State of Tennessee v. Joseph Cordell Brewer, III ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 03, 2015
STATE OF TENNESSEE v. JOSEPH CORDELL BREWER, III
Appeal from the Circuit Court for Obion County
No. CC13CR143 William B. Acree, Judge
No. W2014-01347-CCA-R3-CD - Filed June 1, 2015
The defendant, Joseph Cordell Brewer, III, was convicted of theft of property of $10,000
or more but less than $60,000, a Class C felony; evading arrest, a Class D felony; and
evading arrest, a Class A misdemeanor. The trial court sentenced the defendant as a
Range III, persistent offender to serve twelve years for the theft of property conviction,
twelve years as a Range IV, career offender for the felony evading arrest conviction, and
eleven months and twenty-nine days for the misdemeanor evading arrest conviction. The
trial court ordered the sentences to be served concurrently to each other but consecutively
to a prior sentence because the offenses were committed while the defendant was on
parole. On appeal, the defendant argues that the evidence is insufficient to sustain his
convictions for theft of property and Class D felony evading arrest. He also argues that
the trial court improperly classified him as a persistent and career offender. After our
review of the briefs, the record, and the applicable law, we conclude that the evidence is
sufficient to sustain the defendant=s conviction for theft of property but that his conviction
for Class D felony evading arrest should be reduced to Class E felony evading arrest.
Further, we conclude that the trial court properly sentenced the defendant as a persistent
and career offender, but we remand the case for resentencing on the Class E felony.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Reversed in Part; Case Remanded
JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.
Joseph P. Atnip (on appeal), District Public Defender; and William K. Randoph (at trial),
Assistant District Public Defender, for the appellant, Joseph Cordell Brewer, III.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Thomas A. Thomas, District Attorney General; and Jim Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
This case arose after the defendant stole Scott and Heather Riley=s 2009 Honda
Odyssey minivan and led police on a high-speed chase as they attempted to apprehend
him. Officer James Key testified that he was a police officer in the Union City Police
Department. Just before midnight on the evening of the incident, Officer Key was on
West Main Street Arunning radar.@ He saw the defendant, who was walking down the
road, approach a semi-truck parked on the side of the road. After the semi-truck drove
away, Officer Key approached the man to check his identification.
Officer Key asked the defendant where he was going, and the defendant told him
that he was going to his sister=s home around Woodland Street. Officer Key noticed a
cut on the defendant=s thumb, which the defendant said he received attempting to open a
can of paint earlier in the week. The defendant explained that his sister did not have a
vehicle to pick him up and that he planned to walk to her home. Officer Key wrote down
the defendant=s name and driver=s license number in his Acontact sheet,@ which is a list
that officers keep to record the names of individuals that they speak with during their
shift.
After the conversation with the defendant, Officer Key continued his patrol. He
received a prowling call about a vehicle with a door open and an interior light on at a
residence on West Main Street, near the area where he saw the defendant. He estimated
that twenty to thirty minutes elapsed between the call and his conversation with the
defendant. On cross-examination, Officer Key agreed that he testified at a preliminary
hearing that he stopped the defendant around 11:00 p.m. and received the first prowling
call around 1:30 a.m. Officer Key drove to the house and investigated the vehicle in
question and the neighbor=s vehicle. Nothing was reported stolen or missing, and Officer
Key continued his investigation for potential prowlers. The defendant had continued
walking in a westerly direction, and Officer Key also went west to investigate a possible
prowler. Officer Ben Hudson also responded to the prowling call, and Officer Key
spoke to him about his interaction with the defendant.
