State of Tennessee v, Tyrone Ralph Wright ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 9, 2011 Session
STATE OF TENNESSEE v. TYRONE RALPH WRIGHT
Direct Appeal from the Circuit Court for Coffee County
No. 35237F L. Craig Johnson, Judge
No. M2010-02096-CCA-R3-CD - Filed February 23, 2012
A Coffee County jury convicted the Defendant, Tyrone Ralph Wright, of one count of theft
of property under $500 and one count of forgery over $1000. The trial court sentenced the
Defendant as a career offender to an effective sentence of twelve years. The Defendant
appeals, arguing that: (1) the trial court erred when it denied his motion to suppress evidence
obtained during the search of a vehicle in which the Defendant was a passenger; (2) the trial
court erred when it admitted evidence of an uncharged forgery; (3) the trial court erred when
it failed to charge the jury on a lesser included offense; (4) the identification of the Defendant
submitted at trial violated the “physical facts rule;” (5) the evidence at trial was insufficient
to sustain his convictions; (6) he was denied his right to allocution at the sentencing hearing;
and (7) the trial court erred when it sentenced him. After a thorough review of the record and
applicable law, we conclude that there is no error in the judgments of the trial court, and we
affirm the trial court’s judgments.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.
Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellant, Tyrone Ralph Wright.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Mickey Layne, District Attorney General; Felicia Walkup, Assistant District
Attorney General for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s involvement in the theft of checks and the
subsequent passing of the stolen checks in June 2006. For these events, a Coffee County
Grand Jury indicted the Defendant for one count of theft of property under $500 and one
count of forgery over $1000.
A. Suppression Hearing
The trial court held a suppression hearing to address whether the police stop of the
vehicle in which the Defendant was a passenger was a legal stop. The parties presented the
following evidence at the suppression hearing: Thomas Tharpe testified that on June 12,
2006, he was employed by the Benton County Sheriff’s Office as a Drug Task Force agent.
He recalled that, while working that day, he was patrolling Interstate 40 (“I-40”) in an
unmarked SUV, which he parked in the median of the interstate. Agent Tharpe gave the
following testimony as to his observation of a maroon Cadillac traveling on I-40:
[The Cadillac] was heading eastbound towards Nashville, and it topped a hill.
There is a truck, and it topped a hill about the same time, and then as soon as
the Cadillac saw me, he immediately pulled in behind a semi tractor-trailer and
was just glued to his bumper. Even [as] he passed me, I noticed [the Cadillac]
was still just right on [the tractor-trailer’s] bumper. I pulled up behind [the
Cadillac] and conducted a traffic stop.
Agent Tharpe testified that, before conducting the stop, he did not know the race of the
occupants of the Cadillac. Agent Tharpe explained that he was focused on the traffic
violation. Agent Tharpe said, “[The Cadillac] was following too closely. There is no way,
if the truck had to brake for any reason, there is no way [the Cadillac] could have stopped in
time.” Agent Tharpe recalled that the Cadillac was less than one car length in distance from
the tractor-trailer.
Agent Tharpe testified that, upon approaching the Cadillac, he discovered that
Raymond Redd was the driver of the Cadillac, and the Defendant was the only passenger in
the vehicle. Agent Tharpe learned that the Cadillac belonged to Redd’s girlfriend and neither
Redd nor the Defendant possessed a driver’s license or identification. Upon further
questioning from Agent Tharpe, Redd and the Defendant became “evasive” in response to
Agent Tharpe’s questions. Agent Tharpe recounted how he contacted Deputy Hardin, an
officer working with Agent Tharpe that day, to assist him.
On cross-examination, Agent Tharpe agreed that the traffic stop lasted “about two
hours” because he had to “track down” information about both Redd and the Defendant.
Agent Tharpe testified that he did not stop the Cadillac based on race or because he believed
-2-
illegal drugs were in the Cadillac.
James Hardin testified that, in June 2006, he worked for the Drug Task Force Agency.
Deputy Hardin recalled that Agent Tharpe requested his assistance during a traffic stop of
a Cadillac in which the Defendant was a passenger. Deputy Hardin asked the driver of the
Cadillac, Redd, for permission to search the vehicle, and Redd consented to a search of the
trunk area of the vehicle but refused to sign a waiver form. Because Redd refused to sign the
consent form, Officer Hardin instead walked his canine partner around the perimeter of the
vehicle.
On cross-examination, Hardin testified that he was unaware of the race of the
occupants of the car at the time he was called to the scene.
Based upon this evidence, the trial court denied the Defendant’s motion to suppress,
finding that the Defendant “lacks standing to attack the traffic stop.” Subsequently, the
United States Supreme Court issued Brendlin v. California, which held that passengers are
seized during a traffic stop and thereby have the standing to contest an illegal seizure.
Brendlin v. California, 551 U.S. 249 (2007). At the Defendant’s motion for a new trial, the
trial court reconsidered the current case in light of Brendlin and found the traffic stop legal.
B. Trial
At the Defendant’s trial, the parties presented the following evidence: Thomas Tharpe
testified that in June 2006, he worked as a 24th Judicial Drug Task Force agent. On June 12,
2006, Agent Tharpe was patrolling I-40, conducting criminal interdiction stops. Agent
Tharpe said that he was parked along I-40 when he observed a maroon Cadillac and a truck
topping a hill at the same time. Agent Tharpe assumed the Cadillac saw him because the
Cadillac immediately pulled directly behind a semi tractor-trailer and continued to follow
“very closely” as the Cadillac drove past Agent Tharpe’s parked vehicle.
Agent Tharpe testified that he activated his blue lights and conducted a traffic stop
based upon the unsafe distance maintained between the tractor-trailer and the Cadillac.
Agent Tharpe approached the Cadillac from the passenger side and observed a driver, Redd,
and one passenger, the Defendant. When asked for identification, Redd explained to Agent
Tharpe that he had left his driver’s license at home. Agent Tharpe then asked the Defendant
for identification, and the Defendant told Agent Tharpe that he did not have any
identification. As Agent Tharpe talked with the two men, he noticed they acted “nervous”
and were “being evasive.” Based upon their actions, Agent Tharpe called his partner, Deputy
Hardin for back up. Deputy Hardin was also working along I-40 and arrived “no longer than
10 minutes” after Agent Tharpe requested assistance.
