### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. CHARLES E. KILPATRICK, JR. Direct Appeal from the Criminal Court for Overton County

No. 3786 Leon Burns, Jr., Judge

No. M1999-01121-CCA-R3-CD - Decided June 23, 2000

The defendant was convicted of possession of a controll ed substance in a penal institution. On appeal, he claims that the evidence was insufficient because the county jail is not a "penal institution" and that the trial court erred by admitting evidence of the contro lled substance found in the defendant's cell, by allowing certain officers not listed on the indictment to testify, and

by imposing the maximum sentence within the applicable range. We hold that a county jail is a "penal institution" within the meaning of Tenn. Code Ann. § 39-16-201(a)(2), that a proper chain of custody was established

for the controlled substance, that admission of the officer s' testi mony for chain of custody purposes was not error, and that the sentence was justified. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
W ADE , P.J., delivered the opinion of the court, in which R ILEY and O GLE , JJ., joined. John B. Nisbet III, Cookeville, Tennessee, for the appellant, Charles E. Kilpatrick, Jr.
Paul G. Summers, Attorne y General &

Repo rter, Marvin E. Clements, Jr., Assistant Attorney General, and Owen G. Burne tt, Assista

nt Distri ct Attorney General, for the appellee, State of Tennessee.
OPINION

The defendant,

Charles Kilpatrick, Jr., was convicted in a bench trial of possession of a controlled subst

ance in a penal in

stitution. The trial

court im posed a six-year sentence, consecutive to prior sentences. In this appeal of right, the defendant challenges the sufficiency of the evidence; questions the chain of custody for the controlled substance; objects to certain of the state's witnesses; contends a jail is not a penal institution; and argues that the sentence was excessive.
We find no error

and affirm the jud

gment of the trial c

ourt.
On September

28, 1997, the defendant was incarcerated in the Overton Coun

ty Jail. In a routine inspection of the defendant's cell, Officer Mike Randolph found a gre en armyjacket underneath

the defendant's mattress. The jacket, which was too small for the defendant to wear, had-2-

pockets in which there wa s a bag containing seeds. The defendant denied ownership of either the jacket or the seeds. Officer Randolph then found a bag of green

leaf-like substance in the pocket of the shorts the defend

ant was wearing. In a more extensive search made after the defendant was removedfrom his cell, Officer Randolph found another bag of gree n lea f-like substance in the defendant's other pocket.

Sergeant John Robert Schoettle, Jr., assisted Officer Randolph with the evidence bag and the laboratory request form. Officer Randolph sealed the evidence in an envelope and pr ovided it to Sergeant Schoettle, who t aped t he envelope and locked it in the trunk of his car. Ultimately, the sergeant provided the envelope to Chief Investigator Greg Phillips. Later, Sergeant Schoe ttl e and Offi cer s James Harris and Craig Story retrieved the envelope from the evidence room and transported it to the crime lab in Nashville.

The lab report, establishing that the substance was marijuana, was prepared by TBI Special Agent Glenn Everett, a forensic scientist. The report indicated Officer Harris delivered the sealedand initialed envelope on October 3, 1997. The laboratory number a p peared in the re

port. Writing on the envelope established that Officer Randolph had provided the seal on the date of the offense. The re were three bags of marijuana in the envelope. The seeds were not marke d or analyzed but the two other bags contained 1.6 and 5.05 grams of marijuana, respectively.

Special Agent Everett returned the envelope. The envelope bore no indication of tampering. The laboratory file indicated that the evidence was pr esen ted to Officer Ch

ip Buck in November

of 1997. Officer Buck returned the eviden ce to the Overton County Sheriff's D epartment's evidence officer, who insured placement in the evidence room. Sergeant Schoet tle , who shared exclusive access with Sergeant Frank Dial, removed the envelo

pe for presentation as evidence at the t

rial.
The defendant, who was incarcerated in a cell open to other jail inmates, claimed that there was a considerable amount of clothing under his bunk and that much of it, including the jacket, was not his. He contended that Officer Randolph found the leafy substance in a pair of shorts which had been stored under

neath the bun k. He specifically denied that Officer Randolph found any marijuana in the shorts he was wearing and maintained that the marijuana was not his.

David Powell, who share

d the cell with the d

efendant,also contended that Officer Randolph found all of the marijuana in a milk crate under the bunk and found nothing in apat-down of the defendant. Another inmat e, Jonah M ainwaring, also contended that the officer found the plastic bags in the clothes pile rather than in the defendant's possession.

On appeal,the state is entitled to the strongest legitimate view of the evidence and all rea sonable inferences that may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). When the su fficiency of the

evidence is cha

llenged, the rele

vant quest

ion fo r an appellate court is whether,

after viewing the

evidence in the li

ght most favorable

to the st ate , any rational trier of fact co

uld have found the es sential elements of the crime beyo

nd a reasonable

doubt. State v. Evans , 838 S.W.2d 185, 190-191 (Tenn. 1992).-3- In a bench trial, the findings of thetrial judge who conducted the proceedings carry the same weight as a jury verdict. State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim . App. 1981). Questions concerning the credibility of t he witnesses, the weigh

t and value to be giv

en their testimony, and all factual issues raised by the proof are matters entr

usted tothe trier of fact. State v. Pappas , 754 S.W.2d 620, 623 (Te nn. Crim. A pp. 1987). This court may neither reweigh nor reevaluate the evidence. Cabbage , 571 S.W.2d at 835.

