.  CR-95-0205  (Ala.  Crim.  App.  Aug.  25,  2000). Indeed, 
                     As  to  religion,  our  jury  selection  system  was  not  designed  to  subject  prospective
                     jurors to a catechism of their tenets of faith, whether it be Catholic, Jewish,
                     Protestant,  or  Mohammedan,  or  to  force  them  to  publicly  declare  themselves  to  be
                     atheists. Indeed,  many  a  juror  might  have  a  real  doubt  as  to  the  particular  religious
                     category  into  which  they  could  properly  place  themselves.
              United  States  v.  Barnes,  604  F.2d  121,  141  (2d  Cir.  1979),  cert.  denied,  446  U.S.  907,  100  S.  Ct.
              1833  (1980). 
                     The  trial  court,  in  the  exercise  of  its  discretion,  controls  the  questions  that  can  be  asked  to
              keep  the  voir  dire  within  relevant  bounds. In  the  present  case,  we  conclude  that  the  trial  court
              properly  restricted  counsel  from  delving  into  the  jurorÕs  religious  beliefs. The  prospective  juror
              previously  stated that her religious beliefs would not affect her decision in the  present case.
              Accordingly,  any  foray  into  her  religious  convictions  was  irrelevant  as  having  no  direct  relationship
              to  the  parties  involved  in  the  matter  or  the  issues  presented  at  re-sentencing.  Additionally,  any  error
              by  the  court  in  restricting  voir  dire  is  negated  by  the  AppellantÕs  use  of  a  peremptory  strike  against
              potential  juror  Scott  coupled  with  his  failure  to  exercise  all  peremptory  challenges. See  generally
              Ross  v.  Oklahoma,  487  U.S.  81,  83-87,  108  S.  Ct.  2273,  2276-2277,  rehÕg  denied,  487  U.S.  1250,
              109  S.  Ct.  11  (1988)  (defendantÕs  use  of  peremptory  challenge  against  challenged  prospective  juror
              waived  complaint  against  juror  on  appeal). Accordingly,  the  Appellant  is  not  entitled  to  relief  as  to
              this  claim.



                          26  In  death  penalty  cases,  the  sentencer  may  not  be pre  clud  ed  f  rom con  side  ring any  a  spe  ct  o  f  a  de  fend  ant's
                 character  or  record as  a  basis  for  a  se  ntence  less  than death. Lockett  v.  O  hio,  438  U.S.  586,  604-05,  98  S.  Ct.  2954,
                 2964-65  (1978)  (plurality  opinio  n);  see  also Johnson  v.  Texas,  509  U.S.  350,  361,  113  S.  Ct.  2658  ,  2666  (1993). The
                 United  States  Supr  eme  Court  has  held  that  mitigating  evidence  is  relevant  to  sentencing  hearings  and  should  be  heard.
                 See  California  v.  Brown,  479  U  .S.  538,  5  41,  107  S.  Ct.  837  ,  839  (19  87);  Eddings  v.  Oklahoma,  455  U.S.  104,  113-15,
                 102  S.  Ct.  869,  876-77  (1982). "  '[E]vidence  about  the  defendant's  background  and  character  is  relevant  because  of  the
                 belief  ...  that  defendants  who  commit  criminal  acts  that  are  attributab  le  to  a  disadvantaged  background,  or  to  emotional
                 and  mental  problems  may  be  less  culpable  than  defendants  who  have  no  such  excuse.ÕĶ Goad  v.  State,  938  S.W.2d  363,
                 369  (Tenn.1996)  (quoting  Brown,  479  U.S.  at  545,  107  S.  Ct.  at  841)  (O'Conner,  J.,  concurring)).


                          27  The  Ōsentencing  law  in  effect  at  the  time  the  murder  was  comm  ittedĶ  is  the  app  licable  law.  State  v.  Brimmer,
                 876  S.W  .2d  75,  8  2  (Tenn  .  1994),  cert.  denied,  513  U.S.  1020,  115  S.  Ct.  585  (19  94).

                                                                        -25- III. Refusal  to  Admit  Hearsay  Into  Evidence

                          The  Appellant  next  challenges  the  courtÕs  exclusion  of  testimony  during  the  re-sentencing
                 hearing. Specifically,  the  Appellant  argues  that  the  following  evidence  was  erroneously  excluded
                 by  the  trial  court  (1)  the  transcript  of  the  1995  deposition  of  Jack  Charles  Blankenship;  (2)  the  March
                 31,  1977,  request  for  indictment;  (3)  testimony  that  the  Appellant  had  reported  his  vehicle  stolen;
                 and  (4)  testimony of  Minister  Joe  Ingle  as  to  the  AppellantÕs  actions  during  a  1985  prison  riot.
                 Relying  on  Lockett  v.  Ohio,  the  crux  of  the  AppellantÕs  argument  is  based  upon  the  premise  that  the
                 rules  of  evidence  do  not  preclude,  at  a  capital  sentencing  hearing,  evidence  which  establishes  or
                 rebuts  an  aggravating  circumstance.26 


                          The  Appellant  is  correct  in  his  argument  that  evidence  is  not  excluded  at  a  capital  sentencing
                 hearing merely because the evidence is hearsay.  TENN.  CODE ANN.  ¤ 39-2404(c)27 (repealed)
                 provides:
                          In  the  sentencing  proceeding,  evidence  may  be  presented  as  to  any  matter  that  the
                          court  deems  relevant  to  the  punishment  and  may  include,  but  not  be  limited  to,  the
                          nature  and  circumstances  of  the  crime;  the  defendantÕs  character,  background  history,
                          and  physical  condition;  any  evidence  tending  to  establish  or  rebut  the  aggravating
                          circumstances enumerated in  subsection (i) below; and any evidence tending to
                          establish  or  rebut  any  mitigating  factors. Any  such  evidence  which  the  court  deems
                          to  have  probative  value  on  the  issue  of  punishment  may  be  received  regardless  of  its
                          admissibility  under  the  rules  of  evidence,  provided  that  the  defendant  is  accorded  a
                          fair opportunity to rebut any hearsay statements so admitted.  However, this
                          subsection shall not be construed to authorize the introduction of any evidence
                          secured in violation of the Constitution of the United States or of the State of
                          Tennessee.
                 Thus, as long as evidence or testimony is relevant to the circumstances of the murder, the
                 aggravating  circumstances  of  the  murder,  or  the  mitigating  circumstances,  and  has  probative  value



                                                           -26- in  the  determination  of  punishment,  such  evidence  is  admissible. See  State  v.  Teague,  897  S.W.2d
              248,  250  (Tenn.  1995);  see  also  State  v.  Hall,  8  S.W.3d  593,  602  (Tenn.  1999),  cert.  denied,  Đ  U.S.
              Đ,  121  S.  Ct.  98  (2000). In  other  words,  Ōif the offered  evidence  bears  on  punishment,  it  is
              admissible.Ķ Id. The  admission  of  evidence,  however,  is  not  without  constraints. Evidence  may
              properly  be  excluded  if  it  is  so  unduly  prejudicial  that  it  renders  the  trial  fundamentally  unfair.  See
              State  v.  Vincent  C.  Sims,  No.  W1998-00634-CCA-R3-DD  (Tenn.  Crim.  App.  at  Jackson,  Mar.  14,
              2000)  (citing  State  v.  Burns,  979  S.W.2d  276,  282  (Tenn.  1998),  cert.  denied,  527  U.S.  1039,  119
              S.  Ct.  2402  (1999);  State  v.  Nesbit,  978  S.W.2d  872,  891  (Tenn.  1998),  cert.  denied,  526  U.S.  1052,
              119  S.  Ct.  1359  (1999)).  Additionally,  the  admissibility  of  evidence  ultimately  is  entrusted  to  the
              sound  discretion  of  the  trial  court.  State  v.  Vincent  C.  Sims,  No.  W1998-00634-CCA-R3-DD  (citing
              Hutchinson,  898  S.W.2d  at  172). Absent  an  abuse  of  that  discretion,  such  rulings  will  not  be
              reversed  on  appeal. State  v.  Vincent  C.  Sims,  No.  W1998-00634-CCA-R3-DD  (  citing  State  v.
              Caughron,  855  S.W.2d  526,  541  (Tenn.),  cert.  denied,  510  U.S.  979,  114  S.  Ct.  475  (1993)).

                                 A. Transcript  of  Deposition  of  Jack  Charles  Blankenship

                     Although Jack Charles Blankenship did not testi  fy at the AppellantÕs original trial,
              Blankenship  had  maintained  through  subsequent  depositions  that  the  Appellant  had  no  involvement
              in  the  murder. Specifically,  on  July  5,  1995,  in  preparation  for  a  federal  habeas  corpus  proceeding,
              Blankenship  gave  a  deposition  in  which  he  stated  that  he  was  not  hired  by  the  Appellant  to  kill
              Watkins. During  the  instant  re-sentencing  hearing,  however,  Blankenship,  in  surprise,  repudiated
              his  prior  statements,  explaining  that  they  were  false,  and  stated  that  he  had  since  Ōmade  peace  with
              GodĶ  and  Ōhe  wanted  to  set  the  record  straight.Ķ  Blankenship  proceeded  to  implicate  the  Appellant
              in  the  murder  for  hire  of  Julian  Watkins,  corroborating  the  testimony  of  co-defendant  Terry  Casteel.
              While  on  the  stand,  defense  counsel  thoroughly  questioned  Blankenship  as  to  the  veracity  of  his  prior
              statements.  Blankenship  adamantly  declared  that  his  prior  statements  were  false  and  that  he  was  now
              telling  the  truth. The  defense  then  sought  to  introduce  into  evidence  the  1995  deposition  of  Jack
              Charles Blankenship as substantive mitigating evidence establishing residual doubt as to the
              AppellantÕs  involvement in the murder.  The trial court refused  to permit the reading of the
              deposition. The  court  reasoned:
                     It  was  used  for  purposes  of  cross-examining  and  impeachment.  So  I  will  allow  it  to
                     be  filed  as  an  exhibit  for  that  limited  purpose,  but  weÕre  not  going  to  read  that
                     testimony  to  the  jury.  Mr.  Glankler  read  a  large  portion  as  far  as  impeachment  of  the
                     witness  yesterday.
              The  court  then  instructed  the  jury:
                     .  .  .  I  have  allowed  the  filing  .  .  .  of  the  deposition  of  Jack  Charles  Blankenship  that
                     was  taken  in  .  .  .  July  1995. You  need  to  understand  that  this  deposition  is  not
                     evidence  in  this  case. It  is  not  substantive  evidence  and  may  not  be  considered  as
                     such. It  is  being  allowed  to  be  filed  by  the  court  for  its  value,  if  any,  concerning  the
                     impeachment  of  the  witness. In  other  words  as  a  prior  inconsistent  statement  if  you
                     should  consider  it  as  such. You  may  consider  its  value,  if  any,  upon  the  testimony



                                                           -27- that  was  given  by  Jack  Charles  Blankenship.  So  do  you  understand  it  is  not  evidence
                     to  be  considered  concerning  Mr.  Austin.  ItÕs  simply  being  allowed  to  be  filed  for  its
                     value,  if  any,  on  the  impeachment  of  the  witness.
                     The Appellant now contests the courtÕs limitation of the deposition for impeachment
              purposes  alone,  arguing  that  the  evidence  should  have  been  admitted  as  substantive  evidence. The
              State  concedes  that  the  trial  court  should  have  permitted  introduction  of  the  deposition  as  substantive
              evidence. We  agree  that  the  exclusion  was  error. The  excluded  evidence  was  relevant  to  rebut  the
              aggravating  factor  that  the  murder  was  committed  for  remuneration  and  also  was  relevant  to  support
              the  AppellantÕs  proffered  mitigating  proof  of  residual  doubt  as  to  his  culpabilit  y. Additionally,
              substantial  reasons  existed  to  assume  the  reliability  of  the  contents  of  the  deposition. 
                     The  State  contends,  however,  that  any  error  in  limiting  its  introduction  for  impeachment
              purposes  only  was  harmless  error  under  Rule  36(b)  of  the  Tennessee  Rules  of  Appellate  Procedure.
              The  Appellant  counters  that  the  constitutional  error  complained  of  is  not  harmless  under  Satterwhite
              v.  Texas,  486  U.S.  249,  108  S.  Ct.  1792  (1988).
                     Unconstitutional  error  occurring  during  the  course  of  a  judicial  proceeding  is  judged  for  harm
              or  prejudice  under  Rule  52(a)  of  the  Tennessee  Rules  of  Criminal  Procedure  and  Rule  36(b)  of  the
              Tennessee  Rules  of  Appellate  Procedure. Under  these  rules,  a  Ōjudgment  of  conviction  shall  [not]
              be  reversed  on  appeal  except  for  errors  which  affirmatively  appear  to  have  affected  the  result  of  the
              trial  on  the  merits.Ķ Tenn.  R.  Crim.  P.  52(a);  see  also  Tenn.  R.  App.  P.  36(b). The  test  for
              harmlessness,  however,  differs  when  there  is  constitutional  error.  Once  constitutional  error  is  found,
              the  burden shifts  to  the  State  to  prove  the  error  is  harmless  and  the  reviewing  court  must  be
              persuaded  Ōbeyond  a  reasonable  doubtĶ  that  the  error  did  not  affect  the  trial  outcome  in  order  to
              deem  the  error  harmless.  See  State  v.  Nichols,  877  S.W.2d  722,  743  (Tenn.  1994),  cert.  denied,  513
              U.S.  1114,  115  S.  Ct.  909  (1995)  (Reid,  C.J.,  dissenting);  see  also  Chapman  v.  California,  386  U.S.
              at  22,  87  S.  Ct.  at  827  (holding  some  constitutional  errors  are  so  insignificant  or  unimportant  that
              they  may  be  deemed  harmless). The  United  States  Supreme  Court  first  applied  the  Chapman

              harmless  error  analysis  to  federal  constitutional  errors  occurring  in  a  capital  sentencing  proceeding
              in  Satterwhite  v.  Texas,  486  U.S.  at  261,  108  S.  Ct.  at  1800  (holding  that  admission  of  expert
              testimony  about  the  defendantÕs  risk  for  future  dangerousness  violated  the  Sixth  Amendment). In
              finding  the  error  not  harmless,  the  Court  emphasized  that  the  question  is  Ōnot  whether  the  legally
              admitted  evidence  was  sufficient  to  support  the  death  sentence.  .  .  . But  rather,  whether  the  State
              has  proved  Ôbeyond  a  reasonable  doubt  that  the  error  complained  of  did  not  contribute  to  the
              verdict  obtained.ÕĶ  Satterwhite,  486  U.  S.  at  258-259,  108  S.  Ct.  at  1798  (quoting  Chapman,  386
              U.  S.  at  24,  87  S.  Ct.  at  828)  (emphasis  added).
                     We  agree  with  the  Appellant  that  the  exclusion  of  the  deposition  of  Jack  Charles  Blankenship
              infringed  upon  his  right  to  a  fair  trial,  and,  thus  is  evaluated  as  constitutional  error. See  generally
              Green  v.  Georgia,  442  U.S.  95,  99  S.  Ct.  2150  (1979)  (exclusion  of  testimony  denied  capital
              defendant  a fair trial);  State v. Terry, 813 S.W.2d 420, 425 (Tenn. 1991) (when evidence is
              introduced  into  the  sentencing  calculation  that  potentially  undermines the  Eighth  Amendment



                                                           -28- reliability  requirement,  constitutional  harmless  error  analysis  should  be  employed). Thus,  the
              question  remains  for  this  court  whether  the  State  can  show  beyond  a  reasonable  doubt  that  had  the
              trial  court  not  erred  in  the  exclusion  of  the  deposition  of  Blankenship  the  verdict  would  not  have
              been  different.
                     We  conclude  that  even  had  the  deposition  been  admitted  as  substantive  evidence,  the  verdict
              would not have been affected.  Indeed, defense counsel thoroughly questioned Jack Charles
              Blankenship  as  to  the  majority  of  his  deposition  testimony.  Substantial  parts  of  the  deposition  were
              read  as  a  part  of  the  questioning.  Blankenship  admitted  that  he  had  previously  made  such  statements,
              explaining  that  his  prior  statements  were  false. Although  the  jury  was  instructed  that  it  could  only
              receive  BlankenshipÕs  deposition  for  impeachment  purposes,  they  were  not  so  instructed  as  to  the
              portions  of  the  deposition  restated  in  BlankenshipÕs  answers  at  the  hearing. Additionally,  the  fact
              that  Blankenship  had  consistently,  for  twenty-two  years,  denied  the  AppellantÕs  involvement  in  the
              crime  was  forcefully  presented  to  the  jury. For  these  reasons,  we  conclude  that  the  trial  courtÕs
              ruling  that  limited  the  juryÕs  consideration  of  the  deposition  constitutes  harmless  error.


                                        B. March  31,  1977  Request  for  Indictment

                     The  State  attempted  to  prove,  as  a  capital  sentencing  aggravating  factor,  that  the  Appellant
              commissioned  the  murder  of  Julian  Watkins  in  order  to  avoid  prosecution  on  gambling  charges.  See
              TENN.  CODE  ANN.  ¤  39-2404(i)(6). In  an  attempt  to  establish  this  factor,  the  State  introduced  the
              testimony  of  Officer  Cupp,  who  testified  that  Julian  Watkins  was  responsible  for  investigating  the
              Appellant  for  gambling  and  for  bringing  gambling  indictments  against  the  Appellant. On  cross-examination, 
                           Officer  Cupp  admitted  that  a  document  captioned  ŌRequest  for  IndictmentsĶ  had  been
              prepared  and  listed  numerous  persons  who  were  also  arrested  with  the  Appellant  on  gambling
              charges. At  this  time,  the  defense  moved  to  admit  the  ŌRequest  for  IndictmentĶ  document  as
              substantive  evidence  to  establish  that  other  persons  existed,  in  addition  to  the  Appellant,  who  would
              have  had  a  motive  for  killing  Julian  Watkins. The  trial  court  refused  to  admit  the  evidence  on  the
              grounds  that  such  evidence  was  hearsay. The  Appellant  now  challenges  this  ruling.
                     Although the  Appellant  is  correct  in  his  assertion that the  trial  court  may  not  exclude
              evidence  at  a  capital  sentencing  hearing  on  the  grounds  that  such  evidence  is  hearsay,  he  is  incorrect
              in  his  belief  that  there  are  no  limitations  placed  upon  the  introduction  of  evidence. The  Appellant
              asserts  that  the  report  is  probative  because  it  lists  other  persons  arrested  on  gambling  charges  that
              would  also  have  had  a  motive  to  murder  Julian  Watkins. The  AppellantÕs  theory  is  too  speculative
              to  be  probative. The  Appellant  failed  to  offer  any  evidence  that  would  link  any  of  the  other  named
              persons  to  the  murder. Accordingly,  without  more,  the  report  by  itself  does  not  place  any  doubt  as
              to  the  AppellantÕs  involvement  in  the  offense. We  conclude  that  the  trial  court  did  not  err  by
              excluding  the  ŌRequest  for  IndictmentsĶ  document. This  claim  is  without  merit.

                                          C. AppellantÕs  Report  of  Stolen  Vehicle

                     During  the  cross-examination  of  Terry  Casteel,  the  following  colloquy  occurred:



                                                           -29- GLANKLER:  All  right. You  mentioned  something  to  the  prosecutor  a  little  earlier
                     on  in  your  testimony  that  you  were  going  to  take  this  Ms.  Marilyn  Lee  down  to  her
                     motherÕs  in  Greenwood,  Mississippi?
                     CASTEEL:  Yes,  sir.
                     GLANKLER:  And  you  took  her  down  in  Mr.  AustinÕs  Cadillac?
                     CASTEEL:  Yes,  sir.
                     GLANKLER:  You  had  the  keys  to  that  automobile?
                     CASTEEL:  Yes,  sir.
                     GLANKLER:  You  had  driven  that  car  on  numerous  occasions?
                     CASTEEL:  Yes,  sir.
                     GLANKLER:  And  Mr.  Richard  Austin  called  the  Memphis  Police  Department  and
                     reported  his  car  stolen,  did  he  not?
                     GENERAL  HENDERSON:  Objection,  Your  Honor. That  would  call  for  a  hearsay
                     or  a  conclusion  or  speculation.
                     THE  COURT:  Overruled. If  he  knows.
                     CASTEEL:  I  was  told  that  he  did. Yes.
                     THE  COURT:  Sustained. Hearsay.
                     GLANKLER:  What?
                     THE  COURT:  Sustained. Hearsay.
                     GLANKLER:  If  the  Court  please,  we  are  entitled  to  ask  that  question.
                     THE  COURT:  Sustained. Hearsay.
                     GLANKLER:  Thank  you.
                     The  Appellant  contends  that  it  was error  for  the  trial  court  to  prohibit  introduction  of
              testimony  relating  that  he  had  reported  his  vehicle  stolen  to  the  police  department  on  the  basis  that
              such  testimony  was  hearsay. He  asserts  that  this  testimony  Ōwas  probative  in  that  it  rebutted  the



                                                           -30- aggravating  circumstances  of  murder  for  hire,  and  murder  t  o  avoid  prosecution.  .  .  .Ķ Specifically,
              he  states  that: 
                     proof  that  Austin  reported  his  car  stolen  by  Casteel,  directly  rebuts  the  StateÕs  theory
                     that  Austin  hired  Casteel  and  Blankenship  to  kill  Watkins. If  Austin  and  Casteel
                     were  in  collusion,  planning  the  murder  of  Watkins,  Austin  certainly  would  not  have
                     alerted  the  police  to  be  on  the  lookout  for  Casteel.  The  jury  was  thus  prevented  from
                     considering  valuable  mitigation  proof  that  weakened  the  StateÕs  theory  that  Austin
                     orchestrated  the  killing  of  Watkins.
                     Although  in  a  capital  sentencing  hearing,  such  evidence  may  not  be  excluded  on  the  basis  that
              it  is  hearsay,  we  conclude  that  any  error  in  the  courtÕs  ruling  that  the  testimony  was  hearsay  is
              harmless  as  Ōthe  error  complained  of  did  not  contribute  to  the  verdict  obtained.Ķ  Satterwhite,  486
              U.  S.  at  258-259,  108  S.  Ct.  at  1798. First,  the  trial  court  offered  no  curative  instruction  to  the  jury
              to  disregard  the  excluded  testimony. Additionally,  the  record  does  not  reveal  what  the  Appellant
              intended  to  be  introduced. Defense  counsel  asked  Casteel  if  the  Appellant  had  reported  his  vehicle
              stolen  to  which  Casteel  replied  affirmatively. There  is  no  indication  in  the  record  that  the  vehicle
              was  stolen  prior  to  the  murder. Nor  did  the  defense  make  an  offer  of  proof  of  such. See  generally
              Tenn.  R.  Evid. 103(a)(2)  &  (b). The  jury  obviously  heard  CasteelÕs  testimony  that  the  Appellant
              had  reported  his  car  stolen  and  the  trial  court  failed  to  instruct  the  jurors  to  disregard  this  fact. As
              such,  we  conclude  that  any  error  in  its  exclusion  was  clearly  harmless.

                                              D. Reverend  IngleÕs  Testimony

                     As  mitigation  proof,  the  Appellant  presented  the  deposition  testimony  of  two  former  prison
              guards,  Hardin  Green  and  John  Owen. Both  Green  and  Owen  provided  statements  regarding  the
              AppellantÕs  actions  during  the  prison  riot  of  1985. Specifically,  both  men  explained  how  the
              Appellant  protected  prison  guards  during  the  riot.  During  this  particular  insurrection,  inmates  in  the
              general  population  had  started  a  riot  and  gained  control  of  the  interior  of  the  prison.  The  inmates  on
              death  row  heard  the  rioting  prisoners.  Encouraged  by  the  prisonersÕ  uprising,  ŌSteve  Pickle,Ķ  a  death
              row  inmate,  started  a  fire  on  death  row.  Meanwhile,  inmates  from  the  general  population  were  trying
              to  gain  access  to  death  row.  The  Appellant  cautioned  the  inmates  from  the  general  population,  Ōwe
              donÕt  need  you  in  here.  We  donÕt  want  you  in  here,  we  donÕt  want  our  officers  hurt,  we  are  appealing
              our  stuff  and  you  are  going  to  sentence  us  to  the  death  penalty  if  you  come  in  here.  .  .  .Ķ Both
              Hardin  Green  and  John  Owen  opined  that  the  Appellant  not  only  saved  their  lives  that  day  but  also
              the  lives  of  the  five  other  officers  assigned  to  death  row. 
                     The  Appellant  also  presented  the  testimony  of  Reverend  Joseph  Ingle,  a  United  Church  of
              Christ  minister  involved  with  prison  ministry. He  explained  that  he  has  had  a  pastoral  relationship
              with  the  Appellant for almost  twenty-two  years.  In  addition  to  relating  information  about  the
              Appellant,  Reverend  Ingle  was  asked  to  recall  the  prison  riot  of  1985. Reverend  Ingle  replied  that
              his  knowledge  of  the  riot  was  gained  through  conversations  with  John  Owen,  who  at  that  time  was
              one  of  the  commanders  of  the  shift  on  death  row.  Reverend  Ingle  recalled  that  the  death  row  inmates
              were  not  involved  in  the  riot,  rather,  the  inmates  in  the  general  population  had  instigated  the  uprising.



                                                           -31- He  continued  that  inmates  in  the  general  population  tried  to  Ōstorm  death  rowĶ  in  order  to  free  the
              death  row  inmates. Reverend  Ingle  was  then  asked  whether  any  of  the  prison  guards  had  expressed
              to  him  Ōany  thanks  or  gratefulness  to  [the  Appellant].Ķ  He  answered  affirmatively,  noting  that
              Lieutenant  Owen,  in  particular,  had  expressed  gratitude. The  State  objected. The  trial  court
              sustained  the  objection,  finding  ŌMr.  Owen  has  testified. IÕm  not  going  to  allow  this  man  to  simply
              compound  testimony  thatÕs  either  been  given  or  hearsay. Objection  is  sustained.Ķ The  Appellant
              now  challenges  the  trial  courtÕs  ruling.
                     We  conclude  that  the  trial  courtÕs  limitation  of  Reverend  IngleÕs  testimony  was  proper  under
              these  circumstances. Although  testimony  relating  to  the  AppellantÕs  character  was  highly  relevant
              in  making  a  sentencing  determination,  the  trial  court  does  retain  discretion  and  control  of  the
              presentation  of  evidence. The  substance  of  the  excluded  testimony  was  already  introduced  through
              the  thorough  depositions  of  two  prison  guards  who  actually  observed  the  AppellantÕs  behavior.
              Reverend  IngleÕs  testimony  was  merely  cumulative  of  first  hand  observer  testimony. Under  these
              circumstances,  we  conclude  that  the  trial  court  did  not  abuse  its  discretion  in  excluding  Reverend
              IngleÕs  testimony. This  issue  is  without  merit.


                       IV. Admission  of  Testimony  of  the  AppellantÕs  Prior  Threats  of  Violence

                     Marilyn Lee Pryor, an  employee  at  The  Golden  Cue  in  May  1977,  testified  regarding
              statements  made  by  the  Appellant  shortly  after  the  April  raid.  Specifically,  she  stated  that  the
              Appellant  remarked  to  her  that  Ō[Watkins]  should  have  his  brains  shot  out.Ķ Additionally,  she
              described  events  occurring  immediately  after  the  murder  of  Julian  Watkins.  Ms.  Pryor  related  that
              she  was  questioned  by  Memphis  Police  Officers  regarding  the  AppellantÕs  ŌwhereaboutsĶ  and  was
              informed  that  she  would  be  subpoenaed  to  come  to  court  to  give  a  statement. Later  that  same  day,
              the  Appellant  told  her  not  to  worry  about  the  subpoena. The  following  morning  the  Appellant
              arranged  for  Ms.  Pryor  to  be  driven  to  her  home  in  Mississippi. The  next  day,  unbeknownst  to  the
              Appellant,  Ms.  Pryor  returned  to  Memphis,  gave  her  statement,  and  returned  to  Mississippi. 
                     The  State  then  inquired  as  to  whether  she  had  spoken  to  the  Appellant  after  providing
              authorities  with  her  statement  in  1977. Over  defense  objection,  Ms.  Pryor  testified  that,  when  she
              later  told  the  Appellant  that  Ō[she]  had  testified  for  the  State,Ķ  [provided  a  statement],  the  Appellant
              Ōtold  [her]  that  [she]  was  a  stupid,  cold,  bitch  and  that  [she]  should  have  been  killed,  too.  .  .  .Ķ The
              Appellant  now  complains  that  admission  of  this  testimony  was  error.  Specifically,  he  contends  that
                     [s]uch  threats  would  be  inadmissible  under  Rule  608(b)  of  the  Tennessee  Rules  of
                     Evidence  since  such  conduct  is  not  probative  of  truthfulness  or  untruthfulness.
                     Furthermore,  the  testimony  was  highly  prejudicial  because  allowing  the  jury  to  hear
                     that  Mr.  Austin  had  previously  threatened  her  would  only  inflame  the  jury  and  the
                     concern  substantially  outweighed  any  probative  value  the  testimony  had.



                                                           -32- The  AppellantÕs  reliance  on  the  Rules  of  Evidence  is  misplaced.  First,  we  again  acknowledge
              that,  at  a  capital  re-sentencing  hearing, 
                     evidence  may  be  presented  as  to  any  matter  that  the  court  deems  relevant  to  the
                     punishment  and  may  include,  but  not  be  limited  to,  the  nature  and  circumstances  of
                     the  crime;  the  defendantÕs  character,  background,  history,  and  physical  condition;  any
                     evidence  tending  to  establish  or  rebut  the  aggravating  circumstances  enumerated  in
                     subsection  (i)  below;  and  any  evidence  tending  to  establish  or  rebut  any  mitigating
                     factors.  Any  such  evidence  which  the  court  deems  to  have  probative  value  on  the
                     issue  of  punishment  may  be  received  regardless  of  its  admissibility  under  the
                     rules  of  evidence,  provided  that  the  defendant  is  accorded  a  fair  opportunity  to  rebut
                     any  hearsay  statements  so  admitted.  .  .  .
              TENN.  CODE  ANN.  ¤  39-2404(c). Generally,  evidence  of  threats  against  witnesses  attributed  to  the
              accused  is  probative  as  being  either  (1)  conduct  inconsistent  with  the  accusedÕs  claim  of  innocence
              or  (2)  conduct  consistent  with  the  theory  that  the  making  of  such  threats  evinces  a  consciousness  of
              guilt.  See  generally  NEIL  P.  COHEN  ET  AL.,  TENNESSEE  LAW  OF  EVIDENCE  ¤  4.01[13]  (4  th  ed.  2000)
              (citing  State  v.  Maddox,  957  S.W.2d  547,  552  (Tenn.  Crim.  App.  1997);  Tillery  v.  State,  565  S.W.2d
              509  (Tenn.  Crim.  App.  1978)). At  the  basis  of  the  AppellantÕs  mitigation  theory  was  evidence
              tending  to  negate  his  culpability  for  the  offense. Thus,  testimony  relating  that  the  Appellant  would
              have preferred that Ms. Pryor be killed, rather than provide testimony relating to activities
              surrounding  the  murder  of  Julian  Watkins,  was  evidence  probative  to  rebut  the  defense  theory  of
              mitigation  and  to  establish  residual  doubt  of  the  AppellantÕs  guilt. Accordingly,  the  testimony  was
              properly  admitted  and  we  find  no  error.


                                    V. Cross-examination  of  Witness  Levi  Haywood

                     During  the  re-sentencing  hearing,  defense  counsel  presented  the  testimony  of  Levi  Haywood,
              who  testified  that  he  had  met  Terry  Casteel  at  the  Shelby  County  Jail. Casteel  informed  Haywood
              that  he  had  been  beaten  and  coerced  into  testifying  against  the  Appellant. Haywood  continued  to
              state  that  Casteel  regretted  his  role  as  a  prosecuting  witness  and  asserted  that  the  Appellant  had  not
              been  involved  in  the  murder. On  cross-examination,  Haywood  admitted  that  he  had  previously
              ŌomittedĶ  that  Casteel  had  been  beaten  by  the  police  in  his  recitation  of  his  dealings  with  Casteel.
              The  examination  continued  to  reveal  that  Casteel  was  considered  to  be  a  ŌsnitchĶ  because  he  had
              implicated  the  Appellant. The  following  colloquy  ensued:
                     GENERAL  CAMPBELL:  What  happens  to  snitches,  Mr.  Haywood?
                     HAYWOOD:  That  all  depends.
                     GLANKLER:  Object.



                                                           -33- COURT:  Overruled.
                     GENERAL  CAMPBELL:  What  happens  to  snitches  in  the  jail?
                     HAYWOOD:  It  all  depends.  I  wasnÕt  a  snitch  and  I  almost  got  stabbed  by  a  plumber
                     because  an  officer  said  that  I  killed  somebody.
                     GENERAL  CAMPBELL:  What  happens  to  a  snitch,  Mr.  Haywood,  in  prison?
                     HAYWOOD:  In  prison?
                     GENERAL  CAMPBELL:  Yeah.
                     HAYWOOD:  They  may  get  beat  up.  They  may  get  put  on  segregated  lock  up.  It  all
                     depends.
                     GENERAL  CAMPBELL:  They  may  get  killed,  too?
                     HAYWOOD:  Yeah,  they  might.
              The  Appellant  now  contends  that  the  trial  court  erred  in  permitting  into  evidence  HaywoodÕs
              testimony  about  Ō[w]hat  happens  to  snitches  in  the  jail.Ķ  Specifically,  he  contends  that  the  testimony
              is  Ōspeculative  and  irrelevantĶ  and  should  not  have  been  admitted  into  evidence.
                     Again,  at  a  capital  sentencing  hearing, 
                     evidence  may  be  presented  as  to  any  matter  that  the  court  deems  relevant  to  the
                     punishment  and  may  include,  but  not  be  limited  to,  the  nature  and  circumstances  of
                     the  crime;  the  defendantÕs  character,  background,  history,  and  physical  condition;  any
                     evidence  tending  to  establish  or  rebut  the  aggravating  circumstances  enumerated  in
                     subsection (i) below; and any evidence tending to establish or rebut any
                     mitigating  factors.  Any  such  evidence  which  the  court  deems  to  have  probative
                     value  on  the  issue  of  punishment  may  be  received  regardless  of  its  admissibility
                     under the rules  of evidence, provided that the defendant is accorded a fair
                     opportunity  to  rebut  any  hearsay  statements  so  admitted.  .  .  .
              TENN.  CODE  ANN.  ¤  39-2404(c). Under  these  criteria,  the  State  may  properly  introduce  reliable
              testimony  probative  to  rebut  any  mitigating  circumstance  advanced  by  the  defense. In  the  present
              case, the Appellant sought to introduce Ōresidual doubtĶ evidence to rebut the murder for



                          28  ŌResidual  doubtĶ  e  vidence  is  not  Ōa  fact  abou  t  the  defenda  nt  or  the  circum  stances  of  the  c  rime,  but  is  a  state
                 of  mind  somewhere  between  reasonable  doubt  and  absolute  certainty  of  guilt.Ķ Teague,  897  S.W.2d  253  (citing  State
                 v.  Bigbee,  885  S.W.2d  797,  813  (Tenn.  1994)). ŌResidual  doubtĶ  evidence  is  admissible  at  a  capital  re-sentencing
                 hearing  where  the  evidenc  e  relates  direc  tly  to  a  mitigating  facto  r  or  rebuts  the  StateÕs  proof  as  to  an  aggravating  factor.
                 Teague,  897  S.W.2d  at  253  (Ō[p]rohibiting  evidence  regarding  the  extent  to  which  the  defendant  did  or  did  not  participa  te
                 in the commission of the crime would defeat  in large measure  the defendantÕs  right  to present evidence denying,
                 explaining  or  rebutting  evidence  of  aggravating  circumstances).

                          29  The  test  for  admissibility  is  not  whether  the  evidence  tends  to  prove  the  defendant  did  or  did  not  commit  the
                 crime,  but,  whether  it  relates  to  the  circumstances  of  the  crime  or  the  aggravating  or  mitigating  c  ircumstance  s. See
                 Teague,  897  S.W.2d  at  252.

                                                                        -34- remuneration  aggravating  circumstance.28  Specifically,  he  presented  the  testimony  of  Levi  Haywood
                 to  relate  that  Terry  Casteel  had  only  implicated  the  Appellant  in  the  murder  because  Casteel  was
                 physically  intimidated  by  the  police.  The  State  then  sought  to  explain  CasteelÕs  motive  in  explaining
                 to  Haywood  and  other  inmates  as  to  why  he  testified  against  the  Appellant. Evidence  regarding  the
                 treatment  of  ŌsnitchesĶ  was,  therefore,  probative  in  explaining  CasteelÕs  differing  justification  of  his
                 testimony  to Haywood.29  Accordingly, we find no error in permitting the introduction of such
                 evidence. This  claim  is  without  merit.


                                     VI. Fifth  Amendment  Rights  of  Jack  Charles  Blankenship

                          Prior to the re-sentencing hearing, defense counsel obtained a writ of habeas corpus ad
                 testificandum  to  bring  Jack  Charles  Blankenship  to  Memphis  to  testify. Upon  arriving  in  Memphis,
                 Blankenship  consulted  with  his  attorney  and  was  advised  to  assert  his  Fifth  Amendment  privilege
                 against  self-incrimination.  At  the  re-sentencing  hearing,  Blankenship  invoked  his  Fifth  Amendment
                 privilege  upon  being  called  to  the  stand. The  trial  court  found  that  BlankenshipÕs  Fifth  Amendment
                 privilege had  expired  in  the  present  case  because  his  conviction  for  his  criminal  involvement  in
                 WatkinsÕ  murder  was  final  and  he  was  not  subject  to  further  prosecution.  As  such,  the  court  ordered
                 Blankenship  to testify.  Blankenship proceeded to testify, corroborating the testimony of Terry
                 Casteel  and  recanting  his  previous  testimony  which  exculpated  the  Appellant.  The  Appellant  now
                 contends  that  the  court  unconstitutionally  compelled  BlankenshipÕs  testimony.
                          A  criminal  defendant  lacks  standing  to  complain  of  the  violation of  a  third  partyÕs  Fifth
                 Amendment  privilege  against  self-incrimination. See,  e.g.,  United  States  v.  Tribunella,  749  F.2d
                 104,  106  n.1  (2d  Cir.  1984);  United  States  v.  Minor,  398  F.2d  511,  513  (2d  Cir.  1968);  People  v.
                 Jenkins,  997  P.2d  1044,  1089  (Cal.  2000),  petition  for  writ  of  cert.  filed,  (Oct.  24,  2000);  People  v.
                 Homes,  654  N.E.2d  662,  668  (Ill.  App.  1995). The  Fifth  Amendment  privilege  is  personal  and
                 cannot  be  vicariously asserted. Rogers  v.  United  States,  340  U.S.  367,  371,  71  S.  Ct.  438,  rehÕg
                 denied, 341 U.S. 912, 71 S. Ct. 619 (1951).  The Appellant was not compelled to testify;
                 Blankenship  was. Only  Blankenship,  and  not  the  Appellant,  may  assert  a  violation  of  the  privilege.
                 Whatever  the  merit  of  the  AppellantÕs  claim  may  be,  the  Appellant  has  no  standing  to  assert  the
                 alleged  violation  of  the  Fifth  Amendment  privilege  of  Blankenship. Accordingly, we need  not
                 address  the  merits  of  the  AppellantÕs  complaint.



                                                           -35- VII. Introduction  of  Victim  Impact  Evidence

                     In  State  v.  Nesbit,  978  S.W.2d  at  872,  our  supreme  court  held  that  Ōvictim  impact  evidence
              and  argument  is  [not]  barred  by  the  federal  and  state  constitutions.Ķ See  also  Payne  v.  Tennessee,
              501  U.S.  808,  827,  111  S.  Ct.  2597,  2609  (1991)  (holding  that  the  Eighth  Amendment  erects  no  per
              se  bar  against  the  admission  of  victim  impact evidence  and  prosecutorial  argument);  State  v.
              Shepherd,  902  S.W.2d  895,  907  (Tenn.  1995)  (holding  that  victim  impact  evidence  and  prosecutorial
              argument  is  not  precluded  by  the  Tennessee  Constitution).  Notwithstanding  the  holding  that  victim
              impact  evidence  is  admissible  under  TennesseeÕs  death  penalty  sentencing  scheme,  the  introduction
              of  such  evidence  is  not  unrestricted. Nesbit,  978  S.W.2d  at  891. Victim  impact  evidence  may  not
              be  introduced  if  (1)  it  is  so  unduly  prejudicial  that  it  renders  the  trial  fundamentally  unfair;  or  (2)  its
              probative  value  is  substantially  outweighed  by  its  prejudicial  impact.  See  Nesbit,  978  S.W.2d  at  891
              (citations  omitted);  see  also  State  v.  Morris,  24  S.W.3d  788,  813  (Tenn.  2000)  (Appendix),  cert.
              denied,  Đ  U.S.Đ,  121  S.  Ct.  786  (2001). Additionally,  our  supreme  court  has  established  certain
              procedural  guidelines  which  must  be  followed  before  victim  impact  evidence  may  be  admitted  by
              the  trial  court. First,  the  State  must  notify  the  trial  court  of  its  intent  to  produce  victim  impact
              evidence.  Nesbit,  978  S.W.2d  at  891.  Second,  upon  receiving  the  StateÕs  notification,  the  trial  court
              must  hold  a  hearing  outside  the  presence  of  the  jury  to  determine  the  admissibility  of  the  evidence.
              Id.  Finally,  the  trial  court  should  not  permit  introduction  of  such  evidence  until  the  court  determines
              that  evidence  of  one  or  more  aggravators  is  already  present  in  the  record. Id. (citations  omitted).
                     At  the  re-sentencing  hearing,  the  State  presented  the  testimony  of  the  victimÕs  wife  and  sons.
              Their  testimony  included,  but  was  not  limited  to,  evidence  as  to  the  emotional  loss  sustained  by  the
              family  as  the  result  of  Julian  WatkinsÕ  murder. The  Appellant  challenges  admission  of  this  victim
              impact  evidence  on  grounds  that  (1)  the  testimony  resulted  in  great  risk  of  undue  prejudice;  and  (2)
              the  trial  court  failed  to  properly  follow  the  procedural  requisites  established  by  the  supreme  court
              in  Nesbit.  As  to  the  latter  ground,  the  Appellant  specifically  asserts  that  the  trial  court  permitted  the
              State  to  call  Carolyn  Watkins-Cupp,  the  victimÕs  wife,  as  its  first  witness;  thereby,  violating  the
              prerequisite  that  evidence  of  an  aggravating  circumstance  must  already  be  present  in  the  record.
              Coupled with his challenge to the admission of the victim impact evidence, the Appellant
              additionally  claims  as  error  the  prosecutorÕs  remarks  during  closing  argument  regarding  the  function
              of  victim  impact  evidence. 


                                        A. Admission  of  Victim  Impact  Testimony
                     The  AppellantÕs  challenge  to  the  introduction  of  victim  impact  evidence  is  expressly  limited
              to  the  testimony  of  Carolyn  Watkins-Cupp  and  Steve  Watkins. Carolyn  Watkins-Cupp,  the  first
              witness  to  be  called  by  the  State,  testified  that  she  was  the  widow  of  Julian  Watkins.  She  related  that
              they  had  been  married  for  sixteen  and  one-half  years  at  the  time  of  his  murder  and  that  they  had  three
              children  together. Ms.  Watkins-Cupp  explained  that  the  loss  of  her  husband  ŌdevastatedĶ  their
              family  and  her  children  had  difficulty  in  understanding  why  Ōtheir  daddy  was  no  longer  there.Ķ  She
              further  added  that  his  death  forced  her  to  close  their  business.  Steve  Watkins,  the  victimÕs  youngest



                                                           -36- son,  was  the  final  witness  called  by  the  State. Steve  Watkins  testified  that  his  fatherÕs  death  Ōput  a
              big  emptiness  in  my  life.  I  mean,  from  up  eight  -  -  up  to  eight  years,  you  know,  you  donÕt  remember
              a  whole  lot. But  since  then  IÕve  Đ  I  think  of  it  every  day. ItÕs  just  a  big  emptiness  I  wish  could  be
              filled  that  never  will  be  ever  again.Ķ
                     The  victim  impact  evidence  complained  of  is  limited  to  the  victimÕs  role  as  father  and
              husband  and  to  the  loss  felt  by  the  victimÕs  immediate  family  members. Such  testimony  is  clearly
              of  the  nature  of  evidence  contemplated  in  Nesbit. See  generally  State  v.  Smith,  993  S.W.2d  6,  17
              (Tenn.  1999),  cert.  denied,  528  U.S.  1023,  120  S.  Ct.  536  (1999). The  evidence  was  limited  to  that
              which offered a Ōbrief glimpse into the life of the individual who has been killed, the
              contemporaneous  circumstances  surrounding  the  victimÕs  death,  and  how  those circumstances
              financially  and  emotionally  impacted  the  members  of  the  victimÕs  immediate  family. See  Nesbit,
              978  S.W.2d  at  891  (citations  omitted). The  fact  that  the  death  of  a  loved  one  is  devastating  requires
              no  proof. See Morris,  24  S.W.3d  at  813  (Appendix). Moreover,  we  reject  the  AppellantÕs  claim
              that  the  testimony  of  Steve  Watkins  was  merely  cumulative  of  other  victim  impact  testimony  and,
              therefore,  overly  prejudicial. Steve  Watkins  testified  as  to  the  impact  of  his  fatherÕs  death  on  him
              and,  generally,  on  the  family. We  fail  to  find  such  testimony  cumulative. Accordingly,  we  cannot
              conclude  that  the  admission  of  the  victim  impact  testimony  was  unduly  prejudicial.
                     Before  admitting  the  testimony  of  both  Carolyn  Watkins-Cupp  and  Steve  Watkins,  the  State
              notified  the  trial  court  of  its  intent  to  introduce  victim  impact  evidence  and  the  court  conducted  jury-out 
                 hearings  to  determine  the  admissibility  of  the  evidence.  Notwithstanding  compliance  with  these
              prerequisites,  the  trial  court  permitted  the  victimÕs  widow  to  testify  as  the  StateÕs  first  witness.
              Obviously,  no  proof  of  aggravating  circumstances  existed  in  the  record  prior  to  her  testimony;  thus,
              NesbitÕs  third  requirement  was  not  fulfilled.  The  State  contends  and  this  court  agrees  that  the  failure
              to  comply  with  the  third  requirement  of  Nesbit  requiring  proof  of  an  aggravating  circumstance  on
              the  record  prior  to  the  admission  of  the  victim  impact  testimony  of  Carolyn  Watkins-Cupp  is
              harmless  in  the  present  case. 
                     The  State  presented  the  testimony  of  Carolyn  Watkins-Cupp  not  only  to  present  victim
              impact  evidence  but  also  to  establish  the  discovery  of  her  husbandÕs  murder  and  the  surrounding
              circumstances. Before  Carolyn  Watkins-Cupp  testified,  the  trial  court  held  a  jury-out  hearing  to
              determine  the  admissibility  of  her  testimony.  At  the  conclusion  of  the  hearing,  the  trial  court  stated,
              in  relevant  part:
                     I  have  listened  to  the  opening  statements. I  realize  theyÕre  not  proof. But  the  only
                     other  possibility  would  be  to  have  Ms.  Watkins  testify  twice. And  I  donÕt  think  that
                     would  be  essentially  in  the  interest  of  judicial  economy.
              We  cannot  conclude  that  the  trial  courtÕs  ruling  was  reversible  error.  A  trial  judge  is  in  the  unique
              position  of  not  only  being  responsible  for  the  admissibility  of  evidence  but  also  of  being  responsible
              for  the  orderly  and  expeditious  presentation  of  testimony. See  generally  State  v.  Barnard,  899
              S.W.2d  617,  624  (Tenn.  Crim.  App.  1994). As  such,  we  are  unable  to  conclude  that  the  presentation



                                                           -37- of  Carolyn  Watkins-CuppÕs  testimony  before  evidence  of  an  aggravator  was  present  in  the  record
              rendered  the  capital  sentencing  process  fundamentally  unfair. Accordingly,  we  hold  any  error
              harmless. See  Tenn.  R.  Crim.  P.  52(a).
                                            B. ProsecutorÕs  Closing  Argument
                     The  Appellant  also  contends  that  the  prosecutor  engaged  in  improper  closing  argument
              regarding  the  function  of  victim  impact  evidence  upon  the  jury. Specifically,  he  avers  that  the
              prosecutor  instructed  the  jury  on  how  it  was  to  weigh  the  victim  impact  evidence  in  relation  to  the
              mitigation  evidence  offered  by  the  Appellant  in  direct  violation  of  the  supreme  courtÕs  mandate  in
              State  v.  Nesbit,  978  S.W.2d  at  894. Indeed,  in  Nesbit,  the  supreme  court  cautioned  that  victim
              impact  evidence  Ōdoes  not  carry  the  force  of  and  effect  of  an  aggravating  circumstance  in  the
              sentencing  calculation.Ķ  Nesbit,  978  S.W.2d  at  894.  Accordingly,  victim  impact  evidence  may  not
              be  classified  as  such  and  the  jury  may  not  be  instructed  to  weigh  and  balance  the  victim  impact
              evidence  against  mitigating  proof. Id. 
                     The  relevant  portion  of  the  prosecutorÕs  closing  argument  is  as  follows:
                     .  .  .  When  you  weigh  the  aggravating  factors,  thereÕs  not  any  question,  thereÕs  not  any
                     contest  about  this  being  a  murder  for  hire  or  a  contract  killing  or  anything  like  that.
                     The only question is about the motive.  The only question is the aggravating
                     circumstances.  You  weigh  the  mitigating  fact  heÕs  been  able  to  behave  on  death  row.
                     HasnÕt  hurt  anybody  else  since  heÕs  been  on  death  row. He  hasnÕt  hurt  anybody
                     himself  anyway. He  would  pay  somebody  to  do  that.

                     But  you  are  also  required  to  consider,  and  I  know  you  will  consider,  the  impact
                     of  this  crime,  the  impact  of  this  murder,  the  twenty-two  years  of  pulling  the
                     strings  behind  the  scenes.

                     And  it  still  goes  on. Why  else  Đ  why  else  would  you  Đ  why  else  do  you  sentence
                     someone. How  do  you  weigh  this? How  do  you  weigh  that?  You  donÕt  have  any
                     scales  back  there.  And  say,  okay,  weÕll  put  a  picture  of  his  grandchild  in  this  one  and
                     weÕll  put  a  picture  of  Julian  Watkins  on  this  side  of  the  scale  and  see  if  they  weigh
                     out. You  canÕt  do  that.
                     You  weigh  the  aggravating  and  mitigating  factors,  it  sounds  corny,  but  you  weigh
                     them  in  your  heart. You  weigh  them  in  here.
                     And  you  make  the  decision  based  on  what  this  tells  you. Is  this  one  of  those  cases
                     where  itÕs  really  pretty  minimum? A  minimum  punishment. Is  this  one  of  those
                     cases  where  he  has  gone  too  far  for  too  long. Is  this  one  of  these  cases  where  thereÕs
                     something  inside  the  human  heart  that  says  this  is  too  much.  YouÕve  done  too  much.
                     YouÕve  gone  too  far.  .  .  .



                          30  The  record  reveals  that  co-defendant  Casteel  received  a  twenty-year  senten  ce  and  co  -defendant  Blankensh  ip
                 received  a  sentence  of  life  im  prisonment.

                                                                        -38- (emphasis  added). Contrary  to  the  AppellantÕs  assertion,  we  fail  to  ascertain  how  this  argument
                 translates  into an argument instructing the jury on how to weigh the victim impact evidence in
                 relation  to  mitigation  proof  offered  by  the  Appellant. The  prosecutor  merely  commented  to  the  jury
                 that  they  were  required  to  consider  the  Ōimpact  of  this  crime.Ķ The  prosecutor  did  not  characterize,
                 in  any  way,  the  victim  impact  evidence  as  an  aggravating  factor. We  cannot  conclude  that  this
                 argument  by  the  prosecutor  prejudiced  the  outcome  of  the  sentencing  phase. Accordingly,  we  find
                 no  error  in  the  StateÕs  closing  argument. This  claim  is  without  merit.

                                      VIII. Prosecutorial  Misconduct  during  Closing  Argument

                          In  his  next  argument,  the  Appellant  contends  that  the  State  violated  his  right  to  a  fair  trial  by
                 arguing  matters  not  in  evidence  during  closing  argument.  Specifically,  he  asserts  that  the  State:
                          crafted  a  blatantly  false  motive  for  Austin  to  kill  Watkins,  by  arguing  to  the  jury  that
                          [the  Appellant]  would  have  lost  his  amusement  license  and  thus  could  no  longer
                          operate The Golden Cue.  However, [the Appellant] never held an amusement
                          license,  and  there  was  put  forward  no  proof  by  the  State  that  he  ever  did  have  such
                          a  license.
                          As  asserted  by  the  State,  the  Appellant  failed  to  make  a  contemporaneous  objection  to  the
                 prosecutorÕs  statements  during  closing  argument.  See  State  v.  Green,  947  S.W.2d  186  (Tenn.  Crim.
                 App.  1997); State  v.  Little,  854  S.W.2d  643,  651  (Tenn.  Crim.  App.1992)  (failure  to  object  to
                 prosecutor's  alleged  misconduct  during  closing  argument  waives  later  complaint). The  failure  to
                 object  to  the  prosecutorÕs  statements  results  in  waiver  on  appeal. See  generally  State  v.  Thornton,
                 10  S.W.3d  229,  234  (Tenn.  Crim.  App.  1999)  (citing  Tenn.  R.  App.  P.  36(a)).  Because  the  issue  was
                 procedurally  defaulted,  we  decline  review  of  its  merits.

                             IX. Refusal  to  Instruct  Jury  as  to  Sentences  Received  by  Co-Defendants

                          The  Appellant  argues  that  numerous  constitutional  rights  were  violated  by  virtue  of  the  trial
                 courtÕs  failure  to  instruct  the  jury  to  consider  the  sentences  received  by  co-defendants  Terry  Casteel
                 and  Jack  Charles  Blankenship  as  non-statutory  mitigating  circumstances.30 The  trial  court  refused
                 to  so  instruct  the  jury,  finding:
                          .  .  .  [U]nder  the  statutory  definition  of  accessory  before  the  fact,  it  says,  the  sentence
                          may  be,  and  IÕm  paraphrasing,  I  donÕt  even  have  it  in  front  of  me,  may  be  life  or
                          death. And  then  that  extra  li  ne  follows  that.  It  says,  regardless  of  punishment  for  the



                          31  TENN.  CODE  ANN.  ¤  39-2407  provides:
                          Any  person  tried  and  convicted  as  an  accesso  ry  before  the  fa  ct  of  murde  r  in  the  first  degree  shall  be
                          punished  by life imprisonment or by  death under the provisions  of Tennessee Code Annotated,
                          Sections  39-240  2,  39-24  04,  39-2  405  and 39-240  6,  and  said trial  and  senten  ce  shall  not  depend  on
                          when  or  if  the  p  rincipal  is  con  victed  nor  o  n  the  punishm  ent  actually  imp  osed  on  said  princip  al.