-3-
Agent Tharpe testified that Deputy Hardin conducted “most” of the search of the
vehicle. As a result of the search, Deputy Hardin found, underneath the floormat on the front
passenger side of the vehicle, two driver’s licenses depicting the same person but listing the
name Mark Campbell on one license and Raymon Wallace on the other license. Deputy
Hardin also found four Larry Thomas Transportation business checks and a fake Mississippi
driver’s license and a social security card, both bearing the name Ronald Wayne Gaylord.
Agent Tharpe testified that the picture on the driver’s license for Ronald Gaylord appeared
to be the Defendant. Neither of the occupants of the car identified themselves by any of the
names listed on the driver’s licenses or the social security card. When Agent Tharpe asked
Redd and the Defendant about the items, both men responded that the Cadillac was not their
vehicle and that they knew nothing about the items.
Agent Tharpe testified that, based upon the items found in the car, he was suspicious
that Redd and the Defendant intended to use the fake identification to cash unauthorized
checks. Tharpe called the phone number listed on the check and spoke with Larry Thomas,
Sr., who confirmed he was missing business checks matching the check numbers Deputy
Hardin found in the stopped vehicle.
On cross-examination, Agent Tharpe confirmed that he asked Deputy Hardin to
conduct a canine search of the vehicle because of the occupants’ behavior. Agent Tharpe
agreed that he confirmed that the Cadillac was owned by Beverly Jackson 1 , whom Redd
described as his girlfriend. During the canine search, the canine officer “indicated” on the
passenger door and, subsequently, Deputy Hardin searched the vehicle, finding the driver’s
licenses, social security card, and business checks. Agent Tharpe said that these items were
found in an envelope under the floormat.
James Hardin, a Benton County Sheriff’s Department deputy, testified that, on June
12, 2006, he responded to Agent Tharpe’s request for assistance with a traffic stop. Deputy
Hardin asked the driver, Redd, for consent to search the vehicle, and Redd agreed to a search
of the trunk but refused to sign a waiver agreeing to the search. Due to Redd’s refusal to sign
the waiver, Hardin conducted a canine search of the perimeter of the vehicle and the canine
officer “indicated” on the passenger side of the vehicle. Hardin then conducted a search of
the vehicle and found an envelope lying under the passenger side floormat. The envelope
bore the name “Beverly Jackson,” who he learned was Redd’s girlfriend, and a Memphis
address. Inside the envelope, Hardin found checks and multiple driver’s licenses.
1
In the trial transcript, witnesses refer to the owner of the Cadillac as both “Beverly Jackson” and
“Beverly Bowman.” For the sake of consistency and clarity, we refer to the owner of the Cadillac as
“Beverly Jackson.”
-4-
Larry Thomas, Sr., testified that he owned Larry Thomas Transportation located in
Manchester, Tennessee. On June 9, 2006, Thomas left work early. Several days later, he
received a call from police asking if he was missing any checks. Thomas checked his
business check binder and found two full pages of checks missing. The missing checks were
numbered 3338 through 3343. Thomas identified the checks found in the Cadillac as the
checks missing from his business check binder. Thomas testified that he, his wife, and his
son were the only employees and the only persons with check-writing authority for the
business account. He testified that the name “Larry Thomas” signed on two of the checks
was not his handwriting, his wife’s handwriting, or his son’s handwriting.
On cross-examination, Thomas identified pictures of his business office and agreed
there was a back door into his business. Thomas said that he normally kept the business
checkbook in the second drawer on the right-hand side of his desk.
Larry Thomas, Jr., testified that, in June 2006, he worked at Larry Thomas
Transportation. On Friday, June 9, he was behind the business office working on a vehicle
when a maroon Cadillac pulled in the front entrance, stopped, backed up and then drove in
front of the office out of his view. Thomas Jr. began to walk toward the front of the office
when Redd came around the corner and told him he was interested in purchasing a vehicle
and directed Thomas Jr. to a nearby van. After looking at the van, Redd told Thomas Jr. that
he was in the carpet business and suggested a van located furthest from the front road might
be better so the men walked over to the second van. Thomas Jr. estimated he spent
approximately twenty-five to thirty minutes with Redd looking at vehicles.
Thomas Jr. testified that, because of the location of the vans Redd examined, he was
unable to see the front door of the business. He had no indication, however, that there was
anyone else on the lot until he and Redd began to walk toward the front of the business
office, where Redd’s vehicle was parked. At that point, the Defendant appeared and spoke
to Redd, then all three men went and looked at the second van again for approximately eight
to fifteen minutes. Redd and the Defendant said they were “doing a job” in town and needed
to get back to work but would return later to test drive and possibly purchase the van. Before
leaving, the Defendant went inside the business office briefly to use the restroom while Redd
and Thomas Jr. remained outside.
Thomas Jr. testified that at that time he, his father, and his mother were the only
people with check-writing authority for the business account. He said that the business
checkbook was not kept out in plain sight but in a desk drawer. Thomas Jr. viewed the two
Larry Thomas Transportation checks bearing the signature, “Larry Thomas,” and denied that
either were his signature. Thomas Jr. testified that he was familiar with his parents’
signatures and that the signatures on the checks were neither his mother’s nor his father’s
-5-
signature.
Thomas Jr. testified that he normally signed checks “Larry D. Thomas” to distinguish
between a check signed by him and a check signed by his father. Thomas Jr. identified two
separate photographic line-ups police showed him a few days after he learned the business
checks were missing. In one of the photographic line-ups, Thomas Jr. identified the
Defendant as one of the two men he spoke with on June 9. Thomas Jr. said that he was
unable to identify the first man he spoke with from the other photographic line-up.