Officer Hudson testified that the Union City Police Department received two
separate prowling calls on the evening of the incident. The first call was received at 1:16
a.m. from a residence on West Main Street. He estimated that the address was likely 150
or 200 yards from the Rileys= address, Aas the crow flies.@ Along with Officer Key, he
responded to the first prowling call, and he estimated that he arrived at the scene around
1:20 a.m. Twenty-two minutes after the first call, officers received a second prowling
call at an address on Macon Drive, which was about a quarter of a mile away from the
first prowling call. Officer Hudson proceeded to the neighborhood and pulled into a
parking lot at the corner of the neighborhood, while other officers went into the
neighborhood. He turned off his vehicle and his lights and exited the vehicle to survey
the area Ain case [the officers] flushed somebody out.@ He heard Officer Key say that the
complainant on Macon Drive described seeing an individual wearing a black shirt and a
black hat in the area.
While Officer Hudson was standing outside of his vehicle, he observed a van
backing out of a driveway across the street from a subdivision on Lake Drive. Officer
Hudson instructed another officer to identify the driver and his clothing. The officer was
unable to do so because his vision was obscured by the van=s oncoming headlights.
Officer Hudson witnessed the van drive by his location, but he also was unable to identify
the driver.
Officer John Buchanan testified that he also responded to the second prowler call.
When he was en route to the Macon Drive address, he heard Officer Hudson asking for
someone to identify the driver of a blue minivan on Lake Drive. Officer Buchanan
turned left onto Highway 22 and was facing west. He saw the minivan coming toward
him from the east, and the van stopped at a stop sign. At that moment, Officer Buchanan
estimated that he was about ten feet from the van, and he shone his spotlight on the driver
to identify him. He illuminated the driver for several seconds, and he testified that he
was able to get a good look at the driver. He saw that the driver was a black male
wearing a Ablack ball cap@ and Aa black shirt.@ When he later ran the defendant=s driver=s
license number and obtained a photo identification of the defendant, he identified the
defendant as the individual driving the van. He agreed that there was no Adoubt in [his]
mind@ that the driver was the defendant. On cross-examination, he agreed that he
testified at the preliminary hearing that the driver=s cap was pulled down, preventing
Officer Buchanan from seeing any part of the driver=s face and head above his nose.
Officer Buchanan shared the description of the driver with Officer Hudson, who
advised him to stop the vehicle because the description matched that of the prowler.
Officer Buchanan activated his emergency lights to stop the van, which was going the
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speed limit at the time. The driver of the van applied the brakes but then Asped off.@
Officer Buchanan began to pursue the vehicle with his lights and siren activated, and
Officer Hudson testified that he witnessed Officer Buchanan activate his blue lights.
Initially, Officer Buchanan was able to keep up with the minivan by driving about eighty
miles per hour, but the van slowly began to pull away. When Officer Buchanan
approached an intersection where the light was red, he slowed his speed. He terminated
his high-speed pursuit about 100 yards away from the light because he could not see if
there was any traffic approaching the intersection. The minivan continued driving,
speeding through the red light without slowing down Adoing about a hundred@ miles per
hour.
Officer Buchanan observed the vehicle make a left turn on Fifth Street, and he
made the turn as well. After turning on Fifth Street, Officer Buchanan noticed that the
minivan had crashed into a chainlink fence. When Officer Buchanan approached the
minivan, he observed that it was still running and placed in drive but was unoccupied.
Officer Buchanan did not see anyone at the scene, and Officer Key later told him about
his interaction with the defendant. Officer Buchanan ran the defendant=s driver=s license
number to locate his photo identification. After seeing the defendant=s driver=s license
photograph, he identified the defendant as the driver of the minivan and agreed that there
was no doubt in his mind that the defendant was the driver.
Scott Riley and Rachel Foren testified regarding the value of the van. Mr. Riley
testified that he lived on Lake Drive and owned a 2009 Honda Odyssey minivan. He
estimated that the vehicle was worth $15,000 to $20,000. Ms. Foren was a claims
representative for Tennessee Farmers Mutual Insurance. She became involved in the
case when the Rileys made a claim that their 2009 Honda Odyssey had been stolen. Ms.
Foren testified that the repairs to the minivan cost Aright around $5,800@ and that had the
vehicle been damaged to the extent that repair was not feasible, the vehicle would have
been valued at $15,050.