Here, the trial court accredited the testimony of the state's witnesses, particularly that offered by Officer Randolp

h, and specifica

lly rejected the t

estimony offere

d by defense

witnesses Powell and Mainwaring. Because the fact-finder sees and hears the

witnesses firsthand, our scope of review is limited. This court may not re-weigh the evidence provided or second- guess the credibility of the witnesses. It is the prerogativeof the fact-finder to resolve conflicting evidence.

The elements of th

e offense at issu

e are as follows: It is unlawful for any person to: Knowingly possess [

weapons, ammunition, explosiv es, intoxicants, legenddrugs, or any cont

rolled su bst ances] while present in any penal institution where prisoners are quartered or u nder custodial supervision without the express written consent of the chief administrator of the institution. Tenn. Code Ann. § 39-16-201(a)(2).

The de fendant asserts

that the evidence

is insufficient be

cause the term " pena l institution" is not defined in the applicable st

atute. He maintai

ns that the Overton

County Jail

is not a penal institution. Much of the argument is based upon our holding in State v. Kendrick , 10 S.W.3d 650 (Tenn. Crim. App. 1999) , wherein a pane l of this court held t

hat Hay House, a c

omm unit y corrections facility for

offenders granted conditional release, did not qualify as a penal institution. In our view, however, the plenary meaning of the statute is to preclude the presence of illegal drugs in any institution "where prisoners arequartered or under custodial supervision. . . ." Tenn. Code Ann. § 39-16-201(a)(1).

"The cardinal rule

of statutory const

ruction is to effe

ctuate legislative intent

, with all rules of construct ion being aides to th at end." Browder v. Morris , 975 S.W.2d 308, 311 (Tenn. 1998). The meaning of a s tatute is to

be determined not

from specific

words in a single sentence or section but from the act in its ent irety in lig ht of the general purpose of the legislation; any interpretations should express the intent and purpose of the legislation. National Gas Distrib., Inc. v. State , 804 S.W.2d 66, 67 (T enn. 1991); Loftin v. Langsdon , 813 S.W.2d 475, 478-79 (Tenn. App. 1991).
Criminal statutes are to be fairly interpreted, and strict construction is notrequired:
Construction of criminal code.-- The provisions of this title shall be-4- construedaccording to the fair import of their terms, including reference to judicial decisio

ns and com mon law interpret ations, to promote justice, and effect the objectives of the criminal code. Tenn. Code Ann. § 39-11-104.

While the term penal institut ion is not defined in Ten n. Code Ann. § 39-16

-201, it is defined for

obstruction of justice purposes as "any institution or facility used to house or detain a person . . . [c]on

victed of a crime [,] or [a]djudic ated delinquent by

a juvenile

court[,] or [w]ho is in direct or indirect custody after a lawful arrest." Tenn. Code Ann. § 39-16-601(4). While a Community

Corrections sentence has been ruled " an alternative to incarceration and . . . noncustodial in nature," Bentley v. State , 938 S.W.2d 706 (Tenn. C rim. App. 1996), the

county jail in which the defendant wa

s detained falls,

i n our view, within the definition of penal institution contained in Tenn. Code Ann. § 39-16-601(4) and constitutes a "penal institution where prisoners are quartered or under custodial supervision" within the meaning of Tenn. Code Ann. § 39-16-201. See also generally Kendrick , 10 S.W.3d at 650. The issue, therefore, is not a basis for relief.

Next, the defendant a

rgues that the sta

te failed to

establish a proper chain of custody for th e mar ijuana offered

as evidence at tr

ial. He contends t

hat Sergeant Scho

ettle was unable t

o account for the marijuana after he gave it to

Chief Investigator Phillips, who, inferentially, placed the material in the evidence room. Officer Phillips did not testify. The defendant also asserts that Officer Harris, who transported the marijuana to the TBI Laborator y, c ould not establish that the evidence seized was that w hich went into the h

ands of TBI

Agent Everett. In our view, the evidence was properly admitted at trial.

As a condition precedent to the introduction of tangible evidence, a witness must be able to identify the evidence or establish an unbroken chain o f cust ody. State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Cri m. App. 1982). The p

urpose of the cha

in of custody requir

ement is to "demonstrate

that the re has been no tampering, loss, substitution, or mistake with respect to the evidence." State v. Braden , 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993).

