### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 22, 2000 Sessio

n STATE OF TENNESSEE v. WILLIAM P. LIVINGSTON, JR. Direct Appeal from the Criminal Court for Hamblen County No. 98-CR-130, 98-CR-250 James E. Beckner, Judge

No. E1999-01362-CCA-R3-CD

July 31, 2001

A Hamblen County jury convicted the Defe ndant of three counts of obtaining prescription drugs by fraud, and the tr

ial court sentenc

ed him as a

Range II persistent offender to six years incarceration for each count, with t

he sentences to

be s erve d co ncu rren tly, but consecutive to a previous conviction for which he received a twenty-one-y ear sentence. On appeal, the Defendant argues: (1) that he wa s im properly

arraigned; (2

) that the evidenc

e is insufficient t

o support his convic

tions; (3) that a mistrial should have been ordered by the trial court when a wit ness speculated that the Defendant might have been Sherif

f of Grainger

County at one

time; (4) that t

he trial court erre

d by failing

to grant the Defendant’s motion for a change of ven ue; (5) that the trial court should have recused itself; and (6) that the Defendant was denied a speedy tr

ial. Finding no me

rit to these alleg

ations, we affirm the jud

gment of the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opi nion of the c ourt, in which J OSEPH M. T IPTON , and D AVID H. W ELLES , JJ., joined. Paul G. Whetstone, Morristown, Tennessee, for the appellant, William P. Livingston, Jr.
Paul G. Su mmers, Attorney General and Reporter; Elizabeth B. Marney , Assistant Attorney Genera l ; C. Berkeley

Bell, District Attorney

General; W. Chris Sc

ruggs, Assistant District A ttorney Ge

neral; Eric Christiansen, Assistant District Attorney General, for the appellee, State of Tenne ssee.
OPINION
I. FACTUAL BACKGROUND Acting on information received from a confidenti al informant, a drug task force officer examined prescription records pertaining to the Defendant from two drug stores in Hamblen Cou nty, Tennessee. The prescription s were for vario

us Schedule

III and Schedule

IV controlle

d substances. Experttestimony revealed that the Defendant’s prescriptions had been xeroxed and that the refill line-2-

hadbeen filledin. The physi cian who wrote the

prescriptions tes

tified that no ref

ills were ordered
on the prescriptions when he wrote them and that no person was authorized by him to copy the original prescriptions. The evidence presented at trial indicated that the Defendant obtained controlledsubstances with prescriptions that were dated February 12 and June 11, l997, although the physician purporting to have written those prescriptions denied having written them on those dates. A former girlfr

iend of the Defe

ndant test ifie d that the Defend

ant had told her tha

t he repeatedly copied prescriptions at a library and then took them to various drug stores to have the m filled.
II. ANALY SIS
A. ARRAIGNMENT
The Defendant first claims that his convictions “should be declared void ab initio as a result of the trial court’s non-compliance wi t h the rules governing the service of the capias and arraignment.” He contests “the practice curr ently in place in the Third Judicial District concerning inadequate arraignment procedures.”
Rule 10 of the Tennessee Rules of Criminal Proced ure governs ar

raignment. It provides as follows: Exceptas provided in Rule 43, before any person is tried for the commission of an offense, the person shall be called into open court and arraigned. . . . The arraignment

shall consist of reading the indictment, presentment or information to the defendant or st ating to the defendant the substance of the indictment, presentment or information, and calling on him or her to plead thereto. The defendant shall be given a copy of the indictment, presentment or infor mation before called u

pon to plead. An en

try of rec ord shall be made o

f the arraignm

ent. Tenn. R. Crim. P. 10(a), (b).
We agree with the State that the record is insuf ficient for review of the

Defendant’s cl

aim that the trial court somehow failed to comply with Rule 10 of the Tennessee R ules of Criminal Procedure. The Defendant bears the responsibil

ity of presenting to this Court an adequate record from the trial court as to issues raised by the Defendant on appeal. Tenn. R. App. P. 24(b ); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983). In the absenc e of an adequate

record, this Cour

t must presume that the trial court’s ruling was supported by the evidence. State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Nevertheless,

we find nothing in

the record to

support the Defendant’s claim that he was not properly arraigned. It is, however, clear from the record that the Defendant kne w the specifics of

the charges against him well before trial. We also note that the trial court ru

led against

the Defendant
on this issue wh en it wa s included in the Defendant’s motion for new trial. This issue is without merit.
B. SUFFICI ENCY OF THE EVI