At the conclusion of the proof, the jury convicted the defendant of Class C theft of
property in Count 1, Class D felony evading arrest in Count 2, and Class A misdemeanor
evading arrest in Count 3.
Prior to the trial, the State filed a notice to sentence the defendant as a persistent
and career offender. This notice identified thirty-two different felony convictions from
Tennessee, Kentucky, and Illinois. The accompanying information for all of the
Tennessee convictions included the classification of the felony, along with the date the
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offense was committed, the date on which the judgment was entered, the docket number,
and the sentencing court. The date of the offense was not included for several of the
out-of-state convictions.
At the sentencing hearing, the State indicated that it had filed a presentence report.
When asked if there were any objections to the report, trial counsel responded, AYour
Honor, we cannot stipulate to the -- in particular, we cannot stipulate to the prior record.@
The trial court asked if trial counsel knew of anything wrong with the report, and trial
counsel responded, AWell, Your Honor, we just are not in a position to stipulate to it.@
The State then called Evelyn Dwyer, who testified that she prepared the presentence
report. The prosecutor asked Ms. Dwyer to state her findings regarding the defendant=s
prior record, and Ms. Dwyer asked if the State wanted her to read each of the defendant=s
prior convictions aloud. The trial court told her that she did not need to do so and asked
that the report be made an exhibit to Ms. Dwyer=s testimony. Ms. Dwyer did not testify
further regarding the presentence report. The defendant was afforded the opportunity to
cross-examine Ms. Dwyer, and he did not have any questions for the witness. Ms.
Dwyer signed the report underneath the phrase Aunless otherwise noted, the information
contained herein has been verified and is accurate to the best of this officer=s knowledge.@
During argument, trial counsel stated the following about the presentence report:
[TRIAL COUNSEL]: If the Court please, that was one of the issues,
that there in Page 14, that we had noticed. And there=s --you know, we
didn=t feel that it was in our position or best interest to be pointing out
issues that there may be within this --
THE COURT: I understand
[TRIAL COUNSEL]: I mean, there=s a lot of other issues here.
There=s -- you know, starting on Page 7, there=s a conviction offense not
defined, charged offense not defined. This is out of Fulton County. And
there=s more out of Fulton County. Down there towards the bottom, there=s
two more in the same position, not defined, not defined, either the charge or
the conviction. The same thing on one, two, three more cases on the next
one, Page 8. It=s just -- there=s just issues like that through here. And on
to Page 12, there=s one, two, three cases there without disposition, and then
another one, two, three, four, five on Page 13.
THE COURT: You=re not suggesting that these are improper -- that
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he wasn=t convicted of these offenses; you=re stating that the record reflects
that they=re incomplete?
[TRIAL COUNSEL]: I don=t know, Your Honor. There=s just no
proof of it because it says Anot defined.@ I mean, we don=t know. I=m just
-- I mean, they don=t even show what he was charged with, mu[ch] less
convicted.
THE COURT: Okay.
When imposing the defendant=s sentence, the trial court stated that it considered the
evidence at trial and the sentencing hearing, along with the presentence report and the
testimony from the sentencing hearing. The court also considered the purposes and
principles of the sentencing guidelines. The court found that the defendant was a Range
III offender with respect to the conviction in Count 1 and a Range IV offender with
respect to the conviction in Count 2. The court observed that the defendant=s criminal
record was Aquite disturbing,@ as the defendant had fifty prior criminal convictions. The
court found that the defendant=s prior criminal history was an enhancement factor, and the
court did not find any mitigating factors. The trial court sentenced the defendant to
twelve years for Counts 1 and 2 and eleven months and twenty-nine days for Count 3.
The court ordered the sentences to be served concurrently to each other but consecutively
to the defendant=s 2008 conviction because the offenses were committed while the
defendant was on parole.