William Sipe, a Manchester City Police Department officer, testified that Larry
Thomas, Sr. reported to police that six business checks had been stolen from his place of
business. Thomas Sr. also said he learned of this when Agent Tharpe contacted him and
indicated that he had recovered four of the stolen business checks. Officer Sipe met with
Thomas Sr. and learned that one of the business checks may have been passed on June 9,
2006, in Manchester at the First National Bank. Based upon this information, Officer Sipe
reviewed video footage from the Manchester First National Bank and confirmed that the
Defendant passed check number 3338 at that location. Officer Sipe interviewed Leah Trail,
the bank teller who assisted the Defendant when he passed the check. Trail told Officer Sipe
that a black man in his forties presented the check, which was made payable to a Ronald
Gaylord in the amount of $1500. Trail said that the man inquired about whether there was
another branch bank in the area, and Trail gave the man directions to the First National Bank
in Woodbury, Tennessee. The video surveillance footage from the bank showing the man
who passed the Larry Thomas Transportation check number 3338 was played for the jury.
Officer Sipe described the man’s appearance in the video as “a black male, somewhat slender
build, wearing a beanie cap, if you will, and a white t-shirt.” Our review of this video, which
the jury watched, shows that the man also wore blue jean shorts and dark shoes with some
white accents.
As part of his investigation, Officer Sipe discovered that a second Larry Thomas
Transportation business check, check number 3339, had been passed at the Woodbury First
National Bank. He reviewed the videotape recordings from the Woodbury bank branch, and
the State played that video for the jury. The video depicted a man dressed similarly to the
man who passed the check at the Manchester branch of the First National Bank. The man
wore a “beanie-type cap,” a white T-shirt, blue jean shorts, and a pair of tennis shoes that
were predominantly dark with some white accents. The video surveillance footage indicated
that the date of this transaction was June 9, 2006, at 4:50 p.m. Officer Sipe learned that the
bank teller assisting the Defendant cash the check was Melissa Burnett and that the check
passed was number 3339 in the amount of $1500.
Officer Sipe testified that during his investigation he gathered multiple pieces of
-6-
evidence in addition to those he gathered from the banks. He collected items that Agent
Tharpe had recovered from the vehicle during the traffic stop, which included blank Larry
Thomas Transportation checks numbered 3340 through 3343, three driver’s licenses, two
from Tennessee and one from Mississippi, and a social security card. The Mississippi
driver’s license depicted a black man and the name Ronald W. Gaylord and the social
security card was also in the name of Ronald Wayne Gaylord. The two Tennessee driver’s
licenses were in the names of Mark Campbell and Raymon Wallace, and both depicted black
men. Officer Sipe identified the Defendant’s shoes collected from the property room at the
jail where the Defendant was housed, and he noted the shoes were consistent with the shoes
in the photographs from the video surveillance footage at both banks.
Officer Sipe testified that he showed Larry Thomas Jr. two separate photographic line-
ups, one containing a photograph of Redd and the other containing a picture of the
Defendant. Thomas Jr. was unable to identify Redd but positively identified the Defendant
as the second man he spoke with at the family business on June 9, 2006.
On cross-examination Officer Sipe agreed that the video surveillance footage from
both the Manchester and Woodbury banks were black & white. Officer Sipe agreed that
Leah Trail, the Manchester bank teller who assisted the Defendant, was shown a
photographic lineup including Redd at the bank and later shown two photographic line-ups,
including photographs of Redd and the Defendant, and could not make a positive
identification.
Melissa Burnett, a First National Bank of Woodbury employee, identified Larry
Thomas Transportation business check, check number 3339, made payable to Mark Campbell
in the amount of $1500. She noted the check was endorsed with the name Mark Campbell.
The check was stamp dated received on June 9, 2006, at 4:55p.m., and the check posted to
the account on June 12, 2006. Burnett recalled receiving this check on June 9, 2006, and
requested and viewed identification bearing the name Mark Campbell. Burnett viewed
photographs taken from the surveillance camera in the bank and identified herself and the
man who cashed the Larry Thomas Transportation business check in the photographs.
Leah Trail, a First National Bank of Manchester employee, identified Larry Thomas
Transportation business check, check number 3338 in the amount of $1500 made payable to
Ronald Gaylord and endorsed by Ronald Graylord. Trail said that the date and time stamped
on the check at receipt of the check was June 9, 2006, at 4:13p.m. The date the check posted
to the account was stamped onto the check as June 12, 2006. Trail recalled that a black man
passed this check and that he produced a Mississippi driver’s license bearing the name
Ronald Gaylord. Trail viewed photographs taken from the surveillance camera in the bank
and identified herself and the man who cashed the Larry Thomas Transportation business
-7-
check.
Trail testified that police showed her “one or two” photographic line-ups, and she was
unable to identify the man who cashed the Larry Thomas Transportation business check. She
said that later, at a preliminary hearing for this case, she identified the Defendant in court as
the man who had cashed the check. Trail then identified the Defendant in court during the
trial as the man she assisted on June 9, 2006. Trail explained that she could not identify the
Defendant from the photographic line-up because the pictures were of poor quality, and she
could not distinguish facial features well. Trail said that she was “confident” of her
identification of the Defendant at the preliminary hearing and at trial. She recalled that, when
the Defendant produced the driver’s license, he explained to her that he had just moved to
Tennessee and had not changed his driver’s license yet. He asked Trail for other locations
of First National Banks, and Trail told him of the branch in Woodbury and provided
directions.
Based upon this evidence, the jury convicted the Defendant of theft of property under
$500 and forgery over $1000.
C. Sentencing Hearing
At the sentencing hearing, Laura Prosser, a Board of Probation and Parole pre-
sentence report writer, testified that she prepared the pre-sentence report in this case.
Prosser said that she ran an NCIC report for the Defendant and the report listed ten different
names, three different birth dates, and six different social security numbers associated with
the Defendant. Prosser specifically recounted each of the Defendant’s convictions that she
was able to verify, and how she verified the conviction. Ms. Prosser explained that
convictions under different names or social security numbers are matched through
fingerprints before convictions are combined in an NCIC report to ensure the correct
convictions are associated with a particular defendant. Ms. Prosser described the
Defendant’s criminal history as extensive and said that this report was one of the “most
difficult criminal histories [she has] had to investigate because of the numerous aliases.” Ms.
