State of Tennessee v. Jimmy Curtis Adkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 29, 2010
STATE OF TENNESSEE v. JIMMY CURTIS ADKINS
Appeal from the Hamilton County Criminal Court
No. 268719 Don W. Poole, Judge
No. E2009-02413-CCA-R3-CD - Filed December 16, 2010
The Defendant, Jimmy Curtis Adkins, was found guilty by a Hamilton County Criminal
Court jury of promoting the manufacture of methamphetamine, a class D felony, and
initiating the manufacture of methamphetamine, a Class B felony. See T.C.A. §§ 39-17-433,
-435 (2010). He was sentenced as a Range II, multiple offender to six years’ and fourteen
years’ confinement, respectively, to be served concurrently but consecutively to the
Defendant’s convictions in Georgia. On appeal, he contends that (1) the evidence was
insufficient to support his convictions, (2) the trial court erred in denying his motion to
suppress evidence, and (3) the trial court erred during sentencing by considering prior
convictions that were not proven by certified copies of the convictions and by considering
enhancement factors that were not submitted to the jury. We affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.
Ardena J. Garth, District Public Defender; and Richard Kenneth Mabee, Assistant District
Public Defender, for the appellant, Jimmy Curtis Adkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General and Reporter; Bill Cox, District Attorney General; and James Woods,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to the arrest of the Defendant by United States Marshals, a search of
the home where the Defendant was found and of a van parked outside of the home, and the
discovery of materials used to manufacture methamphetamine. Chattanooga Police
Department Officer Charles Topping testified that he assisted in the arrest of the Defendant
on February 22, 2007. He said officers on the scene noticed a van with dark tinted windows
parked in front of the home where the Defendant was arrested and called Hamilton County
narcotics officers to inspect the van. He said that the officers did not tamper with the
contents of the van before it was searched, although he acknowledged that he left the scene
before officers searched the van.
On cross-examination, Officer Topping testified that when he arrived on the scene,
the Defendant was in the house. He agreed a woman was also in the house but said he did
not know who owned the home.
Hamilton County Sheriff’s Officer Andy Brown testified that he was a member of the
narcotics and special operations division. He said he responded to1807 Bay Hill Drive to
investigate a van that was believed to contain a methamphetamine lab. He said the van was
parked in the street in front of a home where the Defendant was arrested. He said that a
strong chemical odor came from the van and that the smell was so strong that he could only
be near the van for short periods of time. He said he had investigated methamphetamine labs
in the past. He said the scent coming from the van was consistent with the unique odor of
a methamphetamine lab. Inside the van, the police found several items that were consistent
with the components of a methamphetamine lab, some of which were contained in black
bags. He said he, Detective Robin Langford, and Officer Henry Ritter processed and
inventoried the items taken from the van.
On cross-examination, Officer Brown testified that he inventoried the contents of the
van and the home where the Defendant was found. He said that the Defendant was inside
the home when he arrived and that a woman who lived there was also present. He said that
the woman’s car was in the driveway but that he did not recall asking her who owned the
van. He said that the bags in the van could be seen from the driver’s seat but that the bags
were closed when they began searching the van. He said officers found two glass pipes on
the floorboard. He said the pipes may have been visible from the driver’s seat. He said that
men’s clothing was found in the van but that he did not inventory the clothes or know their
size. He said other officers on the scene photographed the items removed from the van. He
identified a photograph of a coffee grinder containing white residue that was removed from
the van. Officer Brown said the scent coming from the van was consistent with the odor of
a methamphetamine lab. He admitted that he would not have been able to identify the smell
if he had not been trained to recognize the scents associated with methamphetamine labs.
Hamilton County Sheriff’s Officer Robin Langford testified that he was a member of
the narcotics and special operations division. He said he responded to1807 Bay Hill Drive
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to investigate a van that was believed to contain a methamphetamine lab. Upon arriving, he
had a police dog walk around the van. He said that after the dog signaled that the van
contained the scent of narcotics, the van’s interior was searched. He noticed the smell of
methamphetamine production and found components of a methamphetamine lab in the van.