                          32  TENN.  CODE  ANN.  ¤  39-2404(e)  provides:
                          After  closing  arguments  in  the  sentencing  hearing,  the  trial  judge  shall  include  in  his  instructions  for
                          the  jury  to  weigh  and  consider  any  mitigating  circumstances  and  any  of  the  statutory  aggravating
                          circumstances  set  forth  in  subse  ction  (i)  of  this  section  which  may  be  raised  by  the  evidence  at  either
                          the  guilt  or  sentencing  hearing,  or  both. These  instructions  and  the  manner  of  arriving  at  a  sentence
                          shall  be  given  in  the  oral  charge  and  in  wr  iting  to  the  jury  for  its  deliberations.

                                                                        -39- principal  or  other  people  involved. And  as  a  result  of  that  statutory  scheme,  I  felt  itÕs
                          inappropriate  to  bring  that  up. And  as  a  result,  I  did  not  put  it  in  there.[31  ]
                 Conceding  that  the  statute  provides  that  an  accessory  may  receive  a  more  severe  sentence  than  the
                 principal,  the  Appellant  maintains  that  this  fact  does  not  preclude  consideration  of  the  punishments
                 received  by co-defendants as a mitigating factor in  determining the  appropriate  sentence  for  an
                 accessory  before  the  fact. In  support  of  his  position  that  sentences  received  by  equally  culpable
                 defendants  be  instructed  as  a  mitigating  circumstance,  the  Appellant  relies  upon  our  supreme  courtÕs
                 opinion in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), and the fact that the federal capital
                 sentencing  provisions  expressly  provide  that  the  non-death  sentences  received  by  equally  culpable
                 defendants  may  be  considered  as  a  mitigating  factor. See  18  U.S.C.S.  ¤  3592(a)(4)  (Law.  Co-op.
                 2000  Supp.).
                          In State v. Odom, our supreme court held that, although TENN. CODE ANN. ¤ 39-2-
                 204(e)(1)(1991),  requires  trial  courts  Ōto  instruct  the  jury  on  any  mitigating  circumstances  raised  by
                 the evidence at either the guilt or sentencing hearing, or both, Ķ Ōneither the United States
                 Constitution  nor  the  Tennessee  Constitution  requires  the  trial  judge  to  read  or  submit  non-statutory
                 mitigating  circumstances  to  the  jury.Ķ Id.  at  28-30. The  trial  court,  additionally,  noted  that  the  law
                 prior  to  1989,  TENN.  CODE  ANN.  ¤  39-2-203(e)  (1982),  did  not  require  that  non-statutory  mitigating
                 factors  be  expressly  instructed. Odom,  928  S.W.2d  at  29  (citations  omitted);  see  also Smith,  993
                 S.W.2d at 32, (Appendix) (OdomÕs interpretation of TENN. CODE ANN. ¤ 39-2-204(e)(1) not
                 applicable  to  sentence  imposed  under  prior  sentencing  law).
                          Because  the  offense  for  which  the  Appellant  was  convicted  was  committed  in  1977,  the
                 supreme  courtÕs  interpretation  of TENN.  CODE  ANN.  ¤  39-2-204(e)(1),  involving  post-1989  capital
                 convictions,  has  no  application  to  this  case. The  sentencing  law  in  effect  at  the  time  of  the  offense,

                 i.e., TENN.  CODE  ANN.  ¤  39-2404  (e),  did  not  require  that  the  jury  be  instructed  as  to  non-statutory
                 mitigating  circumstances.32  See  Smith,  993  S.W.2d  at  32  (¤  39-2-203(e)  does  not  require  instruction



                          33  TENN.  CODE  ANN.  ¤  39-2404(e)  is  verb  atim  TENN.  CODE  ANN.  ¤  39-2-203(e). Thu  s,  the  same  ana  lysis  is
                 applied.

                          34  Although we find it unnecessary to add  ress the App  ellantÕs contention that sentences  received  by co-defendants 
                            are  a  valid  non-statutory  mitigating  circumstanc  e,  a  determination  of  whether  the  circumstance  is  mitigating
                 would  be  a  cogn  izable  issue  had  the  1  989  Criminal  Senten  cing  Act  be  en  applica  ble. See  generally  Odom,  928  S.W.2d
                 at  30-32.  Additionally,  while  we  take  no  position  as  to  this  determination,  the  Appellant  is  correct  that  under  the  Federal
                 Death  Penalty  Act  the  circumstance  that  Ō[a]nother  defendant  or  d  efendants,  equally  culpable  in  the  crime,  will  not  be
                 punished  by  deathĶ  is  a  statutorily  enumerated  mitigating  factor. 18  U.S.C.S.  ¤  3592(a)(4).

                                                                        -40- on  non-statutory  mitigating  circumstances).33 Accordingly,  we  conclude  that  the  trial  court  did  not
                 err  in  refusing  to  instruct  the  jury  as  to  the  sentences  received  by  the  AppellantÕs  co-defendants  as
                 such  an  instruction  was  neither  statutorily  nor  constitutionally  required.34


                                 X. Refusal  to  Instruct  Jury  as  to  Sentence  of  Life  Without  Parole

                          The  Appellant  asserts  that  he  was  entitled  to  have  the  jury  instructed  as  to  the  sentencing
                 option  of  life  without  the  possibility  of  parole. In  1993,  the  General  Assembly  amended  the  capital
                 sentencing  statutes  to  provide  for  the  sentence  of  life  imprisonment  without  the  possibility  of  parole.
                 State  v.  Keen,  31  S.W.3d  196,  213  (Tenn.  2000),  petition  for  cert.  filed,  (Dec.  5,  2000)  (citing  1993
                 Tenn.  Pub.  Acts  ch.  473).  It  is  well  established  that  prior  to  1993  the  only  punishments  available  for
                 a  person  convicted  of  first  degree  murder  were  life  imprisonment  and  death. See  Keen,  31  S.W.3d
                 at  213;  State  v.  Cauthern,  967  S.W.2d  726,  735  (Tenn.  1998),  cert.  denied,  525  U.S.  967,  119  S.  Ct.
                 414  (1998);  see  also  State  v.  Bruce  C.  Reliford,  No.  W1999-00826-CCA-R3-CD  (Tenn.  Crim.  App.
                 at  Jackson,  Oct.  2,  2000). Although  the  AppellantÕs  offense  was  committed  prior  to  the  effective
                 date  of  the  act,  he  asserts  that  he  is  entitled  to  an  instruction  on  life  without  the  possibility  of  parole
                 because  his  sentencing  hearing  on  remand  occurred  after  the  act  was  passed.  Specifically,  in  support
                 of  his  position,  the  Appellant  advances  the  following  arguments:
                          (1)  A  sentencing  scheme  that  does  not  offer  a  sentence  of  life  without  the  possibility
                          of  parole  cannot  be  relied  upon  to  reflect  a  properly  guided  and  reasoned  decision
                          that  death  is  the  most  appropriate  punishment;
                          (2) A sentencing scheme that does not permit consideration of life without the
                          possibility  of  parole  infringes  upon  evolving  standards  of  decency  protected  by  the
                          federal  and  state  constitutions;
                          (3)  A  death  sentence  returned  under  a  sentencing  scheme  which  requires  juries  to
                          sentence  defendants  to  the  death  penalty  in  order  to  incapacitate  the  defendants  from
                          committing  further  crimes  constitutes  excessive  punishment;  and 
                          (4)  Refusal  to  permit  consideration  of  life  without  the  possibility  of  parole  violates
                          rights  to  equal  protections  of  the  laws.



                          35  The  Bush  court  did  expressly  recognize,  however,  the  new  sentencing  option  of  life  without  the  po  ssibility
                 of  parole  effec  tive  July  1,  19  93. See  Bush,  942  S.W.2d  at  503  n.8. The  court  also  acknowledged  another  part  of  the
                 legislative  enactment  requiring  the  jurors  now  be  instructed  Ōthat  a  defendant  who  receives  a  sentence  of  imprisonment
                 for  life  shall  not  be  eligible  for  parole  consideration  until  the  defendant  has  served  at  least  twenty-five  full  calendar  years
                 of  such  sentence.Ķ Id. In  addition,  jurors  must  be  informed  that  Ōa  defendant  who  receives  a  sentence  of  imprisonment
                                                                                                                      (continued  ...)

                                                                        -41- While  we  respect  the  AppellantÕs  arguments  in  support  of  this  claim,  we  note  that  the  identical
                 arguments  were  recently  rejected  by  our  supreme  court  in  State  v.  Keen,  31  S.W.3d  at  213-219.
                 Accordingly, as we are bound by the precedent established by the supreme court, we find it
                 unnecessary  to  revisit  the  arguments  recently  dismissed  by  the  court. This  claim  is  without  merit.

                                      XI. Refusal  to  Instruct  Jury  Regarding  Parole  Eligibility

                          During  jury  deliberation,  the  jury  submitted  a  question  to  the  court  asking  Ōhow  long  is  a  life
                 sentence  and  if  there  is  any  possibility  of  parole.Ķ After  consulting  with  both  the  State  and  defense
                 counsel,  the  trial  judge  explained  to  the  jury  that,  Ōonce  a  jury  starts  it  s  deliberations,  the  trial  judge
                 is  extremely  limited  on  his  involvement.  .  .  .Ķ The  judge  continued  that  he  was  Ōnot  at  libertyĶ  to
                 respond  to  their  question  and  that  the  law  to  be  applied  had  already  been  charged. The  jury  resumed
                 deliberations  at  9:35  a.m.  and  returned  a  verdict  of  death  at  1:50  p.m..
                          The  Appellant  now  complains  that,  under  the  authority  of  Simmons  v.  South  Carolina,  512
                 U.S.  154,  114  S.  Ct.  2187  (1994),  the  trial  courtÕs  failure  to  answer  the  juryÕs  question  violated
                 virtually  every  constitutional  right  belonging  to  a  capital  defendant. As  advanced  by  the  State,  our
                 supreme  court  reviewed  and  rejected  this  very  same  argument  under  almost  identical  circumstances
                 in  State  v.  Bush,  942  S.W.2d  489,  503  (Tenn.),  cert.  denied,  522  U.S.  953,  118  S.  Ct.  376  (1997).
                          In  State  v.  Bush,  the  jury  sent  a  note  to  the  court  fifteen  minutes  after  deliberations  began
                 asking, ŌHow  many  years  does  the  [defendant]  serve  if  he  gets  life  imprisonment  and  how  long
                 before  parole?Ķ The  trial  court  instructed  the  jury,  Ōparole  eligibility  is  not  an  issue  in  a  capital  case.
                 .  .  .Ķ  In  approving  the  trial  courtÕs  response,  our  supreme  court  noted  that,  in  Simmons,    the
                 Supreme Court held that due  process  only required an instruction that the defendant is parole
                 ineligible Ōwhere the defendantÕs  future dangerousness is at issue, and state law prohibits the
                 defendantÕs  release  on  parole.Ķ  Bush,  942  S.W.2d  at  503  (citing Simmons,  512  U.S.  at  155-156,  114
                 S.  Ct.  at  2190). The  Supreme  Court  added  that  the  Court  would  not  Ōsecond-guess  the  refusal  of  a
                 State  to  allow  proof,  instruction,  or  argument  to  the  jury  on  the  availability  of  paroleĶ  Ō[i]f  parole

                 is  an  option  for  a  defendant  sentenced  to  life  imprisonment.Ķ Bush,  942  S.W.2d  at  503  (citing
                 Simmons,  512  U.S.  at  168-169,  114  S.  Ct.  at  2196;  see  also  Simmons,  512  U.S.  at  175-177,  114  S.
                 Ct.  at  2200  (OÕConnor,  J.,  concurring)  (parenthetical  omitted)). Under  the  reasoning  provided  in
                 Simmons,  our  supreme  court  held  that  Ō[s]ince  Tennessee  is  a  state  in  which  defendants  sentenced
                 to life imprisonment are eligible for parole, Simmons does not require that the jury be given
                 information  about  parole  availability.Ķ  Bush,  942  S.W.2d  at  503.  This  position  is  supported  by  other
                 decisions  of  the  court  Ōholding  that  the  after-effect  of  a  juryÕs  verdict,  such  as  parole  availability,  is
                 not  a  proper  instruction  or  consideration  for  the  jury  during  deliberations.Ķ35 Bush,  942  S.W.2d  at



                          35  (...continued)
                 for  life  without  possib  ility  of  parole  shall  never  be  eligible  for  release  on  parole.Ķ  Id.  (citing  TENN.  CODE  ANN.  ¤  39-13-
                 204(e)(2)).

                                                                        -42- 503  (citing  Caughron,  855  S.W.2d  at  543;  State  v.  Payne,  791  S.W.2d  10,  21  (Tenn.  1990),  affÕd  by,
                 501  U.S.  808,  111  S.  Ct.  2597  (1991)  (internal  footnote  omitted)).  This  issue  is  without  merit.

                                   XII. Whether  Aggravator  (i)(4)  Violates  State  v.  Middlebrooks

                          The  Appellant  was  found  guilty  of  accessory  before  the  fact to first  degree  murder. An
                 Ōaccessory before the factĶ is Ō[a]ny person who shall feloniously move, incite, counsel, hire,
                 command,  or  procure  any  other  person  to  commit  a  felony.  .  .  .Ķ  TENN.  CODE  ANN.  ¤  39-107. In
                 imposing  a  sentence  of  death  in  this  case,  the  jury  found  that  Ō[t]he  defendant  committed  the  murder
                 for  remuneration  or  the  promise  of  remuneration,  or  employed  another  to  commit  the  murder  for
                 remuneration  or  the  promise  of  remuneration.Ķ TENN.  CODE  ANN.  39-2404(i)(4). The  Appellant
                 now  contends  that  the  evidence  used  to  convict  him  as  an  accessory  before  the  fact  to  first  degree
                 murder  duplicated  that  used  to  support  the  aggravating  factor  in  TENN.  CODE  ANN.  ¤  39-2404(i)(4)
                 (employing  another  to  commit  the  murder  for  the  promise  of  remuneration). Relying  upon  State  v.
                 Middlebrooks,  840  S.W.2d  317  (Tenn.  1992),  the  Appellant  asserts  that  the  duplication  of  facts  to
                 support  both  the  conviction  and  sentence  does  not  achieve  the  constitutionally  required  ŌnarrowingĶ
                 of  death  eligible  defendants. See  Zant  v.  Stephens,  462  U.S.  862,  877,  103  S.  Ct.  2733  (1983)
                 (aggravating  factor  must  Ōgenuinely  narrow  the  class  of  persons  eligible  for  the  death  penalty  and
                 must  reasonably  justify  the  imposition  of  a  more  severe  sentence  on  the  defendant  compared  to
                 others  found  guilty  of  murderĶ).
                          In State  v.  Middlebrooks,  840  S.W.2d  at  346,  our  supreme  court  held  that,  when  a  defendant
                 is convicted of felony murder, the aggravating circumstance set out in TENN. CODE ANN. ¤
                 39-13-204(i)(7)(murder  committed  while  committing  certain  enumerated  felonies)  does  not  narrow
                 the  class  of  death  eligible  murderers  sufficiently  under  the  Eighth  Amendment  to  the  United  States
                 Constitution  and  Article  I,  ¤  16  of  the  Tennessee  Constitution  "because  it  duplicates  the  elements
                 of  the  offense."  See  State  v.  Hall,  958  S.W.2d  679,  692  (Tenn.  1997),  cert.  denied,  524  U.S.  941,  118
                 S.  Ct.  2348  (1998). The  court  reasoned  that  all  participants  in  a  felony  murder,  regardless  of  the
                 degree  of  culpability,  enter  the  sentencing stage of the trial  with  at  least  one  aggravating  factor
                 against  them  because  the  aggravating  factor  duplicates  the  elements  of  the  offense. Middlebrooks,
                 840  S.W.2d  at  343  (quotation  omitted). 
                          The  Appellant  applies  this  same  analysis  to  the  (i)(4)  aggravating  factor  when  the  conviction
                 is  based  upon  Ōaccessory  before  the  fact.Ķ  The  State  acknowledges  that  this  court,  in  the  AppellantÕs
                 fourth  petition  for  post-conviction  relief,  rejected  this  identical  issue  and  argues  that,  although  not
                 the  Ōlaw  of  the  case,Ķ  this  court  should  apply  the  same  analysis  in  this  direct  appeal. See  Richard
                 H.  Austin  v.  State,  No.  02C01-9310-CR-00238  (Tenn.  Crim.  App.  at  Jackson,  May  3,  1995),  perm.
                 to  appeal  denied,  (Tenn.  Nov.  6,  1995). The  Appellant  responds  that  this  court  misapplied  the
                 supreme courtÕs decision in State v. Stephenson in determining that the Appellant had no



                                                           -43- Middlebrooks  issue. Specifically,  he  asserts  that  the  Stephenson  analysis  is  not  germane  to  the
              present  issue  because  the  Stephenson  court  based  its  decision  on  the  criminal  responsibility  statute,
              a  different  underlying  statute  than  this  court  is  faced  with  today. After  re-examination  of  the  issue,
              we  remain  convinced  that  our  previous  rationale  is  correct  and  the  same  analysis  applies. 
                     In  State  v.  Stephenson,  878  S.W.2d  at  557,  the  defendant  was  convicted  of  first  degree
              murder  by  employing  another  to  kill  his  wife. StephensonÕs  conviction  was  based  on  his  role  in  the
              killing  under  the  criminal  responsibility  statute,  TENN.  CODE  ANN.  ¤  39-11-402(2)  (1991),  and  the
              death  sentence  was  based  solely  on  the  aggravating  factor  involving  murder  for  remuneration  or
              promise  of  remuneration.  TENN.  CODE  ANN.  ¤  39-13-204(i)(4)  (1991).  The  defendant  claimed  that
              the  constitutionally  required  narrowing  of  death  eligible  offenders  was  not  achieved  because  of  the
              duplication  of  facts  to  support  the  conviction  and  the  death  sentence. Our  supreme  court  disagreed,
              noting  that  the  defendant  stood  convicted  of  first  degree  premeditated  murder,  which  is  defined  as
              an  Ōintentional,  premeditated  and  deliberate  killing  of  another.Ķ TENN.  CODE  ANN.  ¤  39-13-
              202(a)(1)  (1991).  The  conviction  was  based  on  the  criminal  responsibili  ty  statute,  TENN.  CODE  ANN.
              ¤  39-11-402(2),  which  provides:
                     A  person  is  criminally  responsible  for  an  offense  committed  by  the  conduct  of
                     another  if:
                     Acting  with  intent  to  promote  or  assist  the  commission  of  the  offense,  or  to  benefit
                     in  the  proceeds  or  results  of  the  offense,  the  person  solicits,  directs,  aids,  or  attempts
                     to  aid  another  person  to  commit  the  offense.  .  .  .
              The  supreme  court  concluded  that  Ōthe  statutory  aggravating  circumstance  found  by  the  jury  is  a
              proper  narrowing  device  because  it  provides  a  Ôprincipled  way  in  which  to  distinguishÕ  the  cases  in
              which  the  death  penalty  is  imposed  from  the  many  cases  in  which  it  is  not.  .  .  .Ķ Stephenson,  878
              S.W.2d  at  557. The  court  reasoned:
                     The  aggravating  circumstance -  the  defendant  employed  another  to  commit  the
                     murder  for  remuneration  or  the  promise  of  remuneration  -  does  not  duplicate  the
                     elements  of  the  offense,  even  incorporating  the  criminal  responsibility  statutes.
                     Constitutional  narrowing  is  accomplished  because  at  the  sentencing  hearing,  the  State
                     was  required  to  prove  that  this  defendant  hired  someone  to  kill  his  wife,  or  promised
                     to  pay  someone  to  kill  his  wife.  Obviously,  not  every  defendant  who  is  guilty  of  first-degree 
                            murder  pursuant  to  the  criminal  responsibility  statutes  has  also  hired  another
                     or promised to pay another to commit the murder.  Thus, the aggravating
                     circumstance  found  by  the  jury  in  this  case  narrows  the  class  of  death-eligible
                     defendants  as  required  by  State  v.  Middlebrooks,  supra.

              Id.  at  557  (emphasis  added).
                     As  noted  in  this  courtÕs  decision  in  Richard  H.  Austin  v.  State,  No.  02C01-9310-CR-00238,
              the  AppellantÕs  conviction  was  premised  on  a  theory  of  criminal  responsibility  for  the  conduct  of



                         36  Under  the  law  existing  at  the time  of  this  offense  ,  an  accesso  ry  before  the  fa  ct  was  deemed  a  princip  al
                 offender  and  punished  as  such. See TENN.  CODE  ANN.  ¤  39-108. This  code  section,  in  addition  to  TENN.  CODE  ANN.
                 ¤  39-109  (defining  aiders  and  abetto  rs),  was  subse  quently  repe  aled  and  re  placed  b  y  the  criminal  resp  onsibility  statute.
                 See TENN.  CODE  ANN.  ¤  39-11-402. Indeed,  Ō[s]u  bdivision  (2  )  [of  TENN.  CODE  ANN.  ¤  39-11-402]  sets  forth  the
                 conduct  of  defendants  formerly  known  as  accessories  before  the  fact  and  aiders  and  abettors.Ķ  Sentencing  Commission
                 Comments,  TENN.  CODE  ANN.  ¤  39-11-402.

                         37  Additiona  lly,  we  acknowledge  that  the  Appellant  raised  the  identical  claim  in  his  federal  habeas  corpus
                 petition. The  District  Court  for the Middle  Distric  t  of  Tennessee  rejecte  d  the  claim,  ho  lding  that  the  Ap  pellantÕs
                 Ōallegation  of  a  Middlebrooks  violation  fails  to  p  resent  a  cognizable  federal  claim.Ķ  Austin  v.  Be  ll,  938  F.Supp.  1308,
                 1326  (M.D.  Tenn.  1996). Nonetheless,  the  district  court  proceeded  to  address  the  issue  on  its  merits,  concluding 
                         [a]ccording  to  the  law  in  effect  at  the  time  of  Julian  WatkinsÕ  murder,  an  accessory  before  the  fact  was
                         deemed  a  principle  offender  and  punished  as  such.  See  TENN.  CODE  ANN.  ¤  39-108  (repealed  1989).
                         Because not every defendant who is guilty of first-degree murder pursuant to the criminal
                         responsibility  statute  has  also  hired  another  person  to  commit  the  murder,  however,  the  aggravating
                         circumstance that PetitionerÕs j  ury found did narrow the class of dea  th-eligible defen  dants in
                         accordance with Middlebrooks.  Stephenson, 878 S.W.2d at 557.  Therefore, the aggravating
                         circumstance that PetitionerÕs j  ury found did narrow the class of dea  th-eligible defen  dants in
                         accordance  with  Middlebrooks.
                 Austin  v.  Be  ll,  938  F.Supp.  at  1327.

                                                                      -44- another,  although  not  expressly  designated  as  such  at  the  time.36 Specifically,  the  Appellant  was
                 convicted  of  accessory  before  the  fact  to  first  degree  murder. An  accessory  before  the  factĶ  is  Ō[a]ny
                 person  who  shall  feloniously  move,  incite,  counsel,  hire,  command,  or  procure  any  other  person  to
                 commit  a  felony.  .  .  .Ķ  TENN.  CODE  ANN.  ¤  39-107. Applying  the  Stephenson  rationale,  not  every
                 person  who  is  convicted  as  an  accessory  before  the  fact  to  first  degree  murder  has  also  hired  another
                 or  promised  to  pay  another  to  commit  the  murder.37  Accordingly,  as  in  Stephenson,  we  conclude  that
                 the  aggravating  factor  enumerated  in  TENN.  CODE  ANN.  ¤  39-2404(i)(4)  achieves  the  constitutionally
                 required narrowing of death eligible defendants even where the conviction is based on the
                 defendantÕs  role  as  an  accessory  before  the  fact.  See  Owens  v.  State,  13  S.W.3d  742,  764-765  (Tenn.
                 Crim.  App.  1999),  perm.  to  appeal  denied,  (Tenn.),  cert.  denied,  Đ  U.S.Đ,  121  S.  Ct.  116  (2000). For
                 these  reasons,  the  Appellant  is  denied  relief  on  this  claim.




                    XIII. Propriety  of  CourtÕs  Refusal  to  Impose  Life  Sentence  Due  to  Twenty-year  Delay

                         The  Appellant  asserts  that  the  twenty  plus  years delay  in  imposing  the  death  penalty  has
                 eviscerated  any justification for carrying out the sentence of death; therefore, execution  of this
                 sentence  at  this  point  would  constitute  cruel  and  unusual  punishment  under  the  Eighth  Amendment
                 to  the  United  States  Constitution  and  Article  I,  Section  16  of  the  Tennessee  Constitution.  The  United
                 States  Supreme  Court  declined  to  review  a  similar  issue  in  Lackey  v.  Texas,  514  U.S.  1045,  115  S.
                 Ct.  1421  (1995),  petition  for  rehÕg  denied,  520  U.S.  1183,  117  S.  Ct.  1465  (1997)  (whether  executing



                                                           -45- a  prisoner  who  has  already  spent  seventeen  years  on  death  row  violates  the  Eight  AmendmentÕs
              prohibition  against  cruel  and  unusual  punishment). Notwithstanding,  Justice  Stevens,  joined  by
              Justice  Breyer,  filed  a  memorandum,  emphasizing  that  a  denial  of  certiorari  was  not  a  ruling  on  its
              merits  and  noting  his  belief  that  this  concern  should  be  further  explored.  Lackey  v.  Texas,  514  U.S.
              at  1045,  115  S.  Ct.  at  1421. Specifically,  Justice  Stevens  recognized  that  the  delay  in  the  execution
              of  judgments  imposing  the  death  penalty  frustrates  the  two  principal  social  purposes  of  the  penalty,

              i.e.,  retribution  and  deterrence.  Lackey,  514  U.S.  at  1045,  115  S.  Ct.  at  1421  (Stevens,  J.,  respecting
              denial  of  certiorari). In  so  stating,  Justice  Stevens  invited  the  state  and  federal  courts  to  Ōserve  as
              laboratories  in  which  the  issue  [may]  receive  further  study  before  it  is  addressed  by  this  Court.Ķ  Id.
              at  1045,  115  S.  Ct.  at  1421  (citing  McCray  v.  New  York,  461  U.S.  962,  963  103  S.  Ct.  2438,  2439
              (1983)). 
                     The  issue  was  again  presented  to  the  Court  in  Knight  v.  Florida,  528  U.S.  990,  120  S.  Ct.  459
              (1999). Justice  Thomas,  writing  separately  in  the  courtÕs  denial  of  certiorari,  opined:
                     .  .  .I  am  unaware  of  any  support  in  the  American  constitutional  tradition  or  in  this
                     CourtÕs precedent  for  the  proposition  that  a  defendant  can  avail  himself  of  the
                     panoply  of  appellate  and  collateral  procedures  and  then  complain  when  his  execution
                     is  delayed.  Consistency  would  seem  to  demand  that  those  who  accept  our  death
                     penalty  jurisprudence  as  a  given  also  accept  the  lengthy  delay  between  sentencing
                     and  execution  as  a  necessary  consequence.  .  .  .  It  is  incongruous  to  arm  capital
                     defendants  with  an  arsenal  of  ŌconstitutionalĶ  claims  with  which  they  may  delay  their
                     executions,  and  simultaneously  to  complain  when  executions  are  inevitably  delayed.
                     .  .  . 
              Knight  v.  Florida,  _  U.S.  at  _,  120  S.  Ct.  at  459-60  (Thomas,  J.,  concurring  in  denial  of  certiorari)
              (citations  omitted). Justice  Thomas,  notably,  revisited  Justice  Stevens  previous  invitation  for  the
              lower  courts  to  serve  as  Ōl  aboratoriesĶ  i  n  which  the  viability  of  this  claim  could  receive  further  study.
              He  emphasized  that,  since  Justice  StevensÕ  invitation,  the  lower  courts  have  Ōresoundingly  rejected
              the  claim  as  meritless.Ķ Id.  at  461,  120  S.  Ct.  at  461  (citing  People  v.  Frye,  959  P.2d  183,  262  (Cal.
              1998),  cert.  denied,  526  U.S.  1023,  119  S.  Ct.  1262  (1999);  People  v.  Massie,  967  P.2d  29,  44-45
              (Cal.  1998),  cert.  denied,  526  U.S.  1113,  119  S.  Ct.  1759  (1999);  Ex  parte  Bush,  695  So.2d  138,  140
              (Ala.  1997);  State  v.  Schackart,  947  P.2d  315,  336  (Ariz.  1997),  cert.  denied,  525  U.S.  862,  119  S.
              Ct.  149  (1998);  Bell  v.  State,  938  S.W.2d  35,  53  (Tex.  Crim.  App.  1996),  cert.  denied,  522  U.S.  827,
              118  S.  Ct.  90  (1997);  State  v.  Smith,  931  P.2d  1272,  1287-88  (Mont.  1996),  cert.  denied,  522  U.S.
              965,  118  S.  Ct.  410  (1997);  White  v.  Johnson,  79  F.3d  432,  439-40  (C.A.5),  cert.  denied,  519  U.S.
              911,  117  S.  Ct.  275  (1996);  Stafford  v.  Ward,  59  F.3d  1025,  1028  (C.A.  10  1995)). A  panel  of  this
              court  similarly  dismissed  the  claim  without  review. See  State  v.  Charles  Eddie  Hartman,  No.
              M1998-00803-CCA-R3-DD  (Tenn.  Crim.  App.  at  Nashville,  May  17,  2000). 
                     After  consideration  of  the  AppellantÕs  claim,  we  perceive  no  constitutional  violation  under
              either  the  federal  or  the  Tennessee  constitution. We  remain  unconvinced  that  neither  this  stateÕs
              capital  sentencing  law  nor  the  accompanying  subsequent  appellate  review  of  a  capital  conviction  was



                          38  We  note  that  factors  (i)(2),  (i)(5),  (i)(6),  and  (i)(7)  do  not  pertain  to  this  case  as  they  were  not  relied  upon  by
                 the  State. Thus  ,  any  individua  l  claim  with  resp  ect  to  these  facto  rs  is  without  merit. See,  e.g.,  Hall,  958  S.W.2d  at  715;
                 Brimmer,  876  S.W.2d  at  87.

                                                                       -46- enacted  with  a  purpose  to  prolong  incarceration  in  order  to  torture  inmates  prior  to  their  execution.
                 As  in  most  cases,  the  delay  in  the  instant  case  was  caused  in  large  part  by  numerous  appeals  and
                 collateral  attacks  lodged  by  the  Appellant. This  issue  is  without  merit.

                                           XIV. Constitutional  Challenges  to  Death  Penalty

                          The Appellant raises numerous challenges to the constitutionality  of TennesseeÕs  death
                 penalty  provisions.  The  challenges  raised  by  the  Appellant  have  been  previously  examined  and
                 rejected  by  case  law  decision. The  body  of  law  upholding  the  constitutionality  of  TennesseeÕs  death
                 penalty  provisions,  specifically,  that  rejecting  the  claims  currently  raised  by  the  Appellant,  is  recited
                 as  follows:
                          1.  TennesseeÕs  death  penalty  statutes  meaningfully  narrow  the  class  of  death  eligible
                          defendants;  specifically,  the  statutory  aggravating  circumstances  set  forth  in  TENN.
                          CODE  ANN.  ¤  39-2-203(i)(2),  (i)(5),  (i)(6),  and  (i)(7)  provide  such  a  meaningful  basis
                          for narrowing the population of those convicted of first degree murder to those
                          eligible  for  the  sentence  of  death.38 See  State  v.  Vann,  976  S.W.2d  93,  117-118
                          (Tenn.  1998)  (Appendix),  cert.  denied,  526  U.S.1071,  119  S.  Ct.  1467  (1999);  Keen,
                          926  S.W.2d  at  742.
                          2. The  death  sentence  is  not  capriciously  and  arbitrarily  imposed  in  that
                                 (a) The prosecutor is not vested with unlimited discretion as to
                                 whether  or  not  to seek  the  death  penalty. See State  v.  Hines,  919
                                 S.W.2d  573,  582  (Tenn.  1995),  cert.  denied,  519  U.S.  847,  117  S.  Ct.
                                 133  (1996).
                                 (b)  The  death  penalty  is  not  imposed  in  a  discriminatory  manner  based
                                 upon  economics,  race,  geography,  and  gender.  See  Hines,  919  S.W.2d
                                 at  582;  Brimmer,  876  S.W.2d  at  87;  Cazes,  875  S.W.2d  at  268;  Smith,
                                 857  S.W.2d  at  23.
                                 (c) Standards or procedures for jury selection exist to insure open
                                 inquiry concerning potentially prejudicial subject matter   See
                                 Caughron,  855  S.W.2d  at  542.
                                 (d) The  death  qualification  process  does  not  skew  the  make-up  of  the
                                 jury  and  does  not  result  in  a  relatively  prosecution  prone  guilty-prone
                                 jury.  See State  v.  Teel,  793  S.W.2d  236,  246  (Tenn.),  cert.  denied,



                                                          -47- 498  U.S.  1007,  111  S.  Ct.  571  (1990);  State  v.  Harbison,  704  S.W.2d
                           314,  318  (Tenn.),  cert.  denied,  470  U.S.  1153,  106  S.  Ct.  2261  (1986).
                           (e) Defendants  are  not  unconstitutionally  prohibited  from  addressing
                           jurorsÕ  popular  misconceptions  about  matters  relevant  to  sentencing,

                           i.e.,  the  cost  of  incarceration  versus  cost  of  execution,  deterrence,
                           method  of  execution. See Brimmer,  876  S.W.2d  at  86-87; Cazes,
                           875  S.W.2d  at  268;  Black,  815  S.W.2d  at  179.
                           (f)  There  is  no  constitutional  violation  when  the  jury  is  instructed  that
                           it  must  agree  unanimously  in  order  to  impose  a  life  sentence,  and  is  not
                           told  the effect of a non-unanimous verdict.  See Brimmer, 876
                           S.W.2d  at  87;  Cazes,  875  S.W.2d  at  268;  Smith,  857  S.W.2d  at  22-23.
                           (g) Requiring  the  jury  to  agree  unanimously  to  a  life  verdict  does  not
                           violate Mills v. Maryland and McKoy v. North Carolina.  See
                           Brimmer,  876  S.W.2d  at  87;  Thompson,  768  S.W.2d  at  250;  State  v.
                           King,  718  S.W.2d  241,  249  (Tenn.  1986),  superseded  by  statute  as
                           recognized  by,  Hutchinson,  898  S.W.2d  at161.
                           (h)  The  jury  is  required  to  make  the  ultimate  determination  that  death
                           is  the  appropriate  penalty. See Brimmer,  876  S.W.2d  at  87;  Smith,
                           857  S.W.2d  at  22.
                           (i)  The  defendant  is  not  denied  closing  argument  in  the  penalty  phase
                           of  the  trial.  See Brimmer,  876  S.W.2d  at  87;  Cazes,  875  S.W.2d  at
                           269;  Smith,  857  S.W.2d  at  24;  Caughron,  855  S.W.2d  at  542.
                    3. The  appellate  review  process  in  death  penalty  cases  is  constitutionally  adequate.
                    See  Cazes,  875  S.W.2d  at  270-71;  Harris,  839  S.W.2d  at  77.  Moreover,  the  supreme
                    court  has  recently  held  that,  Ōwhile  important  as  an  additional  safeguard  against
                    arbitrary or capricious sentencing, comparative proportionality review is not
                    constitutionally  required.Ķ See State  v.  Bland,  958  S.W.2d  651,  663  (Tenn.  1997),
                    cert.  denied,  523  U.S.  1083,  118  S.  Ct.  1536  (1998).
             Based  upon  the  above  case  decisions,  the  appellantÕs  constitutional  challenges  to  TennesseeÕs  death
             penalty  statutes  are  rejected.

                                            XV. Proportionality  of  Sentence

                    Finally, this court is required to consider whether the AppellantÕs sentence of  death is
             disproportionate  to  the  penalty  imposed  in  similar  cases.  See  TENN.  CODE  ANN.  ¤39-13-206(c)(1)(D).
             If  the  imposition  of  a  death  sentence  in  the  appealed  case  is  Ōplainly  lacking  in  circumstances  with



                                                          -48- those  in  similar  cases  in  which  the  death  penalty  has  previously  been  imposed,Ķ  the  sentence  of  death
             will  be  deemed  disproportionate. See  Bland,  958  S.W.2d  at  665. However,  just  because  the
             circumstances  of  the  offense  are  similar  to  those  of  another  offense  for  which  the  defendant  has
             received  a  life  sentence  does  not  per  se  require  a  finding  of  disproportionality. Id.  at  665. Thus,  it
             is  not  the  duty  of  the  appellate  court  to  Ōassure  that  a  sentence  less  than  death  was  never  imposed  in
             a  case  with  similar  characteristic,Ķ  but  to  Ōassure  that  no  aberrant  death  sentence  is  affirmed.Ķ Id. 
                    In  conducting  our  review,  we  begin  with  the presumption  that  the  sentence  of  death  is
             proportionate  with  the  crime  of  first  degree  murder. See  Hall,  958  S.W.2d  at  699;  see  also  State  v.
             Tony  Carruthers  &  James  Montgomery,  No.  W1997-00097-SC-DDT-DD  (Tenn.  at  Jackson,  Dec.  11,
             2000).  Second, while there is  no mathematical or  scientific formula involved, this court, in
             comparing  similar  cases,  should  consider:  (1)  the  means  of  death;  (2)  the  manner  of  death;  (3)  the
             motivation  for  the  killing;  (4)  the  place  of  death;  (5)  the  similarity  of  the  victimÕs  circumstances,
             including  age,  physical  and  mental  conditions,  and  the  victimÕs  treatment  during  the  killing;  (6)  the
             absence  or  presence  of  provocation;  (8)  the  absence  or  presence  of  justification;  and  (9)  the  injury  to
             and  effects  on  non-decedent  victims. See  Vann,  976  S.W.2d  at  107  (citing  Bland,  958  S.W.2d  at
             667). When  reviewing  the  characteristics  of  the  defendant,  we  consider  (1)  the  defendantÕs  prior
             record  or  prior  criminal  activity;  (2)  the  defendantÕs  age,  race,  and  gender;  (3)  the  defendantÕs
             involvement or role in the murder; (5) the defendantÕs cooperation with authorities; (6) the
             defendantÕs  remorse;  (7)  the  defendantÕs  knowledge  of  the  helplessness  of  the  victim;  and  (8)  the
             defendantÕs  capacity  for  rehabilitation. Id.
                    Moreover,  in  conducting  our  review,  Ōwe  select  from  the  pool  of  cases  in  which  a  capital
             sentencing hearing was actually conducted  to determine whether the sentence should be life
             imprisonment,  life imprisonment without the possibility of parole, or death.Ķ  State v. Tony
             Carruthers  &  James  Montgomery,  No.  W1997-0097-SC-DDT-DD  (citing  Bland,  958  S.W.2d  at  666)
             (emphasis  added). Thus,  we  reject  the  AppellantÕs  argument  that  his  sentence  is  disproportionate
             based  upon  the  lesser  sentences  imposed  upon  his  co-defendants,  Jack  Charles  Blankenship  and  Terry
             Casteel.  Cf. State  v.  Tony  Carruthers  &  James  Montgomery,  No.  W1997-0097-SC-DDT-DD  at  fn.
             53  (sentences  received  for  first  degree  murder  irrelevant  in  proportionality  determination  where
             sentence  result  of  plea  negotiations).  Additionally,  we  note  the  AppellantÕs  misplaced  reliance  upon
             Nuthill  v.  State,  30  Tenn.  (11  Hum.)  247  (1850),  holding  that  an  accessory  could  not  receive  a  greater
             punishment  than  the  principal. At  the  time  of  the  present  offense,  Tennessee  law  provided  that  the
             punishment  imposed  upon  an  accessory  before  the  fact  of  murder  in  the  first  degree  is  not  dependant
             upon  the  sentence  imposed  upon  the  principal  offender. See  TENN.  CODE  ANN.  ¤  39-2407. 
                    The  circumstances  surrounding  the  present  murder  in  light  of  the  relevant  comparative  factors
             reveal  that  the  victim,  a  reserve  deputy  sheriff,  agreed  to  work  undercover  with  local  law  enforcement
             to  expose  illegal  gambling  activities. The  victim,  Julian  Watkins,  became  associated  with  the
             Appellant  at  the  AppellantÕs  place  of  business  through  his  undercover  role  and  the  two  men  engaged
             in  various  forms  of  gaming. As  a  result  of  the  undercover  investigation,  the  Appellant  and  many
             others  were  indicted  on  numerous  charges  of  illegal  gambling  activity.  Soon  thereafter,  the  Appellant
             arranged  for  an  escaped  convict,  Jack  Charles  Blankenship,  to  murder  the  victim  for  $980  and  a  case



                                                          -49- of  beer.  Blankenship,  accompanied  by  Terry  Casteel,  the  AppellantÕs  associate,  drove  to  the  victimÕs
             automobile  repair  shop. Blankenship,  acting  as  a  potential  customer,  lured  the  unsuspecting  victim
             onto  the  parking  lot  under  the  pretense  of  examining  BlankenshipÕs  automobile. While  the  victim
             leaned  over  to  inspect  the  vehicle,  Blankenship  shot  and  killed  the  victim. The  murder  was  clearly
             premeditated.
                    The  Appellant  had  no  prior  criminal  history  at  the  time  of  the  murder. There  is  no  evidence
             that  he  was  mentally  or  emotionally  impaired  during  any  period  of  time  surrounding  the  murder.  The
             Appellant  presented  mitigating  evidence  attesting  to  his  many  admirable  attributes  and  contributions
             to  the  prison  community  since  his  incarceration. Additionally,  despite  the  AppellantÕs  claim  of  his
             minor  role  in  the  murder,  the  record  reveals  that  the  murder  would  not  have  occurred  but  for  the
             AppellantÕs  initiative  and  planning. The  record  also  reveals  that  the  Appellant  has  not  cooperated
             with  authorities  nor  does  the  record  indicate  the  AppellantÕs  remorse  for  the  death  of  Julian  Watkins.
             Although  the  AppellantÕs  psychologist  testified  that  an  Ōinmate  sixty  years  old  is  exceedingly  unlikely
             to  commit  acts  of  serious  violence  in  prison,Ķ  we  cannot  conclude  that  the  AppellantÕs  behavior  while
             in  prison  or  his  present  age  negates  the  circumstances  of  this  murder  or  exempts  him  from  that  class
             of  defendants  for  whom  the  death  penalty  is  an  appropriate  punishment.  While  no  two  capital  cases
             and  no  two  defendants  are  alike,  we  have  reviewed  the  circumstances  of  the  present  case  with  similar
             first degree murder cases and conclude that the penalty imposed in the present case is not
             disproportionate  to  the  penalty  imposed  in  similar  cases. See,  e.g., Hutchinson,  898  S.W.2d  at  161
             (death  penalty  affirmed  based  upon  (i)(4)  aggravator,  where  defendant  and  others  had  arranged  to  kill
             decedent  to  collect  $800,000  in  life  insurance  proceeds);  Porterfield,  746  S.W.2d  at  441  (death
             penalty  affirmed  based  upon  (i)(4)  and  (i)(5)  aggravating  circumstances,  where  defendant  solicited
             Porterfield  to  murder  husband);  State  v.  Coker,  746  S.W.2d  167  (Tenn.  1987),  cert.  denied,  488  U.S.
             871,  109  S.  Ct.  180  (1988)  (death  penalty  affirmed  based  upon  aggravating  circumstances  (i)(2)  and
             (i)(4), where defendant arranged for murder of paramourÕs husband);  State v. Groseclose and
             Rickman,  615  S.W.2d  142  (Tenn.),  cert.  denied,  454  U.S.  882,  102  S.  Ct.  366  (1981)  (death  penalty
             found  proportionate  based  upon  (i)(4)  and  (i)(5)  aggravators  where  defendant  solicited  Rickman  to
             murder  wife;  upon  re-sentencing  on  other  grounds,  life  sentence  imposed).  Additionally,  the  sentence
             of  death  has  consistently  been  found  proportionate  where  only  one  aggravating  factor  is  found.  E.g.,
             State  v.  Sledge,  15  S.W.3d  93  (Tenn.),  cert.  denied,  _  U.S.  _,  121  S.  Ct.  211  (2000)  (prior  violent
             felony);  Hall,  8  S.W.3d  at  593  (heinous,  atrocious,  cruel);  State  v.  Middlebrooks,  995  S.W.2d  550
             (Tenn.  1999)  (heinous,  atrocious,  cruel);  State  v.  Matson,  666  S.W.2d  41  (Tenn.),  cert.  denied,  469
             U.S.  873,  105  S.  Ct.  225  (1984)  (felony  murder); State  v.  Caldwell,  671  S.W.2d  459  (Tenn.),  cert.
             denied,  469  U.S.  873,  105  S.  Ct.  231  (1984)  (prior  violent  felony).
                    Our  review  of  these  cases  reveals  that  the  sentence  of  death  imposed  upon  the  Appellant  is
             proportionate  to  the  penalty  imposed  in  similar  cases.  In  so  concluding,  we  have  considered  the  entire
             record  and  reach  the  decision  that  the  sentence  of  death  was  not  imposed  arbi  trarily,  that  the  evidence
             supports  the  finding  of  the  (i)(4)  aggravating  circumstance,  that  the  evidence  supports  the  juryÕs
             finding  that  the  aggravating  circumstance  outweighs  mitigating  circumstances  beyond  a  reasonable
             doubt,  and  that  the  sentence  is  not  excessive  or  disproportionate. 



                                                          -50- Conclusion

                    In  accordance  with  the  mandate  of Tenn.  Code  Ann.  ¤  39-13-206(c)(1)  and  the  principles
             adopted  in  prior  decisions  of  the  Tennessee  Supreme  Court,  we  have  considered  the  entire  record  in
             this  cause  and  find  that  the  sentence  of  death  was  not  imposed  in  any  arbitrary  fashion,  that  the
             evidence supports, as previously discussed, the jury's finding of the statutory aggravating
             circumstance, and the jury's finding that the aggravating circumstance outweighed mitigating
             circumstances beyond a reasonable doubt.  Tenn. Code Ann. ¤ 39-13-206(c)(1)(A)(C).  A
             comparative  proportionality  review,  considering  both  Ōthe  nature  of  the  crime  and  the  defendant,Ķ
             convinces  us  that  the  sentence  of  death  is  neither  excessive  nor  disproportionate  to  the  penalty
             imposed  in  similar  cases. Accordingly,  we  affirm  the  sentence  of  death  imposed  by  the  trial  court.






                                                               ___________________________________ 
                                                               DAVID  G.  HAYES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                              April  10,  2001  Session

                    STATE  OF  TENNESSEE  v.  LISA  ANN  AVERY

                    Direct  Appeal  from  the  Circuit  Court  for  Carroll  County
                        No.  20CR-1451  C.  Creed  McGinley,  Judge


                     No.  W2000-01741-CCA-R3-CD  -  Filed  July  16,  2001


         The  Defendant  was  indicted  by  the  Carroll  County  Grand  Jury  for  one  count  of  introduction  of  drugs
         into  a  penal  institution.  The  Defendant  moved  for  pretrial  diversion,  but  the  request  was  denied  by
         the  District  Attorney  General.  The  Defendant  filed  a  petition  for  writ  of  certiorari  with  the  trial  court
         to  review  the  denial.  The  trial  court  denied  the  petition,  finding  that  the  District  Attorney  General
         did  not  abuse  his  discretion  in  denying  the  DefendantÕs  request  for  pretrial  diversion.  The  Defendant
         then  pled  guilty  to  one  count  of  introduction  of  drugs  into  a  penal  institution  and  requested  judicial
         diversion. The  trial  court  denied  judicial  diversion  and  sentenced  the  Defendant  as  a  Range  I,
         standard  offender  to  four  years  incarceration  in  the  Tennessee  Department  of  Correction,  suspended
         after  sixty  days  confinement. The  Defendant  now  appeals,  arguing  that  the  trial  court  erred  in
         denying  her  pretrial  diversion,  judicial  diversion  or  full  probation.  Finding  no  error,  we  affirm  the
         judgment  of  the  trial  court.

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY,  J.,  joined.
         JOHN  EVERETT  WILLIAMS,  J.,  not  participating.
         Benjamin  S.  Dempsey,  Huntingdon,  Tennessee,  for  the  Appellant,  Lisa  Ann  Avery.
         Paul  G.  Summers,  Attorney  General  and  Reporter,  Kim  R.  Helper,  Assistant  Attorney  General,  G.
         Robert  Radford,  District  Attorney  General,  and  Eleanor  Cahill,  Assistant  District  Attorney  General,
         for  the  Appellee,  State  of  Tennessee.