DENCE-3-

The Defendant next challenges the sufficiency of the evidence upon which thejury convicted him. In each count, the Defendant was convicted of violating Tennessee Code Annotated § 53-11- 402(a), which pr

ovides as follows: It is unlawful for any person knowingly or intentionally to:

. . . [a]cquire or obtain, or attempt to acquire o r a ttempt to obtain, possession of a controlledsubstance by misrepresentation, fraud, forgery , de ce ption or subterfuge. An ypers on who violates this subdivision may, upon first conviction, have such sentence suspended and

may as a c ondition of the suspe nsion be required

to participate

in a program

of rehabilitation at a drug treatment facility operated by the state or a comprehensive community mental health center.
When an accused challenges the sufficien cy of the evidence, an appellate court’s standard of review is whether, after consider ing the evidenc

e inthe light most favorable to the prosecution, any rational trier

of fact could have

found the essentia

l elements of the c

rime beyond

a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (19

79); Statev. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule appl ies to f indings of guilt based upon direct evidence, circumstantial evidence, or a c ombin ation of both

direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250 , 253 (T enn. Crim. App. 1990), overruled on other grounds , State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence, th

is Court should not re

-weigh or re-

evaluate the evidence. State v. Ma t thews , 805 S.W.2d 776, 779 (T enn. Crim. App. 1990

). Nor may th

is Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by

the evidence ar

e resolved by

the trie r of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all reasonable inferences which may be draw n from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). 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 e

vidence was leg

ally insuffi

cient to sustain a g

uilty verdict. Id.
“A conviction may be based entirely on c ircumstantial eviden ce where the facts are ‘so clearly interwoven and c

onnected that the

finger of gui

lt is pointed unerring

ly at the Defendant and the Defendant alone.’” State v. Smith , 868 S.W.2d 561, 569 (Tenn. 1 993) (quot ing State v. Duncan , 698 S.W. 2d 63, 67 (Tenn. 1985)). The jury must dete rmine the weigh

t to be given to

circumstantial evidence, the inferences

to be drawn from such evidence, and the extent to which the circumstances
are consistent

with guilt andinconsistent with innocence. State v. Land , 34 S.W.3d 516, 533 (Tenn. Crim. App. 2000)

.-4-

The evidence presented in this case clearly established that xeroxed copies of presc riptions for the Defendant were made from o riginals given

to the Defendant

. The evidence a

lso clearly establishedthat the refill line on the prescriptions had be en tampered with by someone other than the physician w

ho legally

wrote the origin

al presc ript ion and did not authorize any copying or changes. These fraudule nt prescriptions w

ere for Schedul

e III and Schedule

IV c ontrolled substances. The Defendant’ s former girlfr iend, whose

testimony was evidently credited by the jur y, linked the Defendant di

rectly to the prescription fraud. The evidence, although circumstantial, was sufficient to con

vict the Defenda

nt. This issue is also

without merit.
C. MOTION FOR MISTRIAL
The Defendant contends that the trial court erred by refusing

to grant his

motion for mistrial made after a State witness speculated that the Defendant was Sheriff of Grainger County at one time. The Defendant argues that this testimony was irrelevant under Rule 402 of the Tennessee Rules of Evidence. He further argues that even if the testimony was re levant, it should have been excluded pursuant to Rule 403

of the Tennessee

Rules of Evidence

, which provides a

s follows: Although re levant, evidenc e may be excl

uded if its probativ

e value is substantially

outweighed by the

danger of unfair prejud

ice, confusion of

the issues,
or misleading the jury, or by considera tions of undu e delay, w aste of time, or needless presentation of cumulative evidence. The Defendant argues that this testimony constitutes “glaring pre judice” a nd contends that “[t]he propensity for a Tennessee jury to convict a former Tennessee sheriff must be gargantuan.”
The granting or denial of a mistrial is a matter within the sound discretion of the trial court