He said black bags contained a coffee grinder, yellow stained coffee filters, a Mason jar
containing a liquid that appeared to have been used to wash pills, a Mason jar containing a
two-layer liquid, a pill bottle taped around the cap that contained a red residue consistent
with iodine crystals, plastic hoses wrapped with electrical tape, glass tubing, and glass
beakers. He said the bags also contained a coffee pot, electric burners, and a can of methanol
gel. He said that coffee pots were often found in methamphetamine labs and that they were
used to cook methamphetamine. He said methanol gel was often used as a source of heat
in mobile methamphetamine labs. He also found a propane canister, a propane torch, and a
bottle of Liquid Fire drain opener in the bags. He said a chemical in the drain opener was
used to manufacture methamphetamine and was often found in methamphetamine labs. He
found a shoebox inside the van that contained electrical cords, plastic tubing, and a canister
of Oxy Clean with a hidden safe in the bottom. He said he unscrewed the base of the canister
and found plastic bags containing white powder and two stained and burned glass pipes.
Officer Langford testified that he found a Valvoline receipt from a service station in
Georgia near the driver’s seat. The receipt reflected that the van’s oil was changed and other
routine maintenance was performed two days before the Defendant was arrested and the van
searched. The receipt contained the vehicle’s make, model, and license plate number, as well
as the Defendant’s name and the address of his home in Georgia. Officer Langford also
found a cellular telephone invoice listing the Defendant’s name and address and reflecting
that the Defendant placed an order and paid his telephone bill five days earlier.
Officer Langford testified that he had processed between thirty and thirty-five
methamphetamine labs with the narcotics division. He said that fingerprints were not taken
at any of those labs and that police did not take fingerprints from the van. Inside the kitchen
of the home where the Defendant was found, he found a Gatorade bottle and a Mason jar,
each containing a blue two-layer liquid. He also found a Pyrex dish containing a blue
powder residue and a can of acetone.
On cross-examination, Officer Langford testified that other officers were at the home
when he arrived and that his purpose in responding to the scene was to investigate the home
and the van, which were suspected to contain materials used to manufacture
methamphetamine. He said he found additional items in the kitchen, including a Gatorade
bottle containing a red two-layer liquid, a cookie jar containing stained coffee filters, and
stained plastic funnels. He did not know if any of the items were moved before he arrived.
He admitted that he did not test the powder residue in the Pyrex dish but said that the residue
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was consistent with residue commonly found on tools used in methamphetamine labs. He
also admitted that he did not test the two-layer liquids but said he had seen red and blue two-
layer liquids only in methamphetamine labs. He said he found a glass pipe underneath a
woman’s pocketbook, a digital scale, and marijuana in the living room.
Officer Langford testified that the evidence log of items removed from the van listed
the Defendant as the arrestee, while the evidence log of items removed from the home listed
Cynthia Denise Strickland as the arrestee. He said Ms. Strickland owned the home where
the Defendant was arrested. He said that he did not take fingerprints from any of the items
removed from the home or van and that a hazardous materials team collected the items and
destroyed them after the items were photographed. He said it was standard procedure to
destroy items used to produce methamphetamine because they contained dangerous, volatile
chemicals.
Officer Langford testified that the van was parked on a public street in front of Ms.
Strickland’s home. He said that although the van had an Alabama license plate and was
registered to Freddie Ramsey, a resident of Alabama, it was his understanding that the
Defendant had been driving the van. He admitted that his investigative report did not note
that he was told about an odor coming from the van before searching it. He said he found
a bottle of Heet gasoline antifreeze and a Sterno burner in a rear compartment of the van.
He agreed that he found the shoebox containing electrical cords, plastic tubing, and a hidden
safe in a white plastic bag in the rear of the van. He agreed that he misspoke when he said
that a pill bottle removed from the van contained iodine crystals around the rim and admitted
that the gray substance around the rim of the bottle was actually foil. He agreed he
considered the items found in the black bags to be components of a methamphetamine lab.
He said the other items found in the van were also consistent with methamphetamine lab
components.
On redirect examination, Officer Langford testified that the Defendant was not
charged with possessing items found in the home. He said that although the pill bottle
removed from the van did not appear to contain iodine crystals around the rim, it appeared
to contain iodine crystals inside the bottle. He said he examined all of the recovered items
as a whole, rather than individually, to determine whether a methamphetamine lab existed.
He agreed that otherwise innocuous items could be combined to create a methamphetamine
lab.
Hamilton County Sheriff’s Officer Henry Ritter testified that he was a member of the
narcotics and special operations division and that he served as a K-9 handler. He said that
his dog was trained and certified in narcotics detection and that he was certified to handle the
dog. He said he went to 1807 Bay Hill Drive to investigate a van believed to contain a
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methamphetamine lab. He had his police dog walk around the van. He said the dog signaled
that it detected the scent of narcotics. He began to search the van and noticed a very strong
odor that was consistent with the odor in methamphetamine labs. He said the scent was so
strong that officers could only remain in the van for a few minutes at a time.