                                   OPINION

             The  Defendant,  Lisa  Ann  Avery,  was  indicted  by  the  Carroll  County  Grand  Jury  for  one
         count  of  introduction  of  drugs  into  a  penal  institution,  a  Class  C  felony.  See  Tenn.  Code  Ann.  ¤  39-
         16-201(b).  The  Defendant  moved  for  pretrial  diversion,  but  the  request  was  denied  by  the  District
         Attorney  General.  The  Defendant  filed  a  petition  for  writ  of  certiorari  with  the  trial  court  to  review
         the  denial.  The  trial  court  denied  the  petition,  finding  that  the  District  Attorney  General  did  not



                                                                -2- abuse  his  discretion  in  denying  the  DefendantÕs  request  for  pretrial  diversion. The  Defendant  pled
               guilty  to  one  count  of  introduction  of  drugs  into  a  penal  institution  and  requested  judicial  diversion.
               The  trial  court  denied  judicial  diversion  and  sentenced  the  Defendant  as  a  Range  I,  standard  offender
               to  four  years  incarceration  in  the  Tennessee  Department  of  Correction,  suspended  after  sixty  days
               confinement. The  Defendant  now  appeals,  arguing  that  the  trial  court  erred  in  denying  her  pretrial
               diversion,  judicial  diversion  or  full  probation. 
                                                            I.  FACTS
                       In  August  1999,  the  eighteen-year-old  Defendant  was  arrested  for  delivering  2.7  grams  of
               marijuana  to  an  inmate  in  the  Carroll  County  Jail. The  drugs  were  sewn  into  the  waistband  of  a  pair
               of  blue  jeans. At  the  sentencing  hearing,  the  Defendant  testified  that  the  man  that  she  was  dating  was
               in  jail  and  asked  her  to  bring  him  some  clothes. The  Defendant  testified  that  on  the  day  of  the
               offense,  she  got  a  phone  call  from  a  man  who  told  her  to  meet  him  in  the  park  to  pick  up  a  pair  of
               jeans  to  take  to  the  DefendantÕs  boyfriend. The  Defendant  testified  that  she  checked  the  jeans,  but
               did  not  find  any  drugs. The  DefendantÕs  sixteen-year-old  sister  rode  to  the  jail  with  the  Defendant
               and  took  the  jeans  into  the  jail. When  asked  why  she  sent  her  sister  into  the  jail  with  the  jeans,  the
               Defendant  responded  ŌI  didnÕt  have  my  shoes  on.  .  .  .  I  had  hurt  my  foot. And  she  was  a  passenger
               and  she  said  she  would  take  them  in.Ķ
                       The  Defendant  testified  that  she  lives  at  home  with  her  parents.  The  Defendant  testified  that
               she  has  a  high  school  diploma  and  is  licensed  as  a  certified  nursing  assistant. However,  due  to  her
               arrest  and  conviction,  the  Defendant  has  been  unable  to  continue  working  at  the  nursing  home  where
               she  was  formerly  employed.  The  Defendant  testified  that  she  had  been  working  at  JoeÕs  Barbeque
               to  make  some  extra  money. 
                       The  DefendantÕs  mother,  Shirley  Avery,  also  testified  at  the  sentencing  hearing. Avery
               testified  that  the  Defendant  was  traveling  with  the  wrong  crowd  when  she  committed  the  offense,
               but  that  she  has  since  stopped  associating  with  that  crowd.  Avery  testified  that  if  the  Defendant  were
               granted  diversion  or  probation,  she  and  her  husband  would  help  supervise  the  DefendantÕs  activities.
                       The  Defendant  introduced  a  pretrial  diversion  report  which  showed  that  she  had  no  prior
               criminal  record. Although  the  State  did  not  introduce  any  enhancement  factors,  the  trial  court
               accepted as evidence a letter from the Assistant Attorney General to defense counsel which
               contained information supporting an enhanced sentence.  According to the State, the only
               information  it  received  from  the  Defendant  in  support  of  the  request  for  pretrial  diversion  was  the
               application  for  certification  of  eligibility  for  diversion. 
                                                         II. ANALYSIS
                                                      A.  Pretrial  Diversion
                       The  Defendant  argues  that  the  District  Attorney  General  abused  his  discretion  in  denying  her
               pretrial  diversion. Pretrial  diversion  allows  the  district  attorney  general  to  suspend  prosecution  for



                                                                -3- a  period  of  up  to  two  years  against  a  defendant  who  meets  certain  statutory  requirements.  See  Tenn.
               Code  Ann.  ¤  40-15-105(a)(1)(A). In  order  to  qualify  for  pretrial  diversion,  the  defendant  must  not
               have  previously  been  granted  diversion  under  this  statute;  must  not  have  a  prior  misdemeanor
               conviction  for  which  a  sentence  of  confinement  was  served  or  a  prior  felony  conviction  within  a  five-year 
                    period  after  completing  the  sentence  or  probationary  period  for  such  prior  conviction;  and  must
               not  be  seeking  diversion  for  a  Class  A  or  B  felony,  a  sexual  offense,  driving  under  the  influence,  or
               vehicular  assault.  Id.  ¤  40-15-105(a)(1)(B)(i)(a)-(c).  Such  eligibility  does  not  presumptively  entitle
               a  defendant  to  pretrial  diversion,  but  rather  places  such  a  decision  within  the  discretion  of  the  district
               attorney  so  long  as  the  defendant  is  statutorily  qualified.  State  v.  Curry,  988  S.W.2d  153,  157  (Tenn.
               1999).
                       It  is  the  defendant's  duty  to  demonstrate  suitability  for  pretrial  diversion.  State  v.  Herron,  767
               S.W.2d  151,  156  (Tenn.  1989);  State  v.  Winsett,  882  S.W.2d  806,  809-10  (Tenn.  Crim.  App.  1993).
               However,  this requirement does not relieve the prosecutor of his or  her duty to consider and
               articulate  all  the  relevant  factors. Curry,  988  S.W.2d  at  157. The  district  attorney  is  required  to
               consider  all  relevant  factors  when  determining  whether  or  not  to  grant  pretrial  diversion. State  v.
               Carr,  861  S.W.2d  850,  855  (Tenn.  Crim.  App.  1993). The  Tennessee  Supreme  Court  has  outlined
               the  criteria  that  should  be  considered  by  the  prosecutor  in  granting  or  denying  pretrial  diversion:
                       When  deciding  whether  to  enter  into  a  memorandum  of  understanding  under  the
                       pretrial  diversion  statute  a  prosecutor  should  focus  on  the  defendant's  amenability  to
                       correction.  Any factors which tend to accurately  reflect whether a particular
                       defendant  will  or  will  not  become  a  repeat  offender  should  be  considered. Such
                       factors  must,  of  course,  be  clearly  articulable  and  stated  in  the  record  in  order  that
                       meaningful  appellate  review  may  be  had. Among  the  factors  to  be  considered  in
                       addition  to  the  circumstances  of  the  offense  are  the  defendant's  criminal  record,  social
                       history,  the  physical  and  mental  condition  of  a  defendant  where  appropriate,  and  the
                       likelihood  that  pretrial  diversion  will  serve  the  ends  of  justice  and  the  best  interest
                       of  both  the  public  and  the  defendant. 
               State  v.  Hammersley,  650  S.W.2d  352,  355  (Tenn.  1983);  see  also  Curry,  988  S.W.2d  at  157.
                       Where pretrial diversion is denied by the district attorney, the factors and evidence
               considered  in  making  the  decision,  along  with  the  weight  accorded  to  each  factor,  must  be  clearly
               set  forth  in  writing. State  v.  Pinkham,  955  S.W.2d  956,  960  (Tenn.  1997);  Winsett,  882  S.W.2d  at
               810. The  district  attorney  general  must  do  more  than  abstractly  state  that  he  or  she  has  considered
               each  of  the  factors.  Herron,  767  S.W.2d  at  156. Rather,  the  factors  must  be  "clearly  articulable  and
               stated  in  the  record." Hammersley,  650  S.W.2d  at  355. Failure  to  consider  and  articulate  all  of  the
               relevant  factors  constitutes  an  abuse  of  discretion. See  Curry,  988  S.W.2d  at  157-58.
                       A  defendant  who  has  been  denied  pretrial  diversion  by  the  district  attorney  has  the  right  to
               petition  for  a  writ  of  certiorari  to  the  trial  court  for  an  abuse  of  prosecutorial  discretion. Tenn.  Code
               Ann. ¤  40-15-105(b)(3). Although  presumptively  correct,  a  trial  court  may  overrule  a  district
               attorney's  denial  of  pretrial  diversion  where  there  has  been  an  abuse  of  discretion. State  v.  Watkins,
               607  S.W.2d  486,  488  (Tenn.  Crim.  App  1980). However,  the  trial  judge  cannot  simply  substitute



                                                                -4- his  or  her  own  judgment  for  that  of  the  district  attorney. Id. To  show  prosecutorial  abuse  of
               discretion,  the  record  must  lack  any  substantial  evidence  to  support  the  denial  of  pretrial  diversion.
               Curry,  988  S.W.2d  at  158. 
                       The  legislature  has  vested  the  authority  to  prosecute  a  case  or  divert  it  with  the  prosecutor
               rather  than  the  court.  See  Tenn.  Code  Ann.  ¤  40-15-105;  Carr,  861  S.W.2d  at  858. In  reviewing  the
               prosecutorÕs  denial  of  diversion,  the  trial  court  must  look  at  all  the  relevant  factors  to  determine
               whether  the  prosecutor  considered  them,  and  if  he  or  she  did  not,  to  determine  whether  pretrial
               diversion  is  appropriate.  Herron,  767  S.W.2d  at  156;  Carr,  861  S.W.2d  at  858.  In  reviewing  whether
               the  prosecutor  has  abused  his  or  her  discretion  regarding  diversion,  the  trial  court  must  undertake
               the same process required of the prosecutor in considering and weighing the relevant factors.
               Herron,  767  S.W.2d  at  156.
                       In  this  case,  the  trial  court  properly  found  that  the  State  did  not  abuse  its  discretion  by
               denying  the  Defendant  pretrial  diversion. The  State  denied  diversion  based  on  the  serious  nature  of
               the  offense  and  the  DefendantÕs  involving  her  younger  sister  in  the  offense.  The  State  noted  that  the
               Defendant  did  not  have  a  prior  criminal  record,  but  found  that  the  nature  and  circumstances  of  the
               offense  outweighed that factor.  The State also considered the deterrent effect of denying the
               DefendantÕs  request  for  pretrial  diversion,  stating  that  the  Ōintroduction  of  drugs  or  contraband  in
               to  the  Carroll  County  Jail  is  a  very  serious  problem  and  is  one  that  the  jail  personnel  are  constantly
               on  alert  to  prevent.Ķ Although  this  may  be  a  close  case,  we  conclude  that  the  record  does  not  show
               an  absence  of  any  substantial  evidence  to  support  the  StateÕs  refusal  to  grant  pretrial  diversion. See
               Curry,  988  S.W.2d  at  158. 
                                                      B.  Judicial  Diversion
                       The  Defendant  argues  that  the  trial  court  erred  in  declining  to  impose  a  sentence  pursuant  to
               Tennessee  Code  Annotated  ¤  40-35-313,  commonly  referred  to  as  judicial  diversion. According  to
               this  statute,  the  trial  court  may  in  its  discretion,  following  a  determination  of  guilt,  defer  further
               proceedings and  place  a  qualified  defendant  on  probation  without  entering  a  judgment  of  guilt.
               Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(A). A  qualified  defendant  is  one  who  pleads  guilty  or  is  found
               guilty  of  a  misdemeanor  or  a  Class  C,  D  or  E  felony;  who  has  not  previously  been  convicted  of
               felony  or  a  Class  A  misdemeanor;  and  who  is  not  seeking  deferral  for  a  sexual  offense  or  a  Class  A
               or  Class  B  felony. Id.  ¤  40-35-313(a)(1)(B)(I)(a)-(c);  State  v.  Parker,  932  S.W.2d  945,  958  (Tenn.
               Crim.  App.  1996).
                       When  a  defendant  contends  that  the  trial  court  committed  error  in  refusing  to  grant  judicial
               diversion,  this  Court  must  determine  whether  the  trial  court  abused  its  discretion  in  failing to
               sentence  pursuant  to  the  statute. State  v.  Electroplating,  Inc.,  990  S.W.2d  211,  229  (Tenn.  Crim.
               App.  1998);  State  v.  Cutshaw,  967  S.W.2d  332,  344  (Tenn.  Crim.  App.  1997). Judicial  diversion
               is  similar  to  pretrial  diversion;  however,  judicial  diversion  follows  a  determination  of  guilt,  and  the
               decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v.
               Anderson,  857  S.W.2d  571,  572  (Tenn.  Crim.  App.  1992). When  a  defendant  challenges  the  trial



                                                                -5- courtÕs  denial  of  judicial  diversion,  we  may  not  revisit  the  issue  if  the  record  contains  any  substantial
               evidence  supporting  the  trial  courtÕs  decision. Cutshaw,  967  S.W.2d  at  344;  Parker,  932  S.W.2d  at
               958. As  this  Court  said  in  Anderson,
                              [w]e  conclude  that  judicial  diversion  is  similar  in  purpose  to  pretrial  diversion
                       and  is  to  be  imposed  within  the  discretion  of  the  trial  court  subject  only  to  the  same
                       constraints  applicable  to  prosecutors  in  applying  pretrial  diversion  under  T.C.A.  ¤  40-
                       15-105.  Therefore,  upon  review,  if  Ōany  substantial  evidence  to  support  the  refusalĶ
                       exists  in  the  record,  we  will  give  the  trial  court  the  benefit  of  its  discretion. Only  an
                       abuse  of  that  discretion  will  allow  us  to  overturn  the  trial  court.
               857  S.W.2d  at  572  (citation  omitted).
                       The  criteria  that  the  trial  court  must  consider  in  determining  whether  a  qualified  defendant
               should  be granted judicial diversion include the following: (1) the defendantÕs amenability to
               correction; (2) the circumstances of the offense; (3) the defendantÕs criminal record; (4) the
               defendantÕs  social  history;  (5)  the  defendantÕs  physical  and  mental  health;  and  (6)  the  deterrence
               value  to  the  defendant  and  others. Cutshaw,  967  S.W.2d  at  343-344;  Parker,  932  S.W.2d  at  958.
               An  additional  consideration  is  whether  judicial  diversion  will  serve  the  ends  of  justice,  i.e.,  the
               interests  of  the  public  as  well  as  the  defendant. Cutshaw,  967  S.W.2d  at  344;  Parker,  932  S.W.2d
               at  958. 
                       A  trial  court  should  consider  the  same  factors  in  judicial  diversion  that  it  does  in  pretrial
               diversion. Cutshaw,  967  S.W.2d  at  344. In  addition,  this  Court  should  apply  Ōthe  same  level  of
               review  as  that  which  is  applicable  to  a  review  of  a  district  attorney  generalÕs  action  in  denying  pre-trial 
                    diversion.Ķ State  v.  George,  830  S.W.2d  79,  80  (Tenn.  Crim.  App.  1992). In  denying  judicial
               diversion,  the  trial  court  considered  the  same  evidence  and  factors  utilized  by  the  District  Attorney
               General  in  denying  pretrial  diversion. After  considering  the  evidence,  the  trial  court  concluded  that
               the  Defendant  was  Ōnot  a  suitable  candidate  for  judicial  diversion,  either.Ķ Thus,  we  conclude,  as
               we  did  regarding  pretrial  diversion,  that  the  record  does  not  show  an  absence  of  any  substantial
               evidence  to  support  the  trial  courtÕs  refusal  to  grant  judicial  diversion. 
                                                           C.  Probation
                       The  Defendant argues that the trial court erred in  denying her full probation. When a
               criminal  defendant  challenges  the  length,  range,  or  manner  of  service  of  a  sentence,  the  reviewing
               court  must  conduct  a  de  novo  review  of  the  sentence  with  a  presumption  that  the  determinations
               made  by  the  trial  court  are  correct.  Tenn.  Code  Ann.  ¤  40-35-401(d). This  presumption,  however,
               Ōis conditioned upon the affirmative showing in the record that the trial court considered  the
               sentencing  principles  and  all  relevant  facts  and  circumstances.Ķ State  v.  Ashby,  823  S.W.2d  166,
               169  (Tenn.  1991). In  the  event  that  the  record  fails  to  show  such  consideration,  the  review  of  the
               sentence  is  purely  de  novo. State  v.  Shelton,  854  S.W.2d  116,  123  (Tenn.  Crim.  App.  1992).
                       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



                                                                -6- of  sentencing  alternatives  by  considering (1)  the  evidence,  if  any,  received  at  the  trial  and  the
               sentencing  hearing,  (2)  the  presentence  report,  (3)  the  principles  of  sentencing  and  arguments  as  to
               sentencing  alternatives,  (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),  -103(5);  State  v.
               Williams,  920  S.W.2d  247,  258  (Tenn.  Crim.  App.  1995).
                       The  presumptive  sentence  to  be  imposed  by  the  trial  court  for  a  Class  B,  C,  D  or  E  felony  is
               the  minimum  within  the  applicable  range  unless  there  are  enhancement  or  mitigating  factors  present.
               Tenn.  Code  Ann.  ¤  40-35-210(c).  If  there  are  enhancement  or  mitigating  factors,  the  court  must  start
               at  the  presumptive  sentence,  enhance  the  sentence  as  appropriate  for  the  enhancement  factors,  and
               then  reduce  the  sentence  in  the  range  as  appropriate  for  the  mitigating  factors. Id.  ¤  40-35-210(e).
               The  weight  to  be  given  each  factor  is  left  to  the  discretion  of  the  trial  judge. State  v.  Shelton,  854
               S.W.2d  116,  123  (Tenn.  Crim.  App.  1992). However,  the  sentence  must  be  adequately  supported
               by  the  record  and  comply  with  the  purposes  and  principles  of  the  1989  Sentencing  Reform  Act.
               State  v.  Moss,  727  S.W.2d  229,  237  (Tenn.  1986).
                       When  imposing  a  sentence,  the  trial  court  must  make  specific  findings  of  fact  on  the  record
               supporting  the  sentence. Tenn.  Code  Ann.  ¤  40-35-209(c). The  record  should  also  include  any
               enhancement  or  mitigating  factors  applied  by  the  trial  court. Id.  ¤  40-35-210(f). Thus,  if  the  trial
               court  wishes  to  enhance  a  sentence,  the  court  must  state  its  reasons  on  the  record. The  purpose  of
               recording  the  courtÕs  reasoning  is  to  guarantee  the  preparation  of  a  proper  record  for  appellate
               review. State  v.  Ervin,  939  S.W.2d  581,  584  (Tenn.  Crim.  App.  1996). Because  the  record  in  this
               case  indicates  that  the  trial  court  adequately  considered  the  enhancement  and  mitigating  factors  as
               well  as  the  underlying  facts,  our  review  is  de  novo  with  a  presumption  of  correctness.
                       If  our  review  reflects  that  the  trial  court  followed  the  statutory  sentencing  procedure,  that  the
               court  imposed  a  lawful  sentence  after  having  given  due  consideration  and  proper  weight  to  the
               factors  and  principles  set  out  under  the  sentencing  law,  and  that  the  trial  courtÕs  findings  of  fact  are
               adequately  supported  by  the  record,  then  we  may  not  modify  the  sentence  "even  if  we  would  have
               preferred  a  different  result." State  v.  Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991). The
               defendant  bears  the  burden  of  showing  the  impropriety  of  the  sentence  imposed.  Ashby,  823  S.W.2d
               at  169.
                       With  certain  exceptions,  a  defendant  is  eligible  for  probation  if  the  sentence  actually  imposed
               is  eight  years  or  less.  Tenn.  Code  Ann.  ¤  40-35-303(a).  ŌAlthough  probation  Ômust  be  automatically
               considered  as  a  sentencing  option  for  eligible  defendants,  the  defendant  is  not  automatically  entitled
               to  probation  as  a  matter  of  law.ÕĶ  State  v.  Davis,  940  S.W.2d  558,  559  (Tenn.  1997)  (citing  Tenn.
               Code  Ann.  ¤  40-35-303(b)  sentencing  commÕn  cmts). In  determining  whether  to  grant  or  deny
               probation,  the  trial  court  may  consider  the  circumstances  of  the  offense;  the  defendantÕs  criminal
               record,  background  and  social  history;  the  defendantÕs  physical  and  mental  health;  the  deterrent
               effect  on  other  criminal  activity;  and  the  likelihood  that  probation  is  in  the  best  interests  of  both  the



                           1  Tennessee  Code  Annotated  ¤  40-35-102(5)  states  that  Ō[c]onvicted  felons  committing  the  most  severe  offenses,
                  possessing  criminal  histories  evincing  a  clear  disregard  for  the  laws  and  m  orals  of  society,  and  evincing  failure  of  past
                  efforts  at  rehab  ilitation  shall  be  give  n  first  priority  regar  ding  sentenc  ing  involving  inc  arceration  .  .  .  .Ķ

                                                                          -7- public  and  the  defendant. State  v.  Parker,  932  S.W.2d  945,  958  (Tenn.  Crim.  App.  1996). The
                  Defendant  has  the  burden  of  establishing  suitability  for  probation.  Tenn.  Code  Ann.  ¤  40-35-303(b);
                  Ashby,  823  S.W.2d  at  169.  An  especially  mitigated  or  standard  offender  convicted  of  a  Class  C,
                  D  or  E  felony  who  does  not  fit  within  certain  parameters  1  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(6). 
                           However,  we  further  note  that  even  if  a  defendant  is  presumed  to  be  a  favorable  candidate
                  for alternative sentencing under Tennessee Code Annotated ¤ 40-35-102(6), the statutory
                  presumption  of  an  alternative  sentence  may  be  overcome  if
                                    (A)  [c]onfinement  is  necessary  to  protect  society  by  restraining  a  defendant
                           who  has  a  long  history  of  criminal  conduct;
                                    (B)  [c]onfinement  is  necessary  to  avoid  depreciating  the  seriousness  of  the
                           offense  or confinement is particularly  suited to provide an effective deterrent to
                           others  likely  to  commit  similar  offenses;  or
                                    (C)  [m]easures  less  restrictive  than  confinement  have  frequently  or  recently
                           been  applied  unsuccessfully  to  the  defendant  .  .  .  .
                  Id.  ¤  40-35-103(1)(A)-(C).
                           First,  the  Defendant  argues  that  she  should  have  been  sentenced  as  an  especially  mitigated
                  offender. A  trial  court  may  find  a  defendant  to  be  an  especially  mitigated  offender,  if  Ō(1)  [t]he
                  defendant  has  no  prior  felony  convictions;  and  (2)  [t]he  court  finds  mitigating,  but  no  enhancement
                  factors.Ķ Id.  ¤  40-35-109(a)(1)-(2). In  this  case,  the  trial  court  found  that  one  enhancement  factor
                  applied: The  Defendant  was  the  leader  in  the  commission  of  an  offense  involving  two  or  more
                  criminal  actors. Id.  ¤  40-35-114(2). Thus,  the  Defendant  was  not  eligible  to  be  sentenced  as  an
                  especially  mitigated  offender. 
                           The  Defendant  argues  that  she  should  have  received  full  probation. However,  the  trial  court
                  found  that  the  nature  of  the  offense  warranted  some  incarceration.  This  Court  has  held  that  probation
                  may  be  denied  based  solely  on  the  circumstances  of  the  offense  when  they  outweigh  all  other  factors
                  favoring  probation. State  v.  Fletcher,  805  S.W.2d  785,  788-89  (Tenn.  Crim.  App.  1991). In  this
                  case,  the  trial  court  noted  that  the  Defendant  used  her  younger  sister  to  deliver  drugs  into  the  Carroll
                  County  Jail. 
                           The  trial  court  also  considered  the  need  for  deterrence  in  sentencing  the  Defendant,  stating,
                  ŌIÕve  noticed  particularly  within  this  county  that  it  is  a  situation  with  increasing  regularity.Ķ Our
                  supreme  court  has  held  that  a  trial  courtÕs  decision  to  incarcerate  a  defendant  based  on  a  need  for
                  deterrence  will  be  presumed  correct  so  long  as  any  reasonable  person  looking  at  the  entire  record
                  could conclude that (1)  a need to deter similar crimes is present in the particular community,



                                                                -8- jurisdiction,  or  in  the  state  as  a  whole,  and  (2)  incarceration  of  the  defendant  may  rationally  serve
               as  a  deterrent  to  others  similarly  situated  and  likely  to  commit  similar  crimes. State  v.  Hooper,  29
               S.W.3d  1,  9  (Tenn.  2000).  Hooper  further  provides  factors  to  be  considered  by  trial  courts  in
               deciding  whether  a  need  for  deterrence  is  present  and  whether  incarceration  is  Ōparticularly  suitedĶ
               to  achieve  that  goal. These  factors  include: 
                       (1)  [w]hether  other  incidents  of  the  charged  offense  are  increasingly  present  in  the
                       community,  jurisdiction,  or  in  the  state  as  a  whole,  (2)  [w]hether  the  defendantÕs
                       crime  was  the  result  of  intentional,  knowing  or  reckless  conduct  or  was  otherwise
                       motivated  by  a  desire  to  profit  or  gain  from  the  criminal  behavior,  (3)  [w]hether  the
                       defendantÕs  crime  and  conviction  have  received  substantial  publicity  beyond  that
                       normally  expected  in  the  typical  case,  (4)  [w]hether  the  defendant  was  a  member  of
                       a  criminal  enterprise,  or  substantially  encouraged  or  assisted  others  in  achieving  a
                       criminal objective, and (5) [w]hether the defendant has previously engaged in
                       criminal  conduct  of  the  same  type  as  the  offense  in  question,  irrespective  of  whether
                       such  conduct  resulted  in  previous  arrests  or  convictions.
               Id.  at  9-12. We  conclude  that  the  trial  court  properly  considered  deterrence  in  sentencing  the
               Defendant. 
                       Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.


                                                                     ___________________________________ 
                                                                     ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                         Assigned  on  Briefs  August  21,  2001

                  STATE  OF  TENNESSEE  v.  DAVID  GLENN  AYERS

                     Appeal  from  the  Criminal  Court  for  Anderson  County
                          No.  99CR0274 James  B.  Scott,  Judge

                            No.  E2000-03074-CCA-R3-CD
                                 October  29,  2001

         The  defendant,  David  Glenn  Ayers,  was  convicted  of  driving  under  the  influence,  second  offense.
         The  trial  court  imposed  a  sentence  of  11  months  and  29  days  with  release  eligibility  after  service  of
         75%.  In  this  appeal  of  right,  the  defendant  challenges  the  sufficiency  of  the  evidence,  argues  that
         the  trial  court  should  have  set  aside  the  verdict  as  thirteenth  juror,  and  contends  that  the  sentence  is
         excessive.  The  judgment  is  affirmed.

                   Tenn.  R.  App.  P.  3;  Judgment  of  the  Trial  Court  Affirmed

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and
         ALAN  E.  GLENN,  JJ.,  joined.
         Ann  D.  Coria,  Clinton,  Tennessee,  for  the  appellant,  David  Glenn  Ayers. 
         Paul  G.  Summers,  Attorney  General  &  Reporter;  John  H.  Bledsoe,  Assistant  Attorney  General;  and
         Jan  Hicks,  Assistant  District  Attorney  General,  for  the  appellee,  State  of  Tennessee. 

                                   OPINION

             At  4:00  A.M.  on  Sunday,  July  18,  1999,  Officer  Shannon  Gray  of  the  Clinton  Police
         Department  observed  a  green  1998  Mazda  pickup  truck  being  driven  erratically  along  Andersonville
         Highway.  When  Officer  Gray  observed  the  vehicle  cross  the  center  line  of  the  highway  by  "a  foot,
         foot  and  a  half,"  and  cross  "the  white  fog  line  on  two  or  three  different  occasions,"  he  activated  his
         blue  lights.  When  the  vehicle,  which  was  being  operated  by  the  defendant,  did  not  immediately
         respond,  the  officer  turned  on  his  siren.  When  the  vehicle  stopped,  Officer  Gray  confronted  the
         defendant  and  smelled  alcohol.  The  defendant  explained  that  he  had  been  at  the  Eagle's  Club  in
         Lafollette,  some  25  miles  from  Clinton,  and  was  on  his  way  to  his  girlfriend's  house  in  Oak  Ridge.
         At  that  point,  the  officer  observed  a  wet  spot  in  the  crotch  area  of  the  defendant's  pants.  When  asked
         whether  he  had  consumed  any  alcohol  at  the  Eagle's  Club,  the  defendant  answered  that  he  had  had
         eight  or  nine  beers  and  two  or  three  mixed  drinks. After  confirming  that  the  defendant  had  no
         medical  problems,  Officer  Gray  administered  field  sobriety  tests,  including  the  heel-to-toe  walk,
         one-leg  stand,  finger  dexterity,  and  alphabet  recitation  tests. In  the  opinion  of  the  officer,  the



                                                                -2- defendant  was  able  to  perform  satisfactorily  only  on  the  alphabet  and  the  finger  dexterity  tests.
               Officer  Gray  described  the  defendant  as  having  slurred  speech  and  "a  little  red"  in  his  eyes. After
               placing  the  defendant  under  arrest,  the  officer  searched  the  interior  of  the  vehicle  but  did  not  find  any
               containers. The  defendant  was  taken  to  the  Anderson  County  jail  where  he  declined  to  take  a
               Breathalyzer  examination.
                       The  defendant,  who  was  working  as  a  construction  superintendent  for  a  company  located  in
               Pennington,  South  Carolina,  at  the  time  of  his  arrest,  testified  that  he  had  been  working  at  a  job  in
               Jamestown,  68  miles  from  his  residence. His  workday  began  at  4:00  A.M.  when  he  got  up  for  work
               and  ended  at  approximately  5:30  P.M. After  work,  the  defendant  attended  a  birthday  party  for  a
               child  and  later,  at  approximately  11:30  P.M.,  he  went  to  the  Eagle's  Club. At  trial,  he  testified  that
               he  had  talked  with  several  friends  and  had  consumed  three  or  four  mixed  drinks,  but  no  beer,  before
               leaving  the  club  shortly  after  3:00  A.M. The  defendant  claimed  that  on  his  way  to  Oak  Ridge,  he
               stopped  at  an  Exxon  Market  to  purchase  a  snack  and  a  cup  of  coffee. The  defendant  testified  that
               as  he  entered  Clinton,  he  hit  "a  rough  spot  in  the  road,  and  dropped  my  coffee  .  .  .  in  my  crotch  area."
               The  defendant  explained  that  he  panicked  and  briefly  let  go  of  the  steering  wheel,  causing  him  to
               swerve. He  testified  that  he  traveled  to  a  well-lighted  area  at  the  Get-and-Go  Market  in  Clinton
               before  stopping  his  vehicle.  The  defendant  acknowledged  that  he  may  have  smelled  like  alcohol  but
               contended  that  he  did  "fairly  well"  on  his  field  sobriety  tests  except  for  the  one-leg  stand,  which  he
               "totally  flunked." He  claimed  that  he  was  tired  and  unable  to  perform  the  test  because  of  a  back
               injury  for  which  he  had  surgery  in  1991. 

                                                  Sufficiency  of  the  Evidence

                       The  initial  contention  of  the  defendant  is  that  the  proof  was  insufficient  to  establish  the
               offense  of  driving  under  the  influence  of  an  intoxicant. Citing  State  v.  Ann  Elizabeth  Martin,  No.
               E1999-01361-CCA-R3-CD  (Tenn.  Crim.  App.,  at  Knoxville,  Sept.  8,  2000),  the  defendant  contends
               that  "a  momentary  drift  out  of  a  lane"  would  not  constitute  a  basis  for  the  arrest. He  argues  that  his
               driving  in  no  way  affected  any  other  cars  that  traveled  along  the  roadway  and  that  he  had  a  plausible
               excuse,  spilling  hot  coffee  into  his  lap,  for  a  temporary  lapse  in  the  control  of  his  vehicle. His
               successful  performance  in  two  of  the  four  field  sobriety  tests,  the  defendant  submits,  lends  credence
               to  his  claim  that  he  was  not  under  the  influence  of  alcohol. 
                       On  appeal,  of  course,  the  state  is  entitled  to  the  strongest  legitimate  view  of  the  evidence  and
               all  reasonable  inferences  which  might  be  drawn  therefrom.  State  v.  Cabbage,  571  S.W.2d  832,  835
               (Tenn.  1978). The  credibility  of  the  witnesses,  the  weight  to  be  given  their  testimony,  and  the
               reconciliation  of  conflicts  in  the  proof  are  matters  entrusted  to  the  jury  as  the  trier  of  fact. Byrge  v.
               State,  575  S.W.2d  292,  295  (Tenn.  Crim.  App.  1978). When  the  sufficiency  of  the  evidence  is
               challenged,  the  relevant  question  is  whether,  after  reviewing  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. Tenn.  R.  App.  P.  13(e);  State  v.  Williams,  657  S.W.2d  405,  410  (Tenn.  1983).
               Questions  concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well
               as  all  factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact.  Liakas  v.  State,  199  Tenn.



                                                                -3- 298,  286  S.W.2d  856,  859  (1956). Because  a  verdict  of  guilt  against  a  defendant  removes  the
               presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal  defendant  bears
               the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty  verdict. State  v.
               Evans,  838  S.W.2d  185,  191  (Tenn.  1992).
                       Tennessee  Code  Annotated  ¤  55-10-401(a)  prohibits  "any  person  or  persons  to  drive  or  to
               be  in  physical  control  of  any  automobile  or  any  motor-driven  vehicle  on  any  of  the  public  roads  and
               highways  of  the  State  of  Tennessee  or  on  any  streets  or  alleys  .  .  .  or  any  other  premises  which  is
               generally  frequented  by  the  public  at  large  while  under  the  influence  of  an  intoxicant.  .  .  ." In  this
               instance,  the  jury  heard  testimony  that  the  defendant  was  driving  erratically,  crossing  the  center  lane
               at  least  once  and  the  white  fog  line  located  on  the  right  edge  of  the  driving  surface  two  or  three  times.
               Officer  Gray  testified  that  this  manner  of  driving  continued  for  at  least  a  mile. The  defendant
               candidly  acknowledged  that  he  had  been  at  the  Eagle's  Club  in  Lafollette  and,  while  denying  that  he
               had  any  beer  while  at  the  club,  he  conceded  that  he  had  consumed  "three  or  four  mixed  drinks  of
               Crown  and  Coke."  It  was  the  prerogative  of  the  jury  to  assess  the  credibility  of  the  witnesses,  taking
               into  consideration  the  relative  inexperience  of  the  officer  who  had  been  employed  as  a  policeman
               for  approximately  one  year,  and  to  conclude  that  the  defendant,  because  of  slurred  speech,  redness
               of  the  eyes,  and  the  inability  to  perform  two  of  the  four  field  sobriety  tests,  was  operating  his  vehicle
               under  the  influence  of  an  intoxicant. When  there  is  proof  of  each  and  every  element  of  the  offense,
               this  court  may  neither  second-guess  the  jury's  credibility  assessment  of  the  witnesses  nor  reweigh
               the  testimony. 

                                                     Thirteenth  Juror  Rule

                       The  defendant  next  asserts  that  the  trial  court  erred  by  failing  to  perform  its  duty  as  thirteenth
               juror.  Rule  33(f)  of  the  Tennessee  Rules  of  Criminal  Procedure  provides  that  a  "trial  court  may  grant
               a  new  trial  following  a  verdict  of  guilty  if  it  disagrees  with  the  jury  about  the  weight  of  the  evidence."
               This  rule,  which  was  effective  July  1,  1991,  would  have  changed  the  holdings  of  our  supreme  court
               in  State  v.  Johnson,  692  S.W.2d  412  (Tenn.  1985),  and  State  v.  Atkins,  786  S.W.2d  642  (Tenn.
               1990),  which  had  abolished  the  thirteenth  juror  rule  in  criminal  cases.  In  State  v.  Carter,  896  S.W.2d
               119,  122  (Tenn.  1995),  our  supreme  court  acknowledged  the  restoration  of  the  thirteenth  juror  rule
               as  it  existed  at  common  law,  thereby  mandating  that  trial  judges  exercise  the  duty  to  function  as  a
               thirteenth juror in criminal cases.  An order overruling a motion for new  trial establishes  a
               presumption  that  the  trial  court  has  exercised  the  duty. No  explicit  statement  on  the  record  is
               required. Carter,  896  S.W.2d  at  122. It  is  only  when  the  trial  court  expresses  dissatisfaction  or
               disagreement  with  the  jury  verdict  or  makes  statements  indicating  that  it  has  absolved  itself  of  its
               responsibility  that  the  judgment  should  be  set  aside. 
                       In  State  v.  Moats,  906  S.W.2d  431  (Tenn.  1995),  the  state  conceded  that  the  trial  court  had
               failed  to  act  as  thirteenth  juror  by  entering  the  judgment  while  expressing  doubts  about  the  weight
               of  the  evidence  and  concluding  that  it  was  inappropriate  to  overturn  the  jury  verdict. Our  supreme
               court  determined  that  because  the  trial  court  had  misconstrued  its  authority  to  grant  a  new  trial  under
               the  thirteenth  juror  rule,  a  new  trial  was  necessary:



                                                                -4- The  trial  judge  is  in  a  difficult  position  to  make  a  thirteenth  juror  determination  after
                       a  remand  which  would not  occur  until  after  the  case  works  its  way  through  the
                       appellate  courts. By  that  time,  the  trial  judge  is  unlikely  to  have  an  independent
                       recollection  of  the  demeanor  and  credibility  of  all  the  witnesses.
               Moats,  906  S.W.2d  at  431. 
                       Here,  the  defendant  filed  a  motion  for  a  new  trial. As  one  of  the  grounds  for  relief,  the
               defendant  contended  that  the  "weight  of  the  evidence  mandates  that  the  court  set  aside  the  verdict
               of  guilty  and  the  sentence  as  the  'thirteenth'  juror." The  order  overruling  the  motion  for  new  trial
               provides  as  follows:
                       It  is  ordered  that  the  defendant's  motion  for  new  trial  is  overruled  for  the  reason  that
                       the  defendant  failed  to  appear  on  the  date  set  for  the  motion. The  clerk  will  send  a
                       copy  of  this  order  to  the  parties.
                       The  purpose  of  the  thirteenth  juror  rule  is  to  be  a  "safeguard  against  a  miscarriage  of  justice
               by  the  jury." Id.  at  434  (quoting  State  v.  Johnson,  692  S.W.2d  412,  415  (Tenn.  1985)). The  rule
               requires  that  the  trial  judge  must  be  personally  satisfied  with  the  verdict. State  v.  Dankworth,  919
               S.W.2d  52,  56  (Tenn.  Crim.  App.  1995). 
                       In  this  instance,  there  is  no  indication  that  the  trial  court  exercised  its  affirmative  duty  to  act
               as  thirteenth  juror. Because  the  denial  of  the  motion  for  new  trial  was  based  upon  the  defendant's
               failure  to  appear,  the  record  is  silent  on  the  issue. Nevertheless,  this  court  has  ruled  that  the  trial
               court  "need  not  make  statements  in  the  record  of  its  approval  of  the  verdict,  rather,  when  it  simply
               overrules  a  motion  for  new  trial  without  comment,  this  [c]ourt  may  presume  that  the  trial  court
               approved  the  verdict  as  the  thirteenth  juror." State  v.  Robert  Bacon,  No.  03C01-9608-CR-00308
               (Tenn.  Crim.  App.,  at  Knoxville,  Jan.  8,  1998). In  Bacon,  this  court  emphasized  that  it  was  only
               when  the  trial  court  absolved  itself  of  the  responsibility  or  expressed  dissatisfaction  with  the  verdict
               that  a  new  trial  was  in  order. Absent  evidence  to  the  contrary,  it  is  implicit  by  the  denial  of  the
               motion  for  new  trial  and  the  entry  of  the  judgment  that  the  trial  court  exercised  its  responsibility.
               Moreover,  both  the  tone  and  content  of  the  comments  made  by  the  trial  judge  during  the  sentencing
               hearing  signal  a  satisfaction  with  the  verdict. While  explicit  approval  would  have  been  preferable
               for  purposes  of  our  review,  statements  made  at  the  sentencing  hearing  establish  that  the  trial  court
               was  satisfied  with  the  finding  of  guilt. 

                                                           Sentencing

                       As  his  final  issue,  the  defendant  argues  that  the  sentence  of  11  months  and  29  days,  with  a
               release  eligibility  date  after  service  of  75%  of  the  sentence,  was  excessive. The  defendant  argues
               that  there  is  some  question  regarding  his  impairment  and  that  the  trial  court  did  not  consider  his  work
               record,  his  family  circumstances,  or  alternative  measures  such  as  alcohol  or  psychological  treatment
               before  imposing  the  relatively  lengthy  jail  sentence. The  state  argues  to  the  contrary. 



                                                                -5- 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  with  a  presumption  that  the  determinations  made  by
               the  trial  court  are  correct.  Tenn.  Code  Ann.  ¤  40-35-401(d).  This  presumption  is  "conditioned  upon
               the  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);  see  State  v.
               Jones, 883 S.W.2d 597, 600 (Tenn. 1994).  "If the trial court applies inappropriate factors or
               otherwise  fails  to  follow  the  1989  Sentencing  Act,  the  presumption  of  correctness  falls." State  v.
               Shelton,  854  S.W.2d  116,  123  (Tenn.  Crim.  App.  1992). The  Sentencing  Commission  Comments
               provide  that  the  burden  is  on  the  defendant  to  show  the  impropriety  of  the  sentence. Tenn.  Code
               Ann.  ¤  40-35-401,  Sentencing  Commission  Comments.
                       Our  review  requires  an  analysis  of  (1)  the  evidence,  if  any,  received  at  the  trial  and  sentencing
               hearing;  (2)  the  presentence  report;  (3)  the  principles  of  sentencing  and  the  arguments  of  counsel
               relative  to  sentencing  alternatives;  (4)  the  nature  and  characteristics  of  the  offense;  (5)  any  mitigating
               or  enhancing  factors;  (6)  any  statements  made  by  the  defendant  in  his  own  behalf;  and  (7)  the
               defendant's  potential  for  rehabilitation  or  treatment. Tenn.  Code  Ann.  ¤¤  40-35-102,  -103,  -210;
               State  v.  Smith,  735  S.W.2d  859,  863  (Tenn.  Crim.  App.  1987). 
                       In  misdemeanor  sentencing,  the  court  is  required  to  provide  the  defendant  with  a  reasonable
               opportunity  to  be  heard  as  to  the  length  and  manner  of  the  sentence. The  sentence  must  be  specific
               and  consistent  with  the  purposes  of  the  Act.  Tenn.  Code  Ann.  ¤  40-35-302(a),  (b). Not  greater  than
               75  percent  of  the  sentence  should  be  fixed  for  service  by  a  misdemeanor  offender;  however,  a  DUI
               offender  may  be  required  to  serve  the  full  100  percent  of  his  sentence. Tenn.  Code  Ann.  ¤  40-35-
               302(d);  Palmer  v.  State,  902  S.W.2d  391,  393-94  (Tenn.  1995). In  determining  the  percentage  of
               the  sentence,  the  court  must  consider  enhancement  and  mitigating  factors  as  well  as  the  legislative
               purposes  and  principles  related  to  sentencing. Tenn.  Code  Ann.  ¤  40-35-302(d). 
                       Upon service of the required percentage, the administrative agency governing the
               rehabilitative  programs  determines  which  among  the  lawful  programs  available  is  appropriate.  The
               trial  court  retains  the  authority  to  place  the  defendant  on  probation  either  immediately  or  after  a  term
               of  periodic  or  continuous  confinement.  Tenn.  Code  Ann.  ¤  40-35-302(e). The  legislature  has
               encouraged  courts  to  consider  public  or  private  agencies  for  probation  supervision  prior  to  directing
               supervision  by  the  Department  of  Correction. Tenn.  Code  Ann.  ¤  40-35-302(f). The  statutory
               scheme  is  designed  to  provide  the  trial  court  with  continuing  jurisdiction  in  the  misdemeanor  case
               and a wide latitude of  flexibility.  The misdemeanant, unlike the felon, is  not entitled to the
               presumption  of  a  minimum  sentence. State  v.  Creasy,  885  S.W.2d  829,  832  (Tenn.  Crim.  App.
               1994). Appellate  review  of  misdemeanor  sentencing  is  de  novo  with  a  presumption  of  correctness.
               See  State  v.  Troutman,  979  S.W.2d  271  (Tenn.  1998). 
                       At  the  sentencing  hearing,  it  was  established  that  the  defendant,  who  was  38  years  of  age,  had
               prior  convictions  for  vehicular  homicide  by  means  of  intoxication  in  1987  and  driving  under  the
               influence  and  driving  on  a  revoked  license  in  1991. The  defendant  received  a  nine-year  sentence  in



                                                                -6- the  Department  of  Correction  for  the  vehicular  homicide  and  served  a  term  in  jail  for  the  prior  DUI
               offense. 
                       The  defendant  resides  with  his  parents  and  has  custody  of  a  three-year-old  son  jointly  with
               his  mother. The  defendant  occasionally  resides  with  a  girlfriend  in  Scott  County  during  which  time
               the  defendant's  mother  retains  custody  of  his  son. The  defendant  is  employed  in  construction,
               specializing  in  commercial  metal  framing  and  drywall. At  the  time  of  the  sentencing  hearing,  he
               received  $10.00  per  hour  in  compensation. The  defendant  expressed  remorse  for  having  used
               alcohol  before  driving  and  indicated  satisfaction  with  the  jury  despite  his  belief  that  he  "wasn't  at  that
               point"  of  intoxication. The  defendant  described  himself  as  an  alcoholic  and  stated  that  he  had
               participated  in  alcohol  rehabilitation  while  in  prison  and,  prior  to  that,  received  further  treatment
               while  in  a  community  corrections  program. While  acknowledging  that  he  had  "not  been  there
               faithfully  like [he] should have," the defendant stated that he had attended a few Alcoholics
               Anonymous  meetings. 
                       In  imposing  sentence,  the  trial  court  placed  particular  emphasis  on  the  defendant's  prior
               convictions  for  vehicular  homicide  and,  within  four  years  thereafter,  a  first  offense  for  driving  under
               the  influence. The  trial  court  rejected  the  defendant's  assertion  that  he  was  able  to  control  his
               drinking.
                       The  minimum  possible  sentence  for  second  offense  driving  under  the  influence  is  45  days.
               The  record  demonstrates  that  the  trial  court  considered  sentencing principles  and  guidelines  in
               imposing  the  sentence. Certainly,  a  previous  history  of  criminal  convictions  is  a  basis  to  enhance
               the  sentence. See  Tenn.  Code  Ann.  ¤  40-35-114(1). The  seriousness  of  the  offenses  and  their
               similarity  to  the  current  offense  are  a  proper  basis  for  concern. As  our  supreme  court  ruled  in  State
               v.  Troutman,  "society  demands  protection  from  those  who  habitually  drink  and  drive  in  complete
               disregard  for  the  welfare  of  others  and  for  the  laws  of  this  state." 979  S.W.2d  at  274. In  our  view,
               the  trial  court  imposed  an  appropriate  sentence. 
                       Accordingly,  the  judgment  is  affirmed.


                                                                     ___________________________________ 
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                            November  14,  2000  Session

               MICHAEL  CARLTON  BAILEY  v.  STATE  OF  TENNESSEE

                Post-Conviction  Appeal  from  the  Circuit  Court  for  Dickson  County
                         No.  CR  3171  Robert  E.  Burch,  Judge


                     No.  M1999-01065-CCA-R3-PC  -  Filed  August  17,  2001


         The  appellant,  Michael  Carlton  Bailey,  appeals  from  the  trial  courtÕs  denial  of  his  petition  for  post-conviction 
                relief.  On  appeal,  the  appellant  challenges  the  trial  courtÕs  determination  that  (1)  he
         received  the  effective  assistance  of  counsel,  and  (2)  that  he  was  not  denied  due  process  by  the  alleged
         violation  of  Tennessee  Rule  of  Evidence  615  by  two  State  witnesses.

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

         JERRY  L.  SMITH,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  G.  HAYES  and  NORMA
         MCGEE  OGLE,  JJ,  joined.
         Gregory  D.  Smith,  Clarksville,  Tennessee,  for  appellant,  Michael  Carlton  Bailey.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Clinton  J.  Morgan,  Assistant  Attorney  General;
         Dan  Alsobrooks,  District  Attorney  General,  for  appellee,  State  of  Tennessee.

                                   OPINION
                                    FACTS

             On  July  29,  1992,  the  appellant  shot  and  killed  Gary  Grant  in  the  parking  lot  of  the  city  hall
         of  Burns,  Tennessee. The  appellant  first  shot  Mr.  Grant  while  both  men  were  sitting  in  their
         respective  cars.  The  appellant  then  exited  his  car  and  shot  Mr.  Grant  twice  more  as  Mr.  Grant  was
         crawling  away  from  his  own  car. 
             On  August  13,  1993,  the  appellant  was  convicted  of  first  degree  murder  and  sentenced  to  life
         with  the  possibility  of  parole.  On  July  20,  1995,  this  court  affirmed  the  judgment  of  the  trial  court.
         Permission  to  appeal  to  the  Tennessee  Supreme  Court  was  denied  on  January  8,  1996.

                                   ANALYSIS

             Under  the  Post-Conviction  Procedure  Act,  the  appellant  bears  the  burden  of  proving  his
         allegation  by  clear  and  convincing  evidence.  Tennessee  Code  Annotated  ¤  40-30-210  (f).  The
         findings  of  fact  of  the  trial  judge  on  post-conviction  hearings  are  conclusive  on  appeal  unless  the



                                                                -2- evidence  preponderates  against  the  judgment. Cooper  v.  State,  849  S.W.2d  744,  746  (Tenn.
               1993);  Vermilye  v.  State,  754  S.W.2d  82,  84  (Tenn.Crim.App.1987);  Turner  v.  State,  698  S.W.2d
               90,  91  (Tenn.Crim.App.1985); Janow  v.  State,  4  Tenn.Crim.App.  195,  470  S.W.2d  19,  21
               (1971). Questions  concerning  the  credibility  of  witnesses  and  the  weight  given  the  testimony  of
               witnesses  are  resolved  by  the  trial  court. Bates  v.  State,  973  S.W.2d  615,  613  (Tenn.Crim.App.
               1997).
                                              (1)  Ineffective  Assistance  of  Counsel
                       The  standards  by  which  ineffectiveness  of  counsel  is  judged  in  Tennessee  are  set  forth  in 

               Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.1975),  which  requires  that  the  advice  given,  or  the
               services  rendered  by  the  attorney,  be  within  the  range  of  competence  demanded  of  attorneys  in
               criminal  cases. The  rule  devised  by  the  United  States  Supreme  Court  in  Strickland  v.
               Washington,  466  U.S.  668,  687,  104  S.Ct.  2052,  2064,  80  L.Ed.2d  674  (1984),  provides:
                       First,  the  defendant  must  show  that  counsel's  performance  was  deficient. This
                       requires  showing  that  counsel  made  errors  so  serious  that  counsel  was  not
                       functioning  as  the  "counsel"  guaranteed  the  defendant  by  the  Sixth  Amendment. 
                       Second,  the  defendant  must  show  that  the  deficient  performance  prejudiced  the
                       defense. This  requires  showing  that  counsel's  errors  were  so  serious  as  to  deprive
                       the  defendant  of  a  fair  trial,  a  trial  whose  result  is  reliable. Unless  the  defendant
                       makes  both  showings,  it  cannot  be  said  that  the  conviction  or  ...  sentence  resulted
                       from  a  breakdown  in  the  adversary  process  that  renders  the  result  unreliable.
               Furthermore,  the  Tennessee  Supreme  Court  has  stated  that  Ōit  cannot  be  said  that  incompetent
               representation  has  occurred  merely  because  other  lawyers,  judging  from  hindsight,  could  have
               made  a  better  choice  of  tactics.Ķ Hellard  v.  State,  629  S.W.2d  4,  9  (Tenn.  1982);  see  also,  United
               States  ex  rel.  Burton  v.  Cuyler,  439  F.Supp.  1173,  1187  (E.D.Pa.1977). A  review  of  the  record
               in  this  case  does  not  convince  us  that  the  proof  preponderates  against  the  judgment  entered  by  the
               trial  court  denying  post-conviction  relief.
                                                  a. First  Aggressor  Witnesses
                       The  appellantÕs  claims  of  ineffective  assistance  of  counsel  rest  on  two  separate  grounds. 
               First,  the  appellant  claims  he  was  denied  effective  assistance  of  counsel  by  the  failure  of  his  trial
               attorney  to  call  witnesses  that  would  have  testified  to  the  violent  nature  of  the  victim  thus
               supporting  an  inference  that  the  victim  was  actually  the  first  aggressor. The  appellant  has  failed
               to  establish  that  trial  counsel  was  ineffective  in  this  regard. He  has  also  failed  to  establish  that  he
               was  prejudiced  by  the  actions  of  trial  counsel.
                       It  is  undisputed  that  individuals  were  available  to  testify  to  the  victimÕs  tendency  towards
               violence  and  that  trial  counsel  was  aware  of  such  witnesses. However,  this  Court  will  not
               second  guess  mere  trial  strategies  of  counsel  in  determining  whether  the  assistance  rendered  was
               ineffective. Hellard,  629  S.W.2d  at  9. The  performance  of  trial  counsel  must  be  so  egregious
               that,  for  purposes  of  the  Sixth  Amendment,  trial  counsel  is  not  acting  as  ŌcounselĶ  at  all. 

               Strickland,  466  U.S.  at  687,  104  S.Ct.  at  2064.
                       Trial  counsel  testified  at  the  post-conviction  hearing  that,  while  self-defense  was  the  only
               plausible  defense,  the  eyewitness  testimony  and  other  evidence  was  so  damning  as  to  completely
               discredit  this  defense. Trial  counsel  testified  that  he  did  in  fact  call  witnesses  intended  to



                                                                -3- establish  the  violent  nature  of  the  victim  (specifically,  one  Andy  Jenette),  but  that  the  trial  court
               disallowed  such  testimony. This  evidence  clearly  supports  the  trial  courtÕs  finding  that  trial
               counsel  was  not  ineffective.
                       Additionally,  as  required  under  State  v.  Black,  794  S.W.2d  752,  757  (Tenn.Crim.App.
               1990),  the  defendant  failed  to  establish  prejudice  by  producing  witnesses  at  the  hearing  for  post-conviction 
                          relief  to  show  the  defendant  suffered  prejudice. The  evidence  clearly  supports  the
               finding  that  the  appellant  was  not  denied  effective  assistance  of  counsel  due  to  trial  counselÕs
               failure  to  present  Ōfirst  aggressorĶ  t  estimony.
                                                      b. Juror  Billy  Choate
                       Second,  the  appellant  contends  he  was  denied  effective  assistance  of  counsel  by  trial
               counselÕs  failure  to  properly  investigate  Juror  Billy  Choate. The  appellant  contends  that  during
               voir  dire,  he  informed  trial  counsel  that  Mr.  Choate  should  not  be  allowed  to  sit  on  the  jury. The
               appellant  testified  that,  at  the  time,  he  could  not  recall  the  exact  problem  that  existed  between
               Mr.  Choate  and  himself,  but  he  knew  a  problem  existed. Trial  counsel  testified  that  he  was  not
               informed  until  the  latter  stages  of  the  trial  that  the  appellant  had  any  concerns  at  all  about  Mr.
               Choate  as  a  juror. 
                       There  is  no  evidence  to  suggest  that  trial  counsel  could  or  should  have  acted  any
               differently  that  he  did  given  the  late  stage  at  which  he  was  informed  of  a  problem  with  Mr.
               Choate. Additionally,  Mr.  Choate  was  not  called  as  a  witness,  and  no  prejudice  to  the  defendant
               was  established  at  the  hearing  for  post-conviction  relief.
                       The  evidence  does  not  preponderate  against  the  trial  courtÕs  finding  that  the  defendant
               received  effective  assistance  of  counsel.
                                                         (2)  ŌThe  RuleĶ
                       Tennessee  Rule  of  Evidence  615  states,  in  pertinent  part,  that  Ō[a]t  the  request  of  a  party
               the  court  shall  order  witnesses,  including  rebuttal  witnesses,  excluded  at  trial  or  other
               adjudicatory  hearing.Ķ Trial  judges  have  always  been  afforded  wide  discretion  in  determining
               whether  to  impose  the  sanction  of  excluding  the  evidence  of  the  witness  suspected  of  having
               violated  the  rule. State  v.  Moffett,  729  S.W.2d  679,  681  (Tenn.Crim.App.  1986); see  also  State
               v.  Anthony,  836  S.W.2d  600,  604-605  (Tenn.Crim.App.  1992). Additionally,  a  defendant  may
               not  be  granted  relief  on  appellate  review  when  he  fails  to  takes  action  reasonably  necessary  to
               prevent  or  nullify  the  error. Tenn.R.App.P.  36(a);  see  also,  Meade  v.  State,  484  S.W.2d  366
               (Tenn.Crim.App.1972).
                       The  appellant  presented  several  witnesses  at  the  post-conviction  hearing  that  testified  to
               seeing  two  State  witnesses  talking  about  the  subject  matter  of  the  case  during  the  trial. 
               Specifically,  the  conversation  occurred  in  the  stairwell  of  the  courthouse  after  one  witness  had
               testified  and  prior  to  the  testimony  of  the  second  witness. The  appellant  presented  no  evidence  of
               the  actual  testimony  of  the  two,  violating  witnesses,  nor  did  he  present  the  two  witness  at  the
               post-conviction  hearing.
                       In  the  present  case,  there  is  no  suggestion  that  the  state  connived,  procured,  or  knew  of
               the  witness  sequestration  violation. United  States  v.  Gibson,  675  F.2d  825,  836  (6th  Cir.  1982)

               cert.  denied,  459  U.S.  972,  103  S.Ct.  305,  74  L.Ed.2d  285  (1982)  quoting  United  States  v.
               Kiliyan,  456  F.2d  555,  560  (8th  Cir.  1972). There  is  no  indication  that  the  defendant  was
               prejudiced  by  the  violation  of  the  sequestration  order. That  is,  that  one  or  more  of  the  witnesses



                                                                -4- changed  or  embellished  their  testimony. State  v.  Chadwick,  750  S.W.2d  161,  166
               (Tenn.Crim.App.1987); State  v.  Wicks,  729  S.W.2d  283  (Tenn.Crim.App.1987). In  fact,  the  trial
               court  found  that  no  harm  could  exist  because  the  two  witnesses  in  question  testified  about  two
               different  matters.  Under  all  of  these  circumstances,  we  think  the  witnesses  were  properly
               permitt  ed  to  testify  and  the  defendant  was  not  prejudiced  by  their  testimony.
                       It  is  also  important  to  note,  that  while  several  members  of  the  appellantÕs  family  were
               aware  of  the  violation,  the  violation  was  never  brought  to  the  attention  of  the  appellantÕs
               attorneys  or  the  court. The  family  members  who  were  aware  of  the  violation  were  present  in  the
               courtroom  when  the  trial  judge  ordered  the  sequestration  of  the  witnesses. Thus,  obviously,  no
               objection  was  made  at  trial.
                       The  evidence  does  not  preponderate  against  the  trial  courtÕs  finding  that  the  appellant  was
               not  denied  due  process  by  the  alleged  violation  of  Rule  615  of  the  Tennessee  Rules  of  Evidence.

                                                        CONCLUSION

                              The  evidence  does  not  preponderate  against  the  findings  of  the  trial  court. We
               find  that  the  appellant  received  effective  assistance  of  counsel,  and  that  the  appellant  was  not
               denied  due  process  of  law. The  judgment  of  the  trial  court  is  AFFIRMED.


                                                                     ___________________________________ 
                                                                     JERRY  L.  SMITH,  JUDGE



                           1  While  the  petitionerÕs  direct  appeal  was  pending,  the  Tennessee  Supreme  Court  ordered  his  trial  counsel  to
                  cease  practicing  law.  Subsequently,  trial  counsel  and  the  petitioner  ca  me  to  be  inc  arcerated  in  the  same  p  rison  facility.
                  There  trial  counsel  acted  a  s  the  petitionerÕs  Ōlegal  aideĶ  in  the  formulation  of  the  petitionerÕs  pro  se  petition.

                           2  The  reco  rd  reveals  tha  t  prior  to  granting  this  request,  the  trial  court  had  the  petitioner  returned  for  a  hearing
                  to  Ōfully  inform[]  [him]  of  the  poten  tial  difficulties  facing  a  d  efendant  wh  o  seeks  to  re  present  himselfĶ  and  to  inquire  into
                  his  Ōknowled  ge,  educatio  n  and  exp  erience  with  the  judicial  system.Ķ IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                                              AT  KNOXVILLE

                                                Assigned  on  Briefs  September  27,  2000

                                     MICHAEL  V.  BAILEY  v.  STATE  OF  TENNESSEE

                                Post-Conviction  Appeal  from  the  Criminal  Court  for  Sullivan  County
                                                     No.  C41,135    R.  Jerry  Beck,  Judge


                                                         No.  E2000-00432-CCA-R3-PC
                                                                 October  19,  2001


                           A Sullivan County jury convicted the petitioner of one count of  second degree murder
                  involving  the  death  of  his  son.  For  this  offense  the  petitioner  received  a  sentence  of  twenty  years  as
                  a Range I, standard offender, and a $50,000 fine.  He unsuccessfully brought a direct appeal
                  challenging both his conviction and sentence. Subsequently, he filed a  pro se  1 post-conviction
                  petition and  was  appointed  counsel  from  the  public  defenderÕs  office.  Following  an  evidentiary
                  hearing,  the  trial  court  took  this  matter  under  advisement  and  later  issued  a  detailed  order  dismissing
                  the  petition. Thereafter,  the  petitioner  requested  that  his  appointed  attorney  withdraw  from  the  case
                  and that he be allowed to bring his appeal pro  se. The trial court granted this motion,2 and the
                  petitioner  now  brings  this  appeal  raising  three  issues. More  specifically,  he  asserts  that  (1)  the  jury
                  instructions,  when  viewed  overall,  effectively  denied  him  Ōa  fair  trial  and  a  reliable  verdict;Ķ  (2)  the
                  State  engaged  in  misconduct  and  denied  him  a  fair  trial  by  withholding  exculpatory  material;  and
                  (3)  the  prosecuting  officer  made  the  result  of  the  petitionerÕs  trial  unreliable  because  the  officer
                  perjured  himself.  After  reviewing  these  issues,  we  find  that  all  have  been  waived  and/or  lack  merit.
                  We,  therefore,  affirm  the  trial  courtÕs  denial  of  post-conviction  relief.