. Statev. McKinney , 929 S.W.2d 404, 405 (Tenn. Crim. App.1996). This Court will not disturb such
a decision absent a finding of an abuse of discretion. State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is

to correct damage done to the judicial processwhen so me event h as occurred which precludes an impartial verdict.” Id. A trial court should grant a mistrial only when it is of “manifes t necessity.” Id. ; Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Th e burden of esta

blishing a “manif

est necessity” is upon the appellant. Williams , 929 S.W.2d at 388.
While we agree with the Defendant that the witness’ statement regarding the Defendant’s prior employment history

was irrelevant, there has been no showing of preju

dice resulting f

rom this statement. Although the Defendant insists that informationabout his former employment as sheriff would have served to prejudice any jury against him, we do not know what effect this information may or may not have had on the jury in this case. I f the jury accepted this information as true, it is possible that the informati

on could have actually benefitted the Defendant. We thus conclude that the trial court did not a

buse its discretion

by deny ing the Defenda

nt’s motion for mistr

ial. This issue is without merit.
D. VENUE1 In his brief, t he Defendant states that he formerly instituted a civi

l action against the t

rial judge’s brother, but in his pri or motions, th

e Defendant stat

es that th e subject of t

he lawsuit

was the tri

al judge’s brot

her-in-l aw. -5- The Defendant next contends that the trial court erred by refusing to gra nt his motion for a change of venue. In support of his argument,

he points to “a damning article” that appeared in the Citizen Tribune newspaper on December 18, 1997. The article refers to the Defendant as the head of “a diversified c

riminal organiza

tion that included d

rug trafficki

ng, auto theft, h

ome burglaries , shoplifting andinsurance, food stamp and drug fraud . . . .” The article also states that the Defendant was convicted in 1985 for selling Dilaudid and for conspiracy to sell Dilaudid.
Rule 21 of the Tennessee Rules of Criminal Procedure provides as follows: “In all criminal prosecutions the venue may be changed upon motion of the defendant, or upon the court’s own moti on wit h the consent of the defendant, if it appears to the court that, due to undue excitement against the defendant in t

he county wh

ere the offense

was committed or any other cause, a fair trial probably could not be had.” Tenn. R. Crim. P. 21(a). Whether to grant a motion for change of venue lies within the discretion of the tri al court, and such a decision will not be overturned on appeal absent a showing of abuse of discretion. State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). Jurors neednotbe totally ig

norant of the fac

ts and issues involve

d in a case upon which they are sitting, but they must be able to lay aside their opinions or impressions and render a verdict based upon th e evidence prese nted. State v . Bates , 804 S.W.2d 868, 877 (Tenn. 1991). The test is “whether the jurors who actually sat and rende red verdic

ts were prejudiced by the pretrial publicity .” State v. Kyger, 787 S.W.2d 13, 18-19 (Te nn. Crim. App. 1989) . The burden of pr oof is on the Defendan

t. Id. ; State v. Garland , 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981). During jury selection, the trial court ask ed all potential jurors, “[D]oes anybody know any of the parties in this case, or ever read or he ard a nyt hing abou t this case, or kn

ow [th e Def enda nt]?” The cour t t hen asked, “Nobody knows him or ever heard of him before?” None of the potential jurors responded that they were familiar with either the case or w ith the Defenda

nt himself

. Wethus conclude that the Defendant has failed to show that he was in any way prejudiced by the newspaper article at issue. Not only were the jurors that convicted the Defendant unfamiliar with him, but they
wer e also apparently unfamiliar with the newspaper article about which the De fen dant no w complains. We conclude that the trial court properly denied the Defendant’s motion fo r a change of venue.
E. MOTION FOR RECUSAL
The Defendant next contends that the trial court erred by deny ing his motion for recusal. He assertsthat he formerly instituted a civil action against the brother-in-law 1 of the trial j udge presiding
over his trial. The Defendant argues that the trial judge abused his discretion by overruling the Defendant’s moti

on for recusal a

nd presiding ove

r the trial.
Rule 10, Cannon 3(E) of the Rules of the T ennessee Suprem

e Court states, in pe

rtinent part, that “[a] judge shall disqua lify himself

or herself in

a proceeding i

n which the judge ’s impartiality2 The Defendant bears the burden of r esponsibi

lity of esta blishi ng an adequat

e record on

appeal. Tenn . R. App. P. 24(b ); State v. Bunch , 646 S.W.2d 158 , 160 (Tenn. 1983).
-6- might reasonably be questioned, including but not li mited to instances w