Prosser confirmed that her report listed eight felony convictions and nine misdemeanor
convictions. Ms. Prosser testified that she found other convictions but, because she was
unable to confirm those convictions, she did not include those convictions in her report. The
State then submitted to the trial court four certified copies of the Defendant’s felony
convictions.
After the parties presented their proof as to sentencing, the trial court sentenced the
Defendant as a career offender to an effective sentence of twelve years. It is from these
judgments that the Defendant now appeals.
-8-
II. Analysis
The Defendant argues on appeal that: (1) the trial court erred when it denied his
motion to suppress; (2) the trial court erred when it admitted evidence of an uncharged
forgery; (3) the trial court erred when it failed to instruct the jury on a lesser included
offense; (4) the identification of the Defendant submitted at trial violated the “physical facts
rule;” (5) the evidence at trial was insufficient to sustain his convictions; (6) he was denied
his right to allocution; and (7) the trial court erred in sentencing the Defendant.2
A. Motion to Suppress
The Defendant argues that the trial court erroneously denied his motion to suppress
the evidence obtained as a result of the search of the vehicle in which the Defendant was a
passenger. He asserts that police did not have the requisite reasonable suspicion to stop the
car and that the duration of the stop was unreasonable. The State responds that the trial court
properly denied the Defendant’s motion because the initial stop was based on probable cause
and the scope and time of the stop was not an unreasonable detention. We agree with the
State.
Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(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 resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “article 1, section 7 [of the Tennessee Constitution]
is identical in intent and purpose with the Fourth Amendment.” State v. Downey, 945
2
The Defendant initially raised in his brief an issue regarding the ineffective assistance of counsel.
At oral argument, however, his appellate counsel withdrew this argument to allow the Defendant to pursue
this issue in a post-conviction petition at a later point, if he so chooses.
-9-
S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). Under
these provisions, a warrantless search or seizure is presumed unreasonable, and evidence
discovered as a result of such a search or seizure should be suppressed unless the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
One such exception to the warrant requirement occurs when a police officer conducts
a stop of an automobile based upon a reasonable suspicion or probable cause to believe that
a traffic violation has occurred. State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997); State
v. Willie Norman, No. W2003-02067-CCA-R3-CD, 2004 WL 2255253, at *6 (Tenn. Crim.
App., at Jackson, Oct. 7, 2004), no perm. app. filed (holding that a police officer had
reasonable suspicion to stop a defendant because the defendant ran a stop sign and had his
music playing “extremely loud”). A police officer may stop a vehicle if the officer has
probable cause, or a reasonable suspicion supported by specific and articulable facts, to
believe that an offense has been or is about to be committed. State v. England, 19 S.W.3d
762, 766 (Tenn. 2000). In Whren v. United States, the United States Supreme Court held that
where an officer has probable cause to believe that a traffic violation has occurred, any
seizure will be upheld even if it is a complete pretext for the officer’s subjective motivations
in making the stop. 517 U.S. 806, 813-14 (1996); See also Vineyard, 958 S.W.2d at 734.
A police officer’s actions after conducting a stop must reasonably relate to the
circumstances which justified the stop in the first place. See Terry, 392 U.S. at 20. The
detention “must be temporary and last no longer than is necessary to effectuate the purpose
of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). Moreover, the officer should
employ the least intrusive means reasonably available to investigate his or her suspicions in
a short period of time. Id. In determining the reasonableness of the detention, the proper
inquiry is whether, during the detention, the officer diligently pursued a means of
investigation that was likely to confirm or dispel his or her suspicions quickly. United States
v. Sharpe, 470 U.S. 675, 686 (1985). “If the time, manner or scope of the investigation
exceeds the proper parameters,” a constitutionally permissible stop may be transformed into
an impermissible stop. State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002). If the officer
develops a reasonable suspicion that the occupant is engaged in other criminal activity during
a valid stop, further detention is justified. State v. Branden Haney and Lawrence Davis, No.
E2002-00559-CCA-R3-CD, 2003 WL 22169708, at *5 (Tenn. Crim. App., at Knoxville,
Sept. 19, 2003). The reviewing court considers the totality of the circumstances to determine
whether police officers had reasonable suspicion to expand the scope of a traffic stop.
United States v. Arvizu, 534 U.S. 266, 273 (2002).
In the case under submission, the trial court denied the Defendant’s motion to
suppress, finding that the Defendant had no standing as a passenger in the vehicle.
-10-
Thereafter, the United States Supreme Court decided Brendlin v. California, which held that
passengers are seized during a traffic stop and thereby have the standing to contest an illegal
seizure. Brendlin v. California, 551 U.S. 249 (2007). The trial court reconsidered the
current case in light of Brendlin and made the following finding:
It does appear from the authority of Brendlin that [the Defendant] may have
standing to challenge the stop as unconstitutional in this cause. However, after
reviewing the offer of proof and the other evidence presented at trial, the
traffic stop in question would have been upheld as a lawful stop based on
reasonable suspicion of a traffic violation. Additionally, the Court finds that
the traffic stop was not so long as to render the stop unconstitutional. The
testimony by the officer in question was that he had reasonable suspicion to
believe that a citable offense had occurred.
A traffic stop subjects the passengers, as well as the driver, to a seizure. Brendlin v.