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

                  JERRY  L.  SMITH,  J., delivered the opinion of the court, in which JOSEPH  M.  TIPTON and JAMES
                  CURWOOD  WITT,  JR.,  JJ.,  joined.
                  Michael  V.  Bailey,  Mountain  City,  Tennessee,  Pro  Se



                                                                -2- Paul  G.  Summers,  Attorney  General  &  Reporter;  Elizabeth  B.  Marney,  Assistant  Attorney  General;
               Greeley  Wells,  District  Attorney  General;  and  Joseph  Eugene  Perrin,  Assistant  District  Attorney,  for
               appellee,  State  of  Tennessee.


                                                           OPINION

                                                     Factual  Background 

                       In  deciding  the  petitionerÕs  case  on  direct  appeal,  this  Court  summarized  the  facts  as  follows:
                              The  defendant,  a  truck  driver,  fell  from  a  flatbed  trailer  and  injured  his  spine.
                       The  defendant  subsequently  underwent  disc  replacement  surgery  in  1992. He  was
                       prescribed  a  variety  of  drugs  following  surgery  including  Prozac,  an  anti-depressant,
                       Orudus,  a  muscle  relaxer  and  pain  reliever,  Zantac,  a  digestive  aid,  Darvocet,  a  pain
                       reliever,  and  Valium,  an  anti-anxiety  drug.
                              On June 8, 1994, the defendant visited his doctor and refilled his
                       prescriptions.  He  subsequently  went  to  visit  his  mother  who  was  ill. While  visiting
                       his mother, the defendant took each of the aforementioned drugs.  When the
                       defendant  arrived  home  later  that  afternoon,  he  took  an  additional  dose  of  Darvocet,
                       Valium,  and  Zantac  tablets. He  also  began  drinking  bourbon  whiskey.
                              Prior  to  the  evening  of  June  8th,  it  was  evident  the  defendant  and  his  youngest
                       son,  Justin,  the  victim  in  this  case,  did  not  get  along.  The  victim's  step-sister  testified
                       the  defendant  did  not  like  Justin,  and  the  defendant  had  threatened  to  "blow  his
                       [Justin's]  brains  out"  a  few  days  before  Justin  was  murdered.  On  other  occasions,  the
                       defendant  had  threatened  Justin,  physically  assaulted  him, and  destroyed  Justin's
                       stereo.  Jason,  the  defendant's  oldest  son,  told  the  jury  his  father  had  threatened  Justin
                       in  the  past. The  defendant  told  Justin,  "I  brought  you  into  this  world,  I  can  take  you
                       out  of  this  world."
                              On  the  evening  in  question,  the  defendant  recounted  to  his  sons,  Jason  and
                       Justin,  an  incident  which  upset  the  defendant.  The  defendant  and  Justin  encountered
                       the  defendant's  father-in-law  in  a  grocery  store. The  defendant  and  his  father-in-law
                       argued  over  fifty  dollars  the  defendant  and  his  wife  owed  to  the  father-in-law.  Justin
                       walked  away  from  the  argument. This  angered  the  defendant  because  he  wanted
                       Justin  to  stand  by  his  side  and  protect  him  because  his  physical  condition  would  not
                       permit  him  to  defend  himself. The  defendant  expressed  anger  as  he  recounted  the
                       incident. He  asked  Jason,  his  oldest  son,  if  he  would  have  stood  by  him  during  the
                       argument.
                              The  defendant  subsequently  went  to  Jason's  room  to  listen  to  music. He
                       eventually  displayed  a  pistol,  cocked  it,  and  pointed  it  at  Jason.  When  Jason  told  the
                       defendant  to  remove  the  pistol  from  his  room,  the  defendant  placed  the  pistol  in  his
                       pocket.  He  told  Jason  "it's  not  for  you." The  defendant  then  sat  in  a  bean  bag  chair.



                           3  On  cross-examination,  Drumwright  added  that  while  he  had  been  able  to  smell  alcohol  on  the  petitioner,  he
                  had  not  ex  perienced any  difficulty  in  com  municating  with  the  petitioner. 

                                                                          -3- When  Justin  entered  Jason's  room,  Jason  and  the  defendant  were  listening  to
                           music. The  defendant  subsequently  arose  and  pulled  the  pistol  from  his  pocket. He
                           pointed  the  pistol  toward  the  floor. He  then  raised  the  pistol  and  pointed  it  at  Jus  tin's
                           groin. A  few  seconds  later  the  defendant  pointed  the  pistol  at  Justin's  head. Justin
                           asked the defendant, "[A]re you going to shoot me, Dad?"  Seconds later the
                           defendant  shot  the  victim  in  the  eye. This  gunshot  wound  resulted  in  the  victim's
                           death.  The defendant went down a flight of stairs and exited  the residence.  He
                           walked  to  a  road  behind  his  residence  and  threw  the  pistol  on  the  ground.
                                    The  defendant  testified  he  and  his  sons  had  been  playing  with  the  gun.  They
                           were  "cutting  up"  and  "acting  stupid." He  did  not  remember  a  shot  being  fired. He
                           only remembered standing in a road behind his residence and hearing his wife
                           scream.  His  defense  at  trial  was  he  did  not  commit  a  knowing  killing  because  he  was
                           under  the  influences  of  medication  and  alcohol.
                  State  v.  Michael  Bailey,  No.  03-C-01-9601-CR-00028,  1997  WL  625278  at,  *1-2  (Tenn.  Crim.  App.
                  at  Knoxville,  Oct.  10,  1997). 
                           Turning to the proof from the post-conviction hearing, much of the testimony revolved
                  around  the  taking  of  a  blood  sample  at  the  hospital  and  the  results  of  a  blood  alcohol  content  test.
                  According  to  Dr.  Curtis  Drumwright,  an  emergency  physician  on  duty  when  the  petitioner  arrived
                  at  Bristol  Regional  Medical  Center,  the  petitioner  came  to  the  facility  in  police  custody  complaining
                  of  abdominal  pain.  Referring  to  the  medical  record  of  this  visit,  Drumwright  recounted  that  he  had
                  ordered  a  blood  sample  taken  at  the  request  of  the  police.  He  acknowledged  that  he  had  not  seen  the
                  blood  drawn  but  noted  that  the  report  reflected  a  blood  alcohol  content  of  .11.  He  went  on  to  explain
                  that  the  petitioner  had  been  Ōsomewhat  --  under  the  influence;Ķ  thus,  a  clinical  need  for  this  and  other
                  tests  had  also  existed.3 Furthermore,  the  doctor  stated  that  he  had  not  seen  anyone  give  the  blood
                  to  a  police  officer  nor  had  he  seen  the  petitioner  sign  a  consent  form  prior  to  the  drawing  of  the
                  blood.  In  addition,  Karen  Proffitt,  the  medical  records  keeper  for  the  hospital,  testified  that  her  office
                  had  not  directly  provided  these  related  records  to  the  Sullivan  County  SheriffÕs  Department  or  to  the
                  district  attorneyÕs  office. Also,  Lynn  Musselwhite,  the  custodian  of  the  hospitalÕs  business  records
                  stated  that  the  hospital  had  not  billed  the  sheriffÕs  department  for  the  above-referenced  ethyl  alcohol
                  test. This  along  with  the  other  services  rendered  had  been  billed  to  the  petitioner.
                           The  defense  then  called  the  petitioner.  While  admitting  that  the  jury  instructions Ōcould  be
                  technically  right,Ķ  the  petitioner  asserted  that  they  were  not  sufficiently  clear  for  a  lay  person  to
                  understand.  More  specifically,  he  alleged  that  the  instructions  emphasized  ŌalcoholÕs  not  a  defenseĶ
                  to the point that the instruction overshadowed the potential for intoxication to negate a mental
                  element  of  an  offense. Additionally,  the  petitioner  contended  that  he  had  signed  an  Ōaltered  .  .  .  DUI
                  consent  formĶ  concerning  the  taking  of  blood  at  the  hospital. He  also  averred  that  Officer  Ronnie
                  Bledsoe,  who  had  taken  him  to  the  hospital,  had  carried  out  a  round  cardboard  container.  Based  upon
                  his  purportedly  having  worked  at  a  hospital  in  the  past,  the  petitioner  claimed  to  know  that  the  latter
                  had  contained  the  blood  sample,  though  he  provided  no  further  information  indicating  that  this  was



                           4  The  petitionerÕs  trial  counsel  testified  that  he  did  not  recall  going  to  the  district  attorneyÕs  office  to  look  at  the
                  file  but  acknowledged  that  H  arr  had  provided him  with  Ōquite  lengthyĶ  documents.

                                                                          -4- the  case.  In  fact,  the  petitioner  at  first  claimed  to  have  heard  Bledsoe  tell  Detective  Louie  Eleas,  the
                  prosecuting  officer  for  the  case,  about  the  blood  drawn,  but  later  the  petitioner  admitted  that  he  had
                  not  heard  anything  specifically  about  the  blood  sample  mentioned.
                           Lastly, the petitioner called his trial attorney. At the time of the trial, this witness had
                  practiced  law  for  three  years  and  stated  that  he  had  tried  forty  jury  trials  in  Tennessee  prior  to  the
                  petitionerÕs.  He  stated  that  he  had  prepared  three  jury  instruction  requests,  but,  presumably  because
                  of  fatigue,  he  had  not  followed  through  on  them.  When  asked  by  the  trial  court  if  there  were  any
                  special  requests,  counsel  testified  that  he  said,  Ōno.Ķ  Furthermore,  when  the  trial  court  provided
                  counsel  with  the  instructions  to  be  given  the  jury,  counsel  voiced  no  objection  to  them.  Nevertheless,
                  at  the  post-conviction  hearing,  he  stated  his  opinion  that  the  instruction  given  was  incomprehensible
                  to  the  jurors.  As  a  result  counsel  felt  that  he  had  provided  ineffective  assistance  in  not  objecting  to
                  the  instruction  at  trial  and  in  failing  to  raise  the  issue  in  the  petitionerÕs  new  trial  motion.
                           Concerning  the  test  of  the  first  vial  of  blood  taken  from  the  petitioner,  counsel  testified  that
                  he had  not  seen  the  test  results  at  the  time  of  trial. According  to  this  witness,  the  copy he had
                  received  of  the  medical  report  through  discovery  had  not  included  the  initial  page  of  the  report. He
                  added  that  when  he  had  taken  a  handwritten  release  form  bearing  the  petitionerÕs  signature  to  the
                  hospital  in  an  attempt  to  get  a  copy  of  the  record,  the  hospital  had  refused  to  provide  it  under  those
                  circumstances.  Nevertheless, he acknowledged that the record had been sent to the trial court
                  pursuant  to  a  subpoena  and  had  become  Exhibit  70  presented  to  the  jurors. He  also  asserted  that  the
                  State  had  improperly  withheld  a  modified  DUI  consent  form  signed  at  the  hospital. Among  other
                  claims, counsel further contended that the State had presented inaccurate testimony regarding
                  whether  the  petitioner  had  been  Ōin  custodyĶ  while  at  the  hospital.  Before  completing  his  testimony,
                  this  former  attorney  admitted  that  he  stands  convicted  of  two  counts  of  theft  over  $60,000;  one  count
                  of  theft  over  $10,000;  one  count  of  theft  over  $1,000;  one  count of  theft over  $500; and forgery.
                  After  this  witness  the  petitioner  rested  his  case.
                           The State then called Nancy Harr and Detective Louie Eleas. Harr had been one of the
                  prosecutors  involved  in  preparing  and  conducting  the  petitionerÕs  trial. In  this  capacity  she  had
                  engaged  in  open  file  discovery  with  the  petitionerÕs  trial  counsel  4  and  provided  him  with  copies  of
                  Ōall  discovery  materials.Ķ  Other  than  her  work  product,  Harr  stated,  Ō[I]f  it  was  in  my  file  [defense
                  counsel]  had  it.Ķ  She  underscored  that  she  had  not  seen  the  petitionerÕs  medical  report  until  the  trial
                  court  provided  her  with  a  copy  during  trial. In  addition,  she  claimed  that  she  had  not  thought  that
                  there  had  been  another  blood  test,  and  she  indicated  her  belief  that  Detective  Eleas  had  testified
                  truthfully.
                           Turning  to  Eleas,  the  detective  asserted  that  he  had  not  received  any  blood  sample  other  than
                  the  one  taken  from  the  petitioner  at  the jail.  He  added  that  he  had  neither  requested  nor  had  he
                  become  aware of the hospital sampleÕs existence.  Eleas went on to explain that when medical
                  personnel draw a blood sample for law enforcement, certain forms are completed as an aid to
                  establish  the  chain  of  custody;  however,  he  noted  that  he  had  not  heard  of  this  procedureÕs  being
                  needed  or  done  in  this  case. Furthermore,  Eleas  provided  a  different  description  of  the  containers
                  used  to  transport  blood  from  that  given  by  the  petitioner.  He  also  indicated  that  he  had  never  seen



                                                                -5- a  ŌDUI  type  releaseĶ  document  allegedly  signed  by  the  petitioner.  Nevertheless,  though  he  had
               initially  claimed  that  the  petitioner  had  not  been  in  custody  while  at  the  hospital,  Eleas  ultimately
               admitted  that  the  petitioner  probably  would  not  have  been  allowed  to  leave  had  the  petitioner  wished
               to  do  so.
                       The  trial  court heard  this and  other  evidence  before  subsequently  issuing  a written  order
               denying  the  post-conviction  petition.  In  so  doing,  the  trial  court  made  extensive  findings  of  fact.


                                             Post-Conviction  Standard  of  Review

                       In  analyzing  the  issues  raised,  we  first  note  that  a  petitioner  bringing  a  post-conviction
               petition  bears  the  burden  of  proving  the  allegations  asserted  in  the  petition  by  clear  and  convincing
               evidence.  See  Tenn.  Code  Ann.  ¤  40-30-210(f). Moreover,  the  trial  court's  findings  of  fact  Ōare
               conclusive  on  appeal  unless  the  evidence  preponderates  against  the  judgment.Ķ  Tidwell  v.  State,  922
               S.W.2d  497,  500  (Tenn.  1996);  see  also  Campbell  v.  State,  904  S.W.2d  594,  596  (Tenn.  1995).


                                                    Post-Conviction  Waiver

                       We  further observe that Tennessee Code Annotated Section 40-30-206(g) provides the
               provisions  governing  waiver  of  post-conviction  allegations.  According  to  this  statute:
                       A  ground  for  relief  is  waived  if  the  petitioner  personally  or  through  an  attorney  failed
                       to present it for determination in any proceeding before  a court of competent
                       jurisdiction  in  which  the  ground  could  have  been  presented  unless:  (1)  The  claim  for
                       relief  is  based  upon  a  constitutional  right  not  recognized  as  existing  at  the  time  of
                       trial  if  either  the  federal  or  state  constitution  requires  retroactive  application  of  that
                       right; or (2) The failure to present the ground was the result of  state action in
                       violation  of  the  federal  or  state  constitution.
               Tenn.  Code  Ann.  ¤  40-30-206(g)(1),(2).


                                                 Jury  Instruction  Impropriety

                       Turning  to  his  first  contention,  the  petitioner  alleges  that  the  jury  instructions  given  by  the
               trial  court  Ōfail[ed]  to  adequately  and  fairly  submit  the  issues  and  applicable  law  to  the  juryĶ  thereby
               unconstitutionally  denying  him  a  fair  trial.  More  particularly,  the  petitioner  claims  that  the  jury
               instructions  taken  as  a  whole  bore  the  same  flaw  that  formed  the  basis  for  the  reversal  in  Phipps  v.
               State,  883  S.W.2d  138  (Tenn.  Crim.  App.  1994),  revÕd  on  other  grounds,  959  S.W.2d  538  (Tenn.
               1997). The  petitioner  also  raises  an  ineffective  assistance  of  counsel  claim  related  to  this  issue.
                       At  the  outset  we  find  that  the  direct  challenge  to  the  jury  instructions  has  been  waived  by  the
               petitionerÕs  failure  to  raise  it  on  direct  appeal.  See  Tenn.  Code  Ann.  ¤  40-30-206(g).  The  petitioner



                           5  In  all,  the  petitioner  alleges  approximately  ten  problems  related  to  the  instruction.  Many  of  these  overlap,  and
                  most  seem  connected  with  the  aforementioned  contentions.  With  regard  to  the  unrelated  assertions,  we  note  that  the
                  petitioner  essentially  failed  to  provide  supporting  autho  rity  for  his  claims;  thus,  we  find  these  waived  under  Rule  10(b)
                  of  the  Court  of  Criminal  A  ppeals  of  T  ennessee. 

                                                                          -6- neither  alleges  nor  proves  that  either  of  the  exceptions  forestalling  waiver  apply  in  this  situation.
                  Nevertheless,  this  court  has  since  considered  ineffective  assistance  of  counsel  claims  connected  with
                  jury  instructions.  See,  e.g.,  Fred  Edmond  Dean  v.  State,  No.  E1998-00135-CCA-R3-PC,  2000  WL
                  337552,  at  *4-5  (Tenn.  Crim.  App.  at  Knoxville,  Mar.  21,  2000)  applic.  granted  (Tn  11/13/00).  Thus,
                  we  address  this  issue  on  the  merits  relative  to  ineffective  assistance  of  counsel.


                                       A.  Ineffective  Assistance  of  Counsel  -  Standard  of  Review

                           When a petitioner seeks post-conviction relief on the basis of ineffective assistance, the
                  petitioner must prove Ōthat (a) the services rendered by trial counsel were deficient and (b) the
                  deficient  performance  was  prejudicial.Ķ  Powers  v.  State,  942  S.W.2d  551,  558  (Tenn.  Crim.  App.
                  1996). To  satisfy  the  deficient  performance  prong  of  this  test,  the  petitioner  must  establish  that  the
                  service  rendered  or  the  advice  given  was  below  "the  range  of  competence  demanded  of  attorneys  in
                  criminal  cases."  Baxter  v.  Rose,  523  S.W.2d  930,  936  (Tenn.  1975). Furthermore,  to  demonstrate
                  the  prejudice  required,  the  petitioner  Ōmust  show  that  there  is  a  reasonable  probability  that,  but  for
                  counsel'sĶ deficient performance, Ōthe result of the proceeding would have been different.Ķ
                  Strickland v.  Washington,  466  U.S.  668,  694,  104  S. Ct.  2052,  2068,  80  L.  Ed.  2d  674  (1984).
                  "Because  a  petitioner  must establish  both  prongs  of  the  test  to  prevail  on  a  claim  of  ineffective
                  assistance  of  counsel,  failure  to  prove  either  deficient  performance  or  resulting  prejudice  provides
                  a  sufficient  basis  to  deny  relief  on  the  claim." Henley  v.  State,  960  S.W.2d  572,  580  (Tenn.  1997).
                  Indeed,  Ōa  court  need  not  address  the  components  in  any  particular  order  or  even  address  both  if  the
                  [petitioner]  makes  an  insufficient  showing  of  one  component." Id.


                                         B.  Failure  to  Challenge  Alleged  Jury  Instruction  Error

                           As  aforementioned,  the  petitioner  acknowledges  that  the  instructions  given  in  his  case  may
                  have  been  Ōtechnically  correct;Ķ  however,  he  claims  that  when  considered  as  a  whole,  the  charge  did
                  not  effectively  set  out  the  law  in  a  manner  understandable  by  lay  jurors.  According  to  the  petitioner,
                  the  trial  court  repeated  that  diminished  capacity  was  not  a  defense  without  clarifying  that  it  could  be
                  used  to  negate  a  mental  element  of  an  offense  leading  to  a  conviction  for  a  lesser  crime.  In  addition,
                  the  petitioner  cites  a  similar  deficiency  regarding  the  voluntary  intoxication  charge.5 

                           Without  question  the  accused  in  a  criminal  trial  has  a  Ōright  to  a  correct  and  complete  charge
                  of  the  lawĶ  applicable  to  the  case.  Phipps,  883  S.W.2d  at  142.  At  this  petitionerÕs  trial,  the  court
                  charged  the  jurors  that  it  was  their  Ōduty  to  carefully  consider  each  instruction  equally  in  light  of  and
                  in  harmony  with  the  others.Ķ  The  trial  court  went  on  to  explain  that  the  jury  must  find  every  element
                  of  an  offense  proven  beyond  a  reasonable  doubt  in  order  to  find  the  petitioner  guilty. Among  those



                                                                -7- elements  listed  for  second  degree  murder  (the  offense  of  which  the  petitioner  was  convicted)  was
               Ōthat  the  killing  was  knowing.Ķ  The  trial  court  defined  ŌknowingĶ  for  the  jury.  Furthermore,  the  trial
               court  emphasized  that  Ōthe  State  must  prove  beyond  a  reasonable  doubt  the  required  culpable  mental
               state  of  the  defendant  before  he  can  be  found  guilty  of  any  offense  embraced  in  this  indictment.Ķ
               Almost  immediately  thereafter  the  trial  court  admonished  that  the  petitioner  Ōcan  only  be  found
               guilty  of  committing  the  offenses  embraced  in  this  indictment  if  he  acted  intentionally  or  knowing
               [sic],  with  respect  to  each  element  of  the  offense  .  .  .  .  Second  degree  murder  requires  that  the  act  be
               committed  intentionally  or  knowingly.Ķ  After  detailing  the  mental  elements  for  the  lesser  included
               offenses,  the  trial  court  stated:  ŌEvidence  as  to  a  defendantÕs  diminished  mental  capacity  may  be
               considered  by  you  to  show  that  he  was  incapable  of  forming  the  specific  culpable  mental  state
               required  for  any  particular  criminal  offense.  It  is  a  question  for  the  jury  as  to  whether  such  evidence
               exists  and  as  to  what  weight  it  should  be  given.Ķ
                       The trial court next set out numerous definitions relative to voluntary and involuntary
               intoxication. First  the  court  explained  that  intoxication  generally  is  Ōnot  a  defense  to  prosecution
               for  an  offenseĶ  but  that involuntary  intoxication is  a  defense  Ōif  as  a  result  of  the  involuntary
               intoxication,  the  person  lacked  substantial  capacity  either  to  appreciate  the  wrongfulness  of  the
               personÕs  conduct  or  to  conform  that  conduct  to  the  requirements  of  the  law  allegedly  violated.Ķ  After
               making  it  clear  that  a  finding  of  involuntary  intoxication  could  lead  to  an  acquittal,  the  trial  court
               charged  the  jury  that  Ō[i]ntoxication,  whether  voluntary  or  involuntary,  is  relevant  to  the  issue  of  the
               essential  element  of  the  defendantÕs  culpable  mental  state.  Ķ  Though  the  petitioner  complains  that
               the  trial  court  did  not  specifically  define  Ōculpable  mental  state,Ķ  the  court  did  follow  the  latter
               instruction with, Ō[i]n this case, the State must prove beyond a reasonable doubt the required
               culpable  mental  state  of  the  defendant  which  is  if  he  acted  intentionally  or  knowingly,  with  respect
               to  each  element  of  the  offenseĶ  in  order  to  sustain  a  second  degree  murder  conviction. In  addition,
               the  trial  court  specifically  stated:  ŌIf  you  find  that  the  defendant  was  intoxicated  to  the  extent  that
               he  could  not  have  possessed  the  required  culpable  mental  state,  then,  he  cannot  be  guilty  of  the
               offense  charged.Ķ  Finally,  the  trial  court  reiterated:  ŌIf  you  are  not  satisfied  beyond  a  reasonable
               doubt  that  the  defendant  possessed  the  culpable  mental  state,  then  you  must  find  him  not  guilty.Ķ 
                       Contrary  to  the  petitionerÕs  view,  we  find  that  the  above-outlined  instruction  fairly  and
               adequately  apprized  the  jury  of  the  law  in  an  understandable  manner.  The  situation  presented  here
               is  distinguishable  from  State  v.  Phipps  and  from  State  v.  Hall,  958  S.W.2d  679  (Tenn.  1997)Đcases
               cited  by  the  petitioner.  In  Phipps,  the  trial  court  particularly  instructed  the  jury:
                       The  defendant  contends  that  he  was  suffering  from  mental  conditions  known  as  post
                       traumatic stress disorder [PTSD], and major depression at the time of the
                       commission  of  the  criminal  offense  giving  rise  to  this  case. I  charge  you  that  post
                       traumatic  stress  disorder  and  major  depression  are  not  defenses  to  a  criminal  charge.
                       Insanity  may  be  a  defense,  however,  the  defendant  makes  no  claim  that  he  was  insane
                       at  the  time  of  the  killing  giving  rise  to  this  case.
               Phipps,  883  S.W.2d  at  142.  The  opinion  makes  no  reference  to  instructions  potentially  tying  PTSD
               and  the  major  depression  to  PhippsÕ  culpable  mental  state;  however,  in  the  instant  case  the  link
               between  the  petitionerÕs  alleged  diminished  capacity  and/or  intoxication  and  the  culpable  mental



                           6  In  his  amended  petition  filed  December  10,  1999,  the  petitioner  did  raise  an  ineffective  assistance  claim  related
                  to  trial  counselÕs  failure  to  secure  a  copy  of  the  medical  reportÕs  first  page;  however,  he  does  not  present  any  argument
                  in  his  brief  to  this  Co  urt  concern  ing  this  claim.  H  e  has,  thus,  waive  d  the  matter  p  ursuant  to  Ru  le  10(b)  of  the  Court  of
                  Criminal  Appeals  of  Tennessee.

                                                                          -8- state  was  articulated  in  the  trial  courtÕs  instructions.  Turning  to  Hall,  we  find  it  even  less  applicable
                  because  therein  the  supreme  court  did  not  wrestle  with  this  type  of  jury  instruction  issue,  but  rather
                  with  the  admissibility  of  expert  testimony.  Hall,  958  S.W.2d  at  688-92.  Thus,  though  diminished
                  capacity  is  discussed  in  connection  with  the  trial  courtÕs  refusal  to  admit  particular  testimony,  Hall
                  is  inapplicable  in  this  case.
                           Based  upon  these  findings  and  the  record  presented,  we  conclude  that  counsel  did  not  provide
                  deficient  performance in  failing  to  rai  se  this  issue  previously.  As  such,  the  petitionerÕs  ineffective
                  assistance  of  counsel  claim  lacks  merit.


                                                            Alleged  Brady  Violations

                           The petitioner next contends that the State withheld from him exculpatory evidence
                  consisting  of  the  first  page  of  a  medical  report,  a  modified  DUI  consent  form,  and  blood  drawn  at
                  the  hospital  on  the  night  of  the  murder.  Nevertheless,  again  the  petitioner  failed  to  raise  these  matters
                  on  direct  appeal  and  does  not  prove  that  either  of  the  exceptions  forestalling  waiver  apply  in  this
                  situation. See  Tenn.  Code  Ann.  ¤  40-30-206(g).6  We  therefore  conclude  that  he  has  waived  these
                  contentions.
                           Furthermore,  we  observe  that  even  if  the  petitioner  had  not  waived  these  concerns,  he  failed
                  to  provide  the  requisite  clear  and  convincing  evidence  supporting  them.  See  Tenn.  Code  Ann.  ¤  40-
                  30-210(f). In  Brady  v.  Maryland,  373  U.S.  83,  87,  83  S.  Ct.  1194,  1196-97,  10  L.  Ed.  2d  215  (1963),
                  the  Supreme  Court  held  that  "suppression  by  the  prosecution  of  evidence  favorable  to  an  accused
                  upon  request  violates  due  process  where  the  evidence  is  material  either  to  guilt  or  to  punishment,
                  irrespective  of  the  good  faith  or  bad  faith  of  the  prosecution." Additionally,  the  Tennessee  Supreme
                  Court has noted that to establish a due process violation under  Brady, all four of the following
                  prerequisites  must  be  met:
                           1.  The defendant must have requested the information (unless the evidence is
                           obviously  exculpatory,  in  which  case  the  State  is  bound  to  release  the  information
                           whether  requested  or  not);
                           2. The  State  must  have  suppressed  the  information;
                           3. The  information  must  have  been  favorable  to  the  accused;  and
                           4. The  information  must  have  been  material.
                  Irick  v.  State,  973  S.W.2d  643,  657  (Tenn.  Crim.  App.  1998). 



                           7  Though  this  analysis  focuses  on  the  second  factor,  we  believe  that  others  may  also  very  well  be  re  levant  to
                  precluding  relief  in  this  situation.

                                                                          -9- Looking  to  the  second  prerequisite  alone,7  we  find  insufficient  proof  establishing  that  the
                  State  ever  had  any  of  these  items  in  its  possession  or  that  the  State  attempted  to  prevent  the  petitioner
                  from  acquiring  them.  Concerning  the  medical  report,  the  petitioner  was  aware  that  he  had  been  to
                  the  hospital;  he  had  informed  his  attorney  of  that  fact;  the  report  was  the  petitionerÕs  own;  the  full
                  report  was  submitted  to  the  jury  at  trial  after  defense  counsel  had  subpoenaed  the  record  to  court;
                  the hospitalÕs medical records keeper testified that the  report had been  provided to the public
                  defender;  this  witness  further  stated  that  she  saw  no  indication  that  the  State  had  requested  or  been
                  provided  these  documents;  and  former  Assistant  District  Attorney  Harr  related  that  she  had  first
                  encountered  the  records  at  trial.  With  respect  to  the  alleged  modified  DUI  consent  form,  the  only
                  proof  offered  to  support  its  existence  was  the  petitionerÕs  testimony.  Finally,  regarding  the  blood
                  sample  itself,  proof  was  presented  showing  that  a  sample  had  been  ordered  and that  the  hospital  had
                  tested  it;  however,  there  was  no proof  that  this  sample  had  at  any  point  come  under  the  StateÕs
                  control. Faced  with  these  facts  and  for  the  aforementioned  reasons,  we  conclude  that  this  issue  does
                  not  entitle  the  petitioner  to  relief.


                                                               Perjured  Statements

                           Lastly,  the  petitioner  contends  that  Detective  Louie  Eleas  lied  under  oath  during  the  trial.
                  While  a  portion  of  his  accusation  is  unclear,  the  petitioner  seems  to  contend  that  Eleas  testified
                  falsely  about  receiving  the  objects  discussed  in  the  previous  issue.  The  petitioner  also  avers  that  the
                  detective  lied  about  when  the  petiti  oner  came  into  custody.
                           Once more, we find that the petitioner has waived both of these matters by failing to
                  previously  raise  them  or  provide  the  court  with  proof  of  one  of  the  exceptions  to  the  post-conviction
                  waiver  provisions.  See  Tenn.  Code  Ann  ¤  40-30-206(g).  Additionally,  regarding  the  blood  test  items,
                  a  review  of  the  analysis  in  the  previous  issue  reveals  that  the  petitioner  has  failed  to  provide  clear
                  and  convincing  evidence  that  these  items  were  ever  in  the  StateÕs  possession  before  trial,  much  less
                  that  Eleas  perjured  himself  concerning  the  items.  Finally,  although  EleasÕ  trial  testimony  reveals  that
                  he  stated  petitioner  was  not  in  custody  during  the  hospital  visit,  and  EleasÕ  post-conviction  testimony
                  reveals  that  petitioner  was  in  custody,  the  discrepancy appears  to  result  from  EleasÕ
                  misunderstanding  concerning  when  an  individual  is  legally  Ōin  custody,Ķ  rather  than  from  perjury.
                  Thus,  even  if  this  issue  were  not  waived,  it  lacks  merit.  See  Tenn.  Code  Ann.  ¤  40-30-210(f).  The
                  petitioner  is  not  entitled  to  relief  on  this  issue  as  well.




                                                                     Conclusion



                                                           -10- For  the  foregoing  reasons,  we  find  that  all  of  the  petitionerÕs  allegations  are  waived  and/or
              do  not  merit  relief.  Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.

                                                                ___________________________________ 
                                                                JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                         Assigned  on  Briefs  October  30,  2001

                   STATE  OF  TENNESSEE  v.  ROBBIE  R.  BAILEY

                  Direct  Appeal  from  the  Criminal  Court  for  Washington  County
                          No.  26013  Robert  E.  Cupp,  Judge


                            No.  E2001-00210-CCA-R3-CD
                                November  29,  2001



         The  Appellant,  Robbie  R.  Bailey,  was  indicted  by  a  Washington  County  Grand  Jury  for  one  count
         of  driving  under  the  influence,  fourth  offense,  one  count  of  driving  on  a  revoked  license,  and  two
         counts  of  vehicular  assault.  On  December  1,  2000,  Bailey  pled  guilty  to  two  counts  of  vehicular
         assault  and  one  count  of  driving  on  a  revoked  license.  After  a  sentencing  hearing  on  January  10,
         2001,  the  trial  court  sentenced  Bailey,  as  a  range  I  standard  offender,  to  the  maximum  term  of  four
         years  on  each  count  of  vehicular  assault  and  ordered  that  the  sentences  be  served  consecutively  in
         the  Department  of  Correction.
         On  appeal,  Bailey  raises  the  following  issues  for  our  review:  (1)  whether  the  sentences  imposed  for
         vehicular  assault  were  excessive;  and  (2)  whether  the  trial  court  erred  by  denying  BaileyÕs  request
         for  a  non  incarcerative  alternative  sentence.  After  review,  we  find  no  reversible  error  and  affirm  the
         judgment  of  the  trial  court.

                 Tenn.  R.  App.  P.  3;  Judgment  of  the  Criminal  Court  is  Affirmed.

         DAVID  G.  HAYES,  J.,  delivered  the  opinion  of  the  court,  in  which  JAMES  CURWOOD  WITT,  JR.  and
         JOHN  EVERETT  WILLIAMS,  J.J.,  joined.
         Steve  McEwen,  Mountain  City,  Tennessee,  and  David  F.  Bautista,  District  Public  Defender,  Johnson
         City,  Tennessee,  attorney  for  the  Appellant,  Robbie  R.  Bailey.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Michael  Moore,  Solicitor  General;  Elizabeth  B.
         Marney,  Assistant  Attorney  General;  Joe  C.  Crumley,  Jr.,  District  Attorney  General;  and  Steve
         Finney,  Assistant  District  Attorney  General,  for  the  Appellee,  State  of  Tennessee.



                           1  On  the  date  of  the  sentencing  hearing,  Dr.  Clayton  had  received  his  medical  degree  and  was  in  his  first  year
                  of  residency.

                                                                          -2- OPINION
                                                               Factual  Background


                           On  the  evening  of  March  4,  2000,  Steve  Clayton,  a  third-year  medical  student  1  in  the  East
                  Tennessee State University medical program, and his girlfriend, Kara Kuntz, a junior pre-med
                  student  at  East  Tennessee  State  University,  were  returning  from  the  grocery  store  when  they  were
                  struck  head-on  by  a  pick-up  truck  driven  by  the  Appellant. Officer  Larry  Williams,  of  the  Johnson
                  City  Police  Department,  testified  that  the  Appellant  drove  his  truck  approximately  2  Ŋ feet  across
                  the  center  line  directly  into  the  path  of  the  1998  Honda  Civic  driven  by  Clayton,  pushing  ClaytonÕs
                  vehicle  approximately  70  feet  across  another  lane  of  traffic  before  it  came  to  rest  in  a  ditch. Officer
                  Williams  testified  that  the  Appellant  did  not  have  his  headlights  on  at  the  time  of  the  collision  and
                  that  the  AppellantÕs  blood  alcohol  level  was  .228  percent. Officer  Williams  also  determined  that  the
                  Appellant  was  traveling  55  mph  in  a  30  mph  zone  within  the  city  limits. 
                           Clayton  suffered  various  injuries  as  a  result  of  the  collision,  including  fractures  to  the  right
                  radius  [forearm],  a  partial  ACL  tear  to  his  left  knee,  and  various  lacerations  to  his  head  and  hands.
                  Two  surgeries  were required  to  reduce  the  arm  fracture  through  pin  placement. The  damage  to
                  ClaytonÕs  left  knee  also  required  various  MRIÕs,  drainage  and  the  injection  of  steroids. In  addition
                  to  his  physical  injuries,  Clayton  suffered  a  two-month  delay  in  his  residency  and  a  monetary  loss  of
                  approximately  $28,000.
                           ClaytonÕs  passenger,  Ms.  Kuntz,  faired  less  favorably,  with  the  most  significant  injury  being
                  to  her  head. This  injury  resulted  in  permanent  brain  damage. At  sentencing,  Ms.  KuntzÕs  injuries
                  were  described  as  follows:
                           Mostly she had bled into her frontal lobes, and she had what they call an
                           intraparenchymal  bleed  as  well  as  a  contrecoup  injury  .  .  .  She  bled  into  the  front  part
                           of [her] brain which is known to control centers for personality, memory, and
                           knowledge  -  socially  appropriate  behavior  I  guess  is  the  best  way  to  put  it  -  as  well
                           as various other bleeds.  And then she damaged the back part of her brain that
                           controls  your  ability  to  walk  and  initiate  walking  .  .  .  When  you  walk  you  donÕt  have
                           to  think  about taking  a  step  or  keeping  your  balance  because  that  part  of  your  brain
                           constantly  adjusts. Well,  she  had  injured  it  and  [it]  just  made  all  types  of  coordinated
                           movement  like  that  very,  very  difficult. She [had]  several  other  injuries  -  the  biggest
                           injury  by  far  was  .  .  .  the  brain  injury  .  .  .  she  had  a  .  .  .  fracture  .  .  .  in  her  right  tibia.
                           ItÕs  called  a  tibea  plateau  fracture  .  .  .  but  basically  she  had  shattered  the  main  bone
                           of  the  lower leg and actually  had  free  floating  bones  and  stuff  in  there. And  the
                           medical  treatment  required  [doctors]  to  go  in  and  actually  put  an  external  fixator  in



                                                                -3- there  [which]  runs  wires  in  to  kind  of  push  all  the  bones  together  so  they  could  heal
                       appropriately.  And  for  one  reason  or  another,  either  during  the  accident  or  as  a  result
                       of  the  medical  treatment  -  thereÕs  a  nerve  that  runs  close  to  where  they  had  to  go  in
                       to  fix  those  bones. And  she  has  since  .  .  .  sustained  what  we  call  foot  drop  or
                       inability  to  lift  her  foot  up  like  this  .  .  .  She  also  received  a  patellar  fracture  on  her  left
                       side  as  well  as  multiple  fractures  in  her  left  hand. She  had,  once  again,  a  fracture  of
                       one of the metacarpals in her left hand  which the orthopedic surgeon just said
                       basically  had  [been]  just  totally  .  .  .  for  lack  of  a  better  word,  smushed,  I  mean,  just
                       totally  destroyed  .  .  .  In  addition  to  this,  she  also  received  a  fracture  of  her  left  arm
                       as  well.
               Ms.  Kuntz  spent  a  total  of  77  days  in  the  hospital  and  in  rehabilitation  facilities. In  addition  to  her
               physical  injuries,  KaraÕs  father  estimated  that  their  family  had  incurred  a  monetary  loss  of  $300,000
               to  $400,000.
                       Prior  the  collision,  Ms.  Kuntz  was  working  to  complete  her  undergraduate  degree  and  had
               received  early  acceptance  into  the  East  Tennessee  State  University  medical  program. At  trial,  Ms.
               KuntzÕs  father  described  her  prior  to  the  collision  and  the  effect  the  collision  has  had  on  their  lives:
                       I  would  like  to  tell  you  about  Kara. Kara  is  the  perfect  daughter. Beginning  in
                       elementary  school, Kara was always an overachiever.  She competed and won
                       trophies  and  ribbons  in  math,  art,  county  fairs  and  many  other  competitions. She
                       took  dance  and  music  lessons  for  years. Kara  seldom  received  a  grade  below  an  A
                       in  all  subjects  and  she  rarely  missed  a  day  of  school.
                       Throughout  middle  school,  Kara  continued  to  excel  in  all  subjects.  She  cluttered  our
                       home  with  materials  for  science  fair  projects  and  the  Gifted  and  Talented  Program.
                       Kara  became  very  active  in  volunteer  work.
                       When  Kara  entered  high  school,  we  thought  she  had  done  it  all,  but  this  was  only  the
                       beginning.  Kara received straight AÕs throughout high school and was on the
                       PrincipalÕs  List  for  all  four  years.  She  continued  to  receive  award  after  award  for  her
                       academic  achievements.  She  was  a  member  of  the  high  school  marching  and  concert
                       bands. She  volunteered  at  the  ChildrenÕs  Center  for  abused  and  neglected  children
                       and continued to do so on her summer breaks from college.  She faithfully
                       volunteered  for  Special  Olympics,  Christmas  in  April  and  too  many  other  events  to
                       mention.
                       Kara  completed  her  high school  credit  requirements  early  and  took  four  college
                       courses  in  her  junior  and  senior  years  of  high  school. Kara  graduated  high  school
                       with  a  4.5  grade  point,  scored  32  on  her  ACT,  and  1470  on  her  SAT  exams. Kara
                       was  the  valedictorian  in  her  class  of  400  students. We  were  proud  parents.



                           2  The  Appellant  had  DUI  convictions  in  the  following  years:  1993  DUI  conviction,  1996  DUI  conviction,  1997
                  DUI  conviction. After  each  conviction,  the  Appellant  successfully  completed  his  probationary  period  for  each  of  these
                  offenses.

                                                                          -4- Kara  was  offered  over  $500,000  in  college  scholarship  funds. She  visited  at  least
                           eight  colleges  and  chose  ETSU  because  the  people  were  friendly  and  the  faculty  was
                           very encouraging and supported her meeting her goals.  Kara was given a full
                           scholarship  and  admitted  in  the  pre-medicine  program. Kara  enjoyed  her  first  two
                           and  a  half  years  at  ETSU. She  continued  to  excel  academically  and  to  do  volunteer
                           work in the community.   Kara became a sorority member and enjoyed the
                           companionship  of  her  sisters. Together  they  went  dancing,  hiking,  shopping,  and
                           chasing  boys.  Unfortunately,  because  of  KaraÕs  injuries  she  can  no  longer  participate
                           in  these  fun  things.
                           During  her  sophomore  year  she  met  Mr.  Clayton  and  together  they  planned  marriage
                           and a future together.  Sadly, due to the traumatic situation [the Appellant] has
                           inflicted  on  our  family,  this  relationship  has  been  destroyed.
                           Kara  continues  to  attend  rehab  and  works  very  hard. Her  brain  injury  has  left  her
                           with  a  lifelong  short-term  memory  loss. Her  cerebella  injury  has  made  it  difficult  for
                           her  to  walk  because  of  difficulty  balancing. She  will  need  another  surgery  on  her  left
                           hand  due  to  crushed  bones  that  have  left  her  hand  deformed. Her  left  arm  has  been
                           broken  and  she  has  drop  foot  due  to  the  break  in  her  right  leg. She  has  aged  50  years
                           due  to  destroyed  nerves  in  her  entire  body. Kara  no  longer  has  her  beautiful  smile
                           that  always  lit  up  the  room  when  she  walked  in  .  .  . Kara  will  never  be  the  person  she
                           was  born  to  be. 
                  At  the  time  of  sentencing,  Ms.  Kuntz  had  re-entered  college  on  a  Ōtrial  basisĶ  and  was  struggling  to
                  complete  her  undergraduate  degree  by  taking  only  seven  hours  a  semester. Due  to  the  vehicular
                  assault,  KaraÕs  father  and  mother  began  to  lead  virtually  separate  lives. KaraÕs  mother  stayed  with
                  Kara  to  help  her  with  Ōeveryday  livingĶ  and  her  rehabilitation  program,  while  KaraÕs  father  remained
                  in  Maryland  with  their  thirteen-year-old  daughter. KaraÕs  father  testified  that  he,  his  wife,  and  his
                  other  daughter  had  all  been  profoundly  traumatized  and  psychologically  affected  by  the  event.
                           The  Appellant  sustained  no  injuries  in  the  crash. At  the  time  of  these  offenses,  he  had  three
                  prior DUI convictions and was driving  on a suspended license.2  At sentencing, the Appellant
                  testified  that  he  did  remember  drinking  at  home  that  night,  but  has  no  recollection  of  the  event  or
                  collision  that  followed  until  the  ambulance  arrived  at  the  scene. He  was  apologetic,  remorseful,  and
                  admitted  that  he  has  an  alcohol  abuse  problem. The  Appellant,  age  29  at  sentencing,  further  testified
                  that  he  had  been  fully  employed  since  age  18  and  was  willing  to  pay  restitution  to  the  victims  and
                  their  families.



                                                                -5- At  the  close  of  proof,  the  trial  court  sentenced  the  Appellant  to  the  maximum  sentence  of  four
               years  on  each  vehicular  homicide  conviction  and  ordered  that  those  sentences  run  consecutively,  for
               an  effective  sentence  of  eight  years.



                                      I. Whether  The  Sentences  Imposed  Are  Excessive

                       The  Appellant  argues  that  the  trial  court  erred  by  sentencing  him  to  the  four-year  maximum
               sentence  within  the  range  for  each  vehicular  assault  conviction. He  contends  that  the  trial  court
               misapplied  enhancement  factors,  failed  to  apply  or  properly  weigh  mitigating  factors,  and  erred  in
               ordering  the  two  vehicular  assault  convictions  to  be  served  consecutively. 
                       The  Appellant  bears  the  burden  of  establishing  that  the  sentence  imposed  by  the  trial  court
               was  erroneous.  State  v.  Ashby,  823  S.W.2d  166,  168  (Tenn.  1991);  State  v.  Boggs,  932  S.W.2d  467,
               473  (Tenn.  Crim.  App.  1996);  State  v.  Fletcher,  805  S.W.2d  785,  786  (Tenn.  Crim.  App.  1991).  In
               determining  whether  the  Appellant  has  carried  his  burden,  this  court  must  consider  the  evidence
               received  at  the  trial  and  the  sentencing  hearing,  the  pre-sentence  report,  the  principles  of  sentencing,
               the  arguments  of  counsel,  the  nature  and  characteristics  of  the  offenses,  existing  mitigating  and
               enhancing  factors,  statements  made  by  the  offender,  and  the  potential  for  rehabilitation.  Ashby,  823
               S.W.2d  at  169;  Tenn.  Code  Ann.  ¤  40-35-210. Furthermore,  when  a  defendant  challenges  the
               sentence  imposed  by  the  trial  court,  this  court  conducts  a  de  novo  review  with  a  presumption  that  the
               determinations made by  the trial court are correct.  Tenn. Code Ann. ¤ 40-35-401(d).  This
               presumption  is  only  applicable  if  the  record  demonstrates  that  the  trial  court  properly  considered
               relevant  sentencing  principles. Ashby,  823  S.W.2d  at  169. With  respect  to  the  issue  of  the  length
               of  sentence  imposed,  we  find  that  the  trial  court  erred  in  its  application  of  certain  enhancement
               factors. Thus,  our  review  of  this  issue  is  conducted without  a  presumption  of  correctness  pursuant
               to  Tennessee  Code  Annotated  ¤  40-35-401(d). 
                       The  Appellant  was  convicted  of  two  counts  of  vehicular  assault,  both  Class  D  felonies.  Tenn.
               Code  Ann.  ¤  39-13-106(a)  &  (b).  ŌA  person  commits  vehicular  assault,  who,  as  the  proximate  result
               of  the  personÕs  intoxication  as  set  forth  in  ¤  55-10-401,  recklessly  causes  serious  bodily  injury  to
               another  person  by  the  operation  of  a  motor  vehicle.Ķ Tenn.  Code  Ann.  ¤  39-13-106(a).  Because
               the  Appellant  is  a  range  I  standard  offender,  the  range  of  punishment  for  a  Class  D  felony  is  Ōnot  less
               than  two  (2)  years  nor  more  than  four  (4)  years.Ķ  Tenn.  Code  Ann.  ¤  40-35-112(a)(4).  Furthermore,
               the  presumptive  sentence  would  be  the  minimum  sentence  in  that  range  if  there  are  no  enhancing  or
               mitigating  factors  present. Tenn.  Code  Ann.  ¤  40-35-210(c). If  there  are  both  enhancing  and
               mitigating  factors  present,  the  trial  court  must  Ōenhance  the  sentence  within  the  range  as  appropriate
               for the enhancement factors, then reduce the sentence within the range as appropriate for the
               mitigating  factors.Ķ Tenn.  Code  Ann.  ¤  40-35-210(e). 
                       The  Appellant's  sentence  is  not  determined  by  the  mathematical  process  of  adding  the  sum
               total  of  enhancing  factors  present  then  subtracting  from  this  figure  the  mitigating  factors  present  for



                                                                -6- a  net  number  of  years. Rather,  the  weight  to  be  afforded  an  existing  factor  is  left  to  the  trial  court's
               discretion  so  long  as  the  court  complies  with  the  purposes  and  principles  of  the  1989  Sentencing  Act
               and  its  findings  are  adequately  supported  by  the  record. Boggs,  932  S.W.2d  at  475. The  weight  to
               be afforded mitigating and enhancement factors derives from balancing relative degrees of
               culpability  within  the  totality  of  the  circumstances  of  the  case  involved. Id.  at  476.

                                                    A.  Enhancement  Factors

                       At  sentencing  the  trial  court  applied  four  enhancement  factors  to  each  of  the  AppellantÕs
               convictions  for  vehicular  assault,  namely:  (1)  the  defendant  has  a  previous  history of criminal
               convictions  or  criminal  behavior  in  addition  to  those  necessary  to  establish  the  appropriate  range;
               (2)  the  offense  involved  more  than  one  victim;  (3)  the  personal  injuries  inflicted  upon  or  the  amount
               of  damage  to  property  sustained  by  or  taken  from  the  victim  was  particularly  great;  and  (4)  the
               defendant  had  no  hesitation  about  committing  a  crime  when  the  risk  to  human  life  was  high. Tenn.
               Code  Ann.  ¤  40-35-114(1),  (3),  (6),  &  (10).
                       With  respect  to  enhancement  factor  (1),  Tenn.  Code  Ann.  ¤  40-35-114(1),  we  find  that  the
               trial  court  properly  applied  this  factor  to  both  vehicular  assault  convictions.  The  Appellant  had  three
               prior  DUI  convictions.  As  such,  the  AppellantÕs  past  criminal  history  is  more  than  sufficient  to  apply
               this  enhancement  factor.
                       With  respect  to  enhancement  factor  (3),  Tenn.  Code  Ann.  ¤  40-35-114(3),  the  State  concedes
               that  it  was  error  for  the  trial  court  to  apply  this  factor.  We  agree.  This  court  has  previously  held  that
               enhancement factor (3) may  not be applied when the defendant is separately  convicted of the
               offenses  charged  against  each  victim. State  v.  Williamson,  919  S.W.2d  69,  82  (Tenn.  Crim.  App.
               1995);  State  v.  Makoka,  885  S.W.2d  366,  373  (Tenn.  Crim.  App.),  perm.  to  appeal  denied,  (Tenn.
               1994)(overruled  on  other  grounds);  State  v.  Lambert,  741  S.W.2d  127,  134  (Tenn.  Crim.  App.
               1987). In  the  present  case,  the  Appellant  was  separately  charged  and  convicted  of  vehicular  assault
               against  both  victims.  Thus,  we  find  that  the  trial  court  erred  by  applying  this  factor.
                       With  respect  to  enhancement  factor  (6),  Tenn.  Code  Ann.  ¤  40-35-114(6),  the  Appellant
               argues  that  the  trial  court  erred  in  applying  this  factor  because  Ōthe  personal  injuries  sustained  by  the
               victim  being  particularly  great  is  an  element  of  vehicular  assault.Ķ The  State  again  concedes  this
               error  with  respect  to  the  conviction  involving  the  victim  Kuntz. We  agree. Enhancement  factor  (6)
               is  not  applicable  to  this  vehicular  assault  conviction  because  great  personal  injuries  or  its  equivalent,
               serious  bodily  injury,  is  an  element  of  the  offense. Williamson,  919  S.W.2d  at  82. 
                       The  State  does,  however,  argue  that  the  trial  court  properly  applied  enhancement  factor  (6)
               to  the  vehicular  assault  conviction  involving  the  victim  Clayton. Specifically,  the  State  asserts  that
               the  loss  of  ClaytonÕs  vehicle,  valued  at  approximately  $12,000,  is  sufficient  to  support  application
               of factor (6).  In  State v. John D. Neblett, No. 01C01-9805-CC-00231 (Tenn. Crim. App. at
               Nashville,  Sept.  24,  1999),  perm.  to  appeal  denied,  (Tenn.,  Feb.  14,  2001),  this  court  upheld  the  trial
               courtÕs  application  of  enhancement  factor  (6)  where  a  vehicular  assault  victimÕs  car  was  totaled



                           3  The  indictment  charged  that  the  Appellant  was  Ōoperating  a  motor  vehicle  on  South  Roan  Street,  a  public
                  way/premise  generally  frequented  by  the  public  at  large.Ķ

                                                                          -7- during  the  wreck. In  this  case,  the  collision  totaled  ClaytonÕs  vehicle,  resulting  in  property  damage
                  of  $12,000. See  Tenn.  Code  Ann.  ¤  40-35-114(6). We  conclude  that  the  property  damage  incurred
                  was  particularly  great  and  that  the  trial  court  properly  applied  enhancement  factor  (6)  to  the  offense
                  involving  the  victim  Clayton.
                           Finally,  the  Appellant  argues  that  the  trial  court  erred  by  applying  enhancement  factor  (10),
                  Tenn. Code Ann. ¤ 40-35-114(10), because Ōthere  was no evidence that anyone other than the
                  victims  were subject to be injured by  the Appellant.Ķ  In so applying this factor, the trial court
                  concluded,  Ōhis  conduct  that  night  not  only  exposed  himself  but  everybody  on  the  highway  to  a  high
                  risk  of  human  life.Ķ Enhancement  factor  (10)  may  be  applied  in  circumstances  where  individuals
                  other  than  the  victim  are  in  the  area  of  the  defendantÕs  criminal  conduct  and  are  subject  to  injury.

                  State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995)(distinguished on other grounds).

                  Notwithstanding,  in  State  v.  Rhodes,  917  S.W.2d  708,  714  (Tenn.  Crim.  App.  1995),  this  court  held
                  that  enhancement  factor  (10)  does  not  apply  to  vehicular  assault  where  the  record  does  not  indicate
                  that any  other person was  actually  threatened by  defendantÕs driving because Ōvehicular  assault
                  [unquestionably]  reflects  the  legislatureÕs  appreciation  of  the  substantial  risk  of  and  actual  degree
                  of  harm  that  results  from  DUI  caused  injury.Ķ Id. 

                           In the present case, we find that the record sufficiently corroborates the trial courtÕs
                  application  of  enhancement  factor  (10). At  the  time  of  the  impact,  the  Appellant  had  a  blood  alcohol
                  content  of  .228  percent,  more  than  twice  the  legal  limit. We  note  that  the  vehicular  assaults  occurred
                  within  the  city  limits  and  that  the  Appellant  was  traveling  55  mph  in  a  30  mph  zone. The  Appellant
                  remembers nothing about getting into  his vehicle and driving on that particular evening.   The
                  Appellant  crossed  the  center  line  and  proceeded  into  on-coming  traffic,  colliding  head-on  with  the
                  vehicle  driven  by  Clayton. Although  the  record  does  not  specifically  list  the  names  of  persons  on
                  the  road  that  night,  we  find  that  the  facts  of  this  case  sufficiently  infer  that  individuals  traveling  on
                  this  highway  were  also  subject  to  danger  or  injury  that  night.3 See  State  v.  Davis  Oliver  Brown,  No.
                  03C01-9608-CR-00313  (Tenn.  Crim.  App.  at  Knoxville,  Dec.  16,  1997),  perm.  to  appeal  denied,

                  (Tenn.  Oct.  12,  1998). The  trial  court  properly  applied  enhancement  factor  (10)  to  both  victims.