here . . . the judg

e has a personal bias or prej udice concer ning a party or a party’s lawyer . . . .” Tenn. R. Sup. Ct. 10, Canon 3(E)(1)(a). A motion for recusal based upon the alleged bias or prejudice of the trial judge addresses itself to the sound discretion of the trial court and will not be reversed on appeal absent a

clear abuse of discretion. Caruthers v. State , 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). Although the Defendant states in his brief that his motion for recusal was argued before the trial judge, the arg ument a nd the trial court’s subsequent decision are not included in the record. 2 Thus, we rely only on the “Defenda nt’s Motion in Limine Seeking Recusal of Trial Jud ge” and his subsequently

filed “Motion to Recuse.” In the Defendant’s motion in limine concerning this matter, he provides the following statement in support of his request: “Thedefendant has previously been involved in civil litigation a gainst a member

of the [trial judge ’s] family, to wit, the brother-in-law of the judge, and it

is the defendants

[sic] sincere and thoughtful belief that the impartiality of the [trial judge], may reasonably be que stioned.” No further proof is offered in either the record or the Defendant’s brief.
The record in this

case contains “nothing more than circumstances from which it might be inferred that the [t]rial [j]udge might have some reason to hav e . . . [an] unfavora

ble opinion” of the Defendant. Wiseman v. Spaulding , 573 S.W.2d 490, 493 (T enn. Ct. App. 1978). The facts alleged
are insufficient to warrant a finding by this Court that the trial judge committed reversible error by refusing to recuse himself. Thus, wecannot conclude that the trial judge abused his discretion by denying the Defendant’s motion to recuse.
F. SPEEDY TRIAL
Fin all y, the Defendant argues that he was denied his right to a speedy trial. The presentment in this case was entered on June 8, 1998, and the Defendant asserted his right to a speedy trial by motion on July 30, 1998. The trial in this case took place on A pril 1, 19 99. The Defendant now argues that the

delay of ap

proximately te

n months before tr

ial violated his rig

ht to a speedy

trial.
Criminal defendants

are statutorily and constitutionally entitled to a speedy trial. U.S. Const. amend. VI; Tenn. Const. art. I, § 9; Tenn. Code Ann. § 40-14-101. There are four factors to consider when assessing whether a defendant’s right to a speedy trial has been violated: (1) the length of the del ay; (2) the reason for th e delay; (3 ) the defendant’ s assertion of the right to a speedy trial; and (4) the prejudice suffered by

the defendant

as a result of the delay. State v. Utley , 956 S.W.2d 489, 492 (Tenn. 1997); State v. Bishop , 493 S.W.2d 81, 83-84 (Te nn. 1973); Barker v. Wi ngo , 407 U.S. 514, 530 (1972). However

, it is not necessary for a court to consider these factors unle ss there has been “some delay which is presumptively prejudicial.” Barker , 407 U.S. at 530. Such a del ay must “approach

one year”

to trigger an a

nalysis o f the re maining factors, Utley , 956 S.W.2d at 494, although “the line of demarcation depends on the nature of the case.” Id. If a court concludes that-7-

a defendant was denied the right to a speedy trial, constitutional principles demand that th e defendant’s conviction be reversed and the criminal charges dismissed. Bishop , 493 S.W.2d at 83.
We conclude that the delay in this case is not sufficient to trigger fur ther analysis. Moreover,
even assuming that a te

n-month delay

was unreasonab

le in this case, the Defendant has shown no prejudice resulting from the delay. “The most important inquiry with regard to prejudice is whether the delay impaired the defendant’s ability to prepare a defens e.” State v. Patrick Thurmond , No. 01C01-9802-CR-00076, 1999 WL 787524, at *5 (Tenn. Crim. App., Nashville, Oct. 5, 1999). The Defendant

has not demonstrated that he was hampered i n any way by the delay in th

is case. This issue is therefor

e without merit. Accordingly, we AFFI

RM the judgment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE