IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CC-00243 Appellee, )

) GIBSON COUNTY VS. ) ) HON. DICK JERMA N, JR., SHANE P ILLOW, ) JUDGE ) Appellant. ) (Second-Degree Murder and ) Aggravated Assault )

FOR THE APPE LLANT: FOR THE APPELLEE: JERALD M. CAMPBELL, JR. JOHN KNOX WALKUP -and- Attorney General & Repor ter L. L. HARRELL, JR. 425 Fifth Ave., North N.W. Cou rt Sq. Nashville, TN 37243-0497 Trenton, TN 38382 ELI ZABE TH T. RYAN Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493 CLAYBURN

L. PEEPLES District Attorney General 110 College St., Suite 200 Trenton, TN 38382-1841 GARRY G. BROWN Asst. District Attor

ney General 110 College St., Suite 200 Trenton, TN 38382-1841

OPINION FILED: ____________________________

__ AFFIRMED JOHN H. PEAY, Judge1 “Huffing paint” was described as spra ying gol d spray pai nt into a bag and inhaling the vapors in order to “get high .” 2 

### O P I N I O N
The defend ant was con vi ct ed of second-degree murder and ag gravated assault. The trial co urt sente nced him to twenty-three years confinement for seconddeg ree murder and five years c onfinement for aggravated assau lt, to run concurrent ly

. In this ap peal as of right, the defend ant prese nts the f ollowing iss ues for re view:

I. whether the evidence contained in the record is insufficient, asa matter of law, to support his convictions; II. whether the trial co urt erred by denying his motion to suppress statements made to law enforcement of ficers; III. whether the trial co urt abused its discreti on bypermitting the State to reopen it s case-in -chief t o identif y the victim ’s body; IV. whether the sentence i mposed by the trial court is excessive; and V. “whether any other

reversible error

was committed by the tr ial court.” Finding no

merit in the

defendant’s c

ontentions, we affirm.
According to the record, the defendant, Brian Dunn (co-defendant), and the two victims, R obert Rey nolds and Donnie Box, had atten ded school together. The defendant described Dunn, Reynol ds, and Box as his closest fri ends. According to the defendant, he had frequently smoked mar ijuana and “huffed paint” 1 with them.

On March 21, 1996, the defendant, Dunn, Reynolds, and Box had contact with each other several times during the day. Around 9 a.m., the defendant went to Reynolds’ home and tried to get him to go somewher e with him, but

Reynolds declined. La terthat day , the defendant tried to track dow n Reynolds at a friend’s ho use. When Reynoldsreturned the defendant’s call, they disc ussed a set of drums they jointly owned. Although the drums were at the defendant’s house, the defendant told Reynolds he had sold them and had Reynolds’ share of the pr ofit. Reynolds told the defendant h e and Box3

would be at the defendant’s house in a few minutes to pick up the money. The defendant told Reynolds he might not be home when R eyno lds and Box arrived , but Reynolds replied he was coming to his h ouse an yw ay. When Reynolds and Box arriv ed, the defendant would not answer th e door. Reynolds and Box drove down the road, onl y to return a few minutes later to fin d the defendant driving out of his d riveway. The defendant promised Reynolds that if he followed him, he would give him his share of the profit. Reynolds followed hi m to Dunn’s house, but when he demanded his mone y, the defendant refused. Reynolds then left.

When Reynolds later lear ned the defendant had not sold the drums, he and Box began searc hing for him . When they found him an d Dunn, Reynolds again demanded his money. The defendant told Reynolds and Box to follow him to his house. On the way there, the defendant pul led to the side of the road and tried to get Reynolds to getin his car. Reynol ds would not and instead continued to drive with Box towards the defendant’s house. When the defendant flashed his lights, Rey nolds and Box pulled to the side of the ro ad. Telling Reynolds he had some money with him, the defendant enticed Reynolds to get in his car. Me anwhile, Dunn exited the defendant’s car and began talking with Box . After Reynolds entered the defendant’s car, the defendant stabbed him in the abdomen, penetrating his liver and bile duct. Reynolds thenpinned the defendant behind the steering wheel, used his elbow to blow the car horn, escaped from the defendant’s car, and ran to Box’s car. The car horn had alerted Box, who began walking towa rds the defendant’s car, even thoug h Reynolds warned ag ainst it. The defendant exited his vehicle and stabbed Box in the middle of his chest. Box turned and
ran away. When Box failed to return, Reynolds dr ove to a relative’s

home where hecould get help.
Meanwhile, the defendant and Dunn had found Box, w ho was still breathi ng. Theyplaced Box in the trunk of the defendant’s car, took hi m to a bridge spanning the4

Rutherford Fork of the Obion River, and pushed him into the riv er. The defendant and Dunn the n fled th e state o f Tenne ssee. Th e next day, they surrendere d themselvesto law enforcement officers in India nola , Mississippi, w ho contacted the Gibson County S heriff’s Department in Tennessee. Deputies from the Gibson County Sh eriff’ s Department traveled to Indianola with the defendant’s an d Dunn’s fathers.