At the motion for new trial, trial counsel argued that there was no proof that the
defendant was a Range III and Range IV offender because certified copies of the
judgments of conviction were not entered into evidence and trial counsel did not stipulate
to the presentence report. Trial counsel agreed that the issue of the defendant=s range
classification was not raised at the sentencing hearing. The State conceded that the
defendant may have possessed valid grounds to object to several of the out-of-state
convictions but argued that there were ten qualifying convictions from the presentence
report that were committed in Obion County. The State contended that the Obion
County convictions alone were sufficient to establish the defendant=s offender range.
The trial court denied the motion in part but continued the motion to permit the Obion
County Circuit Court Clerk to research county records to determine whether there were
ten valid convictions that could have been considered in determining the defendant=s
offender status.
At the renewed motion for new trial, Harry Johnson testified that he was the
Circuit Court Clerk for Obion County. Mr. Johnson testified that he retrieved the files of
the defendant=s previous convictions in Obion County. He testified that in case number
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CC-08-CR-9, the defendant pled guilty to two counts of burglary of a vehicle, Class E
felonies, and one count of Class E felony theft of property. In case number CC-08-CR-8,
the defendant pled guilty to Class C felony theft of property and Class D felony evading
arrest. For docket number 1-14, the defendant pled guilty to Class E felony evading arrest
and Class C felony theft of property. In docket number 9-281, the defendant pled guilty
to Class D felony theft of property and Class E evading arrest. In docket number 9-19,
the defendant pled guilty to Class C felony theft of property. In docket number 5576, the
defendant pled guilty to second degree burglary, Asecond offense.@ The conviction did
not have an offense class, and the trial court stated that because it was a second offense, it
would be classified as a Class C felony. In docket number 5442, the defendant pled
guilty to fraudulent breach of trust under $200, and the State submitted that the offense
was a Class D or E qualifying felony. In docket number 5106, the defendant pled guilty
to escape while being held on felony charges, which the State submitted was a Class E
felony. In docket number 5105, the defendant pled guilty to second-degree burglary,
which the State submitted was a Class C felony. In docket number 5103, the defendant
pled guilty to petit larceny, which the State submitted was a Class E felony. Trial
counsel did not have any questions for Mr. Johnson on cross-examination and stated only
that several of the out-of-state convictions occurred on the same day and should be
considered as one conviction for the purpose of range classification.
Counting the offenses that occurred on the same date as only one offense for
the purposes of the defendant=s offender status, the trial court found that the defendant
was properly sentenced as a persistent and career offender. The trial court denied the
motion for new trial, and the defendant timely filed a notice of appeal. We proceed to
consider his claims.
ANALYSIS
I. Sufficiency of the Evidence
The defendant contends that the evidence is insufficient to sustain his conviction
of theft of property of $10,000 or more but less than $60,000. He also contends that the
evidence is insufficient to sustain his conviction for Class D felony evading arrest and
that the conviction should be reduced to a Class E felony.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is Awhether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,
A>the State is entitled to the strongest legitimate view of the evidence and to all reasonable
7
and legitimate inferences that may be drawn therefrom.=@ State v. Elkins, 102 S.W.3d
578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)).
Therefore, this court will not re-weigh or reevaluate the evidence. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact, not this
court, who resolves any questions concerning Athe credibility of witnesses, the weight and
value to be given the evidence, as well as all factual issues raised by the evidence.@ State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes the presumption
of innocence and replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal to
demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). This court applies the same standard of review
regardless of whether the conviction was predicated on direct or circumstantial evidence.
State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
A. Theft of Property
The defendant contends that the evidence is not sufficient to sustain his conviction.
Specifically, he argues that the evidence at trial did not show that he was the driver of
the minivan that officers witnessed on the road.
Tennessee Code Annotated section 39-14-103(a) (2010) states that A[a] person
commits theft of property if, with the intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner=s effective
consent.@ Tennessee Code Annotated section 39-11-106(a)(28) defines property as
Aanything of value, including, but not limited to, money, real estate, tangible or intangible
personal property, including anything severed from land, library material, contract rights,
choses-in-action, interests in or claims to wealth, credit, admission or transportation
tickets, captured or domestic animals, food and drink, electric or other power.@ The
offense is a Class C felony if the value of the property is $10,000 or more but less than
$60,000. T.C.A. ' 39-14-105(a)(4).