Drug Enforcement Administration Agent Frank Ledford testified as an expert witness
in narcotics investigation and clandestine laboratories. He said he did not take part in the
arrest of the Defendant or the search of the van. He explained how to make
methamphetamine using the red phosphorous method, a method popular in eastern
Tennessee. He said pseudoephedrine and iodine crystals were used to make
methamphetamine. He said that coffee grinders were often used to grind pills containing
pseudoephedrine into a white powder and that persons in eastern Tennessee strained cooked
methamphetamine solutions through coffee filters. He said Heet gasoline antifreeze and
Liquid Fire drain opener were solvents commonly used during methamphetamine production.
He said solvents caused liquid methamphetamine solutions to separate into two layers.
Agent Ledford examined a photograph of the coffee grinder removed from the van
and testified that the appearance of the white powder on the grinder was consistent with
ground pseudoephedrine. He examined a photograph of the plastic pill bottle removed from
the van and said it appeared to be stained with iodine crystals. He said the electrical tape
around the lid of the bottle was a common method to prevent the evaporation of the iodine
crystals. He examined a photograph of plastic tubing removed from the van and said the red
stains on the tubing were consistent with the stains caused by iodine crystals during
methamphetamine production. He examined a photograph of the coffee filters removed from
the van and said the yellow stains on them were consistent with the stains caused when
filtering methamphetamine out of a cooked solution. He said methamphetamine producers
often saved these filters and mixed them with beverages to leach out any remaining
methamphetamine.
Agent Ledford testified that coffee pots and glass beakers were often used to cook
methamphetamine. He said that plastic tubing often connected the glass vessels and was
used to condense the evaporating methamphetamine vapors. He examined a photograph
of plastic tubing removed from the van and said the white residue in the tubing was
consistent with the residue caused by condensed methamphetamine. He testified that the
plastic tubing and glass beakers found in the van were consistent with a homemade
methamphetamine condenser. He said electric burners, propane torches, and cans of
methanol gel were often used as sources of heat when cooking methamphetamine. He said
the van appeared to contain a methamphetamine lab.
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On cross-examination, Agent Ledford testified that he learned to recognize the scents
produced by methamphetamine labs by investigating them. Although he agreed that a person
who had not previously encountered a lab might not recognize the smell, he said most
reasonable people would know that something was “not right . . . because it’s a very
assaulting smell.” He agreed that he could not be certain whether the items removed from
the van contained methamphetamine or a methamphetamine precursor because he was not
present when the van was searched.
The Defendant did not testify. The jury found the Defendant guilty of promoting the
manufacture of methamphetamine and initiating the manufacture of methamphetamine. He
was sentenced as a Range II, multiple offender to six years’ and fourteen years’ confinement,
respectively, to be served concurrently to each other and consecutively to the Defendant’s
convictions in Georgia. This appeal followed.
I
The Defendant contends that the evidence was insufficient to support his convictions
because the evidence did not establish that the items removed from the van contained
methamphetamine or a methamphetamine precursor, such as pseudoephedrine. The State
contends that the evidence was sufficient to support the Defendant’s convictions. We agree
with the State.
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh
the evidence but must presume that the trier of fact has resolved all conflicts in the testimony
and drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A person promotes the manufacture of methamphetamine who “sells, purchases,
acquires, or delivers any chemical, drug, ingredient, or apparatus that can be used to produce
methamphetamine, knowing that it will be used to produce methamphetamine, or with
reckless disregard of its intended use.” T.C.A. § 39-17-433(a)(1). Additionally, a person
may not “knowingly initiate a process intended to result in the manufacture of any amount
of methamphetamine.” T.C.A. § 39-17-435(a). To initiate the manufacture of
methamphetamine means “to begin the extraction of an immediate methamphetamine
precursor from a commercial product, to begin the active modification of a commercial
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product for use in methamphetamine creation, or to heat or combine any substance or
substances that can be used in methamphetamine creation.” Id. at -435(c). Expert testimony
of a qualified law enforcement officer is admissible to establish that a particular chemical,
drug, ingredient, or apparatus can be used to produce methamphetamine. Id. at -433(b).
Expert testimony of a qualified law enforcement officer is admissible for the proposition that
a particular process can be used to manufacture methamphetamine. Id. at -435(d). We note
from the statutes that the offenses can be proven without the presence of methamphetamine
or its precursors.