California, 551 U.S. 249 (2007). Therefore, the Defendant has standing to challenge the
validity of the initial stop and his subsequent detention. Turning to the facts of this case, it
is clear that Agent Tharpe had reasonable justification to make a traffic stop due to the
vehicle following another vehicle too closely. See T.C.A. § 55-8-124 (2008). After pulling
the vehicle over for following a tractor-trailer too closely, neither the driver, Redd, nor the
Defendant could produce a driver’s license or identification. When further questioned, Redd
and the Defendant became “nervous” and “evasive.” Agent Tharpe requested back-up,
which arrived within ten minutes, and the assisting officer conducted a canine search and
then full search of the vehicle after the canine officer “indicated” on the passenger door of
the vehicle. Meanwhile, Agent Tharpe tried to confirm Redd’s driver’s license and identity,
the Defendant’s identity, and ownership of the vehicle with only the verbal information
provided by Redd and the Defendant. After the search of the vehicle revealed multiple blank
business checks, three identification cards with three different names, one from Mississippi,
and a social security card, none of which matched the names Redd and the Defendant
provided to Agent Tharpe, Agent Tharpe then contacted the owner of the business to ensure
that the checks were rightfully possessed by Redd and/or the Defendant. The duration of this
stop was approximately two hours and encompassed not only investigation related to the
initial traffic stop, but Agent Tharpe’s reasonable suspicion that Redd and the Defendant
were engaged in other criminal activity warranting further detention. Based upon the facts
of this case, Agent Tharpe had the requisite reasonable suspicion to conduct the traffic stop.
Further, we can not conclude that the length of the detention was excessive. The Defendant
is not entitled to relief as to this issue.
B. Admission of an Uncharged Forgery
-11-
The Defendant asserts that the trial court erred when it admitted testimony regarding
the passing of check number 3339 at the Woodbury First National Bank because it was
“irrelevant and prejudicial.” The State responds that, because the Defendant failed to object
to the testimony at trial or to the photographs from the bank’s surveillance camera, this issue
is waived. We agree with the State.
Appellate relief is generally not available when a party is “responsible for an error”
or has “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew, 760 S.W.2d 228,
235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a
contemporaneous objection); see also State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim.
App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). In this case
the record shows that the Defendant made no objection during the presentation of this
evidence. Accordingly, we conclude the Defendant waived our review of this issue, and he
is not entitled to relief.
C. Jury Charge
The Defendant asserts that the trial court erred when it failed to instruct the jury on
the lesser included offense of facilitation of forgery. The State responds that the Defendant
expressly waived a jury instruction on facilitation by failing to request the instruction in
writing pursuant to Tennessee Code Annotated section 40-18-118(c).
A trial court is required to instruct on crimes “supported by the evidence.” State v.
Page, 184 S.W.3d 223, 229 (Tenn. 2006). Tennessee Code Annotated section 40-18-110,
however, requires the defendant to request lesser included offense instructions in writing at
trial in order to subsequently appeal a trial court’s failure to instruct on such offenses. T.C.A.
§ 40-18-110(b), (c) (2006). This section states, in pertinent part:
(b) In the absence of a written request from a party specifically identifying the
particular lesser included offense or offenses on which a jury instruction is
sought, the trial judge may charge the jury on any lesser included offense or
offenses, but no party shall be entitled to any such charge.
(c) Notwithstanding any other provision of law to the contrary, when the
defendant fails to request the instruction of a lesser included offense as
required by this section, such instruction is waived. Absent a written request,
the failure of a trial judge to instruct the jury on any lesser included offense
may not be presented as a ground for relief either in a motion for new trial or
on appeal.
-12-
T.C.A. § 40-18-110(b), (c) (2006). In State v. Page, 184 S.W.3d 223 (Tenn. 2006), the
Tennessee Supreme Court determined that Tennessee Code Annotated § 40-18-110 was
constitutional, concluding that “if a defendant fails to request an instruction on a
lesser-included offense in writing at trial, the issue will be waived for purposes of plenary
appellate review and cannot be cited as error in a motion for new trial or on appeal.” Page,
184 S.W.3d at 229.
We have throughly reviewed the record and discovered no written request for an
instruction on facilitation. Nor has the Defendant cited to the location of any written request.
Therefore, this issue is waived for purposes of appeal.
D. Violation of the “Physical Facts Rule”
The Defendant attacks his identification by witnesses Larry Thomas Jr. and Leah Trail
on the basis that these witnesses’ testimony is “beyond logic” and, thus, inconsistent with the
“physical facts.” He asserts that Trail’s inability to identify the Defendant in a photographic
line-up but, shortly thereafter, identify the Defendant in court during the preliminary hearing,
“violates generally accepted physical facts concerning memory.” Likewise, he contends that
the fact that Thomas Jr. identified the Defendant but not Redd, who he spent a much longer
period of time with, in a photographic line-up “violates generally accepted physical facts
concerning memory.” The State responds that the identification of the Defendant did not
violate any laws of physics or indisputable facts about human perception. We agree with the
State.
The “physical facts rule” has been explained as “the accepted proposition that in cases
where the testimony of a witness is entirely irreconcilable with the physical evidence, the
testimony can be disregarded.” State v. Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993). The
rule comes into play when “the testimony of a witness ‘cannot possibly be true, is inherently
unbelievable, or is opposed to natural laws,’ [so that] courts can declare the testimony
incredible as a matter of law and decline to consider it,” and when “‘undisputed physical
facts are entirely inconsistent with and opposed to testimony.’” Id. (quoting United States
v. Narciso, 446 F. Supp. 252, 282 (E.D. Mich. 1977) and Wood v. United States, 342 F.2d
708, 713 (8th Cir. 1965)). A high threshold, however, must first be surmounted to apply the
rule. “We caution,” wrote our Supreme Court in Hornsby, “that the power to disregard oral
testimony because of its inherent lack of believability is one that should be used sparingly.”
Id. at 895. The court continued,
Only when the testimony is inherently improbable and impossible of belief
should courts intervene to declare it incredible as a matter of law. When the
-13-
testimony is capable of different interpretations, the matter should be left for the
jury to decide as the sole arbiter of credibility. Deciding whether there are
inconsistencies in testimony, reconciling conflicts in testimony, and how this
might affect a witness’s credibility, are all within the province of the jury. As
the court observed . . . “the improbability of the truth of the testimony, which
justifies rejection under the physical facts rule, cannot rest upon any theory
involving the consideration of the comparative credibility of the witnesses.”
Id. at 895-96 (citations omitted).