When the Gibson County deputies arrived in Indianola, they examined the defendant’s car. They found the murder weapon and a larg er knife on the front seat of the car. Blood was found on the back bumper and on a plastic tar paulin in the trunk. The defendant gave several statements t o Lt. Jimmy Hand of the Gibson County Sheriff’s Department. He told him that he had stabbed R eynolds. He also admitted stabbing Box,
even though Box

did nothing to threaten him. He said that he and Dunn chased B ox after he ran away, and when they found him, he was still breathin g. He then identified the bridge where they pushed Box into the r iver. Box’s body was later found in the Obion River near the bridge the defendant identified. The autopsy of Box’s body reveal ed he
was alive when he was pushed into the river, even though the stab wound penetrated his heart. The cause of death, however, w as attributed to the stab wound, not to

drowning.

I. The defendant first challenges the sufficiency of the evidence with regards to his conviction for second-degree murder. When an accused challenges the sufficiency of the convicting ev

idence, this Court must review the record to determine if the evidence adduced at trial is sufficient "to s upport the finding by the tr ier of fact of guilt beyond a reasonable doubt." T.R.A.P. 13(e). This C ourt may not reweig h or reevaluate the evidence or substitute its inferences for those drawn from c ircumstantial evidence bythe trier of fact. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim.App. 1990). To the contrary, this Court is req uired to a fford the State the strongest leg itimate view of the evidence contained in the record as well as a l l reasonable and legitimat e inferences5

which may be drawn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibi lity of the witnesses , the weight and value to be given the evidenc e, and the factual issues raised by the evidence are resolv ed by the trier of fact, not this Cou rt. Id. "A guil ty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and r esolvesall conflicts in favor of the t heor y of the State." State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973). Since a verdict of guilt r emoves the presumption of innocence and replaces it with a presumption of guilt, the accused, as the appellant, has the burden of illustrating to this Court why

the evidence is insufficient to support the verdict. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a verdict of g uilt on a sufficiency challenge unless the facts in the recor d are insufficient, as a matter of law, for a rational trier of fact to find the accused g uilty beyond a reasonabl e doubt. Id.

Under the facts of the instant case , t he State had to prove beyond a reasonable doubt that the defendant knowingl y killed Box. T.C.A. § 39-13-210. Reyno lds testified that Box

and the defendant had met between the tw o cars. He did not see

the defendant stab Box, but he heard Box exclaim, “Oh, s--- , Shan e, ” and he saw Box run from the defendant. The defendant admitted in his confession that he had stab bed Box,
even though Box had not threatened o r attempted to harm him. The autopsy revealed the stab wound was in the middle of Box’ s chest and the knife penetrated his heart. Although Box was thrown into the river whi le he was still ali ve, the cause of death was the stab wound.

To contrast, the defendant testified dur ing the trial his confess ions were false and that he and Dun n had agreed to tell three di fferent stories. He also testi fied Dunn killed Box. The juryobviously re jected th is testim ony, which wa s their pre rogative6

in evaluating each witness’s credibili ty. See Cabbage , 571 S.W.2d at 835. T he evidence
was sufficient beyond a reasonable doubt to support the jury’s

verdict that the defendant knowingly

killed Box. T.R.A.P. 1 3(e); Jackson v. Vi rginia , 443 U.S. 307 (1979). Therefore, the defendant’s argument is without merit.

II. Next, the defendant contends the trial court reversibly erred by denying his motion to suppress thre e stat ements made to Gibson County deputy sheriffs. He predicateshis argument upon Tennessee Rules of Juvenile Procedure 7 and 30. He also argues he did not knowingly and voluntarily w

aive the rights afforded by Mira nda v. Arizona , 384 U.S. 436 (1966). The State counters that the Tennessee Rules of Juvenile Procedure are inapplicable here because the defendant was tried as an adult . The State also contends the defendant knowingly and voluntarily waived his Mirandarights.