                                                              B. Mitigating  Factors

                           At  sentencing,  the  trial  court  applied  only  one  mitigating  factor:  that  the  Appellant  was  truly
                  remorseful.  Tenn. Code Ann. ¤ 40-35-113(13).  However, when weighing the enhancing  and
                  mitigating factors, the trial court stated that it only afforded this mitigating factor little weight
                  because  a  defendantÕs  remorse  will  always  occur  after  damage  to  the  victim  has  been  done. The
                  Appellant  argues  that  the  trial  court  erred  by  finding  this  factor  and  then  according  it  only  minimal
                  weight. Specifically,  the  Appellant  contends  that  Ōby  this  reasoning,  this  factor  would  never  be
                  entitled  to  any  weight,  since  logic  dictates  that  [it  is  only  when]  the  crime  has  already  occurred,  and
                  [its]  consequences  brought  about,  [that]  remorse  can  be  demonstrated.Ķ



                                                                -8- Again,  we  note  that  the  process  of  weighing  enhancing  factors  versus  mitigating  factors  is
               a  matter  left  to  the  trial  courtÕs  sound  discretion  so  long  as  it  complies  with  the  principles  and
               purposes  of  the  1989  Sentencing  Act. In  the  present  case,  the  trial  court  expressly  noted  that  it
               believed the Appellant to be remorseful at sentencing.  Nonetheless, after considering the
               AppellantÕs  three  prior  DUI  convictions,  the  injuries  sustained  by  the  two  victims,  and  the  other
               evidence  introduced  at  sentencing,  the  trial  court  found  the  AppellantÕs  remorse  to  be  of  little  value
               or  weight  in  determining  the  appropriate  sentence. Furthermore,  the  record  is  devoid  of  any  other
               actions  on  the  part  of  the  Appellant,  prior  to  sentencing,  where  he  showed  or  expressed  his  remorse
               for  the  incident. When  comparing  the  enhancing  factors  found  at  sentencing  versus  the  AppellantÕs
               remorse,  we  do  not  find  that  the  trial  court  abused  its  discretion  by  affording  this  mitigator  only
               slight  weight  in  arriving  at  the  final  sentence.
                       The  Appellant  also  asserts  that  the  trial  court  erred  by  failing  to  give  him  credit  for  a  stable
               employment  history. Over  a  ten-year  period,  the  Appellant  worked  in  the  electronics  field  for
               various  employers. Although  he  worked  for  several  different  employers  during  this  period,  he
               contends  that  he  always  maintained  full-time  employment. The  Appellant  makes  no  argument  as
               to  why  his  employment  history  should  operate  to  reduce  the  length  of  his  sentence. Indeed,  we
               would  note  that  a  stable  employment  history,  or  the  lack  thereof,  is  typically  viewed  as  a  factor  in
               determining  a  defendantÕs  potential  for  rehabilitation  within  the  context  of  entitlement  to  alternative
               sentencing. As  noted  by  the  language  of  Section  113,  in  some  situations  prior  employment  history,
               Ōif  appropriate,Ķ can be considered as a proper mitigating factor  pursuant  to Tennessee Code
               Annotated ¤ 40-35-113(13).  Nonetheless, application of this factor, absent a  gross abuse of
               discretion,  is  a  decision  which  rests  with  the  trial  court. Even  if  we  assume  that  the  factor  was
               applicable  here,  this  factor,  when  compared  with  the  enhancement  factors  applied,  is  of  such  little
               weight  that  it  would  not  have  affected  the  determination  of  the  specific  sentence  imposed.
                       Lastly,  the  Appellant  argues  that  the  trial  court  erred  by  failing  to  consider  his  ŌlengthyĶ  ten-month 
                      incarceration  at  the  time  of  sentencing  as  a  mitigating  factor. Again,  the  Appellant  provides
               no  argument  or  reasoning  as  to  why  this  fact  should  be  considered  as  a  mitigating  factor.  Tennessee
               Code  Annotated  ¤  40-35-113(13)  provides  that,  in  order  for  a  mitigating  factor  to  apply  under  this
               subsection,  the  factor  must  be  consistent  with  the  purposes  of  this  chapter. We  hold  that  service  of
               pretrial  confinement  by  a  defendant  is  not  a  factor  consistent  with the purposes  of  sentencing
               mitigation. Thus,  the  trial  court  did  not  err  by  failing  to  apply  this  factor.
                       In  summary,  we  apply  enhancement  factors  (1)  and  (10)  to  the  vehicular  assault  conviction
               involving  Ms.  Kuntz.  With  respect  to  the  vehicular  assault  conviction  involving  the  victim  Clayton,
               we  apply  enhancement  factors  (1),  (6),  and  (10).  Mitigating  factor  (1)  is  also  applied  to  both  victims.
               After  de  novo  review,  we  conclude  that  four-year  sentences  on  each  count  of  vehicular  assault  are
               appropriate  sentences  in  this  case.



                                                                -9- C. Consecutive  Sentencing

                       The  Appellant  next  argues  that  the  trial  court  erred  by  ordering  his  two  convictions  for
               vehicular  assault to run  consecutively  to  one  another,  for  an  effective  sentence  of  eight  years.
               Specifically,  he  argues  that  Ōhe  is  not  a  dangerous  offender  based  upon  this  one  reckless  act  of
               crossing  into  the  opposite  side  of  the  road,  when  there  was  not  proof  that  this  was  a  highly  traveled
               roadway,  or  that  [his]  intoxication  caused  him  to  drive  recklessly  prior  to  swerving  over  and  striking
               Mr.  ClaytonÕs  vehicle.Ķ The  Appellant  also  argues  that  an  extended  sentence  was  not  necessary  to
               protect  the  public  because  his  three  prior  DUI  convictions  were  misdemeanors  and  not  crimes  of
               violence. Thus,  the  Appellant  contends  that  his  sentences  for  vehicular  assault  should  be  served
               concurrently.
                       With  reference  to  the  particular  facts  of  this  case,  Tennessee  Code  Annotated  ¤  40-35-
               115(b)(4)  provides  that  the  court  may  order  sentences  to  run  consecutively  if  the  court  finds  by  a
               preponderance  of  the  evidence  that:
                       (4)    The  defendant  is  a  dangerous  offender  whose  behavior  indicates  little  or  no
                              regard  for  human  life,  and  no  hesitation  about  committing  a  crime  in  which
                              the  risk  to  human  life  is  great.
               This  courtÕs  review  of  the  manner  of  service  of  a  sentence  is  de  novo  with  a  presumption  that  the
               determination  made  by  the  trial  court  is  correct. Tenn.  Code  Ann.  ¤  40-35-401(d). Following  de
               novo  review,  the  presumption  of  correctness  is  applied  to  the  trial  courtÕs  findings  relative  to  the
               issue  of  consecutive  sentencing. The  Appellant  bears  the  burden  of  proving  the  impropriety  of  the
               consecutive  nature  of  the  sentences  imposed.  Sentencing  Commission  Comments,  Tenn.  Code  Ann.
               ¤  40-35-401(d). 
                       Before  consecutive  sentences  can  be  imposed,  the  trial  court  must  (1)  first  determine  that  one
               or  more  of  the  statutorily  enumerated  criteria  of  Tenn.  Code  Ann.  ¤  40-35-115  exists;  and  (2)  if  the
               defendant  is  found  to  be  a  dangerous  offender,  find  that  the  aggregate  sentence  is  reasonably  related
               to  the  severity  of  the  offenses  and  is  necessary  to  protect  the  public  from  further  criminal  activity  of
               the  offender. State  v.  Wilkerson,  905  S.W.2d  933,  937  (Tenn.  1995);  see  also  State  v.  Lane,  3
               S.W.3d 456  (Tenn.  1999)(holding Wilkerson  factors  were  limited  to  sentencing  of  Ōdangerous
               offendersĶ). Notwithstanding  proof  of  these  criteria,  a  sentencing  court  retains  the  discretion  of
               imposing  consecutive  sentences. On  appeal,  the  exercise  of  the  trial  courtÕs  discretion  is  afforded
               great weight, provided the court correctly applied the principles of consecutive sentencing.
               Moreover,  in  determining  whether  the  trial  court  providently  exercised  its  discretion,  Ōthe  overriding
               concernĶ  is  the  fairness  of  the  resulting  sentence  under  all  the  circumstances.
                       In  the  present  case,  when  ordering  that  the  two  convictions  for  vehicular  assault  be  served
               consecutively,  the  trial  court  reasoned  in  relevant  part  as  follows:



                                                           -10- [B]efore  consecutive  sentence[s]  can  be  imposed,  the  trial  court  must,  one  (1),  first
                     determine  that  one  or  more  of  the  statutory  enumerated  criteria  [of]  40-35-115  exists.
                     IÕve  done  that. It  does. Two  (2),  ŌIf  the  defendant  is  found  to  be  a  dangerous
                     offender  while  the  aggregate  sentence  is  reasonably  related  to  the  severity  of  the
                     offenses  and  is  necessary  to  protect  the  public  from  further  criminal  activity.Ķ  And
                     it  goes  on  to  tell  us  consecutive  sentences  are  imposed  upon  dangerous  offenders  to
                     protect  society  against  offenders  who  commit  aggravated  crimes  that  pose  a  high  risk
                     to  human  life.  ThatÕs  exactly  what  this  case  is  about.  His  conduct  that  night  not  only
                     exposed  himself  but  everybody  on  that  highway  to  a  high  risk  of  human  life  .  .  .  He
                     sucked  up  that  alcohol  and  chose  to  get  in  a  vehicle.  He  knew  what  the  consequences
                     of  that  were.  He  didnÕt  care  because  the  alcohol  had  taken  away  his  ability  to  reason
                     that. But  that  was  voluntary,  taking  of  that  alcohol. This  Court  finds  that  the
                     definitions  in  Wilkerson  have  been  met  and  the  Court  does  find  that  he  is  a  dangerous
                     offender. ThatÕs  evident  from  all  of  the  facts  in  this  case.
              In  this  case,  the  record  clearly  supports  the  trial  courtÕs  finding  that  the  Appellant  is  a  dangerous
              offender. The  Appellant  has  repeatedly  endangered  the  lives  of  other  motorists  by  persistently
              committing  the  offense  of  DUI.  Indeed,  this  court  has  previously  held  that  a  defendant  with  multiple
              DUI  convictions  Ōmay  be  classified  as  a  Ôdangerous  offenderÕ  for  whom  consecutive  sentencing  is
              appropriate.Ķ  State  v.  Bobby  J.  Young,  No.  M1998-00402-CCA-R3-CD  (Tenn.  Crim.  App.  at
              Nashville,  Dec.  15,  1999),  perm.  to  appeal  denied,  (Tenn.,  July  17,  2000)(citing  State  v.  Carl  E.
              Campen,  No.  01C01-9512-CC-00433  (Tenn.  Crim.  App.  at  Nashville,  Oct.  24,  1997),  perm.  to
              appeal  denied,  (Tenn.,  Sept.  21,  1998));  State  v.  Anthony  Raymond  Bell,  No.  03C01-9503-CR-00070
              (Tenn.  Crim.  App.  at  Knoxville,  Mar.  11,  1996),  perm.  to  appeal  denied,  (Tenn.  Sept.  3,  1996).  We
              further  find  that  a  consecutive  sentence  is  necessary  to  protect  society  from  the  AppellantÕs  criminal
              conduct. The  Appellant  has  had  three  prior  DUI  convictions  and,  at  the  time  of  these  crimes,  was
              driving  on  a  revoked  license. Notwithstanding,  the  Appellant  again  chose  to  drive  in  a  highly
              intoxicated  state,  thereby  demonstrating  his  lack  of  concern  for  his  alcohol  problems  or  the  safety
              of  others.  Moreover,  it  is  obvious  that  his  prior  lenient  punishments  did  nothing  to  deter  his  conduct.
              Accordingly,  we  find  that  the  aggregated  sentence  imposed  was  reasonably  related  to  the  severity
              of  the  offenses. Thus,  the  imposition  of  consecutive  sentences  was  not  error.

                                          II. Probation/Alternative  Sentencing

                     The  Appellant  argues  that  the  trial  court  erred  by  not  finding  him  eligible  for  probation,  split-confinement 
                          or  placement  in  Community  Corrections.  The  determination  of  whether  the  Appellant
              is  entitled  to  an  alternative  sentence  and  whether  the  Appellant  is  entitled  to  full  probation  are
              different  inquiries. Boggs,  932  S.W.2d  at  477.  Where  a  defendant  is  entitled  to  the  statutory
              presumption  of  alternative  sentencing,  the  State  has  the  burden  of  overcoming  the  presumption  with
              evidence to the contrary.  State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.
              1995)(overruled  on  other  grounds).  ŌConversely,  the  defendant  has  the  burden  of  establishing  [his]
              suitability  for  total  probation,  even  if  the  defendant  is  entitled  to  the  statutory  presumption  of
              alternative  sentencing.Ķ Id.;  Boggs,  932  S.W.2d  at  477.  Furthermore,  we  must  review  the  trial



                                                           -11- courtÕs  sentence  de  novo  with  a  general  presumption  of  correctness. Ashby,  823  S.W.2d  at  168;
              Tenn.  Code  Ann.  ¤  40-35-401(d). Again,  with  respect  to  alternative  sentencing,  this  presumption
              applies  as  the  record  demonstrates  that  the  trial  court  properly  considered  relevant  sentencing
              principles.  Ashby,  823  S.W.2d  at  168;  Tenn.  Code  Ann.  ¤  40-35-401(d).  We  begin  our  review  with
              the  fact  that  the  Appellant  is  entitled  to  the  statutory  presumption  of  an  alternative  sentence  in  view
              of  his  convictions  for  Class  D  felonies  as  a  range  I  offender. Tenn.  Code  Ann.  ¤  40-35-102(6).


                                              A. Denial  of  Total  Probation

                     The  Appellant,  in  effect,  contends  that  the  trial  court  erred  by  denying  him  total  probation.
              As  previously  stated,  the  defendant  has  the  burden  of  establishing  his  or  her  suitability  for  probation.

              State  v.  Dykes,  803  S.W.2d  250,  259  (Tenn.  Crim.  App.  1990)(overruled  on  other  grounds). To
              meet  that  burden,  the  defendant  must  demonstrate  that  probation  will  Ōsubserve  the  ends  of  justice
              and  the  best  interest  of  both  the  public  and  the  defendant.Ķ  Id. Although  not  the  only  factor,  the
              defendantÕs  amenability  to  rehabilitation  is  an  important  consideration  when  determining  his  or  her
              suitability  for  probation. See  Bingham,  910  S.W.2d  at  455;  Tenn.  Code  Ann.  ¤  40-35-103(5). The
              following  criteria,  while  not  controlling,  shall  also  be  accorded  weight  by  the  sentencing  court  when
              deciding  the  defendant's  suitability  for  probation: (1)the  nature  and  circumstances  of  the  criminal
              conduct  involved,  Tenn.  Code  Ann.  ¤  40-35-210(b)(4);  (2)  whether  a  sentence  of  full  probation
              would  unduly  depreciate  the  seriousness  of  the  offense,  Tenn.  Code  Ann. ¤  40-35-103(1)(B);  and
              (3)  whether  a  sentence  other  than  full  probation  would  provide  an  effective  deterrent  to  others  likely
              to  commit  similar  crimes,  Tenn.  Code  Ann.  ¤  40-35-103(1)(B). Bingham,  910  S.W.2d  at  456. 
              Denial  of  probation  may  be  based  solely  upon  the  circumstances  of  the  offense  when  they  are  of  such
              a  nature  as  to  outweigh  all  other  factors  favoring  probation. Fletcher,  805  S.W.2d  at  788-89. 
                     Upon de novo review, we find the facts and circumstances of this case to  be clearly
              aggravated. The  record  reveals  a  callous  indifference  by  the  Appellant  for  the  safety  of  those
              traveling  the  highways  of  this  state.  Despite  his  three  prior  DUI  convictions,  the  Appellant  continued
              to  drive  intoxicated  and,  as  a  result,  seriously  injured  two  victims.  Common  sense  dictates  that  tragic
              results  are  inevitable  when  a  person  chooses  to  drive  a  vehicle  on  a  public  street,  at  an  excessive
              speed,  without  lights,  at  night,  and  with  a  blood  alcohol  content  of  .22  percent. The  trial  court  also
              found  that  the  Appellant  was  not  subject  to  rehabilitation,  ŌHe  chose  to  be  a  drunk  in  an  automobile
              at  least  three  times  prior  to  this  date,  was  arrested  for  it,  served  time  for  it.Ķ We  agree  with  the  trial
              court  that  total  probation  in  this  case  would  not  Ōsubserve  the  ends  of  justiceĶ  or  be  in  Ōthe  best
              interest  of  both  the  public  and  the  defendant.Ķ  Accordingly,  the  trial  court  properly  declined  to  grant
              the  Appellant  total  probation.

                                               B. Alternative  Sentencing

                     In  the  alternative,  the  Appellant  contends  that  he  was  at  least  entitled  to  the  alternative
              sentence  of community corrections or split-confinement.  When imposing a sentence of total



                                                           -12- confinement,  the  trial  court  should  base  its  decision  on  the  considerations  listed  in  Tennessee  Code
              Annotated  ¤  40-35-103(1):
                     (A)   Confinement  is  necessary  to  protect  society  by  restraining  a  defendant
                            who  has  a  long  history  of  criminal  conduct;
                     (B)    Confinement  is  necessary  to  avoid  depreciating  the  seriousness  of  the  offense
                            or  confinement  is  particularly  suited  to  provide  an  effective  deterrence  to
                            others  likely  to  commit  similar  offenses;  or
                     (C)   Measures  less  restrictive  than  confinement  have  frequently  or  recently
                            been  applied  unsuccessfully  to  the  defendant.
              In  the  present  case,  the  trial  court  found  that  total  confinement  was  necessary  to  provide  an  effective
              deterrence  to  others  likely  to  commit  a  similar  offense. Tenn.  Code  Ann.  ¤  40-35-103(1)(B).
                     In State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our  supreme  court specifically
              enumerated  five  factors  to  be  considered  when  deciding  whether  a  need  for  deterrence  is  present  and
              whether  incarceration  is  Ōparticularly  suitedĶ  to  achieve  that  goal:
                     (1)    Whether other incidents of the charged offense are  increasingly
                            present  in  the  community  as  a  whole;
                     (2)    Whether  the  defendantÕs  crime  was  the  result  of  intentional,  knowing,
                            or  reckless  conduct  or  was  otherwise  motivated  by  a  desire  to  profit
                            or  gain  from  the  criminal  behavior;
                     (3)    Whether  the  defendantÕs  crime  and  conviction  have  received  substantial  publicity
                            beyond  that  normally  expected  in  the  typical  case;
                     (4)    Whether  the  defendant  was  a  member  of  a  criminal  enterprise,  or
                            substantially  encouraged  or  assisted  others  in  achieving  the  criminal
                            objective;
                     (5)    Whether  the  defendant  has  previously  engaged  in  criminal  conduct  of
                            the  same  type  as  the  offense  in  question,  irrespective  of  whether  such
                            conduct  resulted  in  previous  arrests  or  convictions. 
              In  addition  to  these  factors,  the  court  emphasized  that  the  five  factors  are  neither  exhaustive  nor
              conclusive.  Id.  at  12.  In  other  words,  the  sentencing  court  may  consider  additional  non-enumerated
              factors  provided  that:  (1)  the  sentencing  court  specifically  recites  these  factors  on  the  record;  and  (2)
              these  additional  factors  are  supported  by  Ōat  least  some  proof.Ķ  Id. Additionally,  in  concluding  the
              need  for  deterrence  exists,  the  sentencing  court  need  not  find  that  all  five  factors  are  present.



                                                           -13- In  this  case,  Officer  Williams  testified  that  alcohol-related  injuries  had  increased  7-8%  from
              the  previous  year.  The  trial  court  accredited  this  testimony  by  stating,  ŌThis  officer  has  worked  those
              type  of  cases  for  as  long  as  this  court  can  remember. He  knows  [the]  consequences  or  the  results  .
              .  .  out  there.Ķ  Accordingly,  we  conclude,  based  on  Officer  WilliamsÕ  testimony  at  trial,  that  the  first
              factor  of  Hooper  has  been  met. Moreover,  we  note  that  the  Appellant  had  three  DUI  convictions
              prior  to  the  offenses  in  the  present  case. It  is  clear  from  the  record  that  the  AppellantÕs  past  DUI
              convictions  were  of  the  same  type  of  criminal  conduct  as  was  involved  in  this  case.  Apparently,  the
              Appellant  gleaned  nothing  from  his  prior  punishments  and  continued  to  disregard  the  law.  Thus,  the
              fifth  factor  of  Hooper  is  also  met.
                     After  affording  the  trial  court  the  presumption  of  correctness  upon  de  novo  review,  we  cannot
              conclude,  under  the  guidance  provided  by  the  supreme  court  in  Hooper,  that  the  trial  court  acted
              unreasonably in ordering confinement based on grounds of deterrence.  Clearly, the record
              demonstrates  that  the  AppellantÕs  conduct  has  resulted  in  tragic  consequences  to  two  innocent
              victims. To  prevent  further  endangerment  to  the  public,  a  need  for  deterrence  exists  as  previous
              efforts to rehabilitate have miserably  failed.  We affirm the trial courtÕs imposition of total
              confinement.

                                                     CONCLUSION

                     Based  upon  the  foregoing  reasons,  we  find  no  reversible  error.  Accordingly,  the  AppellantÕs
              consecutive  four-year  sentences  for  vehicular  assault  in  the  Washington  County  Criminal  Court  are
              affirmed.



                                                                ___________________________________ 
                                                                DAVID  G.  HAYES,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  August  15,  2001

            STATE  OF  TENNESSEE  v.  CLARENCE  N.  BAIRD  and  CATHY  M.
                                   FISHER

                   Direct  Appeal  from  the  Criminal  Court  for  Davidson  County
                          No.  2000-A-592  Seth  Norman,  Judge


                    No.  M2000-02314-CCA-R3-CD  -  Filed  October  19,  2001

         This  is  a  state  appeal  from  the  dismissal  of  an  indictment  based  upon  a  violation  of  mandatory
         joinder  Rule  8(a)  of  the  Tennessee  Rules  of  Criminal  Procedure.  The  defendants,  Baird  and  Fisher,
         and  other  individuals  were  first  indicted  on  July  23,  1999,  for  aggravated  gambling  promotion.  The
         indictment  alleged  the  illegal  activity  occurred  from  August  1998  through  December  1998.  On
         October  18,  1999,  the  defendants  pled  guilty  to  aggravated  gambling  promotion.  The  defendants  and
         other  individuals  were  again  indicted  for  aggravated  gambling  promotion  on  March  21,  2000.  This
         indictment  alleged  the  illegal  activity  occurred  from  January  1999  through  June  1999,  which  was
         prior  to  the  return  of  the  first  indictment.  The  trial  court  dismissed  the  second  indictment,  finding
         that  it  violated  Rule  8(a)  requiring  joinder.  After  a  thorough  review  of  the  record,  we  affirm  the
         judgment  of  the  trial  court. 

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

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  DAVID  H.  WELLES  and  JAMES
         CURWOOD  WITT,  JR.,  JJ.,  joined.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Thomas  E.  Williams,  III,  Assistant  Attorney
         General;  Victor  S.  Johnson,  III,  District  Attorney  General;  and  Janice  Bossing,  Assistant  District
         Attorney  General,  for  the  appellant,  State  of  Tennessee.
         Edward  L.  Hiland  (at  hearing  and  on  appeal)  and  Charles  E.  Sizemore  (at  hearing),  Nashville,
         Tennessee,  for  the  appellees,  Clarence  N.  Baird  and  Cathy  M.  Fisher.


                                   OPINION

             This  case  relates  to  a  prosecution  for  the  offense  of  aggravated  gambling  promotion.  See

         Tenn.  Code  Ann.  ¤  39-17-504.  We  conclude  both  indictments  arose  from  the  same  criminal  episode;
         both  alleged  offenses  were  known  to  the  appropriate  prosecuting  officials  at  the  time  of  the  first



                                                                -2- indictment;  and  both  alleged  offenses  were  within  the  jurisdiction  of  the  same  court. Thus,  the
               second  indictment  violated  the  mandatory  joinder  rule. See  Tenn.  R.  Crim.  P.  8(a). 


                                      TESTIMONY  AT  THE  MOTION  TO  DISMISS

                       Officer  Thomas  W.  Rollins,  a  Metro  Police  officer,  testified  he  investigated  a  gambling
               organization  led  by  George  Foster,  which  ended  in  December  1998.  Rollins  stated  he  observed  Baird
               Ōpicking  up number ticketsĶ on numerous occasions.  He further stated search warrants were
               executed  on  December  9,  1998,  on  several  locations,  including  defendant  BairdÕs  residence. The
               indictment  was  returned  on  July  23,  1999,  charging  the  defendants  and  others  with  aggravated
               gambling  promotion  for  activities  from  August  1998  through  December  1998. 
                       Officer Steve Bumpas, a Metro Police officer who had been assigned to the District
               AttorneyÕs  Office,  testified  he  was  involved  in  the  initial  investigation  that  led  to  the  first  indictment,
               including  the  execution  of  one  of  the  search  warrants  in  December  1998.  In  February  1999,  Bumpas
               observed  BairdÕs  vehicle  parked  outside  of  a  Ōwell  known  numbers  house.Ķ Accordingly,  Bumpas
               began  another  investigation  which  lasted  approximately  five  months. Bumpas  obtained  a  search
               warrant  and  searched  BairdÕs  residence  on  June  16,  1999,  over  a  month  prior  to  the  return  of  the  first
               indictment.  From  the  evidence  Bumpas  acquired  at  the  search,  a  grand  jury  indictment  was  returned
               on  March  21,  2000,  alleging  illegal  activities  from  January  1999  through  June  1999. 
                       When  Bumpas  executed  the  search  warrant,  Baird  informed  him  that  he  was  merely  an
               employee  of  the  gambling  organization  run  by  George  Foster  prior  to  December  1998. However,
               Baird  stated  that  subsequent  to  the  execution  of  the  December  1998  search  warrants,  he  Ōused  Mr.
               FosterÕs  name,  but  in  actuality  it  was  his  business.Ķ Bumpas  stated  that  Baird  told  him  he  informed
               customers  he  was  accepting  wagers  Ōon  behalf  of  Mr.  FosterÕs  organization,  telling  them  that  Mr.
               Foster  was  getting  back  into  the  business  and  wanted  to  take  and  bankroll  their  business.Ķ 
                       Bumpas  conceded  the  field  investigation  was  completed  on  June  16,  1999,  and  he  could  not
               explain  why  the  defendants  were  not  indicted  until  March  2000,  which was  five  months  after
               defendantsÕ  guilty  plea  to  the  first  indictment. Bumpas,  at  the  time  he  initiated  the  February  1999
               investigation,  Ōknew  that  [Baird]  had  been  participating  in  a  gambling  organization  exactly  like  the
               one  that  [he]  investigated  from  February  to  June;  that  search  warrants  had  been  executed;  and  that
               [Baird]  was  probably  going  to  be  indicted  on  those  charges.Ķ 
                       It  was  further  established  that  on  August  24,  1999,  two  months  prior  to  defendantsÕ  guilty
               plea  to  the  first  indictment,  Bumpas  verified  a  Complaint  for  Forfeiture  in  the  United  States  District
               Court  in  Nashville,  Tennessee.  The  complaint  referred  to  the  gambling  investigation  of  Baird,  Fisher
               and  others  from  February  1999  to  June  1999. It  further  alleged  Baird  had  participated  in  Ōillegal
               numbers  operations  since  1993,Ķ  and  he  formed  his  own  operation  in  December  1998. 



                                                                -3- Neither  Rollins  nor  Bumpas testified as  to  any  specifics  relating  to  the  investigation  of
               defendant  Fisher. 
                       The  trial  court  found  the  charges  set  forth  in  the  two  indictments  were  identical,  except  for
               the  dates  alleged. The  trial  court  further  found  the  events  alleged  in  the  second  indictment  occurred
               prior  to  the  return  of  the  first  indictment  and  were  known  to  the  state. The  trial  court  concluded  the
               second  indictment  was  in  violation  of  Rule  8(a)  and  should  be  dismissed. 


                           TENN.  R.  CRIM.  P.  8(A)  MANDATORY  JOINDER  OF  OFFENSES
               A. Summary  of  Events

                       To  place  this  issue  in  proper  perspective,  we  provide  the  following  summary  of  relevant
               events  as  established  by  the  evidence  at  the  hearing: 
               August  1998  -        Baird  is  being  investigated  for  his  participation  in  a  gambling  organization
                                      allegedly  led  by  George  Foster. 
               December  9,  1998  -  This  investigation  leads  to  the  execution  of  search  warrants  which  included
                                      a search of BairdÕs residence.   Officer Bumpas was aware of this
                                      investigation  and  participated  in  the  execution  of  one  of  the  search  warrants.
               February  1999  -      Officer Bumpas begins a second investigation, having  observed  BairdÕs
                                      vehicle  at  a  Ōwell  known  numbers  house.Ķ 
               June  16,  1999  -       Officer  Bumpas  searches  BairdÕs  residence  pursuant  to  a  search  warrant. 
               July  23,  1999  -        The  first  indictment  is  returned  alleging  Baird,  Fisher  and  others  Ōparticipated
                                      in  a  gambling  enterpriseĶ  (aggravated  gambling  promotion)  from  August
                                      1998  through  December  1998. 
               August  24,  1999  -     Officer  Bumpas  executes  a  verified  complaint  referring  to  an  investigation  of
                                      Baird,  Fisher  and  others  from  February  1999  to  June  1999.  He  further  alleges
                                      Baird  participated  in  illegal  numbers  operations  since  1993  and  formed  his
                                      own  operation  in  December  1998. 
               October  18,  1999  -   Baird  and  Fisher  plead  guilty  to  aggravated  gambling  promotion  as  alleged
                                      in  the  first  indictment. 
               March  21,  2000  -     The second indictment is returned alleging  Baird,  Fisher  and  others
                                      Ōparticipated  in  a  gambling  enterpriseĶ  (aggravated  gambling  promotion)
                                      from  January  1999  through  June  1999. 



                                                                -4- B. Standard  of  Review

                       The  findings  of  fact  made  by  the  trial  court  at  the  hearing  are  binding  upon  this  court  unless
               the  evidence  contained  in  the  record  preponderates  against  them.  State  v.  England,  19  S.W.3d  762,
               766  (Tenn.  2000).  The  trial  court,  as  the  trier  of  fact,  is  able  to  assess  the  credibility  of  the  witnesses,
               determine  the  weight  and  value  to  be  afforded  the  evidence  and  resolve  any  conflicts  in  the  evidence.
               State  v.  Odom,  928  S.W.2d  18,  23  (Tenn.  1996). However,  this  court  is  not  bound  by  the  trial
               courtÕs  conclusions  of  law. State  v.  Simpson,  968  S.W.2d  776,  779  (Tenn.  1998). The  application
               of  the  law  to  the  facts  found  by  the  trial  court  are  questions  of  law  that  this  court  reviews  de  novo.

               State  v.  Daniel,  12  S.W.3d  420,  423  (Tenn.  2000). 

               C. Rule  8(a)

                       Two  or  more  offenses  must  be  joined  or  consolidated  if  (1)  the  offenses  arise  from  the  same
               conduct  or  criminal  episode;  (2)  the  conduct  is  known  to  the  appropriate  prosecuting  official  at  the
               time  of  the  return  of  the  indictment;  and  (3)  the  offenses  fall  within  the  jurisdiction  of  a  single  court.
               Tenn.  R.  Crim.  P.  8(a). We  conclude  the  instant  case  satisfies  the  Rule  8(a)  criteria. 

                                            1. Same  Conduct  or  Criminal  Episode

                       Both  indictments alleged the defendants committed aggravated  gambling promotion in
               violation  of  Tenn.  Code  Ann.  ¤  39-17-504  and  were  identically  worded,  except  as  to  those  named
               and  the  dates  of  commission  of  the  offense. The  first  indictment  alleged  the  conduct  occurred  from
               August  1998  through  December  1998,  and  the  second  indictment  alleged  the  conduct  occurred  from
               January  1999  through  June  1999. 
                       The  state  contends  the  two  indictments  represent  separate  cri  minal  enterprises.  Specifically,
               it alleges the first indictment relates to the enterprise run by George Foster, and the second
               indictment  relates  to  the  enterprise  taken  over  and  run  by  Baird. 
                       The  term  Ōsame  conductĶ  refers  to  Ōa  single  action  which  may  be  divisible  into  distinct
               offenses.Ķ  State  v.  Dunning,  762  S.W.2d  142,  143-44  (Tenn.  Crim.  App.  1988). We  agree  with  the
               state  that  the  alleged  conduct  of  the  defendants  was  not  a  Ōsingle  actionĶ  and,  thus,  was  not  the
               Ōsame  conductĶ  under  Tenn.  R.  Crim.  P.  8(a). 
                       However,  whether  the  alleged  conduct  relates  to  one  Ōcriminal  episodeĶ  presents  a  more
               difficult  question.  A  Ōcriminal  episode  relates  to  several  distinct  offenses  which  arise  out  of  separate
               actions  or  conduct  but  which  occur  in  a  closely  connected  series  of  events  in  place  and  time.Ķ D.
               Raybin,  Tennessee  Criminal  Practice  and  Procedure  ¤  17.23,  p.  490  (1984). We  have  found  no
               Tennessee  cases  defining  the  words  Ōcriminal  episode.Ķ However,  the  American  Bar  Association
               Standards  for  Criminal  Justice  ¤  13-1.2  Commentary  (1986),  states  the  following:



                                                                -5- Single  criminal  episode  offenses  normally  are  generated  by  separate  physical
                       actions. The  actions  may  be  committed  by  separate  defendants. In  other  respects,
                       however,  they  are  similar  to  same  conduct  offenses:  they  occur  simultaneously  or  in
                       close  sequence,  and  they  occur  in  the  same  place  or  in  closely  situated  places. A
                       critical characteristic  of single episode  offenses, particularly in cases involving
                       otherwise  unrelated offenses or offenders, is the  fact that proof of one offense
                       necessarily  involves  proof  of  the  others. 
               (Footnotes  omitted). Criminal  episode  has  also  been  defined  as  Ōan  occurrence  or  connected  series
               of  occurrences  and  developments  which  may  be  viewed  as  distinctive  and  apart  although  part  of  a
               larger  or  more  comprehensive  series.Ķ Commonwealth  v.  Campana,  304  A.2d  432,  439  (Pa.  1973)
               (quoting  ABA  Standards  Relating  to  Joinder  and  Severance  ¤  1.3(a)  Commentary). 
                       The  policy  behind  Rule  8(a)  is  to  avoid  piecemeal  litigation  and  to  disallow  the  Ōsaving  backĶ
               of  charges  arising  from  the  same  conduct  or  same  criminal  episode.  King  v.  State,  717  S.W.2d  306,
               308  (Tenn.  Crim.  App.  1986);  see  also  Raybin,  ¤  17.23  at  490.  We  agree  with  the  trial  court  that  the
               circumstances  of  this  case  fall  within  that  which  was  intended  to  be  prohibited  by  Rule  8(a). 
                       The  state  argues  that  Baird  had  lesser  involvement  in  the  gambling  enterprise  during  the
               period  alleged  in  the  first  indictment  as  opposed  to  the  period  alleged  in  the  second  indictment. The
               stateÕs  proof  indicated  BairdÕs  continuing  involvement  with  little  or  no  interruption  in  time.  The  first
               indictment  alleged  illegal  activities  from  August  1998  through  December  1998,  and  the  second
               indictment  alleged  illegal  activities  from  January  1999  through  June  1999. BairdÕs  alleged  greater
               involvement  in  the  enterprise  during  the  second  period  of  time  as  compared  to  the  first  period  of  time
               did  not  terminate  the  Ōcriminal  episode,Ķ  even  if  separate  convictions  were  possible. 
                       We  reach  the  same  conclusion  as  to  Fisher. The  proof  indicates  Officer  Bumpas  was  aware
               of  FisherÕs  alleged  illegal  activities  between  January  1999  and  June  1999  at  the  time  of  the  first
               indictment  on  July  23,  1999. 
                       Accordingly,  we  conclude  the  second  indictment  alleges  illegal  activities  that  arose  from  the
               same  criminal  episode  that  was  the  subject  of  the  first  indictment.

                                        2.  Known  To  Prosecuting  Official/Jurisdiction

                       Rule  8(a)  also  requires  that  the  appropriate  prosecuting  official  know  of  the  offenses  at  the
               time  of  the  indictment. The  state  has  not  advanced  any  argument  indicating  it  was  unaware  of  the
               January  1999  through  June  1999  activities  at  the  time  the  first  indictment  was  returned  on  July  23,
               1999.  In fact, the proof indicates that one agency and the same officer were involved in the
               investigations  covering  both  August  1998  through  December  1998  and  January  1999  through  June
               1999. The  state  has  advanced  no  reason  why  it  waited  until  March  2000,  eight  months  after  the  first
               indictment  and  five  months  after  the  defendantsÕ  guilty  plea,  to  secure  the  second  indictment,  which



                                                                -6- alleged commission of the same  offense during  a time period prior  to the return of the first
               indictment. 
                       Likewise,  the  state  does  not  argue  that  the  same  court  did  not  have  jurisdiction  of  all  alleged
               offenses.  Both  indictments  alleged  the  offenses  were  committed  in  Davidson  County;  thus,  the  same
               court  had  jurisdiction  with  regard  to  both  indictments. 

                                                        3. Consolidation

                       Tenn.  R.  Crim.  P.  8(a)  requires  that  certain  offenses  either  be  Ōjoined.  .  .  or  consolidated
               pursuant  to  Rule  13.Ķ (Emphasis  added). The  purpose  of  Rule  8(a)  is  to  prevent  multiple  trials  on
               charges  arising  from  the  same  conduct  or  same  criminal  episode. King,  717  S.W.2d  at  308. Thus,
               the  rule  does  not  necessarily  prohibit  a  subsequent  indictment,  provided  it  is  consolidated  with  the
               prior  indictment  before  trial  or  disposition. See  State  v.  Carruthers,  35  S.W.3d  516,  573  (Tenn.
               2000)  (Appendix);  King,  717  S.W.2d  at  308. 
                       Unfortunately, it was impossible to consolidate the second indictment with the first
               indictment  since  the  defendants  had  already  pled  guilty  to  the  first  indictment  before  the  second
               indictment  was  returned. This  is  the  evil  Rule  8(a)  seeks  to  prevent. 


                                                        CONCLUSION

                       The trial court properly dismissed the second indictment as being in violation of the
               mandatory  joinder  rule. Although  defendants  also  claim  a  double  jeopardy  violation,  we  need  not
               determine  whether  separate  convictions  could  be  obtained  under  the  indictments. Based  upon  our
               review  of  the  record,  we  affirm  the  judgment  of  the  trial  court. 

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                AT  NASHVILLE

                         Assigned  on  Briefs  August  22,  2000

                 STATE  OF  TENNESSEE  v.  JIMMY  WAYNE  BAKER

                    Direct  Appeal  from  the  Circuit  Court  for  Bedford  County
                         No.  14303,  14416  Charles  Lee,  Judge


                     No.  M1999-00454-CCA-R3-CD  -  Filed  March  14,  2001


         The  Defendant,  Jimmy  Wayne  Baker,  was  convicted  by  a  Bedford  County  jury  of  first  degree  felony
         murder  during  the  perpetration  of  or  the  attempt  to  perpetrate  theft  of  property,  first  degree
         premeditated  murder,  and  aggravated  arson.  The  trial  court  merged  the  felony  murder  conviction
         with  the  premeditated  murder  conviction. The  Defendant  was  sentenced  as  a  Range  I  standard
         offender  to  life  imprisonment  for  the  first  degree  murder  conviction  and  to  twenty-one  years  and  nine
         months  incarceration  for  the  aggravated  arson  conviction,  to  be  served  concurrently.  The  Defendant
         now  appeals,  arguing  the  following:  (1)  that  the  trial  court  erred  in  instructing  the  jury  to  determine
         whether  one  of  the  witnesses  was  an  accomplice;  (2)  that  the  evidence  presented  at  trial  was
         insufficient  to  convict  the  Defendant  of  premeditated  murder,  felony  murder,  or  aggravated  arson;
         (3)  that  the  trial  court  erred  in  failing  to  instruct  the  jury  that  they  must  agree  unanimously  on  a
         particular  set  of  facts  to  support  a  finding  of  first  degree  felony  murder;  (4)  that  his  convictions  of
         both  premeditated  murder  and  felony  murder  violated  the  Double  Jeopardy  Clause  and  the
         Supremacy  Clause;  (5)  that  the  Defendant  was  not  properly  informed  of  the  elements  of  and  facts
         necessary  to  constitute  the  offense  of  theft  of  property  as  the  underlying  felony  in  the  felony  murder
         conviction;  (6)  that  the  DefendantÕs  sentence  for  aggravated  arson  was  excessive;  and  (7)  that  the
         trial  court  erred  in  failing  to  instruct  the  jury  on  all  elements  of  the  offenses  charged.  After  review,
         we  affirm  the  judgment  of  the  trial  court.

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

         ROBERT  W.  WEDEMEYER,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and
         DAVID  H.  WELLES,  JJ.,  joined.
         John  E.  Herbison,  Nashville,  Tennessee,  for  the  appellant,  Jimmy  Wayne  Baker.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Lucian  D.  Geise,  Assistant  Attorney  General;
         William  Michael  McCown,  District  Attorney  General;  Robert  G.  Crigler,  Assistant  District  Attorney
         General;  and  Ann  L.  Filer,  Assistant  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.



                                                                -2- OPINION 

                       The  Defendant,  Jimmy  Wayne  Baker,  was  convicted  by  a  Bedford  County  jury  of  murder  in
               perpetration  of  theft  or  attempted  theft  of  property,  premeditated  murder,  and  aggravated  arson.  The
               two  counts  of  first  degree  murder  were  merged  into  one  conviction  for  which  the  Defendant  received
               a  life  sentence. The  trial court  sentenced  the  Defendant  to  twenty-one  years  and  nine  months
               incarceration  for  the  aggravated  arson  conviction  and  ordered  that  it  be  served  concurrently  with  the
               life  sentence  for  the  murder  conviction. On  appeal  to  this  Court,  defense  counsel  filed  an  Anders
               brief  alleging  that  the  appeal  was  frivolous. See  Anders  v.  California,  386  U.S.  738  (1967);  State
               v.  Ingram,  994  S.W.2d  626  (Tenn.  Crim.  App.  1998). However,  defense  counsel  presented  the
               following arguments in his brief: (1) that the DefendantÕs sentence for aggravated arson was
               excessive,  and  (2)  that  the  trial  court  erred  in  instructing  the  jury  to  determine  whether  or  not  Patrick
               Wingate  was  an  accomplice. This  Court  allowed  the  Defendant  to  review  the  record  and  raise
               additional  issues. As  such,  the  Defendant  filed  a  pro  se  brief  arguing  the  following:  (1)  that  the
               evidence  presented  at  trial  was  insufficient  to  convict  the  Defendant  of  premeditated  murder,  felony
               murder,  or  aggravated  arson  (the  DefendantÕs  issues  three,  four  and  five);  (2)  that  the  trial  court  erred
               in instructing the jury to determine whether or not Patrick Wingate was an accomplice (the
               DefendantÕs  issue  eight);  (3)  that  the  trial  court  erred  in  failing  to  instruct  the  jury  that  they  must
               agree  unanimously  on  a  particular  set  of  facts  to  support  a  finding  of  first-degree  felony  murder  (the
               DefendantÕs  issue  six);  (4)  that  the  convictions  for  both  premeditated  murder  and  felony  murder
               violated  the  Double  Jeopardy  Clause  and  that  the  Ōmerger  ruleĶ  as  announced  by  this  Court  violates
               the  supremacy  clause  (the  DefendantÕs  issue  one);  (5)  that  the  Defendant  was  not  properly  informed
               of  the  elements  and  facts  necessary  to  constitute  the  offense  of  theft  of  property  as  the  underlying
               felony  in  the  felony  murder  conviction  (the  DefendantÕs  issue  two);  and  (6)  that  the  trial  court  erred
               in  failing  to  instruct  the  jury  on  all  elements  of  the  offenses  charged  (the  DefendantÕs  issue  seven).
               Having  reviewed  the  record,  we  affirm  the  judgment  of  the  trial  court.

                                                I.  FACTUAL  BACKGROUND

                       Viewing  the  facts  in  the  light  most  favorable  to  the  State,  the  following  events  took  place  in
               Bedford  County  on  December  15,  1997.  On  that  morning,  the  Defendant  picked  up  Patrick  Wingate
               and  drove  to  Steven  PughÕs  residence  on  WarnerÕs  Bridge  Road.  Pugh  and  Jeff  Gibbs  were  at
               PughÕs  trailer  when  the  Defendant  and  Wingate  arrived. The  Defendant,  Wingate  and  Gibbs  were
               all  employed  by  Pugh  as  general  laborers. That  morning,  the  four  men  went  to  Wheel  to  salvage
               some  items  from  PughÕs  former  residence  that  had  burned  down. After  loading  some  items  in
               PughÕs  truck,  the  men  drove  back  to  PughÕs  WarnerÕs  Bridge  Road  residence  and  unloaded  the  items
               near  a  shop  building  behind  PughÕs  trailer. Gibbs  testified  that  the  men  got  back  to  PughÕs  house
               around  ten  oÕclock  in  the  morning. 
                       That  afternoon,  the  Defendant,  Wingate  and  Pugh  left  again  to  get  some  gravel. Gibbs
               remained  at  the  trailer.  Gibbs  testified  that  the  three  men  came  back  to  PughÕs  residence  around  2:30
               that afternoon without the gravel.  PughÕs neighbor, John Gold, also testified that he saw the
               Defendant,  Pugh  and  Wingate  pull  into  PughÕs  driveway  at  approximately  2:30  in  the  afternoon.  The



                                                                -3- Defendant  was  driving  PughÕs  truck.  Wingate  was  sitting  on  the  passenger  side  and  Pugh  was  sitting
               between  them. Gold  testified  that  the  Defendant  parked  PughÕs  truck  in  front  of  PughÕs  shop,  and
               all  three  men  went  into  the  shop. Gold  further  testified  that  he  later  saw  smoke  coming  from  the
               shop  door  and  that  the  DefendantÕs  car  was  gone  at  that  time.
                       Gibbs  testified  that  sometime  that  afternoon  while  he  was  stacking  wood  outside  the  shop,
               he  Ōheard  something  hit  the  floor  real  hardĶ  inside  the  shop. At  the  time,  the  Defendant,  Wingate
               and  Pugh  were  all  in  the  shop.  The  Defendant  came  outside  and  told  Gibbs  that  Pugh  was  drunk  and
               had  fallen  off  the  bar  stool. The  Defendant  told  Gibbs  to  go  to  the  trailer  and  get  a  faucet. The
               Defendant  then  went  back  into  the  shop. 
                       Unable  to  locate  the  faucet,  Gibbs  went  back  to  the  shop,  where  he  saw  the  Defendant
               standing  in  front  of  the  door. The  Defendant  told  Gibbs  that  he  should  go  back  to  the  trailer. Gibbs
               went  to  the  trailer,  and  a  few  minutes  later  Wingate  came  to  the  trailer  and  told  Gibbs  that  they
               should  leave. At  that  time,  the  Defendant,  Wingate  and  Gibbs  all  left  PughÕs  residence. 
                       Regarding  what  happened  inside  the  shop,  Wingate  testified  that  he  was  stacking  some
               kindling  inside  the  shop  when  he  heard  a  thud  behind  him. He  turned  around  to  find  Pugh  lying  on
               the  floor. Wingate  testified  that  he  and  the  Defendant  helped  Pugh  back  onto  the  stool  that  he  had
               been  sitting  on,  and  Wingate  resumed  stacking  the  wood. Wingate  testified  that  he  heard  another
               thud,  and  he  turned  around  to  find  Pugh  on  the  floor  again.  Wingate  testified  that  the  Defendant  was
               standing  over  Pugh  with  a  stick  in  his  hand. He  further  testified  that  he  saw  the  Defendant  hit  Pugh
               three  or  four  times  in  the  head. The  Defendant  told  Wingate  to  make  sure  that  nobody  came  to  the
               door. Wingate  was  watching  the  door  when  he  felt  the  DefendantÕs  hand  on  his  shoulder,  and  the
               Defendant  said,  ŌItÕs  time  for  us  to  go.Ķ Wingate  testified  that  before  leaving,  he  saw  PughÕs  body
               on  the  fl  oor  of  the  shop  with  a  piece  of  burning  cardboard  in  front  of  the  body.
                       The  DefendantÕs  account  of  the  events  that  took  place  in  the  shop  differs  from  that  of
               Wingate. The  Defendant  testified  that  he  was  about  to  leave  the  shop  to  get  beer  when  he  heard
               Pugh  fall. The  Defendant  said  that  he  and  Wingate  put  Pugh  back  on  the  stool,  and  he  went  outside.
               The  Defendant  testified  that  when  he  came  back  to  the  shop,  Wingate  met  him  at  the  door,  and  they
               left. According  to  the  Defendant,  Wingate  told  him  that  he  (Wingate)  hit  Pugh  in  the  head. 
                       Jeff  Gibbs  testified  that  he,  the  Defendant  and  Wingate  left  PughÕs  residence.  They  stopped
               at  a  bank  and  a  liquor  store  and  then  went  to the DefendantÕs  house. Gibbs  testified  that  the
               Defendant  bought  Gibbs  some  whiskey  at  the  liquor  store.  Paralee  Williams,  the  owner  of  the  liquor
               store,  testified  that  the  Defendant  smelled  like  smoke  when  he  came  in  the  store.  Gibbs  testified  that
               when  they  arrived  at  the  DefendantÕs  home,  the  DefendantÕs  wife  informed  the  three  men  that  Pugh
               was  dead. Gibbs  testified  that  the  Defendant  and  Wingate  began  crying. The  three  men  then  drove
               to  the  sheriffÕs  department,  and  Gibbs  testified  that  on  the  way,  the  Defendant  told  him  to  Ōkeep  on
               saying  that  [Pugh]  fell  off  of  a  bar  stool  and  hit  his  head.Ķ Wingate  testified  that  the  Defendant
               turned  up  the  radio  and  advised  him  that  it  would  be  in  WingateÕs  best  interest  not  to  say  anything
               about  what  had  happened. 



                                                                -4- Wanda  Shirley,  PughÕs  girlfriend,  arrived  at  the  home  that  she  shared  with  Pugh  at  about
               three  oÕclock  and  saw  smoke  coming  out  of  the  shop. Shirley  called  911. Shirley  testified  that
               PughÕs  truck  was  parked  up  against  the  large  door  of  the  shop  which  was  very  unusual. 
                       Matt  Doak,  a  firefighter,  testified  that  PughÕs  body  and  the  floor  immediately  surrounding
               PughÕs  body  were  on  fire  when  he  arrived.  Detective  David  Adams  of  the  Bedford  County  SheriffÕs
               Department  testified  that  only  the  floor  around  PughÕs  body  was  burned. He  also  testified  that
               burned  checks,  keys  and  a  broom  were  found  near  the  body. 
                       Dr.  Charles  Harlan,  the  consulting  forensic  pathologist  for  Bedford  County,  performed  the
               autopsy  on  Pugh. Harlan  testified  that  Pugh  died  from  blunt  trauma  to  the  head. Pugh  had  at  least
               four  different  lacerations  on  his  head,  which  Harlan  testified  were  caused  by  a  rapid  succession  of
               blows  to  the  head. Harlan  testified  that  all  four  of  the  lacerations  went  through  to  the  bone  and  that
               the  skull  was  fractured  under  three  of  the  wounds. According  to  HarlanÕs  testimony,  a  linear,  firm
               object,  such  as  a  baseball  bat,  broom  handle,  pool  cue  or  lead  pipe,  probably  caused  the  head  injuries.
               Harlan  testified  that  Pugh  also  had  fourth-degree  burns  over  eighty  percent  of  his  body. Harlan
               testified  that  Pugh  was  alive  when  he  was  on  fire. 
                       Evidence  was  presented  at  tri  al  to  prove  that  in  the  days  following  the  fire,  the  Defendant  and
               Wingate  tried  to  pass  checks  from  PughÕs  bank  account. The  Defendant  testified that he saw
               Wingate  take  two  of  PughÕs  checkbooks  and  trace  PughÕs  name  on  the  checks. The  Defendant  then
               presented  one  of  those  checks  in  the  amount  of  $2,500  for  payment  at  a  local  bank. Evidence  was
               also  presented  at  trial  that  Wingate  and  the  Defendant  went  to  a  car  dealership  where  Wingate
               attempted  to  pass  a  two-party  check  from  PughÕs  account to  buy  a  van. That  check  was  in  the
               DefendantÕs  possession  when  he  was  arrested.
                       Diana Harrison, a document examiner with the Federal Bureau of Investigation (FBI),
               examined the checks that were cashed by the Defendant.  Although she determined that the
               signatures  had  been  simulated  or  traced,  Harrison  was  unable  to  render  an  opinion  as  to  who  signed
               the  documents. However,  all  of  the  checks  that  had simulated signatures  were  made  out  to  the
               Defendant  or  Wingate. The  checks  made  out  to  the  Defendant  on  PughÕs  account  totaled  $7,100.
                       Steve  Elliot,  Captain  of  Detectives  for  the  Bedford  County  SheriffÕs  Department,  interviewed
               the  Defendant  after  his  arrest.  Elliot  testified  that  the  Defendant  admitted  to  being  at  the  shop  on  that
               afternoon. According  to  Elliot,  the  Defendant  said  that  Pugh  fell  off  of  a  bar  stool  and  hit  his  head.
               The Defendant told Elliot that he and Wingate helped Pugh back onto the stool and that the
               Defendant  then  left.
                       After  his  arrest,  the  Defendant  took  the  police  to  Anthony  Road  where  they  found  checks  that
               had  been  burned. PughÕs  name  was  on  the  checks. The  Defendant  also  took  the  police  to  his  home
               on  Lakewood  Drive  to  find  a  pair  of  burned  jeans  and  a  burned  checkbook. 