Both of the instances raised by the Defendant in this issue go to the credibility of the
witnesses. Defense counsel cross-examined both witnesses on their identifications and any
inconsistencies or discrepancies were raised before the jury. These instances do not represent
testimony that is “entirely irreconcilable with the physical evidence.” Hornsby, 858 S.W.2d
at 894. In fact, Trail explained to the jury that her inability to identify the Defendant in the
photographic line-up and yet shortly thereafter identify the Defendant in court was due to the
poor quality of the photographs in the line-up. Further, Mr. Thomas’s testimony that he
identified the Defendant in a photographic line-up and yet did not identify Redd in a separate
photographic line-up is not “impossible of belief.” Id. Accordingly, we do not find that
these identifications violate the “Physical Facts Rule” and, thus, will consider the testimony
in our review of the sufficiency of the evidence below.
E. Sufficiency of the Evidence
The Defendant contends that there is insufficient evidence to support his convictions.
He argues that the evidence did not establish his identity as the person who passed the forged
check, there was no proof that he wrote anything on the check or received any value from the
forged check, and that the State failed to prove the value of the blank checks. The State
responds that there was more than sufficient evidence to support the jury’s verdict. We agree
with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering 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); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
-14-
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate 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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). 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. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). 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. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
In this case, the Defendant was convicted of forgery which is defined, in pertinent
part, as follows:
(a) A person commits an offense who forges a writing with intent to defraud
or harm another.
-15-
(b) As used in this part, unless the context otherwise requires:
(1) “Forge” means to:
(A) Alter, make, complete, execute or authenticate any writing so that
it purports to:
(i) Be the act of another who did not authorize the act;
....
(c) Issue, transfer, register the transfer of, pass, publish, or otherwise utter a
writing that is forged within the meaning of subdivision (b)(1)(A)[.]
T.C.A. § 39-14-114(a), (b)(1)(A)(i), and (b)(1)(c) (2010).
The jury also convicted the Defendant of theft of property under $500. “A person
commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” T.C.A. § 39-14-103 (2010).
The evidence, considered in the light most favorable to the State, proves that the
Defendant and Redd went to Larry Thomas Transportation under the guise of purchasing a
work van. Redd showed interest in two vans toward the back of the lot, outside the view of
the front of the office, while the Defendant remained in the front area unseen by Larry
Thomas, Jr. As Redd and Thomas Jr. made their way to the front of the office, the Defendant
appeared, and the three men again looked at a van toward the rear of the lot. Before leaving,
the Defendant went inside the office alone to use the restroom and then the Defendant and
Redd left, saying they had to return to work but would be back that evening. That same day
in Manchester, the Defendant passed a forged Larry Thomas Transportation check, check
number 3338, in the amount of $1500. The signature on check number 3338 was not that of
Larry Thomas, Sr., his wife, or his son, who were the only persons authorized to sign checks
on the account. Several days later, police found the four remaining blank Larry Thomas
Transportation checks, check numbers 3340 through 3343. The checks were found in a
vehicle in which the Defendant was a passenger underneath the mat on the side of the vehicle
where the Defendant was a passenger. Also under that floormat, police found three false
identification cards and a social security card. The card bore the same name used to pass the
forged check at the Manchester branch of the bank. Police confirmed with Larry Thomas,
Sr. that six checks, check numbers 3338 through 3343, were missing from his business check
binder and that he had not given anyone permission to take or use those checks.
-16-
As to the Defendant’s contention that the evidence is insufficient as to his theft
conviction because the State failed to prove the value of the stolen checks, we agree with the
Defendant that the value of the property taken is an element of the offense and must be
proven. See State v. Mike Wayne Tate, C.C.A. No. 03C01-9204-CR-127, (Tenn. Crim. App.
filed March 4, 1993, at Knoxville); Tenn. Code Ann. § 39-14-105 (2010). While this Court
may not presume the range of value of an item, we can assume that the checks, as a means
for an account holder to access funds, has a monetary value over zero. The exact value of
stolen property only becomes relevant when the State seeks a conviction for felony theft. See
State v. Jarvis Loverson, No. W1999-01750-CCA-R3-CD, 2000 WL 1664276, at *3 (Tenn.
Crim. App., at Jackson, Oct. 23, 2000), no perm. app. filed.
Based upon this evidence, we conclude that a rational jury could find the Defendant
guilty beyond a reasonable doubt as to theft of property under $500 and forgery. The
Defendant is not entitled to relief on this issue.
F. Allocution
The Defendant argues that the trial court’s failure to perform its duties as required by
Tennessee Code Annotated section 40-35-210(b)(6) deprived the Defendant of his right of
allocution. The State responds that the record shows that the Defendant discussed the issue
of making a statement or testifying with defense counsel and was given the opportunity to
speak to the trial court.
At the sentencing hearing, the following exchange occurred in reference to the
Defendant’s decision to make an allocution statement:
Trial Counsel: Your Honor, may I have a five-minute recess to talk to
my client about whether he wants to testify or not? I
have previously talked to him but - -
Trial Court: You can.
(A recess was taken.)
Trial Court: All right. [Trial Counsel], go ahead.
Trial Counsel: My client doesn’t wish to make a statement at this
sentencing.
Trial Court: Okay. He understands he has a right to do so; is that
-17-
correct?
Trial Counsel: I believe so. (Addressing [the Defendant])You
understand that you have a right to testify today?
The Defendant: As I discussed with you, I don’t particularly want to
testify. I wanted to say something before I was
sentenced, but I don’t know if we can distinguish the
difference.
Trial Counsel: There is a couple of motions that my client would like to
make. I can make that through my comments, but I
think, [Defendant], you don’t want to take the stand and
testify today, do you?
The Defendant: It wouldn’t serve any purpose.
Trial Counsel: Okay.
Trial Court: You understand you have the right to do so, Mr. Wright?
The Defendant: Yes, sir, but does that waive my - - if I am objecting - -
I mean, my main objection is to this notice. Does that
waive that objection?
Trial Court: I wouldn’t think so.
The Defendant: Okay, and that I do have three handwritten motions that
[Trial Counsel] - - I got them prepared very late. I wrote
you a letter.
