# FILED
March 17, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 01C01-9805-CR-00232 Appellee ) ) SUMNER COUNTY vs. ) ) Hon. Jane Wheatcraft, Judge FREDERICK NEBLETT, ) ) (Community Corrections Appellant ) Revocation)
For the Appellant : For the Appellee : Regan L. Rudland John Knox Walkup Asst. Public Defender Attorney General and Repor ter 117 East Main Street Gallatin, TN 37066 Clinton J. Morgan Assistant Attorney Gener al David All en Doyle Criminal Justice Div ision District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Lawrence Ray Whitley District Attorney General Dee Gay Asst. District Attor

ney General Cordell Hull Buildi ng Gallatin, TN 37066

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant ’s placement i n the Community Correcti on program stems from his October 16, 1997, gui lty

plea to t he offense of t heft of prop erty ov er $1,000, r

esulti ng in a four year sentence in Community Corr ection aft

er service of one hundred and seven days in the Sumner Cou nty Ja il. 2 OPINION
The appellant, Frederick Neb lett, appeals the judgment of the Sumner County Criminal Cour

t revoking his Communi ty Correction sentence and reinstating the original sentence of four y ears in the Department of Corr ection. 1 Specific ally, the appellant contends that the trial court improperly relied upon “unreliab le hearsay,” an uncertified facsimile transmission of an arrest warrant, as the so le basis for revoking the appellant from his non-incarcerative status.

After a review of the rec ord, we affirm the judgment of the tr ial court.

Background

On March 12, 1998, a warr ant issued alleging th at the appellant had violated the terms and conditions of his C ommunity Correction senten ce. Specifically, the warrant alleged that the appellant had violated Rule #6 which states: the offender shall obey the law s of the United States and the State of Tennessee as well as any municipal ordinances. Report all arrests, including traffic citatio ns regardless of disposition to the case officer; In that Mr. Neblett was arrested in Nashvil le, Tennessee for Possession of Cocaine N458697, Possession of par aphernalia N458698, Driv ing on a suspended license N458699.
A revocation hearing was held on April 21, 1998 , at which time the State presented the testimony of Carl ton Drumwright, the appellant’s Community Correction case officer. M r. Drumwright st ated that, on February 27, th e appellant was arrested in Dav

idson County. On Marc h 2, the appellant contacted him to inform him that he had “accepted a ple a bargain and that he woul d be receiving 163

days in jail.” The Stat

e then introduced, through the testimony of Mr. Drumwright, a facsimile transmission of the Davidson County war rant charging the appell ant with possession of cocaine to whi ch the appellant pled guilt y. Defense counsel objected to the introduction of the war rant on the basis that the w arrant was an uncertified facsimile copy. Mr. Drumwright then explained that the Davidson County Clerk’s Office had “faxed” the warra nts to Judge Wheatcraft’s facsimile machine. The t rial court authenticated the facsimil e copies by verify ing the appellant’s soci al security number and birthdate and admitted the facs imile of the arrest warr ant into evidence. In so ruling, the tria l court stated “I’m goi ng to allow that, but, r eally, they should be certified copies. We should not get in the habit of using fax copies.” The State then offered to obtain certified copies of the arrest warrants which the court declined. No further proof was presented.

The tria l court fo und that the evide nce prese nted sho wed “by a preponderance of the evidence that the app ellant has received these convictions.” Continuing, the court sta ted: He didn’t last on probation even 30 days. This Court just can’t tolerate people being placed on community corrections or probation and blatantly going out and picking up new c harges. I’m going to revoke the defendant’s probation and allow the four year sentence to go into effect.

Analysis
Again, the appellant contends that the trial court abused its discretion by basing its decision to revoke the appellant’s Community Correction sentence solely on the basis of unauthenticated and uncer tified facsimile documents. Thus, the question before this court i s whether the facsimile co py of the Davidson County arrest warrant w

as properly admitted by the trial court.2 W hen a doc um ent is said t o be s elf-a uthe ntica ting it d oes not n ece ssa rily me an th at it is irrebut tably presumed to be genuine. Self-aut henticat ion merely means that the proponent

does not h ave to prod uce extrin sic ev idenc e of a uthe nticity.

Had the Davidson County warrant been cer

tifi ed in the pr

esent case, t here would be no question as t

o the facsi mile’s admissi on. Indeed, the certi fied copy

would be an ori ginal f or purposes of the rules governi ng the admissibi lit y of documents, t he facsimile would constit ute a duplicat e, and there is no indi cation t hat it would be unfai r to admit t he duplicat e in li eu of the original. See gene rally Tenn . R. Evid. 90 2, 1001, 1 003, 100 5. See also Englun d v. State , 907 S.W .2d 937, 9 38-939 (Tex. A pp. 1995 ), aff’d by , 946 S.W .2d 64 (Tex. App. 1997) ( en banc ).