Taken in the light most favorable to the State, the evidence established that officers
searched a van containing the Defendant’s personal effects that was parked in front of the
home where the Defendant was arrested. The van contained a recent cellular telephone
invoice listing the Defendant’s name and his address in Trenton, Georgia. It also contained
a recent Valvoline receipt from a service station in Georgia listing the van’s make, model,
and license plate number, as well as the Defendant’s name and the address of his home in
Georgia. The evidence did not reflect that anyone else entered or drove the van near the time
of the search. From this, the jury could reasonably infer that the Defendant possessed the van
and its contents. A trained police dog indicated that the van contained the scent of narcotics.
Experienced officers noted a strong chemical odor in the van that was consistent with the
production of methamphetamine. The odor was so strong that officers could only remain in
the van for a few minutes at a time while searching it. Agent Ledford testified that persons
driving the vehicle would know that something was “not right. . . because it’s a very
assaulting smell.”
Inside the van, the police found numerous commercially available items that had been
combined and modified to form the components of a methamphetamine lab. Officer
Langford and Agent Ledford testified that the van contained many items commonly used to
manufacture methamphetamine. They testified that these components gave off the scent and
appearance of recent methamphetamine production and that chemicals, residue, and stains
found on the items were consistent with the manufacture of methamphetamine. Agent
Ledford also testified that the tubing and glass materials found in the van appeared to be a
homemade methamphetamine condenser.
We conclude that a rational trier of fact could have found the elements of promoting
the manufacture of methamphetamine and initiating the manufacture of methamphetamine
beyond a reasonable doubt. We hold that the evidence is sufficient to support the
Defendant’s convictions.
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II
The Defendant contends that the trial court erred by denying his motion to suppress
evidence removed from the van because the police did not obtain a search warrant before
entering the van. The State contends that the trial court properly denied the motion to
suppress because a search warrant was not needed after a trained police dog provided
probable cause to search the van. We agree with the State.
An appellate court may consider the evidence presented at the suppression hearing as
well as at trial in determining whether the trial court properly denied a pretrial motion to
suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). A trial court’s factual
findings in a motion to suppress hearing are conclusive on appeal unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones,
802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The
prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The
application of the law to the facts as determined by the trial court is a question of law that is
reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
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
S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d 857,
860 (1968)). The analysis of any warrantless search must begin with the proposition that
such searches are per se unreasonable under the Fourth Amendment to the United States
Constitution and article I, section 7 of the Tennessee Constitution. This principle against
warrantless searches is subject only to a few specifically established and well-delineated
exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d
798, 801 (Tenn. Crim. App. 1980). The “automobile exception” to the warrant requirement
permits an officer to search an automobile if the officer has probable cause to believe that
it contains contraband. Carroll v. United States, 267 U.S. 132, 149 (1925). “The rationale
for the automobile exception is two-fold: (1) the impracticability of obtaining a search
warrant in light of the inherent mobility of an automobile; and (2) the reduced expectation
of privacy with respect to one’s automobile.” State v. Jose Roberto Ortiz, No.
M1998-00483-CCA-R3-CD, Davidson County, slip op. at 11 (Tenn. Crim. App. Dec. 30,
1999) (citing California v. Carney, 471 U.S. 386, 393 (1985)), app. denied (Tenn. Sept. 25,
2000). If a car is readily mobile and probable cause exists to believe it contains contraband,
the police may search the vehicle without exigent circumstances. Pennsylvania v. Labron,
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518 U.S. 938, 940 (1996). “[T]he automobile exception does not require a separate finding
of exigency under the Tennessee Constitution.” State v. Saine, 297 S.W.3d 199, 207 (Tenn.
2009). If police have probable cause to search a car, they may also search containers within
the car that are capable of concealing the object of the search. United States v. Ross, 456
U.S. 798, 825 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle,
it justifies the search of every part of the vehicle and its contents that may conceal the object
of the search.”)
The Defendant argues that the police were required to obtain a search warrant
because he was arrested in the house at the time they searched the van parked on the street,
thus removing the ready mobility of the van. This court previously rejected a defendant’s
claim that there must exist a danger that an automobile will elude the grasp of police officers
in order to justify a warrantless search and stated that “we do not believe the Supreme Court
intended the phrase ‘readily mobile’ to be synonymous with ‘imminently mobile.’” Jose
Roberto Ortiz, slip op. at 28 n.11. This court explained that
While the mobility of automobiles is part of the reasoning
behind [the exception], the question is not . . . whether the car is
likely to be driven off; the question is whether probable cause
that contraband is within the vehicle supports a search within the
scope that a warrant would have authorized. It is the
characteristic mobility of all automobiles, not the relative
mobility of a car in a given case, that gives rise to the . . .
standard [set forth in United States v. Ross, 456 U.S. 798(1982),] which allows for warrantless searches when probable
cause exists . . . .