The testimony of a witness identifying the defendant as the perpetrator of a crime
Ais sufficient to support a conviction if the witness viewed the accused under such
circumstances as would permit a positive identification to be made.@ State v. Radley, 29
S.W.3d 532, 537 (Tenn. Crim. App. 1999). Inconsistency, inaccuracy, and omissions in
the identification of the defendant are questions for the jury to consider in apportioning
the weight to give to the testimony of a witness otherwise able to positively identify the
defendant. Id. (citing Matthews, 805 S.W.2d at 779). Because the jury resolves
questions of witness credibility, this court will not disturb the verdict on appeal Aunless
the inaccuracies or inconsistencies are so improbable or unsatisfactory as to create a
8
reasonable doubt of the [defendant=s] guilt.@ Radley, 29 S.W.3d at 537.
Viewing the evidence in the light most favorable to the State, Officer Key saw the
defendant in an area near where officers received two separate prowling calls. Officer
Hudson testified that both calls were close to the Riley residence. One of the callers
identified the prowler as wearing a black shirt and a black hat. While investigating the
second call, Officer Hudson was parked in a location that allowed him to see Lake Drive.
He saw a van pulling out of a driveway on Lake Drive, and Mr. Riley testified that his
van was parked in his driveway at Lake Drive. Officer Buchanan was able to get a good
look at the driver, who was wearing a black shirt and a black hat. After seeing a driver=s
license photograph, Officer Buchanan identified the driver as the defendant. The jury
was aware that Officer Buchanan only saw the defendant for a few seconds and was
unable to see above the top of his nose. It was within their purview to credit his
testimony that he was able to identify the defendant. We conclude that the evidence was
sufficient to show that he was the driver of the Rileys= stolen minivan.
B. Class D Felony Evading Arrest
The defendant argues that the evidence is insufficient to sustain his conviction for
Class D felony evading arrest. He contends that because there was no proof that there
were any other cars or pedestrians in the area, his conviction should be reduced to a Class
E felony for evading arrest. The defendant is correct that in order to be guilty of the
enhanced Class D felony of evading arrest, other cars or pedestrians must be in the
vicinity or the zone of danger. After review, we conclude the State=s proof lacking of
other cars or pedestrians in the zone of danger and therefore reduce the Class D
conviction to a Class E.
Tennessee Code Annotated section 39-16-603(b)(1) provides that A[i]t is unlawful
for any person, while operating a motor vehicle on any street, road, alley or highway in
this state, to intentionally flee or attempt to elude any law enforcement officer, after
having received any signal from the officer to bring the vehicle to a stop.@ A violation of
this code section is a Class E felony unless Athe flight or attempt to elude creates a risk of
death or injury to innocent bystanders or other third parties, in which case a violation of
subsection (b) is a Class D felony.@ T.C.A. ' 39-16-603(b)(3).
In order to sustain a conviction for Class D felony evading arrest, A[a]ll that need
be shown is that the defendant evaded arrest and that in so doing, he created the risk of
death or injury.@ State v. Turner, 193 S.W.3d 522, 525 (Tenn. 2006) (emphasis in
original) (citing State v. Payne, 7 S.W.3d 25 (Tenn. 1999)). The element of risk of death
or injury is satisfied if the evidence shows that there were other motorists or pedestrians
9
in the area where the pursuit occurred. See State v. Cross, 362 S.W.3d 512, 523-24
(Tenn. 2012) (concluding that when the proof showed that the defendant passed two other
vehicles on a blind curve at speeds of eighty to ninety miles per hour, the evidence was
sufficient for a rational trier of fact to find that his flight created a risk of injury to the
other two drivers); see also State v. Joseph L. Johnson, Jr., No.
M2007-01644-CCA-R3-CD, 2009 WL 2567729, at *10 (Tenn. Crim. App. Aug. 18,
2009) (concluding that evidence was sufficient when officers testified that other cars were
on the road and pedestrians were on the sidewalk during the pursuit); State v. Travis T.