3 It is of little consequence whether the un certified public record is the original or a facsim ile transm ission ther eof, as a trustworth y duplicate w ill suffice. See gene rally Tenn. R. Evid. 1003. 4 Before any real and demonstrative evidence is admissible, the evidence must be properly authenticated, i.e. , it must be shown to be g enuine. See Tenn. R. Evid. 901. In other words, the pr oponent of its admission bears the b urden of demonstrating that the object is what it is clai med to be. Without such a showing that the object is what it is claimed to be, the object is simply irrelevant as there must be a logical nexus between the evidence and th e point on which it is offered. The proponent’s burden is satis fied when the trier of fact has sufficient proof to determine that the evidence i s what its proponent cl aims. See Tenn. R. Evid. 901. See also State v. Byrd , No. 01C01-9609-CC-00411 ( Tenn. Crim. App. at Nashvi lle, May 1, 1998).
While a properly certified copy of a pu blic record is self-authenticating under Tenn. R. Evid. 902(4), 2 an uncertified public record may be authenticated if certain conditions are satisfied. 3 See Tenn. R. Evid. 901(b)(7 ). First, the writi ng must be recorded or filed i n a public office. Second, the recording or filing of the writing must be authorized by law. Third, it must be demonstrated to the court’s satisfaction that the proffered writing is in fact ‘from the public office where items of this nature are kept.’
N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 901.8 (3 D ed. 1995). However, testimon y must be present ed by an individual with personal knowled ge that the particular wr

iting or record meets the requirements of the Rule. I n the present case, we cannot conclude that a Community Correction case of ficer has5

sufficient personal knowledge to establish the necessary criteria under Ten n. R. Evid. 901 (b)(7).
Notwithstanding the inability of Mr. Drumwright to authenticate the facsimile transmission of a Davidson County arrest war

rant, we note that, in Tenness ee, as elsewhere, it is g enerally recogniz ed that there is a wide di stinction between a revocation proceeding and a trial where the q uestions of guilt or innoce nce are at issue. At a revocation hearing, the strict r ules of evidence do not apply

. See Byrd , No. 01C01-960 9-CC-00411 (citin g State v. Allen , 752 S.W.2d 515 (Tenn . Crim. App. 1988); Barker v. State , 483 S.W.2d 586 (Te nn. Crim. App. 1972)). Reliable hearsay is admissible so long as the defendant had a fair oppor tunity to rebut the evidence and the evidence otherwise was not i ntroduced in violation of c onstitutional notions of due process. See Tenn. Code Ann. § 40-35-209(b) (1997); see also State v. Carney , 752 S.W.2d 513 (Tenn. Crim. App. 1988). See, e.g. , State v. Whitehead , No. 86-220-III (Tenn. Cri m. App. at Nashville, M ar. 17, 1987), perm. to appeal denied , (Tenn. Jun. 1, 1987) (arres t report admissible in dete rmining probation revocation).
In the present case, the trial court was careful to ass ure that the hearsay document that was introduced w as reliable. Before consider ing the testimony, the court questioned the wi tness to assure that the Dav idson County arrest w

arrant was issued for the appellant by c onfirming the appellant’s name, d ate of birth, and social security number. The facsimi le transmission also conta ined a machine notation showing the date, time, s ource telephone number, and source location of the transmittal, i.e. , “Metro Crim Court Clerk Fax: 615-862- 5676 Apr 21 ‘98 12:11,” verifying that the transmission had indeed been sent by the Davidson County Clerk’s Office. Additionally, the tr uth of the matter asserted in the tr ansmission was corroborated by Mr. Drumwright’s testimony that the appellant had reported his arrest and guilty pl ea on the misdemeanor possession ch arge to Mr. Drumwright.6

Finally, we note th at the appellant was prov ided ample opportunity to cr oss-examine Mr. Drumwright regarding the documents, an d, otherwise had ample opportunity to refute the evidence.
Given the less stringent application of the evidenti ary rules at revo cation proceedings, we concl ude that the evidence presented by the case officer was reliable hearsay an d that goo d cause e xisted to a llow its int roductio n. Accord ingly, the trial court was justified in relying upon the facsimile transmissi on of the Davidson County arrest war

rant; a sufficient basis upon w hich to allow the tri al court to find that the appellant had violat ed a condition of his Community Correction sentence by a preponderance of the evidence. See State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). The judgment of the trial c ourt is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JAMES CURW OOD WIT T, JR., Judge

___________________________________ JOHN EVERETT W ILLIAMS, Judge