                                                                -5- II.  ANALYSIS

                                                 A.  Sufficiency  of  the  Evidence
                       The  Defendant  argues  that  there  was  insufficient  evidence  to  convict  him  of  first  degree
               premeditated  murder,  first  degree  felony  murder  or  aggravated  arson. We  disagree. 
                       When  an  accused  challenges  the  sufficiency  of  the  evidence,  an  appellate  courtÕs  standard
               of  review  is  whether,  after  considering  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,  324  (1979);  State  v.  Duncan,  698  S.W.2d  63,  67  (Tenn.
               1985);  Tenn.  R.  App.  P.  13(e). This  rule  applies  to  findings  of  guilt  based  upon  direct  evidence,
               circumstantial  evidence,  or  a  combination  of  both  direct  and  circumstantial  evidence.  State  v.  Dykes,
               803  S.W.2d  250,  253  (Tenn.  Crim.  App.  1990)  overruled  on  other  grounds,  State  v.  Hooper,  29
               S.W.3d  1  (Tenn.  2000).
                       In  determining  the  sufficiency  of  the  evidence,  this  Court  should  not  re-weigh  or  re-evaluate
               the  evidence. State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990). Nor  may  this
               Court  substitute  its  inferences  for  those  drawn  by  the  trier  of  fact  from  the  evidence.  Liakas  v.  State,
               286  S.W.2d  856,  859  (Tenn.  1956);  State  v.  Buggs,  995  S.W.2d  102,  105  (Tenn.  1999). Questions
               concerning  the  credibility  of  the  witnesses,  the  weight  and  value  of  the  evidence,  as  well  as  all
               factual  issues  raised  by  the  evidence  are  resolved  by  the  trier  of  fact. Liakas,  286  S.W.2d  at  859.
               This Court must afford the State of Tennessee the strongest legitimate view of the evidence
               contained  in  the  record,  as  well  as  all  reasonable  inferences  which  may  be  drawn  from  the  evidence.
               State  v.  Evans,  838  S.W.2d  185,  191  (Tenn.  1992). Because  a  verdict  of  guilt  against  a  defendant
               removes  the  presumption  of  innocence  and  raises  a  presumption  of  guilt,  the  convicted  criminal
               defendant  bears  the  burden  of  showing  that  the  evidence  was  legally  insufficient  to  sustain  a  guilty
               verdict. Id. 
                                                     1.  Premeditated  Murder
                       Sufficient evidence was presented at trial to convict the Defendant of first degree
               premeditated  murder.  First  degree  premeditated  murder  is  the  premeditated  and  intentional  killing
               of  another  person. Tenn.  Code  Ann.  ¤  39-13-202(a)(1). Once  a  homicide  has  been  established,  it
               is  presumed  to  be  second  degree  murder,  and  the  State  has  the  burden  of  proving  premeditation  to
               raise  the  offense  to  first  degree  murder.  State  v.  Hall,  8  S.W.3d  593,  599  (Tenn.  1999)  (citing  State
               v.  Nesbit,  978  S.W.2d  872,  898  (Tenn.  1998)).  Premeditation  is  defined  as  "an  act  done  after  the
               exercise  of  reflection  and  judgment." Tenn.  Code  Ann.  ¤  39-13-202(d). 
                       "Premeditation"  means  that  the  intent  to  kill  must  have  been  formed  prior  to  the  act
                       itself. It  is  not  necessary  that  the  purpose  to  kill  pre-exist  in  the  mind  of  the  accused
                       for  any  definite  period  of  time. The  mental  state  of  the  accused  at  the  time  the
                       accused  allegedly  decided  to  kill  must  be  carefully  considered  in  order  to  determine



                                                                -6- whether  the  accused  was  sufficiently free  from  excitement  and  passion  as  to  be
                       capable  of  premeditation.
               Id.  Premeditation is the process of thinking about a proposed killing before engaging in the
               homicidal  conduct. State  v.  Brown,  836  S.W.2d  530,  540-41  (Tenn.  1992).
                       The  existence  of  premeditation  is  a  question  of  fact  for  the  jury  to  determine  and  may  be
               inferred  from  the  circumstances  surrounding  the  offense.  State  v.  Rosa,  996  S.W.2d  833,  837  (Tenn.
               1999)  (citing  Brown,  836  S.W.2d  at  539)). The  use  of  a  deadly  weapon  upon  an  unarmed  victim
               may  support  the  existence  of  premeditation.  See  State  v.  Bland,  958  S.W.2d  651,  660  (Tenn.  1997).
                       Viewing  the  evidence  in  the  light  most  favorable  to  the  State,  a  jury  could  have  reasonably
               found  that  the  Defendant  killed  Steven  Pugh  after  the  exercise  of  reflection  and  judgment.  Wingate
               testified  that  he  saw  the  Defendant  hit  Pugh  three  or  four  times  on  the  head  with  a  stick. According
               to  Wingate,  the  Defendant  then  told  Wingate  to  make  sure  that  nobody  came  to  the  door. 
                       In  addition  to  WingateÕs  testimony,  Jeff  Gibbs  testified  that  he  was  outside  the  shop  stacking
               wood  when  he  heard  a  ŌthudĶ  inside. The  Defendant  came  outside  and  told  Gibbs  that  Pugh  was
               drunk  and  had  fallen  off  a  bar  stool. The  Defendant  then  told  Gibbs  to  go  to  the  trailer  to  look  for
               a  faucet.  Unable  to  find  the  faucet,  Gibbs  went  back  to  the  shop.  The  Defendant,  who  was  nervously
               shaking  his  arm,  told  Gibbs  to  go  back  to  the  trailer.  Gibbs  also  testified  that  the  Defendant  told  him
               repeatedly  that  he  should  tell  the  authorities  that  Pugh  had  fallen  off  a  stool  and  hit  his  head.
                                                        2.  Felony  Murder
                       Sufficient evidence was presented at trial to convict the Defendant of felony murder
               committed  during  the  perpetration  or  the  attempted  perpetration  of  a  theft.  Felony  murder  is  defined
               as  Ō[a]  killing  of  another  committed  in  the  perpetration  of  or  attempt  to  perpetrate  any  first  degree
               murder,  arson,  rape,  robbery,  burglary,  theft,  kidnapping,  aggravated  child  abuse  or  aircraft  piracy
               .  .  .  .Ķ Tenn.  Code  Ann.  ¤  39-13-202(a)(2). In  this  case,  the  Defendant  was  charged  with  felony
               murder  during  the  perpetration  of  or  attempt  to  perpetrate  theft  of  property  over  $500. 
                       Evidence  was  presented  at  trial  that  the  Defendant,  along  with  Patrick  Wingate,  tried  to  pass
               checks  from  PughÕs  account  within  several  days  after  PughÕs  death. The  Defendant  testified  that  he
               saw Wingate take two of PughÕs checkbooks and trace PughÕs name on the checks.  This is
               corroborated  by  testimony  from  an  FBI  expert  that  four  checks  made  payable  to  the  Defendant  from
               PughÕs  account  were  signed  with  simulated  signatures.  The  Defendant  then  presented  one  of  those
               checks  in  the  amount  of  $2,500  for  payment  at  a  local  bank.  Evidence  was  also  presented  at  trial  that
               Wingate  and  the  Defendant  went  to  a  car  dealership,  and  Wingate  attempted  to  pass  a  two-party
               check  from  PughÕs  account  to  buy  a  van.  That  check  was  in  the  DefendantÕs  possession  when  he  was
               arrested.  Thus,  there  was  ample  evidence  from  which  a  jury  could  determine  that  the  Defendant  had
               committed  murder  in  the  perpetration  of  or  attempt  to  perpetrate  a theft  of  property  valued  at  more
               than  $500.



                                                                -7- 3.  Aggravated  Arson
                       Sufficient  evidence  was  presented  at  trial  to  convict  the  Defendant  of  aggravated  arson. An
               offender  commits  arson  by  knowingly  damaging  any  structure  by  means  of  a  fire  or  explosion  with
               the  intent  to  destroy  or  damage  the  structure  for  any  unlawful  purpose.  Id.  at  ¤  39-14-301.  A  person
               commits  aggravated  arson  who  commits  arson  as  defined  in  Tennessee  Code  Annotated  ¤  39-14-301
               when  one  or more  persons  are  present  therein. Id.  ¤  39-14-302. 
                       In  this  case,  there  is  ample  evidence  from  which  a  jury  could  conclude  that  the  Defendant  set
               fire  to  PughÕs  shop  while  Pugh  was  still  inside. Wingate  testified  that  when  he  and  the  Defendant
               left  the  shop,  there  was  a  piece  of  cardboard  burning  in  front  of  PughÕs  body. The  owner  of  a  liquor
               store  where  the  Defendant  stopped  on  the  way  from  PughÕs  residence  testified  that  the  Defendant
               smelled  like  smoke.
                                                       B.  Jury  Instructions
                                                    1.  Accomplice  Testimony
                       The  Defendant  argues  that  the  trial  court  erred  by  instructing  the  jury  to  determine  whether
               Wingate  was  an  accomplice,  rather  than  instructing  the  jury  that  Wingate  was  an  accomplice  as  a
               matter of law.  An accomplice is one who Ōknowingly, voluntarily  and with common intent
               participates  with  the  principal  offender  in  the  commission  of  the  crime  alleged  in  the  charging
               instrument.Ķ State  v.  Griffis,  964  S.W.2d  577,  588  (Tenn.  Crim.  App.  1997). ŌWhen  the  facts  of
               a  witnessÕ  participation  in  a  crime  are  clear  and  undisputed  it  is  a  question  of  law  for  the  court  to
               decide.Ķ  State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).  In  this case, the
               Defendant  argues  and  the  State  concedes  that  the  trial  court  should  have  declared  Wingate  to  be  an
               accomplice  as  a  matter  of  law.
                       This determination is important because in Tennessee a criminal defendant cannot be
               convicted  solely  on  the  uncorroborated  testimony  of  an  accomplice. State  v.  Bigbee,  885  S.W.2d
               797,  803  (Tenn.  1994). Whether  the  testimony  of  an  accomplice  has  been  sufficiently  corroborated
               is  a  question  for  the  jury. State  v.  Heflin,  15  S.W.3d  519,  524  (Tenn.  Crim.  App.  1999). However,
               corroborating  evidence  need  not  be  sufficient  in  and  of  itself  to  support  a  conviction,  but  it  must
               fairly  connect  the  Defendant  with  the  commission  of  the  crime. State  v.  Gaylor,  862  S.W.2d  546,
               552  (Tenn.  Crim.  App.  1992). 
                       We  note  initially  that  this  issue  has  been  waived  because  the  Defendant  failed  to  timely  file
               a  motion  for  a  new  trial  within  thirty  days  of  the  day  his  sentences  were  entered. Tenn.  R.  App.  P.
               3(e). ŌQuestions  concerning  the  instructions  are  generally  deemed  to  be  waived  in  the  absence  of
               objection  or  special  request,  unless  they  contain  plain  error.Ķ  State  v.  Cravens,  764  S.W.2d  754,  757
               (Tenn.  1989). A  jury  instruction  constitutes  plain  error  where  it  affects  the  substantial  rights  of  the
               accused. Tenn.  R.  Crim.  P.  52(b). We  conclude  that  there  was  no  plain  error  in  the  jury  instruction
               in  this  case.



                                                                -8- Wingate  had  previously  been  convicted  for  charges  based  upon  the  same  facts. Therefore,
               we  conclude  in  this  case  that  the  trial  court  should  have  instructed  the  jury  that  Wingate  was  an
               accomplice  as  a  matter  of  law. However,  we  hold  that  such  error  was  harmless. We  conclude  that
               ample  evidence  was  presented  to  the  jury  to  corroborate  WingateÕs  testimony. Jeff  Gibbs  testified
               that  while  he  was  outside  the  shop,  he  heard  something  hit  the  floor  inside. Immediately  thereafter,
               the  Defendant  came  outside  and  told  Gibbs  that  Pugh  had  fallen  off  of  a  stool. Gibbs  testified  that
               the  Defendant  told  him  to  go  to  the  trailer. When  Gibbs  returned,  the  Defendant  was  standing
               outside  the  shop  shaking  his  arm  nervously. The  Defendant  told  Gibbs  to  go  back  to  the  trailer.
               Moments  later,  Wingate  went  to  the  trailer  and  told  Gibbs  it  was  time  to  go.  Gibbs  also  testified  that
               on  the  ride  to  sheriffÕs  office,  the  Defendant  told  Gibbs  to  Ōkeep  on  saying  that  [Pugh]  fell  off  of  a
               bar  stool  and  hit  his  head.Ķ 
                       In  addition  to  Gibbs  testimony,  the  DefendantÕs  own  testimony  corroborates  WingateÕs
               accomplice  testimony  to  some  extent.  The  DefendantÕs  testimony  places  the  Defendant  at  the  scene
               of  the  crime  at  the  time  the  crime  was  committed. PughÕs  neighbor,  John  Gold,  testified  that  he  saw
               the  Defendant,  Pugh  and  Wingate  drive  up  to  the  shop  that  afternoon.  Soon  thereafter,  Gold  testified
               that  he  saw  smoke  coming  from  the  shop,  and  the  truck  was  gone. Moreover,  there  was  testimony
               from  firefighters  that  PughÕs  body  was  on  fire  when  they  arrived  at  the  shop  just  a  short  time  after
               the  Defendant  left. The  owner  of  the  liquor  store  where  the  Defendant  stopped  after  leaving  PughÕs
               residence  on  the  day  of  his  death  testified  that  the  Defendant  smelled  like  smoke  when  he  came  in.
               Also,  bank  employees  testified  that  in  the  days  following  PughÕs  death,  the  Defendant  cashed  checks
               on  PughÕs  account. Although  the  trial  court  erred  by  failing  to  instruct  the  jury  that  Wingate  was  an
               accomplice  as  a  matter  of  law,  the  error  was  harmless  because  sufficient  corroborating  evidence  was
               presented  to  the  jury.
                                                  2.  Felony  Murder  Instruction
                       The  Defendant  next  argues  that  the  trial  court  erred  in  failing  to  instruct  the  jury  that  they
               must  agree  unanimously  on  a  particular  set  of  facts  to  support  a  finding  of  first  degree  felony  murder.
               Specifically,  the  Defendant  argues  that  the  trial  court  failed  to  instruct  the  jury  that  it  had  to  agree
               unanimously  as  to  whether  the  alleged  killing  was  committed  during  the  act  of  perpetrating  theft  or
               the  act  of  attempting  to  perpetrate  theft. 
                       In  this  case,  the  Defendant  was  convicted  of  felony  murder  in  the  perpetration  of  or  the
               attempt  to  perpetrate  theft  over  $500.  Felony  murder  is  defined  as  Ō[a]  killing  of  another  committed
               in  the  perpetration  of  or  attempt  to  perpetrate  any  first  degree  murder,  arson,  rape,  robbery,  burglary,
               theft,  kidnapping,  aggravated  child abuse or  aircraft  piracy  .  .  .  .Ķ Tenn.  Code  Ann.  ¤  39-13-
               202(a)(2). The  trial  court  instructed  the  jury  that  its  verdict  must  be  unanimous,  and  the  jury  did  in
               fact  vote  unanimously  to  convict  the  Defendant  of  felony  murder.  In  the  case  of  felony  murder,  there
               is  no  legal  requirement  that  a  jury  verdict  specify  whether  the  killing  was  committed  during  the
               actual  perpetration  of  the  felony  or  during  an  attempt  to  perpetrate  the  felony. See  id. Thus,  the
               DefendantÕs  argument  is  without  merit.  Additionally,  our  review  of  the  trial  courtÕs  jury  instructions



                                                                -9- reveals  that  the  trial  court  properly  instructed  the  jury  as  to  each  element  of  each  offense  charged,
               from  which  we  conclude  that  the  DefendantÕs  pro  se  issue  number  seven  is  without  merit.
                                                          C.  Sentencing
                       The  Defendant  argues  that  his  sentence  for  aggravated  arson  was  excessive.  Specifically,  the
               Defendant  argues  that  the  trial  court  erred  in  starting  at  the  midpoint  of  the  sentencing  range  and  then
               adjusting  the  sentence  up  for  enhancement  factors  and  down  for  mitigating  factors. The  Defendant
               argues  that  the  trial  court  should  have  begun  with  the  minimum  sentence.  We  conclude  that  the  trial
               court  properly  sentenced  the  Defendant. 
                       The  Defendant  was  sentenced  as  a  Range  I  standard  offender  to  twenty-one  years  and  nine
               months  for  aggravated  arson.  Aggravated  arson  is  a  Class  A  felony.  This  sentence  was  to  be  served
               concurrently  with  the  DefendantÕs  life  sentence  for  the  murder  of  Steven  Pugh. In  sentencing  the
               Defendant,  the  trial  court  applied  the  following  enhancement  factors:  (1)  Ō[t]he  [D]efendant  has  a
               previous  history  of  criminal  convictions  or  criminal  behavior  in  addition  to  those  necessary  to
               establish  the  appropriate  range,Ķ  id.  ¤  40-35-114(1),  and  (5)Ķ  [t]he  [D]efendant  treated  or  allowed
               a  victim  to  be  treated  with  exceptional  cruelty  during  the  commission  of  the  offense.Ķ Id.  ¤  40-35-
               114(5). The  only  mitigating  factor  that  the  trial  court  applied  was  that  the  Defendant  assisted
               authorities  in  detecting  or  apprehending  Wingate. Id.  ¤  40-35-113(9).
                       When  a  criminal  defendant  challenges  the  length,  range,  or  manner  of  service  of  a  sentence,
               the  reviewing  court  must  conduct  a  de  novo  review  of  the  sentence  with  a  presumption  that  the
               determinations  made  by  the  trial  court  are  correct.  Id.  ¤  40-35-401(d). This  presumption,  however,
               Ōis conditioned upon the affirmative showing in the record that the trial court considered the
               sentencing  principles  and  all  relevant  facts  and  circumstances.Ķ State  v.  Ashby,  823  S.W.2d  166,
               169  (Tenn.  1991). In  the  event  that  the  record  fails  to  show  such  consideration,  the  review  of  the
               sentence  is  purely  de  novo. State  v.  Shelton,  854  S.W.2d  116,  123  (Tenn.  Crim.  App.  1992).
                       The  presumptive  sentence  for  a  Class  A  felony  is  the  midpoint  of  the  sentencing  range  unless
               there  are  enhancement  or  mitigating  factors  present. Id.  ¤  40-35-210(c). If  there  are  enhancement
               or  mitigating  factors,  the  court  must  start  at  the  presumptive  sentence,  enhance  the  sentence  as
               appropriate  for  the  enhancement  factors,  and  then  reduce  the  sentence  in  the  range  as  appropriate  for
               the  mitigating  factors. Id.  ¤  40-35-210(e).  This  Court  has  held  that  this  presumptive  sentence  also
               applies  where  there  are  enhancement  and  mitigating  factors.  See  State  v.  Hodges,  7  S.W.3d  609,  631
               (Tenn.  Crim.  App.  1998);  State  v.  Chance,  952  S.W.2d  848,  850-51  (Tenn.  Crim.  App.  1997). The
               weight  to  be  given  each  factor  is  left  to  the  discretion  of  the  trial  judge.  State  v.  Shelton,  854  S.W.2d
               116,  123  (Tenn.  Crim.  App.  1992). However,  the  sentence  must  be  adequately  supported  by  the
               record  and  comply  with  the  purposes  and  principles  of  the  1989  Sentencing  Reform  Act. State  v.
               Moss,  727  S.W.2d  229,  237  (Tenn.  1986). 
                       If  our  review  reflects  that  the  trial  court  followed  the  statutory  sentencing  procedure,  that  the
               court  imposed  a  lawful  sentence  after  having  given  due  consideration  and  proper  weight  to  the



                                                           -10- factors  and  principles  set  out  under  the  sentencing  law,  and  that  the  trial  courtÕs  findings  of  fact  are
              adequately  supported  by  the  record,  then  we  may  not  modify  the  sentence  "even  if  we  would  have
              preferred  a  different  result." State  v.  Fletcher,  805  S.W.2d  785,  789  (Tenn.  Crim.  App.  1991). The
              defendant  bears  the  burden  of  showing  the  impropriety  of  the  sentence  imposed.  Ashby,  823  S.W.2d
              at  169.
                     In  this  case,  the  trial  court  followed  the  proper  statutory  sentencing  procedure  by  starting  at
              the  midpoint  of  the  range  in  sentencing  the  Defendant. The  presumptive  sentence  for  aggravated
              arson  is  the  midpoint  of  the  sentencing  range  unless  there  are  enhancement  or  mitigating  factors
              present. Tenn.  Code  Ann.  ¤  40-35-210(c). Although  the  Defendant  interprets  the  statute  to  mean
              that  this  presumptive  sentence  only  applies  where  there  are  no  enhancement  or  mitigating  factors,
              this  Court  has  held  that  this  presumptive  sentence  also  applies  where  there  are  enhancement  and
              mitigating  factors.  Hodges,  7  S.W.3d  at  631;  Chance,  952  S.W.2d  at  850-51.  As  such,  the  trial  court
              properly started at the midpoint of the sentencing range and increased the sentence for the
              enhancement  factors  and  reduced  the  sentence  for  the  mitigating  factor. 
                                        D.  Double  Jeopardy  and  Supremacy  Clause
                     The  Defendant  argues  that  his  convictions  for  premeditated  murder  and  felony  murder
              violated  the  Double  Jeopardy  Clauses  of  the  United  States  and  Tennessee  Constitutions. Both
              clauses  state  that  no  person  shall  be  twice  put  in  jeopardy  of  life  or  limb  for  the  same  offense. U.S.
              Const.  amend.  5;  Tenn.  Const.  art.  I,  ¤  10.  In  addition  to  protecting  against  a  second  prosecution  for
              the  same  offense  where  the  defendant  was  either  convicted  or  acquitted,  this  clause  has  also  been
              interpreted  to  protect  against  multiple  punishments  for  the  same  offense.  North  Carolina  v.  Pearce,
              395  U.S.  711,  717  (1969),  overruled  on  other  grounds,  Alabama  v.  Smith,  490  U.S.  794  (1989);  State
              v.  Phillips,  924  S.W.2d  662,  664  (Tenn.  1996). 
                     In  this  case,  the  Defendant  was  found  guilty  of  both  felony  murder  and  premeditated  murder
              for  the  same  offense. However,  the  two  verdicts  were  merged  under  one  conviction. Thus,  the
              Defendant  was  subject  to  only  one  sentence  of  life  imprisonment. No  double  jeopardy  problem
              exists  where  Ōthe  trial  courtÕs  entry  of  only  one  judgment  of  conviction  imposing  only  one  sentence
              of  life  imprisonment  protects  the  defendant  from  receiving  multiple  punishments  for  the  same
              offense.Ķ  State  v.  David  Eric  Price,  No.  E1999-02684-CCA-R3-C,  2000  WL  1015914,  at  *31  (Tenn.
              Crim.  App.,  Knoxville,  July  25,  2000);  State  v.  Addison,  973  S.W.2d  260,  266-67  (Tenn.  Crim.  App.
              1997);  State  v.  Zirkle,  910  S.W.2d  874,  889  (Tenn.  Crim.  App.  1995).
                     The  Defendant  also  argues  that  the  trial  courtÕs  merging  of  the  two  murder  convictions  into
              one  conviction  violates  the  Supremacy  Clause  of  the  United  States  Constitution.  The  Supremacy
              Clause  states  that  the  United  States  Constitution  and  the  laws  made  in  pursuance  thereof  shall  be  the
              supreme  law  of  the  land.  U.S.  Const.  amend.  6,  clause  2.  The  Defendant  argues  that  the  merger  rule
              is  in  conflict  with  the  Double  Jeopardy  Clause,  and  that  the  Double  Jeopardy  Clause  should  trump
              the  merger  rule  by  virtue  of  the  Supremacy  Clause. As  we  have  concluded  that  there  is  no  peril  of
              double  jeopardy  in  this  case,  there  is  no  conflict  with  the  Supremacy  Clause. We  conclude  that  the



                                                           -11- merger  rule  is  in  fact  not  in  conflict  with  the  Double  Jeopardy  Clause,  but  rather  is  a  means  of
              avoiding  any  Double  Jeopardy  issues. This  issue  is  without  merit.
                                             E.  Sufficiency  of  the  Indictment
                     The  Defendant  argues  that  he  was  not  properly  informed  of  the  elements  and  facts  necessary
              to  constitute  the  offense  of  theft  of  property  sufficient  to  support  a  conviction  for  murder  during  the
              perpetration  of  theft  of  property. Specifically,  the  Defendant  argues  that  the  indictment  failed  to
              include  the  factual  allegations  of  the  underlying  felony. Both  the  United  States  and  Tennessee
              Constitutions  require  that  an  accused  be  sufficiently  informed  of  the  Ōnature  and  cause  of  the
              accusation.Ķ U.S.  Const.  amend  6,  14;  Tenn.  Const.  art.  I,  ¤  10;  see  also  State  v.  Hill,  954  S.W.2d
              725,  727  (Tenn.  1997). These  provisions  have  been  interpreted  to  require  that  an  indictment: 
                     (1)  provide  notice  to  the  accused  of  the  offense  charged;  (2)  provide  the  court  with
                     an  adequate  ground  upon  which  a  proper  judgment  may  be  entered;  and  (3)  provide
                     the  defendant  with  protection  against  double  jeopardy. 
              Wyatt  v.  State,  24  S.W.3d  319,  324  (Tenn.  2000);  see  also  Hill,  954  S.W.2d  at  727;  State  v.  Byrd,
              820  S.W.2d  739,  741  (Tenn.  1991).
                     The  Tennessee  Code  Annotated  further  requires  that  an  indictment 
                     state  the  facts  constituting  the  offense  in  an  ordinary  and  concise  language,  without
                     prolixity or repetition, in such a manner as to enable a person of common
                     understanding  to  know  what  is  intended,  and  with  that  degree  of  certainty  which  will
                     enable  the  court,  on  conviction,  to  pronounce  the  proper  judgment  .  .  .  .
              Tenn.  Code  Ann.  ¤  40-13-202.
                     In  this  case,  the  indictment  read  as  follows:
                     THE  GRAND  JURORS  of  BEDFORD  County,  Tennessee,  duly  impaneled  and
                     sworn,  upon  their  oath,  present  that:
                     JIMMY  WAYNE  BAKER
                     on  or  about  the  15  th  DAY  OF  DECEMBER,  1997,  in  BEDFORD  County,  Tennessee
                     and  before  the  finding  of  this  indictment,  intentionally,  knowingly  and  recklessly  did
                     kill  STEVEN  GILBERT  PUGH,  during  the  perpetration  of  or  attempt  to  perpetrate
                     a  crime  THEFT  OF  PROPERTY  OVER  $500,  in  violation  of  Tennessee  Code
                     Annotated  ¤  39-13-202,  and  against  the  peace  and  dignity  of  the  State  of  Tennessee.
                     We  conclude  that  the  indictment  sufficiently  set  forth  the  elements  and  factual  basis  for  the
              charges  against  the  Defendant. The  indictment  specifically  referred  to  the  date  of  the  offense,  the
              name  of  the  victim,  and  the  crime  theft  of  property. Again,  this  issue  is  without  merit.



                                                           -12- Accordingly,  the  judgment  of  the  trial  court  is  AFFIRMED.




                                                                ___________________________________ 
                                                                ROBERT  W.  WEDEMEYER,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                             December  5,  2000  Session

              STATE  OF  TENNESSEE  v.  STACEY  PHILANDER  BALDON

                  Direct  Appeal  from  the  Criminal  Court  for  Lauderdale  County
                          No.  6755  Joseph  H.  Walker,  Judge


                    No.  W2000-00524-CCA-R3-CD  -  Filed  February  12,  2001


         Defendant  was  convicted  by  a  Lauderdale  County  jury  of  possession  of  0.5  grams  or  more  of  cocaine
         with  intent  to  deliver,  a  Class  B  felony,  and  possession  of  drug  paraphernalia,  a  Class  A
         misdemeanor.  In  addition,  defendant  entered  a  guilty  plea  to  felony  possession  of  a  firearm,  a  Class
         E  felony.  He  was  sentenced  as  a  Range  II,  multiple  offender,  and  received  concurrent  sentences  of
         twelve  years,  eleven  months  and  twenty-nine  days,  and  two  years  respectively.  Defendant  raises  the
         following  issues  for  our  review:  (1)  whether  the  trial  court  erred  by  denying  his  motion  to  suppress
         evidence  seized  pursuant  to  the  search  warrant;  (2)  whether  the  trial  court  erred  by  denying  his
         request  for  a  severance  of  defendants;  (3)  whether  the  trial  court  erred  in  excluding  the  prior  recorded
         testimony  of  his  co-defendant;  (4)  whether  the  trial  court  improperly  allowed  the  arresting  officer
         to  testify  as  to  his  opinion  regarding  the  veracity  of  co-defendantÕs  admission;  (5)  whether  the  jury
         pool  was  tainted  by  statements  of  a  potential  juror;  and  (6)  whether  the  state  improperly  exercised
         its  peremptory  challenges.  Upon  our  review  of  the  record,  we  find  defendantÕs  allegations  to  be
         without  merit;  thus,  the  judgment  of  the  trial  court  is  affirmed.

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

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ROBERT
         W.  WEDEMEYER,  JJ.,  joined.
         Rebecca  S.  Mills,  Ripley,  Tennessee,  for  the  appellant,  Stacey  Philander  Baldon.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  Mark  E.  Davidson,  Assistant  Attorney  General;
         Elizabeth  T.  Rice,  District  Attorney  General;  and  Tracey  A.  Brewer,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

             Defendant  was  convicted  by  a  jury  of  possession  of  0.5  grams  or  more  of  cocaine  with  intent
         to  deliver  and  possession  of  drug  paraphernalia.  Additionally,  he  pled  guilty  to  felony  possession



                                                                -2- of  a firearm.  Defendant received an effective sentence of twelve years.   He now makes the
               following  allegations  in  this  appeal: 
                              (1)  the  trial  court  improperly  denied  his  motion  to  suppress  the  items
                              seized  during  the  execution  of  the  search  warrant; 
                              (2)  the  trial  court  improperly  denied  his  request  for  a  severance  of  the
                              defendants; 
                              (3) the  trial  court  improperly  excluded  prior  recorded  testimony  of
                              his  co-defendant; 
                              (4) the  trial  court  improperly  allowed  the  arresting  officer  to  testify
                              as  to  his  opinion  regarding  the  veracity  of  co-defendantÕs  admissions;
                              (5) the  jury  pool  was  tainted  by  the  statements  of  a  potential  juror;
                              and 
                              (6) the  state  improperly  exercised  its  peremptory  challenges. 
               After  reviewing  the  record,  we  conclude  defendantÕs  allegations  are  without  merit. The  judgment
               of  the  trial  court  is  affirmed.


                                                        BACKGROUND


                       Officer  John  Thompson  of  the  Lauderdale  County  SheriffÕs  Department  set  up  a  controlled
               buy  of  cocaine  at  the  defendantÕs  residence  on  January  19,  1999. Thereafter,  a  warrant  to  search  the
               residence  for  cocaine  and  drug  paraphernalia  was  obtained. On  January  21,  1999,  at  approximately
               5:00  p.m.,  the  search  warrant  was  served  at  defendantÕs  mobile  home  where  defendant,  Mike  Davis
               and  a  female  were  present. The  following  items  were  seized: a  small  bag  of  cocaine;  a  large  bag
               which  contained  several  smaller  bags  of  cocaine;  one  piece  of  crack  cocaine;  a  razor  blade  with
               cocaine  residue;  $902  primarily  comprised  of  $10  and  $20  bills;  a  box  cutter  with  cocaine  residue;
               and  additional  small,  chunky  pieces  of  cocaine. Additionally,  a  .25  caliber  pistol  was  found  under
               the  defendant's  mattress. The  drugs  and  money  were  recovered  in  the  master  bath  and  kitchen  of
               defendantÕs  residence. A  subsequent  analysis  revealed  cocaine  weighing  2.2  grams. 
                       The  defendant  was  indicted  for  possession  of  0.5  grams  or  more  of  cocaine  with  intent  to
               deliver,  possession  of  drug  paraphernalia,  and  felony  possession  of  a  firearm.  The  drug  charges  were
               severed  from  the  felony  weapons  charge,  and  the  defendant  entered  a  guilty  plea  to  felony  possession
               of  a  firearm. At  trial,  defendant  was  convicted  by  a  jury  of  possession  of  0.5  grams  or  more  of
               cocaine  with  intent  to  deliver  and  possession  of  drug  paraphernalia. 



                                                                -3- SUPPRESSION  OF  EVIDENCE

                       Defendant  claims  that  the  affidavit,  upon  which  the  search  warrant  was  based,  did  not
               establish  a  nexus  between  the  place  of  the  search,  items  sought  to  be  found  and  the  persons  suspected
               of  the  criminal  activity. Specifically,  the  defendant  argues  that  the  affidavit  fails  to  allege  that  the
               controlled  buy  was  outside  defendantÕs  residence,  and  the  actual  seller  was  someone  other  than  the
               defendant. Furthermore,  defendant  contends  that  the  officerÕs  testimony  revealed  that  he  was  not
               even  sure  the  defendant  was  at  the  residence  at  the  time  of  the  transaction.
                       The  trial court found that the affidavit supplied by Officer  Thompson, based upon his
               observations  of  the  underlying  transaction,  was  adequate  to  support  probable  cause  for  the  issuance
               of  the  warrant. Furthermore,  the  trial  court  held  that  the  warrant  was  properly  executed. Thus,
               defendantÕs  motion  was  denied. 

               A. Standard  of  Review

                       The  findings  of  fact  made  by  the  trial  court  at  the  hearing  on  a  motion  to  suppress  are  binding
               upon  this  Court  unless  the  evidence  contained  in  the  record  preponderates  against  them. State  v.
               Carter,  988  S.W.2d  145,  149  (Tenn.  1999). The  trial  court,  as  the  trier  of  fact,  is  able  to  assess  the
               credibility  of  the  witnesses,  determine  the  weight  and  value  to  be  afforded  the  evidence  and  resolves
               any  conflicts  in  the  evidence.  State  v.  Odom,  928  S.W.2d  18,  23  (Tenn.  1996).  However,  this  Court
               is  not  bound  by  the  trial  courtÕs  conclusions  of  law. State  v.  Simpson,  968  S.W.2d  776,  779  (Tenn.
               1998). The  application  of  the  law  to  the  facts  found  by  the  trial  court  is  a  question  of  law  that  this
               court  reviews  de  novo. State  v.  Daniel,  12  S.W.3d  420,  423  (Tenn.  2000). The  defendant  has  the
               burden  of  establishing  that  the  evidence  contained  in  the  record  preponderates  against  the  findings
               of  fact  made  by  the  trial  court. Braziel  v.  State,  529  S.W.2d  501,  506  (Tenn.  Crim.  App.  1975).

               B. Search  Warrant

                       Essential  to  the  issuance  of  a  search  warrant  is  the  neutral  and  detached  judgment  made  by
               the  issuing  magistrate  that  probable  cause  exists.  State  v.  Moon,  841  S.W.2d  336,  339  (Tenn.  Crim.
               App.  1992). In  State  v.  Longstreet,  619  S.W.2d  97  (Tenn.  1981),  the  Supreme  Court,  quoting  from
               the  Court  of  Criminal  AppealsÕ  opinion  in  the  case,  said  that  Ōfacts  providing  a  nexus  between  the
               crime  and  the  [place]  to  be  searched  are  a  critical  element  that  must  be  included  in  the  affidavit.Ķ

               Id.  at  99  (citing  Whiteley  v.  Warden,  401  U.S.  560,  565-66,  91  S.  Ct.  1031,  28  L.  Ed.  2d  306  (1971)).
               However,  the  nexus  Ōmay  be  established  by  the  type  of  crime,  the  nature  of  the  items,  and  the  normal
               inferences  where  a  criminal  would  hide  evidence,Ķ  as  long  as  those  inferences  are  based  on  facts  set
               forth  in  the  affidavit. State  v.  Smith,  868  S.W.2d  561,  572  (Tenn.  1993). 

               C. Analysis

                       We  find  no  reason  to  overturn  the  trial  courtÕs  determination  that  the  search  warrant  was
               based  upon  probable  cause. The  affidavit  stated  that  the  affiant,  Officer  Thompson,  had  probable



                                                                -4- cause  to  believe  contraband  was  located  inside  the  defendantÕs  residence. The  affidavit  stated  that
               the  informant,  while  under  audio  and  visual  observation,  purchased  within  the  past  seventy-two
               hours,  a  controlled  substance  from  an  individual  at  the  defendantÕs  address. The  affiant  further
               stated  the  field  test  indicated  that  the  controlled  substance  was  cocaine. While  the  warrant  did  not
               specifically  list  the  defendant  as  the  seller  for  the  underlying  transaction,  the  affidavit  did  state  that
               the  transaction  occurred  on  defendantÕs  property,  and  the  warrant  listed  defendantÕs  address  as  the
               place  to  be  searched. 
                       Thus, under these circumstances, we conclude the trial court correctly found that the
               magistrate  could  have  reasonably  concluded  that  the  cocaine  was  sold  at  the  defendantÕs  residence
               within  seventy-two  hours  and  was  likely  on  the  premises  at  the  time  of  issuance  of  the  search
               warrant. Thus,  there  was  probable  cause  for  issuance  of  the  search  warrant.


                                            II. SEVERANCE  OF  DEFENDANTS

                       Defendant  contends  he  was  prejudiced  by  the  trial  courtÕs  denial  of  his  motion  to  sever  his
               trial from co-defendantÕs trial.  Specifically, defendant contends that he was prevented from
               introducing  statements  made  by  the  co-defendant,  in  which  the  co-defendant  took  sole  responsibility
               for  the  presence  of  the  drugs  at  defendantÕs  home. Defendant  further  contends  he  was  deprived  of
               control  over  his  defense,  trial  strategy,  cross-examination,  and  presentation  of  evidence.  Defendant
               alleges  the  evidence  against  him  was  much  weaker  than  the  evidence  against  his  co-defendant,  and
               that  defendant  would  likely  have  been  acquitted  in  a  separate  trial. 

               A.  Standard  of  Review

                       Tenn.  R. Crim. P. 14(c)(2)(i) and (ii) provide that the court shall grant a severance of
               defendants  if  deemed  appropriate  to  promote  a  fair  determination  of  the  guilt  or  innocence  of  a
               defendant. The  decision  as  to  whether  or  not  to  grant  a  severance  is  left  to  the  sound  discretion  of
               the  trial  judge,  and  this  decision  will  not  be  disturbed  unless  the  defendant  is  unfairly  or  unduly
               prejudiced.  See  State  v.  Coleman,  619  S.W.2d  112,  116  (Tenn.1981);  State  v.  Woods,  806  S.W.2d
               205,  211  (Tenn.  Crim.  App.  1990). Stated  in  another  manner,  a  trial  court  will  not  be  found  to  have
               abused  its  discretion  in  denying  a  severance  unless  the  defendant  was  clearly  prejudiced  to  the  point
               that  the  trial  court's  discretion  ended  and  the  granting  of  a  severance  became  a  judicial  duty. State
               v.  Burton,  751  S.W.2d  440,  447  (Tenn.  Crim.  App.  1988)  (citing  Hunter  v.  State,  440  S.W.2d  1,  6
               (Tenn.  1969)).

               B. Analysis

                       The  defendant  has  failed  to  demonstrate  that  he  was  prejudiced  by  the  trial  courtÕs  ruling.
               Initially,  we  note  that  by  operation  of  the  Fifth  AmendmentÕs  right  against  self-incrimination,  the
               defendant  could  not  have  forced  his  co-defendant  to  testify  and  incriminate  himself  even  if  the



                                                                -5- defendant had a separate trial.  Secondly, the record reflects that the defendant successfully
               introduced  the  co-defendantÕs  statements  claiming  sole  ownership  of  the  drugs. 
                       Officers  Morris  and  Thompson  testified  that  during  the  execution  of  the  search  warrant,  co-defendant 
                          stated,  Ōwhatever  drugs  you  found  are  mine.Ķ Office  Thompson  further  testified  that  at
               the  preliminary  hearing  co-defendant  testified  under  oath  that  he  had  cocaine;  he  brought  the  cocaine
               to  the  defendantÕs  residence;  and  he  took  the  cocaine  into  the  bathroom  where  it  was  discovered  by
               police.  We  conclude  defendantÕs  ability  to  control  his  defense,  present  evidence  and  cross-examine
               witnesses  was  not  hindered  by  the  joint  trial. 
                       We  likewise  reject  defendantÕs  argument  that  he  could  not  introduce  the  co-defendantÕs
               preliminary  hearing testimony.  This testimony was admissible as former testimony since the
               declarant,  the  co-defendant,  was  considered  ŌunavailableĶ  at  the  trial  due  to  his  Fifth  Amendment
               privilege.  Tenn.  R.  Evid.  804(a)(1),  (b)(1).  Regardless,  the  jury  heard  about  the  preliminary  hearing
               testimony  from  Officer  Thompson.
                       We  conclude  this  issue  is  without  merit.


                                       III. CO-DEFENDANTÕS  PRIOR  TESTIMONY

                       Defendant  claims  his  cross-examination  of  Officer  Thompson  was  improperly  limited  by  the
               trial  courtÕs  ruling  that  the  witnessÕ  memory  could  not  be  refreshed  using  the  transcript  of  the  co-defendantÕs 
                            testimony  at  the  preliminary  hearing. Defendant  claims  he  should  have  been  allowed
               to  introduce  the  testimony  of  the  co-defendant  under  Tenn.  R.  Evid.  804(b)(1),  testimony  made  under
               oath  by  an  unavailable  declarant. 
                       Officer  Thompson  testified  he  was  present  at  the  preliminary  hearing  and  heard  the  testimony
               of  the  co-defendant. He  testified  that  at  the  hearing  the  co-defendant  stated  under  oath  that  the
               cocaine  belonged  to  him;  he  brought  the  cocaine  to  the  defendantÕs  residence;  and  he  took  the
               cocaine  into  the  bathroom  where  it  was  discovered  by  police.
                       Defendant  attempted  to  refresh  Officer  ThompsonÕs  testimony  with  the  transcript  of  the  co-defendantÕs 
                           testimony  at  the  preliminary  hearing.  Co-defendantÕs  counsel  objected  to  the  use  of  the
               transcript  to  refresh  the  officerÕs  recollection,  claiming  that  it  was  inaccurate  since  a  portion  of  the
               courtÕs  tape  recording  of  the  testimony  had  been  erased.  DefendantÕs  counsel  informed  the  court  that
               she  had  also  made  a  recording  of  the  hearing  and  stated  that  she  had  supplemented  the  transcript  with
               her  unflawed  taped  recording  of  the  testimony. The  court  sustained  co-defendantÕs  objection. 

               A. Rule  804(b)(1)-  Former  Testimony  of  Unavailable  Declarants

                       Tenn.  R.  Evid.  804(b)(1)  provides  that  testimony  given  as  a  witness  at  another  hearing  of  the
               same  or  different  proceeding  qualifies  as  an  exception  to  the  hearsay  rule,  if  the  party  against  whom



                                                                -6- the  testimony  is  now  offered  had  both  an  opportunity  and  a  similar  motive  to  develop  the  testimony
               by  direct,  cross,  or  redirect  examination.  Furthermore,  a  witness  who  personally  heard  the  declarant
               testify  in  the  prior  hearing  may  testify  about  what  he  or  she  heard,  if  the  other  requirements  for
               allowing  former  testimony  are  satisfied.  N.  Cohen,  et  al.,  Tennessee  Law  Of  Evidence  ¤  8.34  (2)(b)
               (4  th  ed.  2000). 

               B. Analysis

                       Defendant  never  attempted  to  have  the  co-defendant  declared  unavailable  for  purposes  of
               Rule  804(b)(1). It  was  only  when  Officer  Thompson  had  trouble  recalling  the  exact  details  of  the
               co-defendantÕs  admissions  that  defendant  attempted  to  introduce  the  transcript  to  refresh  the  officerÕs
               recollection  as  to  the  exact  testimony  provided  by  the  co-defendant.  Co-defendantÕs  counsel  argued
               that  the  transcript  was  not  accurate,  and  the  trial  court  sustained  the  objection. 
                       Documents reflecting former testimony admitted under Tenn. R. Evid. 804(b)(1) and
               documents  used  to  refresh  oneÕs  memory  under  Tenn.  R.  Evid.  612  are treated  quite  differently.
               Former  testimony  under  Tenn.  R.  Evid.  804(b)(1)  is  substantive  evidence  and  may  include  the  actual
               transcript  of  the  former  proceeding. A  document  used  to  refresh  oneÕs  memory  is  shown  to  the
               witness,  taken  back  by  the  examiner  and  is  not  introduced  into  evidence. Tenn.  R.  Evid.  612,
               Advisory  Commission  Comments. 
                       We, therefore, conclude the defendant did not attempt to introduce the co-defendantÕs
               preliminary  hearing  testimony  pursuant  to  Tenn.  R.  Evid.  804(b)(1).  We  further  conclude  the  actual
               transcript  could  not  be  introduced  pursuant  to  Tenn.  R.  Evid.  612.  We  also  observe  that,  regardless,
               the  jury  was  informed  through  the  testimony  of  Officer  Thompson  that  the  co-defendant  claimed  at
               the  preliminary  hearing  that  the  cocaine  belonged  to  him;  thus,  any  error  would  be  harmless.


                                 IV. PERSONAL  OPINIONS  OF  OFFICER  THOMPSON

                       Defendant  claims  Officer  Thompson  was  improperly  allowed  to  testify  as  to  his  personal
               opinions  regarding  the  truthfulness  of  the  co-defendantÕs  admissions. Officer  Thompson  testified
               that  co-defendant  asserted  that  the  drugs  found  in  the  bathroom  belonged  to  him. However,  he
               further  testified  that  he  did  not  believe  the  drugs belonged  to  co-defendant,  but  rather  all  of  the
               evidence at the scene  indicated  that  the  defendant  was  responsible  for  the  drugs  and  the  drug
               paraphernalia  found  in  his  residence. 
                       The  challenged  testimony  was  elicited  by  the  co-defendantÕs  counsel,  not  the  state,  and  there
               was  no  objection  to  the  response. This  issue  is  waived. State  v.  Kendricks,  947  S.W.2d  875,  885
               (Tenn.  Crim.  App.  1996);  Tenn.  R.  App.  P.  36(a). Even  if  we  considered  the  testimony  to  be
               improper,  it  was  clearly  harmless. Tenn.  R.  App.  P.  36(b). 



                                                                -7- V. TAINTED  JURY  POOL

                       Defendant  contends  he  was  prejudiced  by  the  trial  courtÕs  pre-trial  denial  of  his  motion  to
               sever  offenses  and  the  subsequent  granting  of  the  motion  after  voir  dire.  The  state  contends  the  issue
               is  waived. 
                       Defendant  filed  a  pre-trial  motion  to  sever  the  weapons  charge  from  the  drug  charge. The
               trial  court  after  hearing  argument,  stated  ŌI  guess  IÕm  tentatively  denying  it  until  I  can  hear  what  the
               facts  are.Ķ An  order  was  entered  the  same  day  denying  the  motion  to  sever  the  charges. However,
               on  the  date  of  trial,  an  order  was  entered  granting  the  severance. 
                       Defendant  contends  that  during  voir  dire  the  state  asked  the  potential  jurors  if  any  of  them
               knew  the  defendant,  and  one  juror  responded  that  she  had  seen  the  defendant  at  the  jail  while  visiting
               her  husband  who  was  also  incarcerated.  Defendant  claims  that  he  voiced  no  objection  since  the  trial
               court  had  denied  his  motion  to  sever  offenses.  However,  defendant  contends  that,  upon  conclusion
               of  the  jury  selection  process,  the  trial  court  called  a  bench  conference  and  announced  that  it  would
               grant  defendantÕs  motion  to  sever  offenses.
                       Defendant now alleges that because the jurors heard comments regarding defendantÕs
               incarceration  in  the  county  jail,  the  jury  pool  was  tainted. However,  the  defendant  has  failed  to
               include  in  the  record  the  transcript  of  the  jury  selection  process  and  a  transcript  of  the  alleged  bench
               conference. Thus,  we  are  unable  to  determine  what  transpired  and  are  unable  to  determine  whether
               defendant  requested  a  mistrial. This  issue  is  waived. Tenn.  R.  App.  P.  24(b);  see  State  v.  Taylor,
               992  S.W.2d  941,  944  (Tenn.  1999). 
                       Regardless,  if  these  remarks  were  made  by  the  prospective  juror,  we  conclude  the  defendant
               was  not  prejudiced. At  trial  the  arresting  officer  testified  that  certain  items,  including  a  .25  caliber
               automatic  pistol,  were  found  at  defendantÕs  home,  and  defendant  was  taken  into  custody. The  jury
               was  aware  that  the  defendant  had  been  arrested  and  could  have  logically  concluded  the  defendant
               was  taken  to  the  local  jail  where  he  was  seen  by  the  prospective  juror. 


                                            VI. PEREMPTORY  CHALLENGES

                       The  defendant  claims  that  the  state  improperly  used  its  peremptory  challenges  to  exclude
               African-Americans  from  the  jury.  Specifically,  defendant  contends  that  the  exclusion  of  jurors  solely
               on  the  basis  that  they  worked  with  the  defendant  amounted  to  purposeful  discrimination  against
               African-Americans.
                       The  defendant  has  failed  to  include  a  transcript  of  the  jury  selection  process  in  the  record.
               It  is  the  duty  of  the  accused  to  provide  a  record  which  conveys  a  fair,  accurate  and  complete  account
               of  what  transpired  with  regard  to  the  issues  which  form  the  basis  of  the  appeal.  Tenn.  R.  App.  P.
               24(b);  see  Taylor,  992  S.W.2d  at  944. Thus,  this  issue  is  waived. 



                                                                -8- CONCLUSION

                       Upon  a  thorough  review  of  the  record,  we  affirm  the  judgment  of  the  trial  court.

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                            September  27,  2000  Session

             STATE  OF  TENNESSEE  v.  CHARLES  ARNOLD  BALLINGER

                 Appeal  as  of  Right  from  the  Criminal  Court  for  Bradley  County
                          No.  98-388  R.  Steven  Bebb,  Judge


                            No.  E2000-01339-CCA-R3-CD
                                 January  9,  2000

         On  October  14,  1998,  a  Bradley  County  Grand  Jury  indicted  Charles  Ballinger,  the  defendant  and
         appellant,  for  statutory  rape  and  contributing  to  the  delinquency  of  a  minor.  Following  a  jury  trial,
         the  defendant  was  convicted  on  both  counts.  The  court  sentenced  the  defendant  to  serve  two  years
         for  statutory  rape  concurrently  with  eleven  months  and  twenty-nine  days  for  contributing  to  the
         delinquency  of  a  minor.  On  appeal,  the  defendant  claims  (1)  that  the  evidence  was  insufficient  to
         support  a  statutory  rape  conviction,  (2)  that  the  trial  court  should  have  suppressed  a  tape  recording
         of  a  telephone  conversation,  (3)  that  the  defendantÕs  sentence  was  excessive,  and  (4)  that  the  trial
         court  should  have  instructed  the  jury  to  consider  mistake  of  fact  as  a  defense.  Because  we  find  that
         statutory  rape  requires  proof  of  at  least  a  ŌrecklessnessĶ  mens  rea  and  that  the  trial  court  should  have
         instructed  the  jury  to  consider  mistake  of  fact  as  a  defense  to  statutory  rape,  we  reverse  the  judgment
         of  the  trial  court  and  remand  this  case  for  a  new  trial.

          Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Criminal  Court  is  Reversed  and
                                   Remanded

         JERRY  L.  SMITH,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON,  and  JAMES
         CURWOOD  WITT,  JR.,  JJ,  joined.
         Michael  M.  Raulston,  Chattanooga,  Tennessee,  attorney  for  the  appellant,  Charles  Arnold  Ballinger.
         Paul  G.  Summers,  Attorney  General  and  Reporter,  Patricia  C.  Kussmann,  Assistant  Attorney  General
         and  Jerry  N.  Estes,  District  Attorney  General  and  Stephen  D.  Crump,  Assistant  District  Attorney,
         attorneys  for  the  appellee,  State  of  Tennessee.



                           1  It  is  this  CourtÕs  policy  not  to  reveal  the  names  of  minor  v  ictims  of  sexual  crimes.

                                                                          -2- OPINION

                                                               Factual  Background

                           The defendant, a thirty-seven-year-old male, was a neighbor of R.S., a  fifteen-year-old
                  female.1 The defendantÕs  young  son  was  also  friends  with  R.S.Õs  younger  brother.  On  April  17,
                  1998,  R.S.  and  her  younger  brother  planned  to  spend  the  night  at  the  defendantÕs  home  so  that  R.S.
                  could  babysit  her  brother  and  the  defendantÕs  son.  After  the  defendant  picked  up  R.S.  and  her  brother
                  at  their  home,  he  bought  beer  at  a  convenience  store.  When  he  arrived  home,  the  defendant  gave
                  R.S.  some  beer.  She  became  drunk  and  fell  asleep  on  the  couch. Later,  the  defendant  woke  R.S.
                  and  told  her  that  he  would  sleep  on  the  couch,  while  she  could  sleep  in  his  bed. After  she  went  to
                  bed,  R.S.  awoke  to  discover  the  defendant  lying  next  to  her. He  was  nude,  and  he  began  rubbing
                  R.S.Õs  back  and  stomach. He  put  his  hands  up  her  shirt,  but  she  protested. The  defendant  put  his
                  hands in R.S.Õs underwear and digitally penetrated her.  Then, despite R.S.Õs objections, the
                  defendant  pulled  off  her  clothes  and  had  sex  with  her. Afterward,  the  defendant  went  to  sleep. R.S.
                  stayed  awake  until  the  defendant  went  to  work  the  next  morning,  and  then  she  fell  asleep. 
                           Later  that  day,  R.S.  told  her  mother,  Karen  Tinsley,  what  had  happened. Ms.  Tinsley  took
                  R.S.  to  the  hospital  where  a  rape  kit  was  administered.  The  kit,  examined  by  a  Tennessee  Bureau
                  of  Investigation  Forensic  Serologist,  revealed  no  semen  or  sperm. Afterward,  police  questioned  the
                  defendant,  and  he  denied  R.S.Õs  allegations. However,  Ms.  Tinsley  spoke  with  the  defendant  later,
                  and  he  admitted  having  sex  with  her. With  Ms.  TinsleyÕs  permission,  police  recorded  a  subsequent
                  telephone  conversation  that  the  defendant  had  with  Ms.  Tinsley. In  that  conversation,  the  defendant
                  admitted  letting  R.S.  drink  beer. The  defendant  told  Ms.  Tinsley  that  R.S.  wanted  to  have  sex,  that
                  R.S. said she was eighteen, and that they had sex because Ō[R.S.] wanted me to.Ķ   Then, the
                  defendant  changed  his  story  and  denied  having  sex  with  her.
                           Despite  R.S.Õs  testimony  that  the  defendantÕs  actions  toward  her  were  non-consensual,  the
                  grand  jury  chose  to  indict  the  defendant  only  for  statutory  rape  and  contributing  to  the  delinquency
                  of  a  minor. Following  a  trial,  the  jury  found  the  defendant  guilty  on  both  counts. After  a  sentencing
                  hearing, the trial court found the following enhancement factors: (1) that the defendant had a
                  previous  history  of  criminal  convictions  or  behavior  in  addition  to  those  necessary  to  establish  the
                  appropriate  range,  Tenn.  Code  Ann.  ¤  40-35-114(1);  (2)  that  the  defendant abused  a  position  of
                  private  trust,  id.  ¤  40-35-114(15);  and  (3)  that  the  crime  was  committed  under  circumstances  under
                  which  the  potential  for  bodily  injury  to  a  victim  was  great. Id.  ¤  40-35-114(16). The  court  found
                  no  mitigating  factors. Accordingly,  the  trial  court  sentenced  the  defendant  to  serve  two  years  for
                  statutory rape concurrently to eleven months and twenty-nine days for contributing to the
                  delinquency  of  a  minor. 