White, No. M2005-01991-CCA-R3-CD, 2006 WL 2956505, at *3 (Tenn. Crim. App. Oct.
13, 2006) (concluding that officer=s testimony that there were numerous cars on the street
during a pursuit that occurred in both commercial and residential areas supported the
inference that the vehicles were operated by Ainnocent bystanders or other third parties@).
However, if the State does not show that there were innocent bystanders or other third
parties on the road at the time of the flight, the evidence is insufficient to show a risk of
death or injury. See State v. Cantrell Lashone Winters, No. M2009-01164-CCA-R3-CD,
2011 WL 1085101, at *6 (Tenn. Crim. App. Mar. 24, 2011) (concluding that when officer
testified that there were no other vehicles near the intersection where the defendant ran a
stop sign or pedestrians along the route that the defendant traveled, there was no proof
from which a jury could have found that the defendant created a risk of death or injury to
innocent bystanders or other third parties). If the evidence is insufficient to show that
other motorists or pedestrians were in the area, this court will reduce a conviction of Class
D felony evading arrest to a Class E felony. State v. Long, 45 S.W.3d 611, 622 (Tenn.
Crim. App. 2000); see T.C.A. ' 39-16-603(b)(3).
Here, the State did not present evidence of other vehicles or pedestrians in the area
during the defendant=s flight. Officer Buchanan testified that he could not see if traffic
was approaching the intersection when he stopped his pursuit. Officer Hudson testified
that he saw Officer Buchanan=s brake lights at the intersection, but he did not testify that
other cars were in the area. Tennessee Code Annotated section 39-16-603(b)(3) requires
that the defendant create a risk of death or injury Ato persons other than the defendant him
or herself and the officer giving the signal to stop.@ Cross, 362 S.W.3d at 521. The
proof showed that the only individuals in the area were the defendant and police officers.
Although the pursuit occurred in a residential and commercial area, and the defendant did
run a stop light at a high rate of speed, the State failed to present any proof from which a
rational trier of fact could find that the defendant created Aa risk of death or injury to
innocent bystanders or other third parties.@ Therefore, we conclude that the defendant=s
conviction of Class D felony evading arrest must be reduced to a conviction of Class E
felony evading arrest.
II. Sentencing
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The defendant contends that he should have been sentenced as a Range I offender
because the State failed to provide proof of his prior convictions. He argues that the
corrections officer did not testify regarding the contents of the report and that the report
should have been excluded as Arank hearsay@ because there were no certified copies of the
prior convictions.
This court reviews challenges to the length of a sentence under an abuse of
discretion standard, Agranting a presumption of reasonableness to within-range sentences
that reflect a proper application of the purposes and principles of our Sentencing Act.@
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will uphold the sentence Aso
long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.@ Id. at
709-10.
The defendant contends that the State did not meet its burden of proving that the
defendant was a persistent and career offender. The State bears the burden of
establishing beyond a reasonable doubt that the defendant possesses the requisite number
of prior felonies to qualify for a particular range. State v. Jones, 901 S.W.2d 393, 397
(Tenn. Crim. App. 1995); State v. Jasper L. Vick, No. W2005-00467-CCA-R3-CD, 2006
WL 722173, at *9 (Tenn. Crim. App. Mar. 22, 2006). In order to sentence a defendant
as a Range III, persistent offender, the trial court must find beyond a reasonable doubt
that the defendant has A[a]ny combination of five (5) or more prior felony convictions
within the conviction class or higher or within the next two (2) lower felony classes.@
T.C.A. ' 40-35-107(a)(1). In order to sentence a defendant as a Range IV, career
offender, the trial court must find that the defendant has A[a]t least six (6) prior felony
convictions of any classification if the defendant=s conviction offense is a Class D or E
felony.@ T.C.A. ' 40-35-108(a)(3). When determining a defendant=s range
classification, A[t]he original or certified copy of the court record of any prior felony
conviction . . . is prima facie evidence that the defendant named in the record is the same
defendant before the court, and is prima facie evidence of the facts set out in the record.@
T.C.A. ' 40-35-202(a).