Id., slip op. at 27 (quoting United States v. Perry, 925 F.2d 1077, 1081 n.4 (8th Cir. 1991)).
Furthermore, “It is not significant for purposes of applying the ‘automobile exception’ to the
warrant requirement that the [defendant was] already under arrest at the time of the search.”
State v. McCrary, 45 S.W.3d 36, 45 n.4 (Tenn. Crim. App. 2000). Thus, the ability of the
police to search the van depended on whether they had probable cause to believe it contained
contraband. See Carroll, 267 U.S. at 149.
The sweep of a car by a trained narcotics dog does not constitute a search under the
Fourth Amendment. State v. England, 19 S.W.3d 762, 766-67 (Tenn. 2000). Although a
dog’s positive indication of the presence of narcotics can provide probable cause to search
a car, the finding of probable cause depends on the reliability of the dog. Id. at 768. In
determining the reliability of the dog, the court should consider the animal’s training and
track record, “with emphasis on the amount of false negatives and false positives the dog has
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furnished. The trial court should also consider the officer’s training and experience with [the]
. . . canine.” Id.
At the suppression hearing, Officer Ritter testified that his police dog received its
initial training in Germany. He said that the dog received further training and certification
in narcotics detection at the Rudy Drexler School for Dogs in Indiana and that the dog was
trained to detect methamphetamine and methamphetamine derivatives. He stated that he
spent two weeks in Indiana training with the dog and that he was certified to handle the dog.
He said he continued to train with the dog at least once a week. Officer Ritter estimated that
his dog had searched for narcotics between 1500 and 2000 times. He said narcotics were
found ninety-five percent of the time when the dog detected a narcotic odor. In denying the
Defendant’s motion to suppress, the trial court found that “the dog [was] reliable and
consequently, there was probable cause to believe that there were illegal drugs inside the
van.” This finding is supported by the record. Officer Ritter had his police dog walk around
the vehicle. The dog scratched the sliding passenger door, indicating that it detected the
scent of narcotics inside the van. Because the dog was reliable, its indication provided the
officers with probable cause to search the van and its contents for narcotics. We hold that
the trial court did not err in denying the Defendant’s motion to suppress.
III
The Defendant contends that the trial court erred during sentencing because it
considered prior convictions that were not proven by certified copies of the convictions and
considered enhancement factors that were not submitted to the jury, which he argues was in
violation of Blakely v. Washington, 542 U.S. 296 (2004). The State contends that the trial
court properly considered prior convictions that were listed in the Defendant’s presentence
report and that the 2005 amendments to the Sentencing Act permitted the trial court to
consider enhancement factors not submitted to the jury. We agree with the State.
At the sentencing hearing, Kim Davenport testified that she was a presentence
investigator with the Tennessee Board of Probation and Parole and that she prepared the
Defendant’s presentence report. She said the Defendant was convicted of possessing drug
paraphernalia in 1996. She said that in November 2001, the Defendant was convicted of
manufacturing methamphetamine, possessing methamphetamine, and driving without a valid
license in Georgia and was ordered to serve twelve years in confinement followed by three
years of probation. The presentence report reflected that after filing a motion for a new trial,
the Defendant was released on bond in December 2002. The presentence report also
reflected that the Defendant acquired additional methamphetamine charges while released
on bond. Ms. Davenport said that in October 2003, the Defendant was convicted of
manufacturing methamphetamine and two counts of reckless conduct in Georgia and was
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ordered to serve twenty years in confinement followed by ten years of probation. She said
that the Defendant was released on parole on March 28, 2005, and that he was on parole at
the time of his arrest. She said the Defendant had a pending parole violation, as well as a
pending charge of possessing contraband in the Hamilton County penal facility. She said the
Defendant also had outstanding warrants in Dekalb County, Alabama for possession of a
controlled substance, possession of drug paraphernalia, and manufacture of a controlled
substance.