The defendant’s relianc e upon the Rules of Juvenile Procedure is misplaced. The Rules of Juvenile Procedure apply to judicial proceedings in a juvenile court and have no applicability where, as here, the juv enile is transferred to a c ourt of original jurisdiction with criminal jurisdiction for trial as an adult. See State v. Lundy , 808 S.W.2d 444, 446 (Tenn. 1991); Colyer v. State , 577 S.W.2d 460, 46 2 (Tenn. 1979); State
v. Turnmire , 762 S.W.2d 893, 896 (Tenn. Crim.App. 198 8). Thus, the defendant’s reliance on the Rules of Juvenile Procedure will not afford him relief on appeal.

Moreover, the record is clear that the defendant knowingly and voluntarily waived his Miranda

rights prior

to giving his statements to the police. When determining whether an accused hasvoluntarily and kn owingly wai ved the Mirandarights, this Court must consider the totality of the circumstances existi ng when the accused waived these rights

. State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992); Lundy , 8 08 S. W. 2 d at 446. This includes the defendant ’s age, ed ucation , mental compete nce and a bility,7

and the facts surrounding the waiver of these ri ghts. Benton , 759 S.W.2d 427, 431-32 (Tenn. Crim. App. 198 8). No singl e factor is conclus ive; rathe r, it is the cumulat ive effect of these factors that is significant in determining whether the accused voluntarily waived his rights. Id. at 431.

Here, the day after the incident, Lt . Hand interviewed the defendant in the sheriff’s department in Indianola. The interview lasted just over two hours, beg inning at 9:30 p.m. and ending at 11:35 p.m. Deputy Norvell and the defendan t’s father were presentduring every i nterview with the defendant. Lt. Hand advised the defendant of his Mirandarights. The defendant told Lt. Hand he understood these ri ghts and was wil ling to waive them. The defendant and his father signed a waiv er of rights form. On several occasions, Lt. Hand told the defendant he was entitled to a lawyer

and that he could stop answering questions at any time, butthe defendant repeatedly stated he di d not want to confer with a lawyer

or have a lawyer

present. Lt. Hand took a rec orded statement from the defendant and then told the defendant to give a writ

ten statement of what occurred. The defendant complied. Not believing the defendant’ s statement, Lt. Hand asked the defendant if he would give him a third statement. Again, the defendant complied, sta ting he would give a tr

uthful statement.

Prior to trial, the defendant moved to s uppr ess t hese statements. In denying the defendant’s motion, the trial court notedthat the totality of the cir cumstances indicat ed the defendant knowingly and v oluntarily waiv

ed his constitutional ri ghts and freely and voluntarily g ave these three statements to the police. During tr ial, the State introduced these three statements into evidence.

Based on the totality of these cir cumstances, we agree

with the trialcourt that the defend ant wa s fully advised of his Miranda rights before he knowi ngly and voluntarilychose to waive those rights

. See State v. Van Tran , 864 S.W.2d 465, 4728

(Tenn. 1993); Middlebrooks , 840 S.W.2d at 326; State v. Gordon , 642 S.W.2d 742, 745 (Tenn. Crim. App. 1982)

. Accordingly, the defendant’s argument that the trial court should have granted his motion to suppress must fail.

The defend an t also argues that the tri al court erred in allow ing a fourth statement given to Deputy Currie to be usedto impeach his trial testimony. We treat this argumentas waived, however, by the defendant’s failure to cite any suppo rting auth ority. T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals o f Tennessee 10(b); State v. Killebrew , 760 S.W.2d 228, 23 1 (Tenn. Crim. App. 1988).

III. Next, the defendant contends the trial cour t committed reversible e rror by permitting the State to reopen its case- in-chief to identify the body reco vered from the
r iver as Donnie Box’s body . When the State rested its case-in-chi ef, the defen dan t moved for judgment of acquittalon the ground the State failed to prove Box was in fact dead. The defendant argued a body was found in the Rutherford Fork of the Obion River, but it was never ident ified as Box’s body. The di strict attorney general stated he

had an agreementwith defense counsel that the identity of the body was not required and

that the entire evidence of the chain of custody of the body, including id entification of the body byBox’s father, would be stipulated. On the ot her han d, defense counsel stated he believed it was only the testim onyof the ambulance personnel who took Box’s body to the coron er i n Memphis that would be sti pulated. The trial court found ther e was an agreement, but that counsel misun derstood the scope of the argument. The cou rt granted the district attorney general’s motion to reopen the State’s cas e-in-chief in order to establish the body rec overed from the river w as that of Box. The State did so.