However, certified copies of prior convictions are not the only method available to
establish the prior requisite convictions for a particular range classification. State v.
Fusco, 404 S.W.3d 504, 534 (Tenn. Crim. App. 2012) (citing State v. Danny Anderson,
1986 WL 9307, at *3 (Tenn. Crim. App. Aug. 27, 1986)). The Sentencing Act allows for
the admission of Areliable hearsay.@ T.C.A. ' 40-35-209(b). A presentence report
constitutes reliable hearsay. State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997).
In order to admit the presentence report as reliable hearsay, two conditions must be met.
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State v. Taylor, 744 S.W.2d 919, 921 (Tenn. Crim. App. 1987). First, the party opposing
the evidence must receive a fair opportunity to rebut any hearsay admitted into evidence.
Taylor, 744 S.W.2d 919, 921 (Tenn. Crim. App. 1987); T.C.A. ' 40-35-209(b). Second,
Aindicia of reliability must be present to satisfy the due process requirement.@ Taylor,
744 S.W.2d at 921 (citations omitted); see T.C.A. ' 40-35-209(b); see also Fusco, 404
S.W.3d at 535 (quoting Danny Anderson, 1986 WL 9307, at *3) (A>[P]rior convictions
need not be certified when they are otherwise reliable and the defendant has been given
the opportunity to rebut the evidence.=@). The trial court is entitled to rely on the
presentence report Aabsent a showing that the report is based upon unreliable sources or is
otherwise inaccurate.@ State v. Richard J. Crossman, No. 01C01-9311-CR-00394, 1994
WL 548712, at *6 (Tenn. Crim. App. Oct. 6, 1994).
We conclude that the trial court properly considered the presentence report in
determining the defendant=s offender classification. The State filed a notice of
enhancement nearly five months prior to the defendant=s trial, and the felony convictions
in the presentence report were also listed in the State=s notice, making the defendant
aware of the convictions upon which the State intended to rely. Ms. Dwyer testified at
the sentencing hearing, and the defendant chose not to cross-examine her or to present
any evidence to rebut the convictions included in the presentence report. Ms. Dwyer
testified that she prepared the presentence report, and she also signed the report
underneath the phrase Aunless otherwise noted, the information contained herein has been
verified and is accurate to the best of this officer=s knowledge,@ giving the report indicia
of reliability. The evidence at the hearing on the motion for new trial confirmed the
reliability of the report.
During closing arguments, the defendant argued that many of the charged and
conviction offenses were listed as Aundefined.@ The defendant is correct in that the
presentence report reflects that many of the out-of-state convictions, along with one
Tennessee conviction, did not define the charged or conviction offense. However, the
report listed nine prior felonies in Tennessee, all of which included the date of the
offense, the charged offense, the date of disposition, the identity of the convicting court,
the disposition, and the conviction offense. These prior felonies included five Class C
felonies, two Class D felonies, and two Class E felonies. Thus, even if all of the
convictions where the charged or conviction offense was not defined were excluded from
consideration, the information in the presentence report was sufficient to establish his
classification as a Range III and Range IV offender. The defendant=s five Class C
felonies were sufficient to support his classification as a persistent offender for his theft
of property conviction, and his combination of four prior Class D and E felonies, along
with the prior class C felonies, supported his classification as a Range IV offender for his
Class D felony conviction. We conclude that the trial court properly sentenced the
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defendant as a Range III, persistent offender and a Range IV, career offender. However,
because we concluded that the defendant=s conviction for Class D felony evading arrest
must be reduced to a Class E felony conviction, we remand for resentencing for the
Class E felony.
CONCLUSION
Based upon the foregoing, we affirm the judgment of the trial court in part, reverse
the judgment in part, and remand in part.
_________________________________
JOHN EVERETT WILLIAMS,
JUDGE
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