                                                                    Suppression



                                                                -3- R.S.Õs  mother  agreed  to  allow  police  to  record  a  telephone  conversation  she  had  with  the
               defendant a few days after the incident in question.  During that conversation, the following
               exchange  took  place:
                       Ms.  Tinsley:  Why  did  you  have  sex  with  her  to  start  with,  Chuck? Why? What  was
                       your  reason? What  wasĐ  I  want  to  know  a  reason  why.  I  havenÕt  slept  all  weekend.
                       IÕve  been  dealing  with  a  kid  that  canÕt  sleep. Why  did  you  do  this? Why  have  you
                       done  this  to  me? I  thought  you  were  my  friend.
                       Defendant:  I  didnÕt  do  this,  she  did.
                       .  .  .  . 
                       Defendant:  IÕm  not  going to say  anything  until  after  I  talk  to  my  lawyer. HeÕs
                       supposed  to  call  here  in  a  little  bit.
                       .  .  .  .
                       Ms.  Tinsley:  Well,  why  did  you  have  sex  with  her? Why?  Why? ThatÕs  all  I  want
                       to  know  is  why. What,  what  made  you  want  to  have  sex  with  my  daughter?
                       Defendant:  Because  she  wanted  me  to.
               Later  in  the  conversation,  the  defendant  denied  having  sex  with  R.S.,  and  accused  Ms.  Tinsley  of
               letting  someone  else  listen  to  the  phone  conversation.  Ms.  Tinsley  assured  the  defendant  that  no  one
               else  was  listening. On  appeal,  the  appellant  claims  that  his  statement  was  obtained  in  violation  of
               his  Miranda  rights,  and  that  State  v.  Berry,  592  S.W.2d  553  (Tenn.  1980),  prohibits  the  use  of  such
               trickery  by  police  officers.
                       In  Miranda  v.  Arizona,  the  United  States  Supreme  Court  held  that  "the  prosecution  may  not
               use  statements,  whether  exculpatory  or  inculpatory,  stemming  from  custodial  interrogation  of  the
               defendant  unless  it  demonstrates  the  use  of  procedural  safeguards  effective  to  secure  the  privilege
               against  self-incrimination." 384  U.S.  436,  444,  86  S.  Ct.  1602,  1612,  16  L.  Ed.  2d  694  (1966). The
               test  to  be  applied to determine  if  an  individual  is  in  custody  is,  considering  the  totality  of  the
               circumstances,  whether  a  "reasonable  [person]  in  the  suspect's  position"  would  have  believed  himself
               or  herself  to  be  "in  custody." Berkemer  v.  McCarty,  468  U.S.  420,  442,  104  S.  Ct.  3138,  82  L.  Ed.
               2d  317  (1984);  State  v.  Anderson,  937  S.W.2d  851,  855  (Tenn.  1996).
                       In  this  case,  the  defendant  was  not  in  custody  when  he  made  the  statement;  he  was  at  home
               on  the  telephone.  Thus,  his  Miranda  rights  are  not  implicated.  Furthermore,  the  defendantÕs  reliance
               on  Berry  is  misplaced. In  that  case,  the  defendant,  who  was  in  jail,  made  numerous  incriminating
               statements  to  a  T.B.I.  agent  posing  as  a  prisoner. Berry,  592  S.W.2d  at  561.  The  defendant  in  Berry
               was  in  custody  and  had  not  waived  his  right  to  counsel.  Id. We  find  that  Berry  is  inapposite  to  this
               case. This  issue  is  without  merit.



                                                                -4- Sufficiency

                       The  appellant  next  complains  that  the  evidence  was  insufficient  to  support  a  conviction  for
               statutory  rape. Specifically,  he  claims  that  (1)  the  rape  kit  revealed  no  sperm  or  semen,  and  (2)
               R.S.Õs  testimony  was  not  corroborated.
                       When  an  appellant  challenges  the  sufficiency  of  the  evidence,  this  Court  is  obliged  to  review
               that  challenge  according  to  certain  well-settled  principles. When  the  sufficiency  of  the  evidence  is
               contested  on  appeal,  the  relevant  question  for  the  reviewing  court  is  whether  any  rational  trier  of  fact
               could  have  found  the  accused  guilty  of  every  element  of  the  offense  beyond  a  reasonable  doubt.
               Tenn.  R.  App.  P.  13(e);  State  v.  Harris,  839  S.W.2d  54,  75  (Tenn.  1992). On  appeal,  the  state  is
               entitled  to  the  strongest  legitimate  view  of  the  evidence  as  well  as  all  reasonable  and  legitimate
               inferences  that  may  be  drawn  therefrom. State  v.  Cabbage,  571  S.W.2d  832,  835  (Tenn.  1978). In
               conducting  our  evaluation  of  the  convicting  evidence,  this  Court  is  precluded  from  reweighing  or
               reconsidering  the  evidence. State  v.  Morgan,  929  S.W.2d  380,  383  (Tenn.  Crim.  App.  1996).
               Moreover,  this  Court  may  not  substitute  its  own  inferences  "for  those  drawn  by  the  trier  of  fact  from
               circumstantial  evidence." State  v.  Matthews,  805  S.W.2d  776,  779  (Tenn.  Crim.  App.  1990).
                       A  verdict  of  guilty  by  the  jury,  approved  by  the  trial  judge,  accredits  the  testimony  of  the
               state's  witnesses  and  resolves  all  conflicts  in  the  testimony  in  favor  of  the  state. State  v.  Cazes,  875
               S.W.2d  253,  259  (Tenn.  1994). Although  an  accused  is  originally  cloaked  with  a  presumption  of
               innocence,  a  jury  verdict  removes  this  presumption  and  replaces  it  with  one  of  guilt.  State  v.  Tuggle,
               639  S.W.2d  913,  914  (Tenn.  1982). Hence,  on  appeal,  the  burden  of  proof  rests  with  the  appellant
               to  demonstrate  the  insufficiency  of  the  convicting  evidence. Id.
                       Statutory  rape  is  the  Ōsexual  penetration  of  a  victim  by  the  defendant  or  of  the  defendant  by
               the  victim  when  the  victim  is  at  least  thirteen  (13)  but  less  than  eighteen  (18)  years  of  age  and  the
               defendant  is  at  least  four  (4)  years  older  than  the  victim.Ķ  Tenn.  Code  Ann.  ¤  39-13-506(a).  "ÕSexual
               penetrationÕ  means  sexual  intercourse,  cunnilingus,  fellatio,  anal  intercourse,  or  any  other  intrusion,
               however  slight,  of  any  part  of  a  person's  body  or  of  any  object  into  the  genital  or  anal  openings  of
               the  victim's,  the  defendant's,  or  any  other  person's  body,  but  emission  of  semen  is  not  required."

               Tenn.  Code  Ann.  ¤  39-13-501(7)(emphasis  added).  The  defendant  testified  that  he  was  thirty-seven
               years old, and the victim testified that she was fifteen years old at the time of the  offense.
               Furthermore, the victim testified that the defendant intentionally penetrated her.  Indeed, the
               defendant  admitted  to  Ms.  Tinsley  that  he  had  sex  with  the  victim.  The  evidence  is  clearly  sufficient
               to  support  a  statutory  rape  conviction.

                                                  Accomplice  Corroboration

                       The  defendant  claims  that  the  court  should  have  required  R.S.Õs  testimony  to  be  corroborated,
               because  he  claims  that  R.S.  was  an  accomplice. In  Tennessee,  it  is  well-settled  that  a  defendant
               cannot  be  convicted  on  the  uncorroborated  testimony  of  an  accomplice.  State  v.  Bigbee,  885  S.W.2d
               797,  803  (Tenn.  1994);  State  v.  Heflin,  15  S.W.3d  519,  524  (Tenn.  Crim.  App.  1999).  Although  the
               rule  that  the  victim  of  a  sex  crime  might,  under  certain  circumstances,  be  an  accomplice  has  been
               criticized,  see,  State  v.  Jeffery  Edward  Pitts,  No.  01C01-9701-CC-00003,  (Tenn.  Crim.  App.  at
               Nashville,  March  18,  1999),  such  a  rule  appears  to  remain  the  law. We  do  note  that  the  legislature
               has determined that victims of such crimes under the age of thirteen may not be considered
               accomplices:



                                                                -5- If  the  alleged  victim  of  a  sexual  penetration  or  sexual  contact  within  the  meaning  of
                       ¤  39-13-501  is  less  than  thirteen  (13)  years  of  age,  such  victim  shall,  regardless  of
                       consent,  not  be  considered  to  be  an  accomplice  to  such  sexual  penetration  or  sexual
                       contact,  and  no  corroboration  of  such  alleged  victim's  testimony  shall  be  required  to
                       secure  a  conviction  if  corroboration  is  necessary  solely  because  the  alleged  victim
                       consented. Tenn.  Code  Ann.  ¤  40-17-121. 
                       The  legislature  has  not  seen  fit  however  to  extend  this  rule  to  minor  victims  of  sex  crimes,
               such  as  the  victim  in  this  case,  who  are  between  13-17  years  of  age.  Moreover,  this  court  has  held
               that  a  child  can  be  an  accomplice  in  a  sex-related  case.  State  v.  Griffis,  964  S.W.2d  577,  588  (Tenn.
               Crim.  App.  1997)(citations  omitted);  State  v.  McKnight,  900  S.W.2d  36,  49  (Tenn.  Crim.  App.
               1994);  State  v.  Dickerson,  789  S.W.2d  566,  568  (Tenn.  Crim.  App.  1990). Thus,  when  a  child  is
               deemed  an  accomplice,  the  testimony  of  the  child,  like  an  adult,  must  be  corroborated. Griffis,  964
               S.W.2d  at  588.
                       An  accomplice  is  defined  as  a  person  who  knowingly,  voluntarily  and  with  common  intent
               unites  with  the  principal  offender  in  the  commission  of  the  crime.  State  v.  Anderson  985  S.W.2d  9,
               16  (Tenn.  Crim.  App.  1998)(citing  State  v.  Perkinson,  867  S.W.2d  1,  7  (Tenn.  Crim.  App.1992)).
               When  it  is  clear  and  undisputed  that  the  witness  participated  in  the  crime,  the  trial  court  decides  as
               a  question  of  law  whether  he  or  she  is  an  accomplice.  Id. The  question  becomes  one  of  fact  for  the
               jury  to  decide  when  the  facts  are  in  dispute  or  susceptible  to  different  inferences.  Id. In  other  words,
               where  a  witness  denies  involvement  in  the  crime,  the  question  of  whether  he  or  she  is  an  accomplice
               is  one  of  fact  to  be  submitted  to  the  jury  with  proper  instructions  from  the  court  on  how  to  consider
               such  testimony.  Anderson,  985  S.W.2d  at  16  (citing  Ripley  v.  State,  189  Tenn.  681,  687,  227  S.W.2d
               26,  28  (1950)). 
                       In  this  case,  there  was  evidence  in  the  record  from  which  the  jury  could  have  inferred  that
               R.S.  was  an  accomplice. Although  R.S.  testified  that  she  did  not  consent  to  the  intercourse,  the
               defendantÕs  statement,  on  which  the  state  relied,  indicated  that  the  intercourse  was  consensual.
               Although consent is no defense to statutory rape, it could imply that the victim was also an
               accomplice. In  this  case,  the  jury  was  not  instructed  to  determine  whether  R.S.  was  an  accomplice.
               We find the omission of a  jury instruction harmless, however, because even if R.S. was an
               accomplice, the record contains sufficient corroboration to R.S.Õs testimony.  ŌOnly slight
               circumstances  are  required  to  corroborate  an  accomplice's  testimony." State  v.  Griffis,  964  S.W.2d
               577,  589  (Tenn.  Crim.  App.  1997). In  response  to  Ms.  TinsleyÕs  questions  regarding  why  the
               defendant  had  sex  with  the  victim,  the  defendant  responded  Ōbecause  she  wanted  me  to.Ķ We  find
               that  the  defendantÕs  comments  constitute  sufficient  corroboration  for  the  victimÕs  testimony. See
               Dickerson,  789  S.W.2d  at  568. This  issue  is  without  merit.

                                                           Sentencing

                       Before  imposing  the  defendantÕs  sentence,  the  trial  court  made  the  following  findings:
                       [L]adies  and  Gentlemen,  at  the  beginning  of  this  trial  I  can  recall  the  feeling  that  I
                       had  of  why  in  the  world  is  the  state  going  to  trial  where  the  rape  kit  came  back  and
                       nothing  there. At  the  end  of  that  case  this  court  accepted  and  approved  the  verdict



                                                                -6- of  that  jury,  and  my  only  question  was  why  the  Grand  Jury  did  not  indict  for  the
                       offense  of  rape. I  saw  no  evidence  of  consent  on  the  part  of  this  young  lady,  and  all
                       the indicia I had was of straight ordinary rape.  So I  feel like the grand jury
                       indictment  in  this  case  gave  the  defendant  more  breaks  than  he  was  entitled  to.  I  find
                       no  mitigating  factors,  and,  in  fact,  and  IÕm  not  going  to  consider  lack  of  remorse
                       because  the  defendant  has  continued  to  deny  his  guilt  in  face  of  the  testimony  and  the
                       verdict  at  trial. I  find,  and  itÕs  of  no  importance  in  the  sentencing,  the  defendant  has
                       a  history  of  criminal  convictions  or  criminal  behavior,  either  self-admitted  or  shown
                       in the presentence report.  More importantly, the defendant definitely  abused a
                       position  of  private  trust,  and  thirdly,  I  find  that  the  crime  was  committed  under
                       circumstances  under  which  the  potential  for  bodily  injury  was  great. Who  knows
                       where  a  fellow  was  drinking  and  he  has  got  a  baby  sitter  alone  in  the  house  with  him,
                       as  far  as  any  other  adults  are  concerned,  and  what  if  they  resist  strenuously,  what  will
                       happen? The  potential  for  bodily  injury  was  frankly  great. 
               The  appellant  asserts  that  the  trial  court  imposed  an  excessive  sentence,  because  (1)  the  trial  court
               misapplied  statutory  enhancement  factors,  and  (2)  that  the  trial  courtÕs  comments  indicate  that  the
               court  relied  on  improper  evidence  in  enhancing  the  defendantÕs  sentence. 
                       When  an  appellant  challenges  the  length,  range,  or  manner  of  service  of  a  sentence,  this  Court
               conducts  a  de  novo  review  with  a  presumption  that  the  determination  of  the  trial  court  was  correct.
               Tenn.  Code  Ann. ¤  40-35-401(d). However,  this  presumption  of  correctness  is  "conditioned  upon
               the  affirmative  showing  that  the  trial  court  in  the  record  considered  the  sentencing  principles  and  all
               relevant  facts  and  circumstances." State  v.  Ashby,  823  S.W.2d  166,  169  (Tenn.  1991). If  appellate
               review  reflects  that  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. State  v.  Fletcher,  805
               S.W.2d  785,  789  (Tenn.  Crim.  App.  1991). In  conducting  a  review,  this  Court  must  consider  the
               evidence,  the  presentence  report,  the  sentencing  principles,  the  arguments  of  counsel,  the  nature  and
               character  of  the  offense,  mitigating  and  enhancement  factors,  any  statements  made  by  the  defendant,
               and  the  potential  for  rehabilitation  or  treatment.  State  v.  Holland,  860  S.W.2d  53,  60  (Tenn.  Crim.
               App.  1993). The  defendant  bears  the  burden  of  showing  the  impropriety  of  the  sentence  imposed.
               State  v.  Gregory,  862  S.W.2d  574,  578  (Tenn.  Crim.  App.  1993).
                       The  defendant  claims  that  he  Ōdoes  not  have  the  Ôhistory  of  criminal  convictions  or  criminal
               behaviorÕ  sufficient  to  raise  the  presumption  of  the  minimum  sentence  to  the  maximum  as  set  by  the
               Court  nor  was  there  a  Ôposition  of  private  trustÕ  present.Ķ However,  other  than  this  statement,  the
               appellantÕs  brief  contains  no  argument  as  to  why  the  enhancement  factors  do  not  apply  and  no
               citations  to  legal  authority. Therefore,  this  issue  is  waived. Tenn.  Ct.  Crim.  at  R.10(b);  Tenn.  R.
               App.  P.  27(a)(7);  State  v.  Hill,  875  S.W.2d  278,  283-84  (Tenn.  Crim.  App.  1993). Furthermore,  we
               find  no  evidence  that  the  trial  court  utilized  any  improper  evidence  to  enhance  the  sentence. The
               court found three enhancing factors and no mitigating factors, and accordingly  imposed the
               maximum  sentence. This  issue  is  without  merit.



                           2  Of  course,  proof  that  the  defenda  nt  acted  intentio  nally  or  know  ingly  will  suffice  as  well. See  Tenn.  Code  Ann.
                  ¤  39-11-301(a)(2).

                           3  We  note  that  the  Legislature  has  Ōplainly  dispensed  withĶ  a  culpable  mental  state  in  o  ther  situations. See  e.g.,
                  State  v.  Turner,  953  S.W.2d  213  ,  215  (Tenn.  Crim.  App.  1996)(holding  that  Tenn.  Code  A  nn.¤  55-10-4  01(a)  Ōpla  inly
                  dispensed  withĶ  mens  rea  by  defining  the  offense  of  driving  under  the  influence  to  encompass  the  mere  physical  control
                  of  a  vehicle.) 

                                                                          -7- Jury  Instructions

                           The  defendant  complains  that  the  trial  court  should  have  instructed  the  jury  to  consider
                  the  Ōmistake  of  factĶ  defense. Tenn.  Code  Ann.  ¤  39-11-502. The  state  contends  that  mistake  of
                  fact  is  no  defense  to  statutory  rape,  because  the  statutory  rape  statute  requires  no  culpable  mental
                  state.
                           The  Tennessee  Code  defines  mistake  of  fact  as  follows:  Ōignorance  or  mistake  of  fact  is  a
                  defense  to  prosecution  if  such  ignorance  or  mistake  negates  the  culpable  mental  state  of  the
                  charged  offense.Ķ Tenn.  Code  Ann.  ¤  39-11-502(a). Thus,  in  order  to  determine  whether
                  mistake  of  fact  is  a  defense  to  statutory  rape,  we  must  first  determine  what  mental  state,  if  any,  is
                  required  for  proof  of  statutory  rape.
                           Statutory  rape  is  defined  as  Ōsexual  penetration  of  a  victim  by  the  defendant  or  of  the
                  defendant  by  the  victim  when  the  victim  is  at  least  thirteen  (13)  but  less  than  eighteen  (18)  years
                  of  age  and  the  defendant  is  at  least  four  (4)  years  older  than  the  victim.Ķ Tenn.  Code  Ann.  ¤  39-
                  13-506(a). Neither  the  statute  nor  the  sentencing  commission  comments  following  the  statute
                  specify  a  culpable  mental  state.  A  literal  reading  of  this  statute  could  lead  to  absurd  results. 
                  Because  there  is  no  requirement  in  the  statute  that  the  proscribed  sexual  penetration  be  unlawful,
                  and  because  consent  of  the  victim  is  no  defense,  a  gynecological  or  proctological  examination  of
                  a  child  between  thirteen  and  seventeen  years  of  age  is  literally  prohibited  by  the  statute.
                           The  Legislature  has  provided  guidance  for  such  situations. Tenn.  Code  Ann.  ¤  39-11-301
                  provides,  in  relevant  part 
                           (b)  A  culpable  mental  state  is  required  within  this  title  unless  the  definition  of  an  offense
                           plainly  dispenses  with  a  mental  element.
                           (c)  If  the  definition  of  an  offense  within  this  title  does  not  plainly  dispense  with  a
                           mental  element,  intent,  knowledge,  or  recklessness  suffices  to  establish  the
                           culpable  mental  state. 
                  Tenn.  Code  Ann.  ¤  39-11-301(b),  (c). In  other  words,  when  a  mental  state  is  neither  specified
                  nor  Ōplainly  dispensed  with,Ķ  the  state  must  prove,  at  a  minimum,  that  the  defendant  acted
                  recklessly.2 See  State  v.  Hill,  954  S.W.2d  725,  726  (Tenn.  1997)(holding  that  section  39-11-301
                  applied  in  prosecution  for  aggravated  rape  because  the  aggravated  rape  statute  made  no  reference
                  to  a  culpable  mental  state);  see  also  State  v.  Anderson,  894  S.W.2d  320,  322  (Tenn.  Crim.  App.
                  1994)(holding  that  section  39-11-301  applied  to  a  prosecution  for  escape  because  the  escape
                  statute  made  no  reference  to  a  requisite  mental  state).3 In  this  case,  because  the  statute  defining
                  statutory  rape  neither  specifies  nor  plainly  dispenses  with  a  culpable  mental  state,  we  conclude
                  that  the  state  must  prove  that  the  defendant,  at  a  minimum,  recklessly  engaged  in  sexual



                           4  We  also  note  that  the  Tennessee  Pattern  Jury  Instruction  regarding  statutory  rape  provides  that  the  jury  must
                  find  that  the  defendant  acted  Ōintentionally,  knowingly  or  recklesslyĶ  before  convicting  the  defendant  of  statutory  rape.
                  T.P.I.  ĐCrim.  10.05  (2000). Indeed,  although  denying  the  defendantÕs  request  for  a  mistake  of  fact  instruction  based  on
                  the  his  conclusion  that  statutory  rape  is  a  strict  liability  crime,  the  trial  judge  in  this  case  instructed  the  jury  according
                  to  the  pattern  instruction.

                                                                          -8- penetration  of  a  victim  between  the  ages  of  thirteen  and  eighteen  and  that  the  defendant  was  at
                  least  four  years  older  than  the  victim.4 

                           ŌReckless:  as  a  mental  element  is  defined  at  Tennessee  Code  Annotated  Section  39-11-
                  302(c)  as  follows:
                                    ŌRecklessĶ  refers  to  a  person  who  acts  recklessly  with  respect  to
                                    circumstances  surrounding  the  conduct  or  the  result  of  the  conduct
                                    when  the  person  is  aware  of  but  consciously  disregards  a
                                    substantial  and  unjustifiable  risk  that  the  circumstances  exist  of  the
                                    result  will  occur. The  risk  must  be  of  such  a  nature  and  degree  that
                                    its  disregard  constitutes  a  gross  deviation  from  the  standard  of  care
                                    that  an  ordinary  person  would  exercise  under  all  the  circumstances
                                    as  viewed  from  the  accused  personÕs  standpoint. (emphasis
                                    added).


                  Therefore,  in  the  context  of  a  statutory  rape  prosecution  a  defendant  may  be  said  to  act
                  ŌrecklesslyĶ  when  he  is  aware  of  but  consciously  disregards  a  substantial  and  unjustifiable  risk
                  that  the  person  who  he  is  about  to  sexually  penetrate  is  between  the  ages  of  13  years  and  17
                  years. 
                           We  turn  now  to  determine  whether  the  jury  should  have  been  instructed  to  consider
                  mistake  of  fact  as  a  defense  in  this  case. It  is  well-settled  that  the  trial  court  has  the  duty  of
                  giving  a  correct  and  complete  charge  of  the  law  applicable  to  the  facts  of  the  case,  and  that  the
                  defendant  has  the  right  to  have  every  issue  of  fact  raised  by  the  evidence  and  material  to  the
                  defense  submitted  to  the  jury  upon  proper  instructions  by  the  trial  court. State  v.  Teel,  793
                  S.W.2d  236,  249  (Tenn.  1990); State  v.  Bryant,  654  S.W.2d  389,  390  (Tenn.  1983). Mistake  of
                  fact  is  not  an  affirmative  defense;  it  is  merely  a  defense. Thus,  if  the  evidence  fairly  raises
                  mistake  of  fact,  the  trial  court  must  instruct  the  jury  to  consider  the  defense  and  that  any
                  reasonable  doubt  on  the  existence  of  the  defense  requires  acquittal. Tenn.  Code  Ann.  ¤¤
                  39-11-203,  -502;  State  v.  McPherson,  882  S.W.2d  365,  374  (Tenn.  Crim.  App.  1994). The
                  statute  defining  mistake  of  fact  provides  that  mistake  of  fact  shall  apply  Ō[e]xcept  in  prosecutions
                  for  violations  of  ¤¤  39-13-504(a)(4)  and  39-13-522  [aggravated  sexual  battery  of  a  child  and  rape
                  of  a  child,  respectively].Ķ Tenn.  Code  Ann.  ¤  39-11-502(a). Thus,  while  the  Legislature has
                  specifically  excluded  the  defense  in  certain  situations,  it  has  not  excluded  the  defense  in  statutory
                  rape  cases. 
                           In  this  case,  although  the  defendant  testified  that  he  did  not  have  sex  with  R.S.,  he  also
                  testified  that  he  thought  she  was  eighteen  years  old.  Based  upon  the  evidence,  the  jury  could
                  have  found  that  the  defendant  had  sex  with  R.S.  but,  under  all  the  circumstances  was  reasonably
                  mistaken  about  her  age,  thus  negating  the  possibility  of  a  conclusion  that  the  defendant  acted



                                                                -9- recklessly. Thus,  based  on  the  evidence  adduced  at  trial,  we  find  that  the  trial  court  should  have
               instructed  the  jury  to  consider  mistake  of  fact  as  a  defense  to  statutory  rape. 
                       Accordingly,  we  REVERSE  the  judgment  of  the  trial  court  and  remand  this  case  for  a
               new  trial.                  .
                                                                     ___________________________________ 
                                                                     JERRY  L.  SMITH,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                          Assigned  on  Briefs  April  25,  2001

                   DANIEL  M.  BANKS  v.  STATE  OF  TENNESSEE

                    Direct  Appeal  from  the  Circuit  Court  for  Sullivan  County
                          No.  C43,740  Phyllis  H.  Miller,  Judge


                            No.  E2000-02620-CCA-R3-CD
                                  July  10,  2001

         The  petitioner,  Daniel  M.  Banks,  appeals  the  trial  court's  denial  of  his  petition  for  post-conviction
         relief.  Because  the  petitioner  was  provided  the  effective  assistance  of  counsel  and  knowingly  and
         voluntarily  entered  his  pleas  of  guilt  to  possession  of  marijuana  with  intent  to  sell,  possession  of  over
         0.5  grams  of  cocaine  with  intent  to  sell,  and  possession  of  drug  paraphernalia,  the  judgment  is
         affirmed.

                   Tenn.  R.  App.  P.  3;  Judgment  of  the  Trial  Court  Affirmed.

         GARY  R.  WADE,  P.J.,  delivered  the  opinion  of  the  court,  in  which  JERRY  L.  SMITH  and  THOMAS  T.
         WOODALL,  JJ.,  joined.
         William  A.  Kennedy,  Assistant  Public  Defender,  Blountville,  Tennessee,  for  the  appellant,  Daniel
         M.  Banks.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Peter  M.  Coughlan,  Assistant  Attorney  General;
         and  Lewis  Combs,  Assistant  District  Attorney  General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

             On  March  11,  1999,  the  petitioner,  Daniel  M.  Banks,  entered  best-interest  pleas  of  guilt  to
         possession  of  marijuana  with  intent  to  sell,  a  Class  E  felony;  possession  of  more  than  .5  grams  of
         cocaine  with  intent  to  sell,  a  Class  B  felony;  and  possession  of  drug  paraphernalia,  a  Class  A
         misdemeanor.  See  Tenn.  Code  Ann.  ¤¤  39-17-417,  -425;  see  also  North  Carolina  v.  Alford,  400
         U.S.  25  (1970).  At  the  sentencing  hearing,  the  trial  court  imposed  a  Range  I  sentence  of  two  years
         for  the  possession  of  marijuana  charge;  11  years  for  the  possession  of  cocaine;  and  11  months  and
         29  days  for  the  possession  of  drug  paraphernalia.  The  trial  court  ordered  the  sentences  to  be  served
         concurrently. The  petitioner  was  also  fined  $13,750.00. 



                                                                -2- On  February  22,  2000,  the  petitioner  filed  this  petition  for  post-conviction  relief. At  the
               evidentiary  hearing,  he  testified  that  his  trial  counsel  had  informed  him  that  the  state  intended  to  add
               gun  charges  and  that  he  could  either  plead  guilty  to  the  drug  charges  and  receive  a  nine-year  sentence
               or  go  to  trial  and  risk  a  33-year  sentence. He  claimed  that  he  was  pressured  into  his  decision  when
               his  trial  counsel  said,  "Hurry,  hurry,  tell  me  something.  .  .  . IÕve  got  the  judge  on  the  phone." The
               petitioner  contended  that  "it  was  already  decided"  that  he  would  receive  a  nine-year  sentence  and  that
               the  state  would  not  prosecute  him  on  the  gun  charges. The  petitioner  claimed  that  his  fatherÕs  death
               and  his  own  declining  health  contributed  to  his  decision  to  plead  guilty. At  the  time  of  his  guilty
               plea,  the  petitioner  had  been  diagnosed  with  multiple  sclerosis. 
                       On  cross-examination,  the  petitioner  stated  that  when  the  state  first  offered  him  a  nine-year
               sentence,  he  left  the  decision  up  to  his  trial  counsel,  who  subsequently  rejected  the  deal.  When  asked
               by  the  state  if  he  would  have  accepted  the  nine-year  offer,  the  petitioner  responded  as  follows:  "No,
               .  .  .  . I  hadnÕt  thought  about  it. I  probably  would  have  taken  nine  (9)  at  the  time,  .  .  .  . I  donÕt  know.
               .  .  ." He  then  conceded  that  no  one  had  actually  communicated  to  him  that  he  would  receive  a  nine-year 
                    sentence.
                       Trial  counsel  testified  that  the  state  first  offered  the  petitioner  a  10-year  plea  agreement,
               which  was  subsequently  dropped  to  nine  years. He  maintained  that  he  discussed  the  case  with  the
               petitioner  on  several  occasions  and  that  the  petitioner  had  rejected the nine-year offer  because
               probation  was  only  possible  with  an  eight-year  sentence  or  less. Trial  counsel  testified  that  the
               petitioner  eventually  accepted  a  "blind  plea,"  hoping  that  the  trial  court  would  impose  only eight
               years  and  consider  an  alternative  sentence.
                       In  this  appeal,  the  petitioner  first  asserts  that  his  trial  counsel  was  ineffective. Specifically,
               he  claims  that  his  attorney  assured  him  that  he  was  guaranteed  a  sentence  of  no  more  than  nine  years.
                In  denying  the  petitioner  post-conviction  relief,  the  trial  court  ruled  as  follows:
                       Petitioner  never  accepted  the  StateÕs  offer  of  nine  years  .  .  .  because  it  was  not
                       probatible.  The  Court  finds  that  there  is  no  credible  evidence  that  Petitioner  believed
                       he  would  get  a  nine  year  sentence  .  .  .  at  the  sentencing  hearing. In  fact,  it  appears  to
                       the  Court  that  Petitioner  may  have  actually  planned  to  try  to  have  his  sentence  set
                       aside  if  he  did  not  receive  a  sentence  he  desired.  Petitioner  was  specifically  asked  by
                       the  Court  at  the  plea  hearing  whether  anyone  had  made  any  promises  to  him,  other
                       than  the  agreement  that  the  State  would  not  charge  him  on  a  weapons  charge  in  order
                       to  get  him  to  plead  guilty. He  had  an  opportunity  at  that  time  to  tell  the  Court  that
                       he  had  been  promised  nine  years. He  did  not  do  so.  Instead,  he  restricted  his  answer
                       to,  "No  one  has  forced  me,  no."
                               The  Court  also  finds  that  Petitioner  has  failed  to  prove  to  any  extent  that  [his
                       trial  counsel]  was  ineffective  for  failing  to  explain  [the]  sentence. After  the  Court
                       has  conducted  a  sentencing  hearing  and  imposed  sentence,  Petitioner  cannot  logically



                                                                -3- complain  that  an  explanation  of  his  sentence  at  that  point  would  have  affected  his
                       decision  to  enter  the  pleas  in  the  first  place.
                       In  a  post-conviction  proceeding,  the  petitioner  has  the  burden  of  proving  factual  allegations
               by  clear  and  convincing  evidence. Tenn.  Code  Ann.  ¤  40-30-210(f). The  findings  of  fact  made  by
               the  trial  court  are  conclusive  on  appeal  unless  the  petitioner  is  able  to  establish  that  the  evidence
               preponderates  against  those  findings. Clenny  v.  State,  576  S.W.2d  12  (Tenn.  Crim.  App.  1978);
               Graves  v.  State,  512  S.W.2d  603  (Tenn.  Crim.  App.  1973).
                       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
               counsel,  he  must  first  establish  that  the  services  rendered  or  the  advice  given  was  below  "the  range
               of  competence  demanded  of  attorneys  in  criminal  cases." Baxter  v.  Rose,  523  S.W.2d  930,  936
               (Tenn.  1975). Second,  he  must  show  that  the  deficiencies  "actually  had  an  adverse  effect  on  the
               defense." Strickland  v.  Washington,  466  U.S.  668,  693  (1984).
                       The  petitioner  is  not  entitled  to  the  benefit  of  hindsight,  may  not  second-guess  a  reasonably
               based  trial  strategy,  and  cannot  criticize  a  sound,  but  unsuccessful,  tactical  decision  made  during  the
               course  of  proceedings. Adkins  v.  State,  911  S.W.2d  334,  347  (Tenn.  Crim.  App.  1994). Such
               deference  to  the  tactical  decisions  of  counsel,  however,  applies  only  if  the  choices  are  made  after
               adequate  preparation  for  the  case.  Cooper  v.  State,  847  S.W.2d  521,  528  (Tenn.  Crim.  App.  1992).
                       Our  review  of  this  record  establishes  that  the  petitioner  received  the  effective  assistance  of
               counsel.  The petitioner acknowledged that he had no agreement with the state and that he
               understood  that  he  could  receive  a  maximum  sentence  of  14  years.  Even  in  hindsight,  the  petitioner
               was  equivocal  when  asked  whether  he  would  have  accepted  the  nine-year  agreement. Nothing  in
               this  record  suggests  that  trial  counsel  performed  at  a  level  below  professional  guidelines.
                       The petitioner next argues that his plea was neither knowingly nor voluntarily  made.
               Specifically,  he  claims  that  he  was  not  fully  aware  of  the  consequences  of  his  plea  because  he
               believed that  he  would  receive  no  more  than  a  nine-year  sentence.
                       In  rejecting  the  petitionerÕs  claim,  the  trial  court  concluded  as  follows:
                       [A]  review  of  the  transcript  of  the  guilty  plea  hearing  and  PetitionerÕs  testimony  at
                       the  Post-Conviction  hearing  reveals  that  PetitionerÕs  pleas  were  knowing,  voluntary
                       and  intelligently  entered.
                              At  the  guilty  plea  hearing,  petitioner  submitted  a  "Request  for  Acceptance  of
                       Plea  of  Guilty,  Waiver  of  Rights"  form  .  .  .  . He  acknowledged,  under  oath,  that  he
                       had  signed  the  form  on  the  front  and  back  and  that  he  had  gone  over  it  fully  with  his
                       attorney.  .  .  . The  form  stated  the  offenses  to  which  Petitioner  was  pleading  and  the
                       minimum  and  maximum  sentences  and  fines  for  each  offense. The  form  was  blank
                       as  to  any  agreed  sentences.



                                                                -4- ***
                              The  court  advised  petitioner  in  detail  of  the  possible  sentences  and  fines  he
                       could  receive,  that  his  effective  sentence  could  range  from  a  minimum  of  eight  years
                       to  a  maximum  of  fourteen  years  plus  eleven  months  twenty-nine  days. Petitioner
                       stated  repeatedly  that  he  understood  the  possible  sentences  he  could  receive.
                       In  Boykin  v.  Alabama,  395  U.S.  238  (1969),  the  United  States  Supreme  Court  ruled  that
               defendants  should  be  advised  of  certain  of  their  constitutional  rights  before  entering  pleas  of  guilt.
               Included  among  those  required  warnings  are  the  right  against  self-incrimination,  the  right  to  confront
               witnesses,  and  the  right  to  a  trial  by  jury. Id.  at  243.  The  overriding  Boykin  requirement  is  that  the
               guilty  plea  must  be  knowingly  and  voluntarily  made. Id.  at  242. If  the  proof  establishes  that  the
               petitioner  was  aware  of  his  constitutional  rights,  he  is  entitled  to  no  relief. Johnson  v.  State,  834
               S.W.2d  922,  926  (Tenn.  1992).  "[A]  plea  is  not 'voluntary'  if  it  is  the  product  of  '[i]gnorance,
               incomprehension,  coercion,  terror,  inducements,  [or]  subtle  or  blatant  threats  .  .  .  .'" Blankenship  v.
               State,  858  S.W.2d  897,  904  (Tenn.  1993)  (quoting  Boykin,  395  U.S.  at  242-43).
                       Here,  the  trial  court  accredited  the  testimony  of  trial  counsel  who  asserted  that  the  petitioner
               entered  a  "blind  plea"  in  hopes  of  receiving  no  more  than  an  eight-year  sentence. Furthermore,  the
               trial  court  rejected  the  petitioner's  claim  that  he  had  been  pressured  or  coerced  and  found  that  he  had
               entered an intelligent, knowing, and voluntary plea.  The evidence in the record does not
               preponderate  against  those  findings.
                       Accordingly,  the  judgment  is  affirmed.


                                                                     ____________________________________
                                                                     GARY  R.  WADE,  PRESIDING  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                        Assigned  on  Briefs  September  25,  2001

         STATE  OF  TENNESSEE  v.  STEVE  BARBER,  a.k.a.  VERNON  S.  BARBER

                   Direct  Appeal  from  the  Criminal  Court  for  Sullivan  County
                          No.  S42,091  Phyllis  H.  Miller,  Judge


                            No.  E2001-00909-CCA-R3-CD
                                 October  16,  2001

         The  defendant  was  convicted  by  a  Sullivan  County  Criminal  Court  jury  of  driving  under  the
         influence,  third  offense,  a  Class  A  misdemeanor,  and  driving  while  license  suspended,  revoked,  or
         cancelled,  third  offense,  a  Class  B  misdemeanor.  On  appeal  to  this  court,  he  argues,  inter  alia,  that
         the  trial  court  erred  in  denying  his  request  for  a  mistrial  and  in  admitting  expert  testimony  on  breath
         alcohol  testing  devices.  After  a  careful  review  of  the  record,  we  affirm  the  judgment  of  the  trial
         court.  However,  we  remand  for  entry  of  corrected  judgment  forms  to  reflect  that  the  defendantÕs
         convictions  resulted  from  jury  verdicts,  rather  than  guilty  pleas.

           Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Judgment  of  the  Criminal  Court  Affirmed  and
                        Remanded  for  Entry  of  Corrected  Judgments

         ALAN  E.  GLENN,  J.,  delivered  the  opinion  of  the  court,  in  which  JOSEPH  M.  TIPTON  and  JOE  G.  RILEY,
         JJ.,  joined.
         Cary  Taylor,  Kingsport,  Tennessee  (at  trial);  Stephen  M.  Wallace,  District  Public  Defender;  and
         William  A.  Kennedy,  Assistant  Public  Defender  (on  appeal),  for  the  appellant,  Steve  Barber.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  John  H.  Bledsoe,  Assistant  Attorney  General;  H.
         Greeley  Wells,  Jr.,  District  Attorney  General;  and  Teresa  Murray-Smith,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             The  defendant,  Steve  Barber,  appeals  his  convictions  for  driving  under  the  influence,  third
         offense,  and  driving  while  license  revoked,  third  offense. He  was  sentenced  to  eleven  months,
         twenty-nine  days  with  a  $7500  fine  for  the  driving  under  the  influence  conviction,  and  nine  months
         with  a  $2500  fine  for  the  driving  while  license  revoked  conviction,  with  the  sentences  ordered  to  run
         consecutively,  for  an  effective  sentence  of  twenty  months  and  twenty-nine  days  and  fines  totaling
         $10,000.  The  trial  court  suspended  all  but  120  days  of  the  driving  under  the  influence  sentence,  and
         all  but  forty-five  days  of  the  driving  while  license  revoked  sentence,  and  ordered  that  the  defendant



                                                                -2- serve  the  remainder  of  his  time  on  supervised  probation. Following  the  denial  of  his  motion  for  a
               new  trial,  the  defendant  filed  a  timely  appeal  to  this  court,  presenting  the  following  as  issues  for
               review: 
                              I.      That the jury verdict was contrary to the law and the
                                      evidence;
                              II.     That  the  evidence  in  the  record  is  insufficient  as  a  matter  of
                                      law  to  sustain  the  convictions;
                              III.    That  the  evidence  at  trial  preponderates  against  the  guilt  of
                                      the  defendant  and  in  favor  of  his  innocence; 
                              IV.    That  the  Trial  Court  erred  by  not  allowing  the  defendant  a
                                      continuance  prior  to  trial  based  upon  the  unavailability  of  two
                                      witnesses  the  defense  deemed  crucial;
                              V.     That the Trial Court erred by not declaring a mistrial or
                                      granting a new trial after allowing testimony concerning
                                      breathalyzer  results  that  were  ruled  inadmissible  by  the  Trial
                                      Court  during  the  trial;
                              VI.    That  the  Trial  Court  erred  by  allowing  testimony  by  an  expert
                                      on  breath  alcohol  testing  devices;  and
                              VII.   That  the  defendant  received  ineffective  assistance  of  counsel;
                                      specifically,  defense  counsel  failed  to  move  for  an  in  limine
                                      motion  to  exclude  the  results  of  defendantÕs  breathalyzer  test
                                      which  was  subsequently  ruled  inadmissible. 
                       After  a  careful  review  of  the  record,  we  conclude  that  the  evidence  was  sufficient  to  support
               the  defendantÕs  conviction  of  driving  under  the  influence,  and  that  no  error  occurred  in  the  trial
               courtÕs  rulings. We  further  conclude  that  the  defendant  failed  to  show  that  he  was  denied  the
               effective  assistance  of  trial  counsel. Accordingly,  we  affirm  the  judgment  of  the  trial  court. 

                                                         DISCUSSION

                       At approximately 1:00 a.m. on March 15, 1998, a Tennessee Highway Patrol Officer
               patrolling  Interstate  81  in  Sullivan  County  came  upon  a  1989  Mazda  stopped  in  the  emergency  lane
               with  its  headlights  on  and  its  engine  running. The  defendant,  the  owner  of  the  vehicle,  was  reclined
               in the driverÕs seat.  Upon being roused,  he exhibited bloodshot eyes, slurred speech, and an
               unsteady  gait.  He  also  smelled  of  alcohol  and  admitted  that  he  had  been  drinking.  After  failing  field
               sobriety  tests,  he  was  arrested  and  subsequently  charged  with  driving  under  the  influence;  driving



                                                                -3- under  the  influence,  third  offense;  driving  on  a  revoked  license;  and  driving  on  a  revoked  license,
               third  offense.
                       Trooper  Patricia Maines Riggs,  the highway patrol  officer who arrested the defendant,
               testified  at  his  May  24-25,  1999,  trial  that  she  had  been  with  the  Tennessee  Highway  Patrol  since
               1984.  She said that she was driving southbound on the interstate in Sullivan County at
               approximately  1:00  a.m.  on  March  15,  1998,  when  she  observed  the  defendantÕs  vehicle  stopped  in
               the  emergency  lane  of  northbound  traffic. After  driving  approximately  three  miles  to  the  next  exit
               to  turn  around, she  drove  back  to  the  location  where  she  had  seen  the  defendantÕs  vehicle. When
               she  arrived,  she  found  the  car  in  the  same  position,  with  its  headlights  on  and  engine  running,  but
               without  any  emergency  flashers  or  flares. The  defendant,  whom  Trooper  Riggs  identified  in  court,
               was  reclined  in  the  driverÕs  seat,  and  appeared  to  be  either  asleep  or  sick. There  was  no  sign  of  any
               other  occupant. 
                       The  defendant  was  not  alert,  and  Trooper  Riggs  had  to  tap  several  times  on  his  window  in
               order  to  rouse  him. When  awakened  and  asked  what  was  wrong,  he  answered  that  he  was  tired. He
               told  her  that  he  did  not  have  his  driverÕs  license  with  him;  after  checking  with  her  dispatcher,
               Trooper  Riggs  learned  that  his  license  had  been  revoked. She  said  that  because  his  speech  was
               slurred  and  she  detected  a  Ōstrong  odor  of  an  alcoholic  beverage,Ķ  she  asked  him  to  step  outside.
               Outside  the  vehicle,  the  defendant  told  her  that  he  had  become  tired  and  sleepy,  and  had  pulled  to
               the  shoulder  Ōto  rest,  to  sleep  it  off.Ķ He  also  told  her  that  he  had  had  a  fight  with  his  girlfriend
               earlier  in  the  evening,  and  that  he  had  gone  out  drinking. 
                       Trooper  Riggs  testified  that  the  defendant  had  to  hold  onto  his  car  in  order  to  walk  without
               falling  to  the  rear  of  his  vehicle,  where  she  had  him  attempt  two  field  sobriety  tests. He  almost  fell
               three  times  in  his  attempts  to  perform  the  Ōwalk  and  turnĶ  test,  and  again  almost  fell  in  his  attempt
               to  do  the  Ōfinger  to  nose  test.Ķ She  ended  the  tests  because  she  had  to  repeatedly  catch  him  to
               prevent  him  from  falling. Trooper  Riggs  testified  that,  in  her  opinion,  based  on  her  training  and
               experience,  the  defendant  was  under  the  influence. 
                       After  placing  the  defendant  in  the  rear  of  her  patrol  car,  Trooper  Riggs  waited  at  the  scene
               approximately  thirty  minutes  for  a  tow  truck  to  arrive  to  tow  his  vehicle. She  then  transported  him
               to  the  Sullivan  County  Jail,  arriving  shortly  before  2:00  a.m.  to  turn  him  over  to  the  jailers  for
               booking. From  the  time  that  she  placed  him  in  the  rear  of  her  patrol  car  until  she  arrived  with  him
               at  the  jail,  the  defendant  continually  begged  her  to  let  him  go. He  said  nothing,  however,  about  his
               car  having  broken  down,  and  did  not  tell  her  that  he  had  not  been  the  driver. 
                       Trooper  Riggs  testified  that  as  the  defendant  was  being  searched  and  booked,  she  went
               upstairs and Ō[p]roceeded to fill out the implied consent [form] and observe him for the
               breathalyzer[.]Ķ She  testified  regarding  the  operation  of  the  intoximeter  machine,  its  calibration
               standards,  her  training  to  perform  the  test,  and  the  procedure  of  observing  the  subject  for  twenty
               minutes prior to the administration of the test.  She then identified the written result of the
               defendantÕs test, testifying that it showed he had registered .10%, and that the test had been



                                                                -4- administered  at  2:17  a.m.  On  cross-examination,  she  testified  that  she  began  her  pre-test  observation
               of  the  defendant  at  approximately  2:00  a.m. 
                       Jerry  Maines,  director  of  the  Tennessee  Bureau  of  Investigation  (ŌTBIĶ)  Crime  Laboratory
               in  Knoxville,  was  accepted  by  the  court  as  an  expert  in  the  field  of  breath  alcohol  testing  devices.
               He  testified  at  some  length  regarding  the  operation,  calibration,  and  inspection  of  breath  alcohol
               machines, including  the  Ōintoximeter  ECIRĶ  in  use  at  the  Sullivan  County  Jail. He  also  testified
               about  the  standard  procedure  of  observing  a  subject  for  twenty  minutes  prior  to  administration  of  the
               test.  On cross-examination, he explained that the twenty-minute observation period was a
               requirement  of  the  manufacturer  of  the  machine,  as  well  a  procedure  adopted  by  the  TBI  to  ensure
               that  any  alcohol  in  the  subjectÕs  mouth  had  time  to  evaporate  before  administration  of  the  test. 
                       Following  MainesÕs  testimony,  the  trial  court  initiated  a  jury-out  hearing  in  order  to  hear
               arguments  from  counsel  regarding  the  admissibility  of  the  breath  alcohol  test.  At  its  conclusion,  the
               court ruled that the breath alcohol results would be inadmissible due  to the StateÕs failure to
               demonstrate  that  the  twenty-minute  observation  procedure  had  been  followed. The  defendantÕs
               request  for  a  mistrial  was  denied. After  instructing  the  jury  to  disregard  the  breathalyzer  evidence,
               the  court  polled  each  juror  individually  to  see  if  he  or  she  would  be  able  to  put  all  evidence  about
               the  defendantÕs  blood  alcohol  level  out  of  his  or  her  mind  in  deciding  the  case. Each  answered  in
               the  affirmative. 
                       The  defendant  testified  that  on  the  evening  of  March  14,  1998,  his  girlfriend  at  the  time,  Faye
               Nunley,  drove  the  two  of  them  in  his  1989  Mazda  MX6  coupe  to  the  ŌHog  WildĶ  bar,  where  they
               met  his  girlfriendÕs  sister  and  brother-in-law.  According  to  the  defendant,  he  drank  three  beers  from
               the  time  that  they  arrived  at  the  bar  at  9:00  p.m.  until  their  departure  at  12:15  a.m. He  said  that  they
               left  earlier  than  planned  because  Nunley  became  angry  when  she  saw  him  talking  to  another  woman.
               NunleyÕs  sister  and  brother-in-law  left  the  bar  at  the  same  time,  following  in  their  car  as  he  and
               Nunley,  with  Nunley  again  at  the  wheel,  drove  home  along  the  interstate.
                       The  defendant  testified  that  as  they  drove  home,  the  power  steering  pump  on  his  car  went  out,
               making  the  front-wheel  drive  vehicle  too  difficult  for  Nunley,  who  suffers  from  arthritis,  to  steer.
               Nunley  ŌdriftedĶ  the  car  onto  the  shoulder,  and  he  told  her  to  go  with  her  sister  and  brother-in-law
               to  the  nearest  exit  to  call  his  daughter-in-law.  When  he  became  cold  while  waiting,  he  moved  to  the
               driverÕs  seat  in  order  to  depress  the  clutch  to  start  the  engine  and  turn  on  the  heater. He  then  Ōlaid
               all  the  way  back  in  the  seatĶ  and  went  to  sleep. In  the  meantime,  Nunley,  apparently  still  angry,
               waited  until  she  had  arrived  back  home  in  Abingdon,  Virginia,  before  telephoning  his  daughter-in-law. 
                     The  defendant  said  that  he  told  Trooper  Riggs  about  the  trouble  with  his  car,  and  that  he  had
               not  been  driving,  but  she  ŌdidnÕt  have  [any]  sympathy.Ķ  He  said  that  Nunley  did  not  appear  on  his
               behalf  because  she  was  angry  at  him  for  having  married  another  woman  in  the  meantime. He
               admitted  that  NunleyÕs  sister  and  brother-in-law  had  also  not  appeared  on  his  behalf  either.
                       Bill  Riggs,  an  appraiser  at  Bristol  Auto  Auction,  testified  that  on  August  10,  1998,  he
               inspected  a  1989  Mazda  MX6  coupe  that  was  brought  in  by  a  title  loan  company. His  inspection



                           1  Although  the  defendant  frames  his  second  issue  on  appeal  as  ŌThat  the  evidence  in  the  record  is  insufficient
                  as  a matter of  law to sustain  the  convictions,Ķ  he  limits  himself  in  his  brief  to  arguing  only  that  the  evidence  was
                  insufficient  to  suppo  rt  his  DUI  conviction. We  con  clude  from  our  review  of  the  record,  ho  wever,  that  the  evidence  was
                  sufficient  to  support  his  conviction  for  driving  on  a  revoked  license,  third  offense. The  State  introduced  into  evidence
                                                                                                                         (continu  ed...)

                                                                          -5- revealed  that  the  power  steering  on  the  automobile  did  not  work,  and  that  it  was  very  difficult  to
                  steer. His  records  did  not  indicate  who  had  owned  the  car. 
                           Teresa  Ann  Kaiser  testified  that  she  had  known  the  defendant  since  she  was  three  years  old,
                  but  had  not  seen  him  for  about  fifteen  years,  when  she  ran  into  him  on  the  evening  of  March  14,
                  1998,  at  the  Hog  Wild  bar  and  asked  him  for  a  ride  home.  He  told  her  that  he  did  not  have  a  driverÕs
                  license  but  would  ask  the  woman  who  brought  him  to  give  her  a  ride. Later  in  the  evening,  Kaiser
                  approached  the  defendant  again  to  tell  him  that  she  had  found  a  ride  with  another  man. When  she
                  did  so,  the  defendantÕs  companion,  Ōa  jealous  person,Ķ  grabbed  his  arm  and  said,  ŌLetÕs  go.Ķ  Kaiser
                  said  that  she  and  the  man  with  whom  she  obtained  a  ride  left  the  bar  at  about  the  same  time  as  the
                  defendant,  around  12:15  a.m. As  she  was  going  out  the  door,  she  saw  the  defendantÕs  companion
                  open  the  car  door  to  let  the  defendant  into  the  passenger  seat  of  their  car,  before  going  around  and
                  getting  in  on  the  driverÕs  side. Kaiser  acknowledged  on  cross-examination  that  she  did  not  know
                  where  the  defendant  and  his  companion  had  gone  after  leaving  the  bar,  and  that  the  defendant  was
                  a  close  family  friend. 
                           In rebuttal, the State presented the testimony of Kenneth E. Ferslew, Ph.D., who was
                  accepted  by  the  court  as  an  expert  in  the  field  of  toxicology. Dr.  Ferslew  testified  that,  depending
                  on the level of alcohol in a personÕs system, some effects of alcohol consumption include
                  drowsiness, bloodshot eyes, slurring or slowing of speech, delayed reaction time, loss of
                  coordination,  and  loss  of  balance. He  opined  that  the  drowsiness,  difficulty  in  awakening,  slurred
                  speech,  bloodshot  eyes,  and  lack  of  coordination  exhibited  by  the  defendant  to  Trooper  Riggs  would
                  not  be  consistent  with  a  man  of  the  defendantÕs  size  having  consumed  only  three  beers  in  a  period
                  of  three  and  one-quarter  hours. 
                           After  deliberating,  the  jury  found  the  defendant  guilty  of  DU  I  by  physical  control  of  a  motor
                  vehicle,  and  driving  while  license  revoked. Upon  being presented  with  the  remaining  counts  of  the
                  indictment,  as  well  as  certified  copies  of  his  prior  convictions,  the  jury  found  the  defendant  guilty
                  of  DUI,  third  offense,  fixing  a  maximum  fine of  $7500,  and  driving  on  a  revoked  license,  third
                  offense,  fixing  a  maximum  fine  of  $2500. 

                                                                     ANALYSIS
                                                         I. Sufficiency  of  the  Evidence

                           The  defendantÕs  first  three  issues  relate  to  the  sufficiency  of  the  evidence  in  support  of  his
                  DUI  conviction.1 He  argues  that  without  the  breathalyzer  results,  the  evidence  was  not  sufficient  to



                           1  (...continued)
                  a  certified  document  from  the  custodian  of  the  records  of  the  Tennessee  Department  of  Safety,  stating  that  the  status
                  of  the  defendantÕs  license  at  the  time  of  his  arrest  was Ōrevoked.Ķ  The  State  also  introduced  certified  copies  of  the
                  defendantÕs  prior  c  onviction  s  for  drivin  g  while  h  is  license  wa  s  suspend  ed,  revo  ked,  or  ca  ncelled. 