While “ [t]here must be an end of the calling of wi tnesses at some time,” Hughes v. State , 126 Tenn. 40, 78, 148S.W. 543, 552 (1912), the State may be granted9

permission to reopen its case immediately after it hasrested, State v. Harrington , 627 S.W.2d 345, 348 (Tenn. 1981); White v. State , 497 S.W.2d 751, 754 (Tenn. Crim. App. 1973). For inst ance, on occ asion, the State may need to reopen its case-in-chief because the district attorney general failed to prove an essential element or introduce relevant evidence due to an overs ight. See, e.g. , Harrington , 627 S.W.2d at 348; White , 497 S.W.2d at 754. The State’s motion to reopen its cas e-in-chi ef fo r the purpose of introducing additional evidence addres ses itself to the sound discreti on of the trial court. Harrington , 627 S.W.2d at 348; Hughes , 126 Tenn. at 74-75, 148 S.W. at 552; State v. Tuttle , 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995) ; White , 4 97 S.W.2d at 754. An appellate court will not int erfere with the exercise of this discreti on u nless clear abuse appears on the face of the record. Tuttle , 914 S.W.2d at 931; State v. Bell , 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985); White , 497 S.W.2d at 754.

Here, the record clearly reflects the distri ct a ttorney general and defense counsel entered into an agreement, but that there was an honest disagree ment regarding the scope of the agreement. A miscarriage of justice would have resulted if the State’s motion to reopen its case-in-c hief had been denied. For these reasons, the trial court did not abuse its discretion by permitting the State to reopen its case -in-chie f in order to prove the victim’s id entity.

IV.

The defendant contends the sen tenc es imposed by the trial court are excessive. He argues the trial court erred by using certain enhancemen t factors an d refusing to apply certain mitigating factors.

The trial cour t applied six enhance ment factors in determining the length of the defendant’s sentences: (a) the offense i nvolved more than one v ictim, T.C.A. § 40-35-114(3); (b) the

defendant treated or allowe d the victi m to be treated with ex treme10

cruelty, T.C.A. § 40-35-114(5); (c) the defen dant h as a previous history of an unwillingness to comply w ith the conditions of a sentence i nvolving releas e into the
commun ity, T.C.A. § 40-35-114(8); (d) the defendant had no hesitation about committing
a crime when the risk to human life was high, T.C.A. § 40-35-114(10); (e) the defendant
was on probation for a former felony con v iction, T.C.A. § 40-35-114(13); and (f) the defendant was adjudicated to hav e committed a delinquent act or acts as a juvenile which would have constituted a felony if committed by an adult, T.C.A. § 40 -35-114(20).

The defend ant cont ends the trial cour t should n ot have used enhancement factor (5), the defendant treated or allowe d the victim to be treated with extrem e cruelty. T.C.A. § 40-35-114(5). This enhancement factor is no t an element of either seconddegree murder or

aggravated assault.Moreover, the record reflects the defendant and Dunn put Box in the trunk of the defendant’s c

ar and trans ported him to t he bridge spanning the Rutherford Fork of the Obion R iver. Box was near death and should have been taken to a hospital. Although both the defendant and Dunn were aware Box was still alive, they

pushed him into the river and then fled the jurisdiction. This condu ct was extremely cruel. Thi s subissue is without merit.
Next, the defendant contends the tria l court erroneously applied enhancement factor (8), the defendant has a p revious history of an unwillingness to comply with the conditions of a se n tence inv olving release into the community. T.C.A. § 40-35-114(8). When sentencing the defendant, the trial court stated on the record that it was relying up

on the presentence report. How ever, the record on app eal does not contain the presentence report, which makes it i mpossible for this Court to c onduct an appropriate de novo review of thi s issue pursuant to T.C.A. § 40-35-401(d) or determine whether the trial court erred. State v. Hayes , 894 S.W.2d 298 (Tenn. Crim. App. 1994). Instead, this Court must con clusively p resume t hat the trial court correctly used this enhancement factor to enhance the defen dant ’s sentences. State v. Coolidge , 91511

S.W.2d 820, 826-27 (Tenn. Crim. App. 1995) ; Sta te v. Embry , 915 S.W.2d 451 (Tenn. Crim. App. 1995); State v. Locust , 914 S.W.2d 554, 55 7 (Tenn. Crim. App. 1995).