Trial Court: I got it. I handed it to him.
The Defendant: I’m not asking the Court to actually hear them today, but
I just wanted to - -
Trial Court: Okay. I will let [Trial Counsel] talk about those.
In denying the Defendant’s motion for a new trial, the trial court said as to the issue
of allocution, “the Defendant was given ample opportunity to address the Court during his
-18-
sentencing hearing, and in the end [the] Defendant’s attorney said he did not want to make
a statement.”
Allocution has been defined “as the formality of the court’s inquiry of a convicted
defendant as to whether he has any legal cause to show why judgment should not be
pronounced against him on the verdict of conviction.” State v. Stephenson, 878 S.W.2d 530,
551 (Tenn. 1994) (citing B LACK’S L AW D ICTIONARY 76 (6th ed. 1990)) (footnote omitted).
It is “[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in
which the defendant can ask for mercy, explain his or her conduct, apologize for the crime,
or say anything else in an effort to lessen the impending sentence. This statement is not
subject to cross-examination.” B LACK’S L AW D ICTIONARY 75 (7th ed. 1999); see also United
States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). Tennessee Code Annotated section 40-
35-210(b)(7) mandates that, in a non-capital case, a defendant be allowed allocution before
a sentencing judge or jury. This section provides, “To determine the specific sentence and
the appropriate combination of sentencing alternatives that shall be imposed on the
defendant, the court shall consider ... [a]ny statement the defendant wishes to make in the
defendant’s own behalf about sentencing.” T.C.A. § 40-35-210(b)(7) (2010). “The trial
judge, in determining the appropriate sentence . . . shall consider, among several factors, any
statement the defendant wishes to make in his own behalf about sentencing . . . .”
Stephenson, 878 S.W.2d at 551.
In the case under submission, the evidence showed that trial counsel discussed with
the Defendant prior to sentencing whether the Defendant wanted to testify on his own behalf
or make a statement. In court, trial counsel asked the Defendant if he wanted to testify, and
the Defendant responded that he did not. The trial court also confirmed that the Defendant
understood he had the right to give a statement to be considered in sentencing. The
Defendant did, in fact, discuss several concerns, unrelated to sentencing, with the trial court.
We agree with the trial court that the Defendant was given ample opportunity to speak. The
Defendant chose not to execute his right to allocution. Accordingly, we conclude that the
Defendant is not entitled to relief on this issue.
E. Sentencing
The Defendant’s final argument attacks the trial court’s determination that the
Defendant be sentenced as a career offender. He contends that the State’s notice of intent
to seek an enhanced punishment was both deficient and untimely and that the State failed to
prove the existence of the alleged prior convictions. The State responds that the notice was
timely and fairly informed the Defendant of the State’s intentions. Further, the State asserts
that the trial court correctly found the Defendant to be a career offender based upon the proof
presented at the sentencing hearing. We agree with the State.
-19-
Tennessee Code Annotated section 40-35-202(a) states:
If the district attorney general believes that a defendant should be sentenced
as a multiple, persistent or career offender, the district attorney general shall
file a statement thereof with the court and defense counsel not less than ten
(10) days before trial or acceptance of a guilty plea; provided, that notice may
be waived by the defendant in writing with the consent of the district attorney
general and the court accepting the plea.
See also Tenn. R. Crim. P. 12.3. The Tennessee Supreme Court has stated:
The purpose of subsection (a) is to provide fair notice to an accused that he is
exposed to other than standard sentencing. It is intended to order plea-
bargaining, to inform decisions to enter a guilty plea, and to aid to some extent
trial strategy. Notice is important not only in preparation for a sentencing
hearing, but in evaluating the risks and charting a course of action before trial.
The Legislature has expressly placed the responsibility of notice upon the
district attorney, along with the discretion to seek enhanced sentencing.
When the notice is given only shortly before trial, an accused may not rest on
the State’s error, but must claim needed time by seeking a continuance and
show some prejudice from the late filing.
State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990) (citation omitted).
1. Timely Notice
The Defendant’s case was originally set for trial on December 18, 2006. The State
filed a notice of intent to seek enhanced punishment on December 15, 2006, three days
before trial. A mistrial was declared on the day of trial, however, based upon a poor working
relationship between the Defendant and his attorney at the time. New counsel was appointed
and a plea deadline was set for January 16, 2007. Thereafter, the trial court set another trial
date for May 30, 2007.
When the Defendant raised his complaint as to timely notice of the State’s intent to
seek enhanced punishment at his sentencing hearing, the trial court made the following
findings:
I believe the State has complied with the requirements of the rule. It may not
-20-
be exactly as you want it, [trial counsel] and [Defendant], but it is a good
notice. I find that it was given, although within the 10 days of the first trial,
it is still good as to the second trial. Several months elapsed from the time that
[trial counsel was] appointed until the trial in the matter. You did have time
to do your own investigation to rebut. Nobody asked for a continuance prior
to the second trial to have more time to rebut or to investigate any of these
convictions. The notice itself has the date of conviction, the nature of the
conviction, and the conviction court.
While the notice in this case was late for the first trial date, it was filed more than five
months before the actual trial date for these charges. See State v. Carter, 121 S.W.3d 579,
585 (Tenn. 2003). Further, the record does not indicate that the Defendant moved for a
continuance before trial or that he objected to the notice. The fact that the notice is not filed
until the date trial begins does not render the notice ineffective in the absence of some
showing of prejudice on the part of the defendant, particularly where defense counsel does
not move for a continuance or postponement of the trial as he is clearly authorized to do
under Tennessee Rule of Criminal Procedure 12.3(a). See State v. Stephenson, 752 S.W.2d
80, 81 (Tenn. 1988). The Defendant was on notice of the State’s intent to seek enhanced
punishment well before his trial in the case, and he cannot show that he was, in any way,
prejudiced. Therefore, he is not entitled to relief on this issue
2. Deficient Notice
The Defendant contends that the notice was deficient because the notice: (1) failed to
distinguish between felony and misdemeanor convictions; (2) it listed offenses rather than
convictions, (3) contained a conviction date discrepancy with the presentence report; (3)
listed “Shelby County, Tennessee” as the court of conviction for two of the convictions while
the presentence report listed “U.S. District Court, Western Division of Tennessee;” (4) did
not list a conviction that the presentence report listed; and (5) listed the city of conviction for
two convictions where the presentence report listed the actual court.