On cross-examination, Ms. Davenport admitted that she did not have a certified copy
of the judgment for the Defendant’s 1996 conviction for possessing drug paraphernalia. She
said she instead obtained a certified copy of computer records reflecting this conviction. The
presentence report reflected that she had certified copies establishing the Defendant’s
remaining convictions for manufacturing methamphetamine, possessing methamphetamine,
driving without a valid license, and reckless conduct. She agreed the Defendant had a good
employment history and worked as a welder. She agreed the Defendant informed her that
he was addicted to methamphetamine and had been using it for about fifteen years. She
agreed she did not list any mitigating factors in her presentence report.
The trial court found that the following enhancement factors applied pursuant to
Tennessee Code Annotated section 40-35-114:
(1) the Defendant had a previous history of criminal convictions
or criminal behavior;
(8) the Defendant, before trial or sentencing, failed to comply
with the conditions of a sentence involving release into the
community;
(13) the Defendant was released on parole at the time the felony
was committed.
See T.C.A. § 40-35-114 (Supp. 2007) (amended 2008). The trial court found that the
following mitigating factors applied pursuant to Tennessee Code Annotated section 40-35-
113:
(1) the Defendant’s conduct neither caused nor threatened
serious bodily injury;
(13) the Defendant had a good employment history.
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See T.C.A. § 40-35-113 (2010). The Defendant was sentenced as a Range II, multiple
offender to confinement for six years and fourteen years, respectively, to be served
concurrently to each other and consecutively to the Defendant’s convictions in Georgia.
The Defendant claims that the trial court improperly considered criminal convictions
that were not proven by certified copies of the convictions. At a sentencing hearing, the trial
court must afford the parties the opportunity to be heard and present evidence relevant to the
sentencing of the defendant. T.C.A. § 40-35-209(b). The State has the burden of proving all
enhancement factors by a preponderance of the evidence. State v. Gutierrez, 5 S.W.3d 641,
644 (Tenn. 1999). Reliable hearsay may be admitted at sentencing if the opposing party is
accorded a fair opportunity to rebut such evidence. T.C.A. § 40-35-209(b). This court has
consistently held the presentence report to be reliable hearsay. See, e.g., State v. Baker, 956
S.W.2d 8, 17 (Tenn. Crim. App. 1997) (holding that the information contained in a
presentence report “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.”). Likewise, the person who prepared the
presentence report may be a witness at the sentencing hearing. T.C.A. § 40-35-209(b). This
court has held that certified copies of convictions are not necessary to prove prior criminal
history and that courts can rely upon the presentence report and the testimony of the person
who prepared the report. See State v. Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App.
1993).
We note that the Defendant incorrectly asserts that Ms. Davenport did not have
certified copies of his 2001 convictions for possessing methamphetamine and driving without
a valid license or his 2003 convictions for reckless conduct. The presentence report contains
certified copies of these convictions. The only conviction listed in the presentence report that
was not established by a certified copy of conviction was the Defendant’s 1996 conviction
for possessing drug paraphernalia. Ms. Davenport testified that she obtained a certified copy
of computer records reflecting the 1996 conviction. The Defendant was accorded a fair
opportunity to rebut the evidence of this conviction and failed to do so. The Defendant did
not contend that the presentence report or the testimony of Ms. Davenport was incorrect. As
a result, the presentence report and testimony of Ms. Davenport were properly admitted by
the trial court as reliable hearsay. See T.C.A. § 40-35-209(b). A certified copy of the
Defendant’s 1996 drug paraphernalia conviction was not required to establish it by a
preponderance of the evidence, and the court properly relied on the presentence report and
the testimony of Ms. Davenport. See Richardson, 875 S.W.2d at 677. The Defendant is not
entitled to relief on this issue.
We next consider the Defendant’s claim that the trial court violated Blakely v.
Washington by considering enhancement factors that were not submitted to the jury. 542
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U.S. 296 (2004). The Defendant’s reliance on Blakely is misplaced. In Blakely, the
Supreme Court held, “If the jury’s verdict alone does not authorize the sentence, if, instead,
the judge must find an additional fact to impose the longer term, the Sixth Amendment
requirement is not satisfied.” Cunningham v. California, 549 U.S. 270, 290 (2007) (citing
Blakely, 542 U.S. at 305). In order to avoid the constitutional violation arising from a trial
court increasing a presumptive sentence on the basis of judicially determined enhancement
factors that were not submitted to the jury, the Tennessee Legislature amended the
Sentencing Act in 2005. The Sentencing Act no longer imposes a presumptive sentence and
instead states that the court shall consider, but is not bound by, the following advisory
sentencing guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)). We hold that the trial court did not err by considering enhancement factors
that were not submitted to the jury.
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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