                                                                          -6- support  his  conviction  for  DUI. The  State  argues  that  the  evidence  in  the  case  was  sufficient  to
                  support  the  juryÕs  verdict. 
                           When the sufficiency of the convicting evidence is challenged on appeal, the relevant
                  question  of  the  reviewing  court  is  Ōwhether,  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  offense
                  charged  beyond  a  reasonable  doubt.Ķ Jackson  v.  Virginia,  443  U.S.  307,  319,  99  S.  Ct.  2781,  2789,
                  61  L.  Ed.  2d  560  (1979). See  also  State  v.  Evans,  838  S.W.2d  185,  190-92  (Tenn.  1992);  State  v.
                  Anderson,  835  S.W.2d  600,  604  (Tenn.  Crim.  App.  1992);  Tenn.  R.  App.  P.  13(e)  (ŌFindings  of  guilt
                  in  criminal  actions  whether  by  the  trial  court  or  jury  shall  be  set  aside  if  the  evidence  is  insufficient
                  to  support  the  findings  by  the  trier  of  fact  of  guilt  beyond  a  reasonable  doubt.Ķ). 
                           All  questions  involving  the  credibility  of  witnesses,  the  weight  and  value  to  be  given  the
                  evidence,  and  all  factual  issues  are  resolved  by  the  trier  of  fact. See  State  v.  Pappas,  754  S.W.2d
                  620, 623 (Tenn. Crim. App. 1987).  ŌA 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.Ķ  State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). When the credibility of the
                  witnesses  is  resolved  by  the  jury  in  favor  of  the  State,  the  appellate  court  Ōmay  not  reconsider  the
                  juryÕs  credibility  assessments.Ķ  State  v.  Carruthers,  35  S.W.3d  516,  558  (Tenn.  2000),  cert.  denied,
                  ___U.S.  ___,  121  S.  Ct.  2600,  150  L.  Ed.  2d  757  (2001). In  other  words,  the  State  is  entitled  to  the
                  strongest legitimate  view  of  the  evidence  and  all  reasonable  inferences  that  might  be  drawn  from
                  the evidence.  See  State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).  The burden is on  the
                  defendant  to  show  that  the  evidence  is  insufficient.  See  State  v.  Tuggle,  639  S.W.2d  913,  914  (Tenn.
                  1982).
                           The  jury  in  this  case  found  the  defendant  guilty  of  driving  under  the  influence  by  being  in
                  physical  control  of  a  motor  vehicle,  a  violation  of  Tennessee  Code  Annotated  Section  55-10-401(a).
                  This  statute  provides,  in  pertinent  part,  that  it  is  Ōunlawful  for  any  person  to  drive  or  to  be  in  physical
                  control  of  any  automobile  or  other  motor  driven  vehicle  on  any  of  the  public  roads  and  highways  of
                  the  state  .  .  .  while  under  the  influence  of  any  intoxicant  .  .  .  .Ķ Tenn.  Code  Ann.  ¤  55-10-401(a)(1)
                  (1998).  The  essential  elements  of  the  defendantÕs  offense,  thus,  were  that  he  (1)  was  in  physical
                  control  of  the  vehicle;  (2)  on  a  public  road;  (3)  while  under  the  influence  of  an  intoxicant.
                           Viewed  in  the  light  most  favorable  to  the  State,  the  evidence  in  this  case  was  more  than
                  sufficient  to  support  the  defendantÕs  conviction  for  DUI. There  was  no  dispute  that  the  vehicle  was
                  on  a  public  road. There  was  also  no  dispute  that  the  defendant  was  found  in  the  driverÕs  seat,  with
                  the  engine  running  and  the  headlights  on. In  State  v.  Lawrence,  849  S.W.2d  761,  765  (Tenn.  1993),
                  our supreme court concluded that a jury is to consider the totality of the circumstances in



                                                                -7- determining  whether  a  defendant  is  in  physical  control  of  a  vehicle  for  the  purposes  of  the  DUI
               statute,  including  the  defendantÕs  location  in  the  car,  the  position  of  the  ignition  key,  whether  the
               engine  is  running,  and  the  extent  to  which  the  vehicle  is  capable  of  being  driven  or  moved. Id.
               According  to  Trooper  Riggs,  the  defendant  said  nothing,  at  the  time  of  his  arrest,  of  not  having
               driven  the  vehicle  to  the  location,  or  of  any  mechanical  problems  with  the  car. There  was  no  sign
               of  any  other  occupant. Although  the  defendant  testified  that  he  was  in  the  driverÕs  seat  with  the
               engine  running  only  in  order  to  turn  the  heater  on  to  stay  warm,  the  jury  was  entitled  to  disbelieve
               his  testimony. 
                       We  explained  the  ambit  of  our  DUI  statutes  in  State  v.  Kain,  24  S.W.3d  816,  819  (Tenn.
               Crim.  App.),  perm.  to  appeal  denied  (Tenn.  2000),  in  which  the  defense  was  that  the  intoxication  was
               involuntary:
                                      [I]n State v. Turner, 953 S.W.2d 213, 215  (Tenn. Crim.
                              App.1996),  perm.  app.  denied  (Tenn.1997),  this  court  concluded  that
                              Ōby  defining  the  offense  of  driving  under  the  influence  to  encompass
                              the  mere  physical  control  of  a  vehicle,  the  legislature  clearly  signaled
                              its  intention  to  create  a  crime  imposing  strict  liability.Ķ Citing  the
                              Model  Penal  Code  ¤  2.01  (1985),  we  held  that  a  defendant,  who,
                              while intoxicated, seated himself behind the steering wheel of a
                              stationary  motor  vehicle  with  the  headlights  turned  on  and  the  engine
                              running,  could  be  convicted  of  driving  under  the  influence. Even
                              though  the  vehicle  had  not  moved,  the  defendant,  by  placing  himself
                              in  physical  control  of  the  vehicle  while  he  was  intoxicated,  committed
                              the  necessary  voluntary  act. Id.  at  216. This  court  Ōhas  previously
                              observed  that  there  is  no  culpable  mental  state  required  for  guilt  of
                              driving  under  the  influence.Ķ Id.  at  215.
               The  circumstances  in  this  case  were  sufficient  for  the  jury  to  conclude  that  the  defendant  was  in
               physical  control  of  the  car,  for  the  purposes  of  the  DUI  statute,  at  the  time  of  his  arrest. 
                       There  was  also  sufficient  evidence  from  which  the  jury  could  conclude that  the  defendant
               was under the influence of alcohol at the time of his arrest.  Trooper Riggs testified that  the
               defendant  was  difficult  to  rouse,  and  that  he  smelled  strongly  of  alcohol. She  further  testified  that
               he  was  completely  unable  to  perform  two  field  sobriety  tests,  and  that  he  admitted  to  having  been
               drinking.  Furthermore,  his  speech  was  slurred,  his  eyes  were  bloodshot,  and  he  was  so  unsteady
               on  his  feet  that  he  was  unable  to  walk  to  the  rear  of  his  car  without  holding  onto  the  vehicle  for
               support,  and  Trooper  Riggs  had  to  catch  him  to  prevent  him  from  falling  as  he  attempted  the  field
               sobriety  tests. Her  opinion,  based  on  her  many  years  of  experience  and  training  as  a  highway  patrol
               officer,  was  that  he  was  under  the  influence  of  alcohol. The  StateÕs  toxicology  expert,  Dr.  Kenneth
               Ferslew,  described  the  effects  that  alcohol  has  on  the  central  nervous  system. In  response  to  a
               hypothetical  question,  he  testified  that  effects  such  as  those  described  by  Trooper  Riggs  would  not
               be  consistent  with  a  man  of  the  defendantÕs  size  having  drunk  only  three  beers  in  three  hours. 



                                                                -8- In  the  light  of  this  strong  evidence  of  the  defendantÕs  intoxication,  it  was  not  necessary  for
               the  jury  to  have  the  results  of  the  defendantÕs  breathalyzer  test  in  order  to  find  him  guilty  of  DUI.
               Ō[A]  defendant  may  be  convicted  of  DUI  based  on  either  evidence  of  intoxication  or  evidence
               showing  that  the  defendant  had  a  blood-alcohol  concentration  of  .10%  or  more.Ķ State  v.  Everett
               D.  Robinson,  No.  W1999-01348-CCA-RE-CD,  2000  WL  364844,  at  *4  (Tenn.  Crim.  App.  Apr.  7,
               2000)  (citing  Tenn.  Code  Ann.  ¤  55-10-401(a)).  Certified  copies  of  the  defendantÕs  prior  convictions
               established  that  he  had  two  prior  convictions  for  DUI.  We  conclude,  therefore,  that  the  evidence  was
               sufficient  to  support  the  defendantÕs  conviction  for  DUI,  third  offense.

                                                   II. Denial  of  Continuance

                       The defendant next contends that the trial court erred in denying his motion for a
               continuance.  He  argues  that  he  needed  additional  time  to  ensure  the  presence  of  essential  witnesses
               for  his  defense,  and  that  the  trial  courtÕs  denial  of  his  motion  prejudiced  the  outcome  of  his  case.
               The  State  argues  that  the  defendant  had  sufficient  time  to  contact  his  witnesses  prior  to  trial,  and  that
               the  trial  court  did  not  abuse  its  discretion  in  denying  his  request  for  a  continuance. 
                       The  decision  to  grant  or  deny  a  request  for  a  trial  continuance  rests  within  the  sole  discretion
               of  the  trial  court. State  v.  Mann,  959  S.W.2d  503,  524  (Tenn.  1997)  (citing  State  v.  Morgan,  825
               S.W.2d  113,  117  (Tenn.  Crim.  App.  1991). We  will  reverse  the  trial  courtÕs  denial  of  a  continuance
               only  upon  a  showing  that  the  denial  was  an  abuse  of  discretion,  and  the  defendant  was  prejudiced
               by  the  denial,  in  that  there  is  a  reasonable  probability  that,  had  the  continuance  been  granted,  the
               result  of  the  proceeding  would  have  been  different.  Id.  (citing  State  v.  Dykes,  803  S.W.2d  250,  257
               (Tenn.  Crim.  App.  1990));  State  v.  Cazes,  875  S.W.2d  253,  261  (Tenn.  1994).
                       The  record  reveals  that  trial  counsel  did  not  request  the  continuance  at  issue  in  this  case  until
               the morning of the defendantÕs trial, after a pool of jurors had already been brought into the
               courtroom. In  a  bench  conference  outside  the  hearing  of  the  jury,  the  defendantÕs  trial  counsel
               requested  more time to secure the appearance of two witnesses, the defendantÕs ex-girlfriend,
               Nunley,  and  the  appraiser  from  the  auto  auction,  Bill  Riggs. Trial  counsel  informed  the  court  that
               service  had  been  attempted  on  Riggs  at  the  auto  auction,  but  he  had  not  been  there,  and  counsel  had
               learned  that  he  would  not  return  from  vacation  until  the  following  week. Trial  counsel  said  that  he
               had  finally  obtained  NunleyÕs  address  in  Virginia  and  had  her  served  with  a  subpoena  the  previous
               evening.  However,  she  had  just  called  his  office  fifteen  minutes  before  to  inform  him  that  she  would
               not  appear  in  court  because  her  attorney  had  told  her  that  the  subpoena  was  not  valid  across  state
               lines. Therefore,  trial  counsel  needed  more  time  to  obtain  a  proper  subpoena  under  the  Interstate
               Compact  Act. 



                           2  In  the  hearing  on  the  defendantÕs  motion  for  a  new  trial,  the  trial  court  noted  that  the  case  had  been  continued
                  at  least  nine  tim  es  before  it  was  mo  ved  out  of  Session  s  Court  into Crimina  l  Court.

                                                                          -9- The  trial  court  first  observed  that  a  number  of  continuances  had  already  been  granted  in  the
                  case,2  from  the  date  that  the  matter  had  been  originally  set  for  trial,  on  April  28,  1998,  until  the
                  present  time,  May  24,  1999.  It  further  observed  that  the  defendant  had  known  that  Nunley  would
                  be an important witness since March 15, 1998, and yet had not taken measures to locate and
                  subpoena  her  until  the  last  minute  before  trial. Consequently,  the  court  denied  the  motion,  finding
                  that  trial  counsel  had  already  had  ample  time  to  locate  and  secure  his  witnesses  for  trial.
                            We  find  no  abuse  of  discretion  by  the  trial  court  in  this  matter. As  the  trial  court  observed
                  in  its  order  denying  the  defendantÕs  motion  for  a  new  trial,  Bill  Riggs  did,  in  fact,  appear  to  testify
                  on  the  defendantÕs  behalf  at  trial. With  regards  to  Nunley,  the  trial  court  found  that  there  was  no
                  evidence  that  the  defendant  made  any  timely  effort  to  locate  her  in  the  months  that  the  case  was
                  pending  in  court. A  request  for  a  trial  continuance  may  be  appropriately  denied  when  there  has  been
                  a  lack  of  diligence  or  neglect  on  the  part  of  the  moving  party. State  v.  Dorning,  682  S.W.2d  221,
                  223 (Tenn. Crim. App. 1984) (citing State v. Jefferson, 529 S.W.2d 674 (Tenn. 1975)).  The
                  defendant  failed  to  offer  any  reason  for  his  failure  to  locate  Nunley  prior  to  the  day  before  trial,  or
                  to  issue  a  proper  subpoena  for  her  appearance. The  trial  court,  therefore,  appropriately  denied  his
                  motion  for  a  continuance. 

                                                      III. Denial  of  Request  for  Mistrial

                           The  defendant  next  contends  that  the  trial  court  erred  in  denying  his  request  for  a  mistrial  or
                  a  new  trial. Whether  or  not  to  declare  a  mistrial  lies  within  the  sound  discretion  of  the  trial  court,
                  and  we  will  not  disturb  the  courtÕs  decision  absent  a  clear  showing  of  abuse  of  discretion. State  v.
                  Land, 34 S.W.3d 516, 527 (Tenn. Crim. App.), perm. to appeal denied  (Tenn. 2000) (citations
                  omitted). A  mistrial  should  be  declared  in  a  criminal  case  only  when  something  has  occurred  that
                  would  prevent  an  impartial  verdict,  thereby  resulting  in  a  miscarriage  of  justice  if  a  mistrial  is  not
                  declared. See  id.  (citing  State  v.  McPherson,  882  S.W.2d  365,  370  (Tenn.  Crim.  App.  1994));  State
                  v.  Jones,  15  S.W.3d  880,  893  (Tenn.  Crim.  App.  1999)  (citing  Arnold  v.  State,  563  S.W.2d  792,  794
                  (Tenn.  Crim.  App.  1977)).  ŌGenerally,  a  mistrial  will  be  declared  in  a  criminal  case  only  when  there
                  is  a  Ômanifest  necessityÕ  requiring  such  action  by  the  trial  judge.Ķ  State  v.  Millbrooks,  819  S.W.2d
                  441,  443  (Tenn.  Crim.  App.  1991)  (quoting  Arnold,  563  S.W.2d  at  794). The  burden  to  show  the
                  necessity  for  a  mistrial  falls  upon  the  party  seeking  the  mistrial.  Land,  34  S.W.3d  at  527  (citing  State
                  v.  Williams,  929  S.W.2d  385,  388  (Tenn.  Crim.  App.  1996)). 
                             The defendant argues that the extensive evidence offered on breath alcohol testing
                  machines,  which  included  the  information  that  he  had  registered  .10%  on  his  test,  prevented  the  jury
                  from  reaching  an  impartial  verdict,  thereby  necessitating  that  a  mistrial  be  declared. He  asserts  that
                  the jury heard Ōso much testimony concerning the breath test that an impartial verdict was
                  automatically  precluded.Ķ We  disagree.



                                                           -10- Although  a  significant  amount  of  testimony  was  offered  about  breath  alcohol  testing  and
              breath  alcohol  machines,  very  little  was  offered  concerning  the  results  of  the  defendantÕs  test.
              Furthermore,  the  trial  court  clearly  instructed  the  jury  to  disregard  all  evidence  about  the  defendantÕs
              breath  alcohol  test  results,  ordering  it  not  to  consider  the  evidence  Ōin  any  way  whatsoeverĶ  in
              reaching  its  verdict.  Jurors  may  be  presumed  to  follow  the  instructions  issued  by  the  trial  court.  See
              Millbrooks,  819  S.W.2d  at  443;  State  v.  Blackmon,  701  S.W.2d  228,  233  (Tenn.  Crim.  App.  1985).
              As  an  additional  safeguard,  however,  the  trial  court  individually  polled  each  juror  to  ensure  that  he
              or  she  would  be  able  to  follow  the  instructions,  with  each  answering  affirmatively. Under  these
              circumstances,  there  was  no  need  for  a  mistrial  to  be  declared. Accordingly,  we  conclude  that  the
              trial  court  did  not  abuse  its  discretion  in  denying  the  defendantÕs  request  for  a  mistrial. 

                                          IV.  Allowance  of  Expert  Testimony

                     As  his  next  issue,  the  defendant  contends  that  the  trial  court  committed  prejudicial  error  in
              allowing  TBI  Crime  Laboratory  Director  Jerry  Maines  to  offer  expert  testimony  on  breath  alcohol
              testing  devices  and  procedures.  Asserting  that  it  had  already  been  made  clear  from  Trooper  RiggsÕs
              testimony  that  the  twenty-minute  observation  period,  required  by  State  v.  Sensing,  843  S.W.2d  412,
              416  (Tenn.  1992),  had  not  been  followed,  he  argues  that  the  trial  court  should  not  have  allowed
              Maines  to  offer  his  Ōextremely  prejudicialĶ  testimony. The  State  argues  that  the  defendant  waived
              any  objection  to  the  testimony  by  his  failure  to  object  at  trial. The  State  further  argues  that  because
              the  trial  court  instructed  the  jury  to  disregard  the  breathalyzer  evidence,  no  prejudice  resulted  to  the
              defendant  from  MainesÕs  testimony. 
                     We  agree  with  the  State. The  defendant  failed  to  object  to  MainesÕs  testimony  at  trial.
              Failure  to  raise  a  contemporaneous  objection  to  the  testimony  waives  the  issue  for  appellate  review.
              See  Tenn.  R.  App.  P.  36(a);  Marsh  v.  State,  561  S.W.2d  767,  770  (Tenn.  Crim.  App.  1977).
              Furthermore,  we  have  already  determined  that  the  defendant  was  not  prejudiced  by  the  testimony,
              since the trial court instructed the jury to disregard all evidence concerning the breathalyzer
              machines  and  the  defendantÕs  breath  alcohol  test  results  in  making  its  determination  of  his  guilt.
              This  issue,  therefore,  is  without  merit.

                                          V. Ineffective  Assistance  of  Counsel

                     As  his  final  issue,  the  defendant  contends  that  his  trial  counsel  provided  ineffective  assistance
              for  his  failure  to  file  a  motion  in  limine  to  exclude  the  results  of  his  breathalyzer  test.  This  claim  was
              made  in  the  amended  motion  for  new  trial,  but  no  evidence  was  presented  at  the  hearing  on  the
              motion. In  his  appellate  brief,  the  defendant  argues  that  had  trial  counsel  adequately  investigated
              the  matter  before  trial,  he  could  have  readily  discovered  that  the  twenty-minute  observation  period
              had  not  been  followed,  and  therefore  moved  to  exclude  the  evidence  before  it  was  presented  to  the
              jury. 
                     To  be  successful  on  a  claim  of  ineffective  assistance  of  counsel,  the  defendant  has  the  burden
              of  showing  both  that  his  trial  counsel  was  deficient  in  his  performance,  and  that  trial  counselÕs



                                                           -11- deficient  performance  prejudiced  the  outcome  of  his  case.  See  Strickland  v.  Washington,  466  U.S.
              668,  687,  104  S.  Ct.  2052,  2064,  80  L.  Ed.  2d  674  (1984);  see  also  State  v.  Taylor,  968  S.W.2d  900,
              905  (Tenn.  Crim.  App.  1997)  (noting  that  the  same  standard  for  determining  ineffective  assistance
              of  counsel  that  is  applied  in  federal  cases  also  applies  in  Tennessee).  Since  the  defendant  must  meet
              both  prongs  of  the  test  in  order  to  succeed  on  this  claim,  failure  to  show  either  deficient  performance
              or  resulting  prejudice  will  result  in  a  failure  to  establish  his  claim.  See  Henley  v.  State,  960  S.W.2d
              572,  580  (Tenn.  1997);  Goad  v.  State,  938  S.W.2d  363,  370  (Tenn.  1996).
                     In  denying  the  defendantÕs  motion  for  a  new  trial,  the  trial  court  found  that  counsel  should
              have  investigated  the  breathalyzer  results  and  filed  a  motion  to  suppress  the  evidence,  but  that  the
              defendant  had  not  been  prejudiced  by  counselÕs  failure  in  that  regard. 
                     We  concur,  although  for  different  reasons,  that  the  claim  of  ineffective  trial  counsel  must  fail.
              The  defendant  had  the  burden  of  proving,  by  clear  and  convincing  evidence,  his  allegations  that  trial
              counsel  was  ineffective. See  Tenn.  Code  Ann.  ¤  40-30-210(f). For  this  court  to  conclude  that  trial
              counsel  was  ineffective  because  he  did  not  file  a  motion  in  limine,  we  would  have  to  indulge  in  the
              assumption that he could have had no basis for this alleged inaction.  That we cannot do.
              ŌAllegations  of  ineffective  assistance  of  counsel  relating  to  matters  of  trial  strategy  or  tactics  do  not
              provide  a  basis  for  post-conviction  relief.Ķ  Taylor  v.  State,  814  S.W.2d  374,  378  (Tenn.  Crim.  App.
              1991). Not  filing  a  motion  in  limine  may  have  been  a  reasonable  strategy  of  trial  counsel,  or  it  may
              have  been  an  oversight. However,  the  defendant  had  the  burden  of  demonstrating  it  was  the  latter.
              Since  no  proof  was  presented  at  the  motion  for  new  trial  in  this  regard,  it  would  be  rank  speculation
              for  us  to  conclude  that  trial  counsel  was  ineffective  on  this  basis. Accordingly,  this  assignment  is
              without  merit.

                                                     CONCLUSION

                     Based  on  the  foregoing  reasoning  and  authorities,  we  affirm  the  judgment  of  the  trial  court.
              However,  although  not  raised  by  the  parties  on  appeal,  we  note  that  the  judgment  forms  in  this  case
              reflect that the defendantÕs convictions resulted from guilty pleas, rather than jury verdicts.
              Accordingly,  we  remand  to  the  trial  court  for  entry  of  corrected  judgments. 

                                                                ___________________________________ 
                                                                ALAN  E.  GLENN,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                                 AT  JACKSON

                          Assigned  on  Briefs  April  11,  2001

                   STATE  OF  TENNESSEE  v.  CALVIN  T.  BARHAM

                   Direct  Appeal  from  the  Criminal  Court  for  Chester  County
                           No.  99-027  Roger  A.  Page,  Judge


                     No.  W2000-00871-CCA-R3-CD  -  Filed  May  15,  2001


         Defendant  entered  a  best  interest  plea  of  guilty  to  possession  of  cocaine  with  the  intent  to  sell  and
         was  sentenced  to  four  years  on  community  corrections.  The  plea  attempted  to  reserve  a  certified
         question  of  law  relating  to  the  suppression  of  evidence.  Upon  our  review  of  the  record,  we  conclude
         that  we  do  not  have  jurisdiction  to  address  the  certified  question  of  law.  The  appeal  is  dismissed.

                    Tenn.  R.  App.  P.  3  Appeal  as  of  Right;  Appeal  Dismissed

         JOE  G.  RILEY,  J.,  delivered  the  opinion  of  the  court,  in  which  JOHN  EVERETT  WILLIAMS  and  ROBERT
         W.  WEDEMEYER,  JJ.,  joined.
         George  Morton  Googe,  District  Public  Defender;  and  Vanessa  D.  King,  Assistant  District  Public
         Defender,  Jackson,  Tennessee,  for  the  appellant,  Calvin  T.  Barham.
         Paul  G.  Summers,  Attorney  General  and  Reporter;  J.  Ross  Dyer,  Assistant  Attorney  General;  James
         G.  (Jerry)  Woodall,  District  Attorney  General;  and  Shaun  A.  Brown,  Assistant  District  Attorney
         General,  for  the  appellee,  State  of  Tennessee.


                                   OPINION

             Defendant  pled  guilty  to  possession  of  cocaine  with  the  intent  to  sell,  a  Class  C  felony,  and
         received  an  agreed  sentence  of  four  years  on  community  corrections. The  parties  attempted  to
         reserve  a  certified  question  of  law  regarding  the  suppression  of  evidence.  Defendant  contends  that
         he  was  illegally  seized  and  searched;  thus,  the  trial  court  should  have  suppressed  any  evidence  which
         was  gathered  pursuant  to  the  illegal  search  and  seizure.  Upon  our  review  of  the  record,  we  must
         conclude  that  this  court  does  not  have  jurisdiction  to  address  the  certified  question  since  the
         certification  did  not  meet  the  requirements  of  State  v.  Preston,  759  S.W.2d  647  (Tenn.  1988).  The
         appeal  is,  therefore,  dismissed. 



                                                                -2- BACKGROUND

                       Following  a  routine  traffic  stop,  drugs  were  discovered  in  the  defendant's  shoe. Thereafter,
               the  defendant  was  indicted  for  possession  of  cocaine  with  intent  to  sell  and  deliver. The  defendant
               filed  a  motion  to  suppress  the  drugs  found  during  the  search. The  defendant  claims  he  was  illegally
               detained,  improperly  frisked,  and  did  not  voluntarily  consent  to  the  search  of  his  shoe. Following
               a  hearing,  the  trial  court  denied  the  defendant's  motion  to  suppress. Later  that  day,  the  defendant
               entered  a  best  interest  plea  of  guilty  to  possession  of  cocaine  with  intent  to  sell  and  was  sentenced
               to  four  years  on  community  corrections. 
                       The  transcript  of  the  guilty  plea  hearing  indicates  that  all  parties  agreed  that  the  guilty  plea
               would  be  conditional  upon  the  reservation  of  a  certified  question  of  law  relating  to  the  suppression
               of  the  evidence. See  Tenn.  R.  Crim.  P.  37(b)(2)(i). Additionally,  the  plea  agreement,  executed  by
               the  assistant  district  attorney  and  the  defendant,  refers  to  the  Ōright  to  appeal  [the]  suppression  of
               evidence.Ķ The  judgment  of  conviction  entered  by  the  trial  court  on  March  31,  2000,  contains  the
               following  language: "Defendant  reserves  a  certified  question  of  law  concerning  his  Motion  to
               Suppress." The  judgment  of  conviction  contains  no  further  information  relating  to  the  certified
               question. Notice  of  appeal  was  filed  on  April  17,  2000. A  written  order  denying  the  motion  to
               suppress  and  an  ŌOrder  Granting  the  Defendant's  Motion  for  Appeal  by  PermissionĶ  were  entered
               by  the  trial  court  on  June  30,  2000. The  order  sets  forth  the  nature  of  the  certifie  d  question. In
               addition,  the  order  states  that  all  the  parties  agreed  to  the  certified  question,  states  that  the  plea
               agreement  expressly  reserved  the  right  to  certify  the  question,  and  indicates  the  trial  court  found  the
               question  to  be  dispositive  of  the  case. 


                                                  JURISDICTIONAL  ISSUE

                       The  state  contends  the  certified  question  is  not  properly  before  this  court. We  agree. State
               v.  Preston,  759  S.W.2d  647  (Tenn.  1988)  explicitly  sets  forth  the  requirements  for  properly  reserving
               a  certified  question  of  law.  The  final  order  or  judgment  from  which  the  time  begins  to  run  to  pursue
               a  Tenn.  R.  App.  P.  3  appeal  must  contain  a  statement  of  the  dispositive  certified  question  of  law
               reserved  by  defendant  for  appellate  review. Id.  at  650. The  question  of  law  must  be  stated  so  as  to
               clearly  identify  the  scope  and  the  limits  of  the  legal  issue  reserved.  Id.  Specifically,  where  questions
               of  law  involve  the  validity  of  searches,  the  reasons  relied  upon  by  the  defendant  at  the  suppression
               hearing  must  be  identified  in  the  statement  of  the  certified  question  of  law,  and  review  by  the
               appellate  courts  will  be  limited  to  those  issues  passed  upon  by  the  trial  judge  and  stated  in  the
               certified  question. Id.;  see  also  State  v.  Caldwell,  924  S.W.2d  117,  118  (Tenn.  Crim.  App.  1995).
               Also,  the  order  must  state  that  the  certified  question  was  expressly  reserved  as  part  of  the  plea
               agreement,  the  state  and  trial  judge  consented  to  the  reservation,  and  the  state  and  trial  judge  are  of
               the  opinion  that  the  question  is  dispositive  of  the  case. Preston,  759  S.W.2d  at  650. 
                       Failure  to  properly  reserve  a  certified  question  of  law  pursuant  to  Preston  will  result  in  the
               dismissal  of  the  appeal.  State  v.  Pendergrass,  937  S.W.2d.  834,  838  (Tenn.  1996).  Furthermore,  the



                                                                -3- court  in  Pendergrass  held  that  the  trial  court  lost  jurisdiction  on  the  date  the  notice  of  appeal  was
               filed,  and  found  its  attempt  to  properly  certify  the  question  several  days  later  to  be  a  nullity. Id.

                       Like  our  recent  decision  in  State  v.  Danny  Harold  Ogle,  No.  E2000-00421-CCA-R3-CD,
               2001  WL  38755  (Tenn.  Crim.  App.  filed  January  17,  2001,  at  Knoxville),  perm.  to  app.  filed  March
               16, 2001, we conclude  that the attempt to certify the question of law in this case was not in
               compliance with  Preston. Although  the  judgment  of  conviction  made  reference  to  a  certified
               question  of  law,  the  judgment  does  not  identify  the  scope  of  the  certified  question  of  law  and
               contains  no  statement  that  the  question  is  dispositive. Furthermore,  this  court  has  consistently  held
               that  the  Preston  requirements  are  jurisdictional.  See  Ogle,  2001  WL  38755,  at  *3  (citations  omitted).
               Thus,  the  failure  to  properly  certify  a  question  of  law  is  a  jurisdictional  defect,  which  results  in  the
               dismissal  of  the  appeal. Id. 

                       Like  the  subsequent  order  entered  in  Pendergrass  and  Ogle,  the  order  entered  by  the  trial
               court  in  this  case  was  signed  and  entered  by  the  trial  court  after  the  filing  of  the  notice  of  appeal;
               thus,  it  was  a  nullity. Id. An  order  attempting  to  certify  a  question  of  law  which  is  entered  after  the
               filing  of  the  notice  of  appeal  is  an  improper  attempt  to  confer  jurisdiction  upon  the  Court  of  Criminal
               Appeals  where  no  such  jurisdiction  exists. Pendergrass,  937  S.W.2d  at  837. We  further  conclude
               that  we  cannot  accept  jurisdiction  based  upon  the  agreement  of  the  parties. State  v.  Wilkes,  684
               S.W.2d  663,  667  (Tenn.  Crim.  App.  1984). Thus,  the  appeal  is  dismissed.
                       However,  this panel refers to our comments in Ogle  regarding the current scheme for
               reserving  certified  questions  of  law. See  2001  WL  38755,  at  *3. We  continue  to  believe  that  the
               better  practice  is  to  allow  the  appellate  courts  to  entertain  an  appeal,  even  if  the  judgment  itself  does
               not  contain  the  essential  requirements;  provided,  it  is  apparent  from  the  plea  documents  or  any  other
               proper  record  before  the  appellate  court  that,  at  the  time  of  the  guilty  plea,  the  plea  explicitly
               reserved  a  dispositive  certified  question  of  law  with  the  consent  of  all  the  parties  and  the  trial  court.

               Id. Although  the  guilty  plea  transcript  before  this  court  indicates  the  reservation  of  a  dispositive
               certified  question  of  law  with  consent  of  all  parties  and  the  trial  court,  the  Preston  requirements  have
               not  been  satisfied. 


                                                        CONCLUSION

                       Our review of the record indicates that, under current law,  we have no jurisdiction to
               entertain  this  appeal. Accordingly,  the  appeal  is  dismissed. 

                                                                     ___________________________________ 
                                                                     JOE  G.  RILEY,  JUDGE



              IN  THE  COURT  OF  CRIMINAL  APPEALS  OF  TENNESSEE
                               AT  KNOXVILLE

                            September  25,  2001  Session

                   STATE  OF  TENNESSEE  v.  JARED  M.  BARNES

                       Appeal  from  the  Circuit  Court  for  Sevier  County
                          No.  7974  Richard  R.  Vance,  Judge


                            No.  E2001-00325-CCA-R3-CD 
                                December  10,  2001

         The  defendant,  Jared  M.  Barnes,  was  convicted  upon  his  guilty  plea  for  vehicular  homicide  by
         recklessness,  a  Class  C  felony.  The  trial  court  sentenced  him  as  a  Range  I,  standard  offender  to  five
         years,  with  ten  months,  day  for  day,  to  be  served  in  the  county  jail  and  the  remainder  of  the  sentence
         to  be  served  on  probation.  In  addition,  the  trial  court  suspended  the  defendantÕs  driving  privileges
         for  five  years  and  ordered  that  he  complete  five  hundred  hours  of  community  service.  The  defendant
         appeals  his  sentence,  contending  that  the  trial  court  erred  in  denying  him  judicial  diversion  or  full
         probation.  We  affirm  the  trial  courtÕs  denial  of  judicial  diversion  and  full  probation,  but  hold  that
         the  order  that  the  defendant  serve  his  ten-month  incarceration  day  for  day  does  not  preclude  use  of
         applicable  conduct  credits. 

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

         JOSEPH  M.  TIPTON,  J.,  delivered  the  opinion  of  the  court,  in  which  JOE  G.  RILEY  and  ALAN  E.
         GLENN,  JJ.,  joined.
         James  H.  Ripley,  Sevierville,  Tennessee,  for  the  appellant,  Jared  M.  Barnes.
         Paul  G.  Summers,  Attorney  General  &  Reporter;  Elizabeth  B.  Marney,  Assistant  Attorney  General;
         Al  C.  Schmutzer,  Jr.,  District  Attorney  General;  and  Charles  E.  Atchley,  Jr.,  Assistant  District
         Attorney  General,  for  the  appellee,  State  of  Tennessee.

                                   OPINION

             The  defendant  pled  guilty  pursuant  to  a  plea  bargain  by  which  the  sentence  was  to  be  five
         years,  with  confinement  of  no  more  than  a  year,  the  exact  amount,  if  any,  to  be  set  by  the  trial  court.
         At  the  defendantÕs  guilty  plea  hearing,  the  state  presented  the  following  factual  account  of  the  crime:
         On  August  20,  1999,  the  defendant  and  three  passengers  were  traveling  in  Sevier  County,  when  they
         were  involved  in  a  one-car  accident.  One  of  the  defendantÕs  passengers,  Sammy  Garner,  was  killed.
         The  Tennessee  Highway  Patrol  determined  that  the  defendant  had  been  driving,  and  the  defendant
         admitted  to  officers  that  he  had  been  drinking. A  blood  test  revealed  that  the  defendantÕs  blood



                                                                -2- alcohol  content  was  .10%.  The  defendantÕs  blood  also  tested  positive  for  Diazepam,  a  generic  name
               for  Valium.
                       The  defendant  was  indicted  for  vehicular  homicide  by  intoxication,  a  Class  B  felony. See
               Tenn.  Code  Ann.  ¤  39-13-213(a)(2),  (b). He  pled  guilty  to  vehicular  homicide  by  recklessness,  a
               Class  C  felony. See  Tenn.  Code  Ann.  ¤  39-13-213(a)(1),  (b). As  part  of  the  plea  agreement,  the
               defendant  was  to  receive  a  five-year  sentence,  with  maximum  incarceration  not  to  exceed  one  year.
                       At  the  sentencing  hearing,  the  then  twenty-two-year-old  defendant  testified  that  he  was  a  high
               school  graduate  and  lived  with  his  parents.  He  said  that  he  did  maintenance  for  his  parentsÕ  business,
               Christmas  Place,  in  Pigeon  Forge. He  said  that  he  took  medications  for  attention  deficit  disorder
               (ADD)  and  depression.  He  said  that  on  the  night  of  the  accident,  he  attended  a  party  at  a  friendÕs
               house. He  said  that  he  and  three  friends  left  the  party  and  went  to  Patriot  Park  to  meet  people. He
               said  that  he  was  driving,  the  victim  was  in  the  front  passenger  seat,  and  his  two  other  passengers
               were  in  the  back  seat. He  said  that  after  they  met  people  at  Patriot  Park,  they  headed  back  to  the
               party. He  said  that  he  was  leading  people  to  the  party  and  that  he  was  constantly  looking  in  his
               rearview  mirror  to  make  sure  that  the  car  behind  him  did  not  get  lost. 
                       The  defendant  testified  that  he  was  driving  on  a  narrow,  curvy  road  that  did  not  have  street
               lights. He  said  that  there  was  no  guardrail  or  shoulder  on  the  road. He  said  that  he  and  the  victim
               were  trying  to  find  a  music  compact  disc  (CD)  to  play  and  that  the  victim  dropped  one  of  the  CDs.
               He  said  that  as  he  bent  down  to  pick  up  the  CD,  the  carÕs  right  front  tire  left  the  pavement  and  that
               before  he  could  pull  the  car  back  onto  the  road,  it  rolled  down  an  embankment.  He  said  that  the  first
               thing  he  did  was  make  sure  that  everyone  was  alright. He  said  that  he  did  not  hear  anything  from
               the  victim  and  that  he  saw  that  the  victim  was  not  breathing. He  said  that  he  gave  the  victim
               cardiopulmonary  resuscitation  (CPR)  and  that  he  had  the  victimÕs  blood  all  over  his  shirt. He  said
               that  everyone  but  the  victim  walked  away  from  the  accident.
                       The  defendant  testified  that  he  took  Valium  the  night  of  the  accident  and  that  he  was  Ōlegally
               drunkĶ  at  the  time  of  the  wreck. He  said  that  everyone  in  the  car  had  been  drinking  ŌtremendouslyĶ
               and  that  he  took  responsibility  for  the  accident  Ōone  hundred  percent.Ķ  He  said  that  he  wanted  to  talk
               to  kids  in  the  community  about  his  mistake. He  said  that  the  victim  was  his  best  friend  and  that  he
               wished  he  could  switch  places  with  the  victim. He  said  that  he  will  never  drink  and  drive  again.
                       On  cross-examination,  the  defendant  acknowledged  that  he  started  drinking  and  taking  drugs
               when  he  was  nineteen. He  said  that  he  has  smoked  marijuana  a  couple  of  times  but  that  at  the  time
               of  the  sentencing  hearing,  he  had  not  smoked  marijuana  for  two  years. He  said  that  before  the
               accident,  he  would  occasionally  drink  with  friends  and  get  drunk. He  said  that  on  the  night  of  the
               accident,  he  drank  about  six  beers. He  said  that  the  night  of  the  accident  was  the  first  time  that  he
               had  taken  Valium. He  said  that  since  the  accident,  he  rarely  drank  alcohol  and  that  he  has  had  only
               Ōa  sip  or  two.Ķ He  said  that  after  the  wreck,  an  officer  told  him  that  it  was  a  freak  accident. He  said
               that  the  officer  also  gave  him  field  sobriety  tests  and  that  he  passed  them.  He  said  that  he  has  visited
               the  victimÕs  grave  six  times.



                                                                -3- The  defendantÕs  mother,  Karen  Barnes,  testified  as  follows:  She  had  a  close  relationship  with
               the  defendant. The  defendant  was  a  difficult  child  to  raise,  and  a  doctor  diagnosed  him  with  ADD
               when  the  defendant  was  fourteen  years  old. Because  the  defendant  was  having  a  difficult  time  in
               school,  she  sent  him  to  a  special  school  in  Utah,  where  he  could  get  help  and  earn  his  diploma. The
               defendant  probably  tried  alcohol  and  drugs  after  he  graduated  from  high  school.  The  defendant  was
               very  sorry  for  what  happened,  and  he  told  her  that  he  wished  he  had  gotten  killed  instead  of  the
               victim. After  the  accident,  the  defendant  did  not  leave  the  house  for  a  couple  of  months,  and  he
               would  not  talk  on  the  telephone. He  was  working  at  Christmas  Place  and  was  a  very  hard  worker.
               The  defendant  had  a  soft  heart  and  liked  to  talk  to  people.  The  principal  of  a  local  middle  school  was
               receptive  to  the  defendantÕs  working  in  the  school  system,  and  Ms.  Barnes  thought  that  the  defendant
               could  benefit  the  community  by  sharing  his  experience  with  kids.  On  cross-examination,  Ms.
               Barnes  acknowledged  that  her  son  had  two  or  three  speeding  tickets. 
                       Toby  Barnes,  the  defendantÕs  father,  testified  as  follows:  After  the  defendant  graduated  from
               high  school,  the  defendant  worked  for  a  family  friend  in  China  and  Japan. When  the  defendant
               returned  from  Japan,  he  began  working  at  Christmas  Place.  Before  the  accident,  the  defendantÕs  life
               consisted  of  working  and  socializing  with  friends. The  defendant  also  got  some  speeding  tickets.
               Since  the  accident,  the  defendant  had  matured  and  become  a  diligent  worker. He  had  also  begun
               attending  church. The  defendant  showed  remorse  and  felt  responsible  for  the  victimÕs  death. Mr.
               Barnes  was  committed  to  helping  his  son  and  would  provide  transportation  so  that  the  defendant
               could  do  community  service  work.
                       Betty  Ogle,  a  friend  of  the  Barnes  family,  testified  as  follows:  She  had  known  the  defendant
               about  sixteen  years. The  defendant  had been  loving,  kind,  and  gentle,  and  he  had  been  doing
               volunteer  work  at  the  Church  of  God  Home  for  Children. She  said  that  when  her  husband  died  in
               1994,  the  defendant  visited  and  comforted  her. She  said  that  the  defendant  and  society  would  best
               be  served  by  allowing  him  to  perform  community  service  work.
                       Steve  Madison,  a  Barnes  family  friend,  testified  as  follows:  He  was  best  friends  with  Toby
               Barnes,  and  Mr.  MadisonÕs  son  and  the  defendant  were  friends. The  defendant  had  always  been  Ōa
               little  rough  around  the  edges,Ķ  but  the  defendant  had  a  big  heart. Since  the  accident,  the  defendant
               had  changed  and  had  learned  not  to  drink  and  drive. The  defendant  had  lived  with  the  accident
               everyday  and  had  made  some  positive  changes  to  his  environment. Sending  the  defendant  to  jail
               would  harden  the  defendantÕs  heart,  and  society  would  be  better  off  by  allowing  him  to  contribute
               to  the  community.
                       Nancy  White,  the  victimÕs  mother,  testified  as  follows: Ms.  White  and  the  victimÕs  father
               were  divorced.  Although  the  victim  lived  with  his  father,  he  spent  weekends,  holidays,  and  summers
               with  Ms.  White. The  victim  was  happy  and  loving,  and  when  he  died,  a  part  of  her  died  with  him.
               Ms.  White  and  the  victim  loved  to  go  fishing.  However,  Ms.  White  had  not  picked  up  a  fishing  pole
               since  the  victimÕs  death. After  the  victimÕs  death,  Ms.  White  tried  to  commit  suicide,  and  she  had
               been  depressed  and  cried  all  of  the  time. The  victimÕs  death  caused  Ms.  White  to  hate  the  holidays,



                                                                -4- and  it  tore  her  family  apart. She  agreed  with  the  stateÕs  recommendation  that  the  defendant  should
               serve  one  year  in  jail. 
                       The  victimÕs  father,  Jerry  Garner,  testified  as  follows:  The  victim  had  lived  with  Mr.  Garner
               since  the  victim  was  six  years  old. Mr.  Garner  had  a  good  relationship  with  the  victim,  and  the
               victim  helped  him  with  his  business. Mr.  Garner  was  married  when  the  victim  was  killed,  but  the
               victimÕs  death  turned  his  life  upside  down  and  broke  up  his  marriage. Mr.  Garner  will  never  be  the
               same,  and  he  was  on  medication  for  depression. He  did  not  want  the  defendantÕs  conviction  to  be
               expunged  from  the  defendantÕs  record. 
                       According  to the presentence report, between  November 1995 and February  1997, the
               defendant  received  four  misdemeanor  convictions  for  speeding. In  the  report,  the  defendant  stated
               that  he  was  driving  fifteen  to  twenty  miles  per  hour  at  the  time  of  the  accident  in  question. The
               presentence  report  also  provides  that  Ōthe  defendant  appears  to  be  a  medium  risk  candidate  for
               probation.Ķ
                       At the sentencing hearing, the state argued that, as part of his five-year sentence, the
               defendant  should  spend  one  year,  day  for  day,  in  jail;  that  he  should  have  to  perform  five  hundred
               hours  of  community  service;  and  that  his  driverÕs  license  should  be  revoked  for  five  years. The
               defense  argued  that  the  defendant  should  receive  judicial  diversion  and  that  his  driverÕs  license
               should  be  revoked  for  only  three  years. 
                       The  trial  court  sentenced  the  defendant  to  five  years  with  ten  months  to  be  served  in  jail,  day
               for  day,  and  the  balance  to  be  served  on  probation. The  trial  court  also  ordered  that  the  defendant
               perform  five  hundred  hours  of  community  service  and  revoked  his  driving  privileges  for  five  years.
               In  deciding  against  judicial  diversion  and  full  probation,  the  trial  court  stated:
                                      Ladies  and  gentlemen,  the  Court  has  been  considering  the
                              sentencing  issues  in  #7974,  State  vs.  Jared  M.  Barnes. This  case  is  a
                              tragedy;  itÕs  a  tragedy  for  everyone  concerned.  ItÕs  a  great  tragedy  for
                              the  young  man,  Sammy  Garner. ItÕs  a  great  tragedy  for  his  family.
                              ItÕs  a  tragedy  for  this  defendant  Jared  Barnes  who  caused  the  death  of
                               his  friend. ItÕs  a  tragedy  for  his  family  and  itÕs  a  tragedy  for  the
                               community,  the  loss  of  a  promising  young  man  who  was  well  liked.
                               As  pointed  out  in  the  testimony  of  everyone,  it  changed  lives. 
                                      Sentencing  in  a  criminal  case  is  a  matter  of  law. And  the
                               sentence  to  be  applied  has  to  be  carried  out  adhering  to  the  principles
                               and  statutes  which  govern  sentences. Nothing  the  Court  can  do  can
                               bring  back  a  loved  one.  Nothing  the  Court  can  do  can  undo  the  crime
                               committed  by  this  defendant.
                               .  .  .  . 



                                                                -5- In  reaching  the  sentencing  decision  the  Court  has  considered
                              the  facts  and  circumstances  of  the  case,  not  only  as  presented  in  the
                              stipulated  facts  supporting  the  plea  but  also  as  set  forth  in  this  hearing
                              today. The  CourtÕs  considered  the  Pre-Sentence  Investigation,  the
                              testimony  of  the  defendant,  the  testimony  of  the  victimÕs  family,  the
                              testimony  of  several  witnesses,  considered  his  criminal  record  and  all
                              the  circumstances  in  the  case.
                                      The  sentencing  law  focuses  primarily  upon  the  defendant,  the
                              circumstances  of  his  crime,  the  particular  facts  and  factors  that  affect
                              him  primarily. The  law  does  recognize  the  impact  of  a  crime  upon
                              the  family  of  the  victim.  It  isnÕt  a  balance  between  the  life  and  merits
                              of  the  defendant  and  the  victim  but  itÕs  a  matter  of  law.
                               .  .  .  .
                                      I  will  point  out  that  certain  enhancing  factors  would have
                              applied;  that  is,  his  previous  history  of  criminal  behavior,  the  use  of
                              alcohol  and  drugs  in  this  event  since  the  offense  pled  to  did  not  have
                              alcohol  and  drugs  as  an  element  of  the  offense.
                                      In mitigation the defendant has shown remorse.   The
                              defendant  has  shown  that  he  suffered  from  Attention  Deficit  disability
                              as a child but the proof further shows that heÕs performing  and
                              functioning  very  well  in  society  now.
                              .  .  .  .
                                      Having  agreed  to  the  sentence  of  five  years  the  Court  must
                              then  consider  by  law  various  elements  of  that  sentence. First  of  all  is
                              alternative  sentencing. That  has  already  been  applied  by  the  parties
                              agreeing  to  a  split  confinement  with  a  maximum  of  one  year  in  jail.
                                      The  Court  must  next  consider  how  that  five  year  sentence
                              should  be  served,  that  portion  that  the  parties  have  agreed  would  be
                              not  more  than  one  year. That  issue  is  probation,  whether  or  not  he
                              should  be  placed  on  straight  probation  or  be  ordered  to  serve  a  portion
                              or  all  of  that  agreed  sentence.
                                      In  looking  at  probation  the  Court  must  consider  the  nature  and
                              circumstances  of  the  offense,  this  defendant. In  this  particular  case
                              probation  would  not  be  appropriate.  This  was  a  very  serious  offense.
                              It  took  the  life  of  the  victim.  ThatÕs  inherent  in  the  offense  itself.  But



                                                                -6- to  avoid  depreciating  the  seriousness  of  that  offense  the  Court  feels
                              that  probation,  straight  probation  would  not  be  appropriate  in  this
                              case.
                                      The  Court  further  considers  in  denying  probation  his  previous
                              history  of  criminal  conduct. As  shown  in  this  hearing  he  had  four
                              previous  convictions  for  misdemeanors,  speeding,  which  normally  in
                              and  of  itself  do  not  seem  like  serious  offenses  but  theyÕre  violations
                              of  the  law. The  standards  of  society  thatÕs  a  crime. And  he  had  four
                              of  those.
                                      The  proof  further  showed  by  his  own  admission  that  he  had
                              illegally  used  marijuana  on  at  least  two  previous  occasions. The
                              illegal  use  of  marijuana  is  a  Class  A  Misdemeanor.  ItÕs  a  crime  to  use
                              marijuana.
                                      In  considering  the  facts  and  circumstances  of  this  offense  the
                              Court  also  is  aware  by  the  proof  that  there  were  two  other  passengers
                              in  the  vehicle.  Fortunately  they  were  not  hurt.  There  were  two  others
                              who  ran  the  risk  of  serious  bodily  injury  or  death  by  reason  of  this
                              defendantÕs  conduct.
                                      It was finally argued in a different approach normally
                              deterrence  is  a  factor  to  be  applied  for  imposing  penalty  and  there  are
                              certain requirements of the law in order to support a finding of
                              deterrence.  In  this  case  the  defense  argued  deterrence  by  virtue  of  this
                              defendantÕs  voluntarily  speaking  out to school groups and others
                              about  what  had  happened  in  this  case,  the  effect  it  had  on  him,  the  life
                              of  his  friend  as  a  deterrence  to  others. The  State  has  argued  that  it
                              would  be  of  little  deterrence  for  someone  who  has  committed  a  crime
                              that  resulted  in  a  death  to  not  be  punished.
                                      The Court finds that in this case straight  probation is not
                              appropriate  for  the  reasons  IÕve  given. The  Court  finds  that  based
                              upon  what  he  has  done,  in  addition  to  his  remorse,  in  addition  to  all
                               the  other  facts  and  circumstances,  heÕs  already  begun  by  talking  to
                               students,  by  sharing  with  them  this  tragedy  and  thatÕs  worth  some
                               credit.
                                      The Court is going to order that this defendant serve ten
                               months  in  the  Sevier  County  Jail  day  per  day.



                                                                -7- The  next  issue  the  Court  must  consider  is  the  application  for
                              judicial  deferral. Consideration  of  this  looks  at  many  of  the  same
                              factors  as  would  be  looked  at  on  the  issue  of  probation.  .  .  . 
                                      Again,  he  had  four  previous  convictions  for  Misdemeanors.
                              That  doesnÕt  disqualify  him. He  did  have  a  history  of  illegal  use  of
                              drugs. That doesnÕt disqualify  him under  the statute.  But those
                              previous  criminal  offenses  coupled  with  the  seriousness  of  the  offense
                              and  to  avoid  depreciating  the  seriousness  of  this  offense,  leaves  the
                              Court  to  conclude  that  judicial  deferral  would  not  be  appropriate  in
                              this  case. So  the  conviction  would  stand. 
                              .  .  .  .
                                      The  Court  will  further  order  as  a  condition  of  probation  that
                              he perform one hundred hours of  public service per year of this
                              sentence;  one  hundred  hours  to  be  completed  in  each  year  for  a  total
                              of  five  hundred  hours. How  that  public  service  will  be  performed
                              will  be  done  through  the  supervision  of  the  Probation  Department.
                              It is suggested and proposed that he would do that by way of
                              educational  presentations  to  youth  and  that  is  desirable. The  Court
                              would  ask  that  the  Probation  Office  [emphasize]  that  as  a  part  of  his
                              public  service.
                                      The  Court  believes  that  in  doing  that  he  will  serve  himself,  he
                              will  serve  the  community. It  may  provide  a  deterrence  as  suggested
                              but  the  fact  that  he  will  have  served  substantial  time  in  jail  and  he
                              may  share  that  experience  with  his  youthful  audience  will  provide  an
                              even  stronger  deterrence. The  Court  feels  thatÕs  necessary  in  this
                              case.

                                          I. DENIAL  OF  JUDICIAL  DIVERSION

                       The  defendant  contends  that  the  trial  court  erred  when  it  refused  to  grant  his  request  for
               judicial  diversion. He  contends  that  when  ruling  on  the  judicial  diversion  issue,  the  trial  court
               ignored  factors  that  it  was  required  to  consider  such  as  (1)  the  defendantÕs  amenability  to  correction;
               (2)  certain  circumstances  of  the  offense,  including  the  physical  characteristics  of  the  road  and  the  fact
               that  the  defendant  was  not  speeding  at  the  time  of  the  offense;  (3)  the  defendantÕs  social  history;  (4)
               the  defendantÕs  mental  health;  and  (5)  serving  the  ends  of  justice.  Furthermore,  the  defendant  argues
               that  because  the  state  did  not  offer  proof  of  a  need  for  deterrence  that  would  satisfy  State  v.  Hooper,
               29  S.W.3d  1  (Tenn.  2000),  the  trial  court  could  not  consider  deterrence  as  a  ground  for  denying
               judicial  diversion. The  state  argues  that  the  trial  court  considered  all  of  the  required  factors  and  that



                                                                -8- it properly denied judicial diversion.  We conclude that the trial court did not err in denying
               diversion. 
                       First,  we  question  whether  the  defendantÕs  plea  agreement  allowed  for  judicial  diversion.
               The  plea  agreement  called  for  the  defendant  to  plead  guilty  and  accept  a  five-year  sentence,  with  the
               remaining  consideration  of  the  manner  of  serving  the  sentence  being  decided  by  the  trial  court.
               Under  judicial  diversion,  the  trial  court  defers  further  proceedings  without  entering  a  judgment  of
               conviction,  the  ultimate  goal  of  the  defendant  being  a  dismissal  of  the  charges.  See  Tenn.  Code  Ann.
               ¤ 40-35-313(a).  The imposition of a sentence necessarily  entails the entry of a  judgment of
               conviction. Thus,  agreeing  to  a  sentence  would  foreclose  the  option  of  judicial  diversion. In  any
               event,  because  the  state  and  the  trial  court  considered  diversion,  we  will  review  the  trial  courtÕs
               decision. 
                       A  defendant  is  eligible  for  judicial  diversion  when  he  or  she  is  found  guilty  or  pleads  guilty
               to  a Class C, D, or E felony and has not previously  been convicted of a felony or a Class A
               misdemeanor. See  Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(B). As  previously  noted,  judicial  diversion
               allows  the  trial  court  to  defer  further  proceedings  without  entering  a  judgment  of  guilt  and  to  place
               the  defendant  on  probation  under  reasonable  conditions. Tenn.  Code  Ann.  ¤  40-35-313(a)(1)(B).
               When  the  probationary  period  expires,  if  the  defendant  has  completed  probation  successfully,  then
               the trial