Next, the defendant contends the trial cour t erroneously applied enhancement factor (10), the defendant had no hesitation about committing a crime when the risk to human life was high. T.C.A. § 40-35-114(10). This Court has previously held this factor

is not applicable in second-degree murder cases, State v. Butler , 900 S.W.2d 305, 313-14 (Tenn. Crim. App. 1994), or aggravated assaul t cases, S tate v. Hill , 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994). Thus, the trial court err ed in using this factor to increase the defendant’s sentences.

` Although the defendant does not challenge the use of enhancement factor (3), the offense involved more th an one (1) victim, T.C.A. § 40-35-114(3), the State correctlys tate s in its brief this factor may not be used to enhance the def endant’s sentences. In this case there wer e two victims, but the def endant was convicted of committing a crime against each victim. The appell ate courts have consistently held enhan c ement factor (3) may not be used to enhance a sentence unde r these circumstances. State v. Freeman , 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996); St at e
v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Clabo , 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995). Thus,the trial court erred in using this factor to increase the defendant’s sentences.

The defendant also does not challenge the use of enhancement factor (13), that the felonies here were committed while the defendant w as on probation from a prior felony conviction. T.C.A. § 40-35-114(13)(C) . Itappears clear from the record that the defendant w as on probat ion for a juvenile offense, not a felony conviction, when he committed the in stant crimes, thus renderi ng enhancement factor (13) inappl icable. Thus, the trial court also erred in using enhanc ement factor (13) to increase the2 Apparently , the defenda nt alsohad several conv icti ons as a juveni le. However, this Court cannot consider

these convictions since t he presentence rep ort has not been inc luded in the record. Embry , 915 S.W.2d at 451. 12 defendant’s sentences.

There are certain enhancement factors that the trial court di d not app ly,
even though they are supported by the record. The defendant testified he sm o ked marijuana frequently and so ld drugs on occasion. Each time the defendant possessed
or sold drugs constituted criminal behavior. 2 See State v. Keel , 88 2 S.W.2d 410, 419 (Tenn. Crim. App. 1994). Thus, the trial court should have applied enhancement fact or (1), the de fendant had a previous history of criminal convictions or criminal behavior. T.C.A. § 40-35-114(1). Additionally, the defendant used a deadly weapon, a knife, to kill Box. Since the use of a deadly weapon is not an element of second-degree murder, the defendant’s sentence for second-degree

murder should have been enhanced pursuant to enhance ment fa ctor (9), t he defe ndant po ssessed a deadly we ap on during the commission of the crime. T.C.A. § 40-35-114(9); Butler , 900 S.W.2d at 312-13; Sills v. State , 884 S.W.2d 139, 145 (Tenn. Crim. App. 1994).

The trial court applied one mitigating factor, finding tha t the defendant lacked substantial judgment in committing the offenses due to his young age, w

hich was seventeen. T.C.A. § 40-35-113(6). The defendant argues the trial court should have also considered the following mitig ating factors: (a) he acted under strong provocation, T.C.A. § 40-35-113(2); (b) subst antial grounds exist

ed which tended to e xcuse or justify the defendant’s criminal conduct although it failed to establish a defense, T.C.A. § 40-35 -113(3); a nd (c) he committed the offenses under s uch unusual circumstances that it is unlikely ther

e was a substantial inte nt to violate the law which moti vated his conduct. T.C.A. § 40-35-113(11) . We disagree.

This entire matter began when the defendant lied toReynolds by telli ng him13

he had sold the drum set. The defendant then ant agonized Reynolds by

repea tedly refusing to give him his shar e of profits from the “sale.” Th e defendant continued to provoke Reynolds by argu ing with him about profitsfrom a sale that did not even occur. Moreover, there is no question the defendant was always the aggressor. He at tempted to get Reynolds to g o somewhere with him ear ly that morning, and lat er, he tried to get Reynoldsto ride with him in hi s car. Reynolds refused to do so. The defendant flashed his lights to e ntice Reyn olds and Box t o pull to the side of the road. The defendant stabbed both Reynolds andBox for no apparent reason. Giv en these circumstances, the trial court properly refused to apply the three mit igatin g factors advanced by the defendant.

In sum, while there were some enhancement factors the trial court should not have used to enhance the defendant’s sentences , there were other factors the trial court should have used to enhance his sentences. Further, the tr ial cour t pr operly applied the only mitigating factor it could under the cir cumstances of

this case, i.e., that the defendant lacked substantialjudgment in committing the offenses due to his young age. See T.C.A. § 40-35-113(6). Thus, we find no error w ith the sentences imposed by the trial court.