The trial court made the following findings in its sentencing order:
[T]he Court specifically finds that the State’s Notice of Intent to Seek
Enhanced Sentencing, both, met the minimum requirements to constitute a
“notice” under the Statute; and was properly and timely filed to place the
accused on “fair notice” that the State was seeking enhanced punishment. In
fact this Court has “bent over backwards” to give the defendant and his
counsel time to rebut the same. The Court also finds that information on the
presentence report is reliable hearsay. The author of the presentence report has
-21-
done more than her duty in authenticating the convictions upon which the State
and this Court relies. The offender has a criminal history which includes the
extensive use of up to eight (8) aliases and different social security numbers.
His criminal history also crosses several state lines and jurisdictions. The
Court takes note that the defendant has never put on evidence that negates the
prior convictions in question.
The notice provision found in Tennessee Code Annotated section 40-35-202(a)
requires that the State file: (1) written notice; (2) clearly expressing the State’s intention to
seek sentencing outside of the standard offender range; (3) setting forth the nature of the
prior felony conviction, the dates of conviction, and the identity of the courts of the
conviction. As we earlier stated, the purpose of this notice is: (1) to provide fair notice of
potential exposure to enhanced standard sentencing; (2) to allow informed decisions as to
guilty pleas; and (3) to aid trial strategy. State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990).
Our Supreme Court has stated that “When a detail of the required information is omitted or
incorrect, the inquiry should be whether the notice was materially misleading. Where an
ambiguity or contradiction appears on the face of the notice, defendant has a duty to inquire
further.” Id. “In other words, what is required is ‘fair’ notice, not ‘perfect’ notice.” State
v. Livingston, 197 S.W.3d 710, 712-14 (Tenn. 2006).
Our review of the record reveals a written notice of intent to seek enhanced
punishment, filed December 15, 2006, listing the dates of convictions, nature of convictions,
and convicting courts. The State’s notice in this case, while not perfect, was fair. The errors
the Defendant complains of are more clerical in nature and do not render the State’s notice
“materially misleading.” Adams, 788 S.W.2d at 559. Based upon the forty convictions the
State listed in its notice, the Defendant was certainly aware that he would be exposed to
enhanced punishment based upon his criminal history.
The State has substantially complied with the statute, so the accused has a duty to
inquire about ambiguous or incomplete notice and must show prejudice to obtain relief.
Adams, 778 S.W.2d at 559. In this case, the State’s notice made the Defendant aware of its
intent to seek an enhanced range of punishment. He was provided the convictions upon
which the State would rely in advance of trial and, thus, was in a position to plan case
strategy, including determining whether or not the Defendant was actually convicted of the
crimes listed in the notice. The Defendant also had sufficient time to inquire into any
ambiguities or mistakes in the document, and he failed to do so. As the trial court pointed
out, some of the difficulty the State faced in accurately collecting the Defendant’s criminal
history lies with the Defendant, who used as many as eight aliases and different social
security numbers. Further, the Defendant makes no argument that the convictions are not
accurate. Accordingly, we conclude that the errors in the State’s notice are not “materially
-22-
misleading” and the Defendant has failed to show any prejudice resulting from the errors.
The Defendant is not entitled to relief as to this issue.
3. Career Offender
The Defendant claims that there was insufficient evidence presented at the sentencing
hearing for the trial court to sentence him as a career offender. The Defendant appears to
take issue with the trial court’s consideration of Prosser’s testimony regarding her
preparation of the report and the presentence report itself. After hearing extensive proof on
the Defendant’s criminal history, the trial court stated that it would indicate in its sentencing
order which convictions it would consider. These details were not included in the sentencing
order, however, the trial court made a finding that the Defendant had “six (6) prior felony
convictions” and declared the Defendant a career offender.
This Court has consistently held that information in a presentence report is reliable
hearsay which may be admitted if the opposing party is offered the opportunity to rebut the
same. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.1997); State v. Richardson,
875 S.W.2d 671, 677 (Tenn. Crim. App. 1993); State v. Randolph Scott Jennings, No.
E2001-02118-CCA-R3-CD, 2002 WL 31730884, at *5 (Tenn. Crim. App., at Knoxville,
Dec. 6, 2002), perm. app. denied (Tenn. August 21, 2006). The trial court is also required
to consider the presentence report before imposing a sentence. T.C.A. § 40-35-210(b)(2)
(2010). Moreover, the Tennessee Criminal Sentencing Reform Act of 1989 contemplates
that much of the information contained in a presentence report will be hearsay. Baker, 956
S.W.2d at 17. However, the information is reliable because it is “based upon the presentence
officer’s research of the records, contact with relevant agencies, and the gathering of
information which is required to be included in a presentence report.” Id.
The State called the preparer of the presentence report, Prosser, to testify regarding
her investigation into the Defendant’s criminal history. She testified extensively as to her
contact with relevant agencies to confirm the Defendant’s eight felony and nine misdemeanor
convictions. The Defendant was afforded the fair opportunity to rebut any of these
convictions and failed to do so. The Defendant did not contend that the presentence report
or Prosser’s testimony was incorrect. As a result, the presentence report and testimony of
Prosser were properly admitted by the trial court as reliable hearsay. See T.C.A. § 40-35-
309(b) (2010). The State submitted certified copies of convictions for four of the
Defendant’s felony convictions. A certified copy of conviction for the remaining two
convictions necessary for the trial court to find the Defendant a career offender was not
required to establish the convictions by a preponderance of the evidence, and the trial court
properly relied on the presentence report and Prosser’s testimony. The Defendant is not
entitled to relief as to this issue.
-23-
III. Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgments of the trial
court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
-24-