V.

T h e defendant has presented an issue capti oned “[w]hether any other reversible error was committed by the trial court,” u nder which he presen ts five separate arguments. Alth ough this Court does not favor the lumping of several unrelated iss ues within a single issue, see State v. Willia ms , 914 S.W.2d 940, 947-48 (Tenn. Crim. App. 1995), each argument wil l be addressed in turn.

A. The defen dant so ught to introduce two pho tographs. One photograph14

depicted a confederate flag and the other photog raph depicted a Nazi sw astika. The defendant contended that Dunn had paint ed these insignia s on the bridge where Box was pushed into the Obion River. The trial court did not abuse its discretion in ruling the pho tographs should be excluded as ev idence. See State v. Bowers , 744 S.W.2d 588, 590 (Tenn. Crim. App. 1987). This evidence w as not relevant to any issue to be resolved by the jury, and the

prejudicial effect of admitting this evidence would faroutweigh the probative value, if any, of the photogr aphs. S ee State v. Banks , 564 S.W.2d 947, 951 (Tenn. 1978). Furthermore, this argument has been waiv ed, as the defendant

has failed to cite any supporting authority. T.R.A.P. 27(a) (7); Rules of the Court of Criminal Appeals of Tennessee 10(b).

B.

The defendant contends the trial court er red by denying

“his pre-trial motio n forf und s for a [private] clini cal psychologist.” We find no reversible error because the defenda nt failed to comply with State v. Barnett , 909 S.W.2d 423 (Tenn. 1 995)

. Moreover, this argument has beenwaived for failure to cite authority. T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals of Tenn essee 10(b).

C. The defendant contends the trial court erred b y denying his motio ns for a judgmentof acquittal on the first-degree murder charge and by instructing the jury

on the offense of first-degree murder. This issue is mootbecause the jury retur ned a verdict of second-degreemurder. See State v. Robert E. Sanderson , No. 01C01-9308-CR-00269, Davidson County (Tenn. Crim. App. filed September 27, 1995, at Nashville) . Additio nally, this argument has been w aived for failure to cite authority. T.R.A.P. 27(a) (7); Rules of the Court of Criminal Appeals of Tennessee 1 0(b).15 D. The defendant contends the trial co urt erred in denying two moti ons for continuance. Whether a continuance should be granted rests within the sound

discretion of the trial court. Mandina v. State , 749 S.W.2d 472, 473 (Tenn. Crim. App. 1985); State
v. Lambert , 741 S.W.2d 127, 131 (Tenn. Crim. App. 1987). This Court will not interfere with the exercise of this dis cretion absent clear abuse appea ring on the face of the record. Moorehead v. State , 219 Te nn. 27 1, 409 S.W.2d 357, 358 (1966). Here, the defendant has failed to show clear abuse of discretion.

E. Finally, the defendant conte nds that under T.C.A. § 37-1-133( b), the trial court erroneously allowed the assistant d istrict attorney gen eral to qu estion hi m during the sentencing hearing about his prior juvenile co urt proceedings and that the trial court improperly used this evidence to enhanc e his sentence. The defendant’s reliance upon § 37-1-133(b) is misplac ed. Section 37-1-133(b) st ates, “The disposition of a child and evidence adduced in a hearing in juvenile court may not be used against such child in any proceeding in any cou rt other than a juvenile court, whether before or after reaching majority, except in dispositional proceedings after convi ction ofa felony for the purposes of a p re-sent ence investigation and report.” However, while evidence of juvenile convictions

is not admissible during the guilt phase of a criminal case, State v. Davis , 741 S.W.2d 120, 123 (Tenn. Crim. App. 1987), this Court has held that “a juv enile record of criminal conduct may properly be considered in a ss essing a suitable sentence upon a felony conviction by an adult.” State v. Stockton , 733 S.W.2d 111, 112-13 ( Tenn. Crim. App. 1986). The defendant’s argument l acks merit.

CONCLUSION Each issue raised by

the defendant is without merit . The judgment of the trial court is affirmed.

_______________________________ JOHN H. PEAY, Judge16

CONCUR:
(Not participating) * JOE B. JONES, Jud ge

______________________________________ THOMAS T. W OODALL, Judge

* Judge Joe B. Jones died May 1, 1998, anddid not par tici pate in t his opini on. We acknowledge his faithful service t

o this Court , both as a member of the Court and as its Pr

esiding Judge.