While the state is not required to e

stablish facts

which exclude every possibility of tampering, the circumstanc es established mus

t reasonably

assure the identi

ty of the evidence

and its integrity. State v. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). The rule doe s not require absolute certainty of identification. Ritter v. State , 462 S.W.2d 247 (Tenn. Crim. App. 1970). This issue addresses itself to the sound discretion of the tri al co urt, and the court's determination will not be disturbed in the absence of a clearly mistaken exercise of such discretion. Statev. Beech , 744 S.W.2d 585, 587 (Tenn. Crim.App. 1987); State v. Johnson , 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984).

Reasonable

assurance, ra

ther than absolute

ass urance, is the prerequisite for admission. The testimony of Sergeant Schoettle and Officer James Harris, who verified taking the evidence to and receiving it from Chief Investigator Phillips, provided a sufficient link with regard to that aspe ct of the chain of custody. Likewise, Agent Everett was able to confirm that the-5-

envelope , routi nely stored and tested, bore no indication of tampering. Thus, the integrity of the evidence was not unduly diminished by the procedure employed. The record establishes assurance that the substance

was that taken fr

om the defendant.
In a related issue, the defendant complai ns t hat the trial court erred by allowing Officers Chip Beck and Craig Story, who testified to aspects of the chain of custody for the marijuana, to appear as witnesses for the state. He cites Tenn. Code Ann. § 40 -17-106 which requires the district attorney to include on the indictment the names of each of the witnesses to be called on behalf of the prosecution.

T he purpose of furnishing names on an indictment or presentment is to prevent surprise to the defense. State v. Melson , 638 S.W.2d 342, 364 (Tenn. 1982). Evidence should not be excluded excep

t when the defend

ant is actually pre

judiced by the fai

lure to comply with t

he rule and when th e prejudice cannot otherwise be eradicated. State v. Baker , 751 S.W.2d 154, 16 4-6 5 (Tenn. Crim. App. 1987); State v. Morris , 750 S.W.2d 746, 749 (Tenn. Crim. App. 1 987); State v. James , 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984).

The defendant contends that he was prejudiced because those witnesses allowed the state to complete its cha

in of cust ody. Had this p

roof not been allowed, he submits that the trial court would have excluded themarijuana. See State v. Allen , 976 S.W.2d 661 (Tenn. Crim. App. 1997).
Neither

Beck nor Story knew anything about the offense. While a proper chain of custody is a condition precedent to the submission of perhaps the most critical evidence presented at trial, the requirement qualifies as proceduralin nature. It is no surprise when the various witnesses in the custody of contraband from the time of its seizure until its presentation as evidence appear as witnesses for the state. In our view, not hing would have been gained by the defense had the trial been continued to a later date. T he defense

knew or should have known that when chain of custody is challenged, a lit

any of witnesses,

who otherwise kno

w little about t

he case, will t

estify for the state. Thus, there was no prejudice.

As his last

issue, the defendant complains that the trial court erred by imposing asixyear sentence, the maximum within the range, and by req uirin g that his sentence be served consecutively

to his prior sentences. In response, the state contends that the trial court made findings of fact regarding the length and service of the sentence which are adequately supported by the record.
When there is a

challenge to the length, rang e, or manner of se

rvice of a sente

nce, it is the duty of this court to conduct a de novo review wi th a presumption that the determinations made by the trial c

ourt are corre

ct. Tenn. Code Ann . § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. " State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see Statev. Jones , 883 S.W.2d 597 (Ten n. 1994). "If the tr

ial court applies i

nappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." Statev . Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission1 The fi rst four crite ria are found in Gray . A fifth category in Gray , based on a speci fic n umber of prior felony convictions, may enhance the sentence range but is no lon ger a liste d criterion. See Tenn. Code Ann. § 40 -35-115, Sentenc

ing Commission Comments

. -6- Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an

analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentenci ng and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by t he defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith

, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If the trial court's findings of fact are adequately supported by the record, this court may not modify the sente

nce even if it wou

ld have preferr

ed a different r

esult. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. Ap p. 1991). The pre

sumption of corre

ctness is, how ever, "conditioned upon the affirmative showing in the record that the trial court considered sentencing principles and relevant facts and circumstances ." State v . Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court must place on the record the reasons for the sentence. State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The record in this case demonstrates that the trial court made adequate findings of fact.

Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ru

led that aggrava

ting circumstance

s must be present before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the

court establishe

d an additional ca

tegory for those d

efendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution: [C]onsecutive sentences should not routinely be imposed . . . and . .

. the aggregate maximum o f consecutive te

rms must be reason

ably related to the severity of the offenses involved. Taylor , 739 S .W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. See Tenn. Code Ann. § 40-35-115. The1989 Act is, in essence, the codification of the holdings in Gray and Taylo r ; consecutive sentences may be imposed in the discretion of the trial court only upon a de

termination that on

e or more of the f

ollowing criteria 1 exist: (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an

offender whose

record of crimin

al activity is extensive;-7- (3) The defen dan t is a dangerous me ntally abnormal pe

rson so declared by a competent psychiatrist who concludes as a result of an invest igation prior to sentencing that the defendant's criminal conduc t has been characterized by a pattern of re p etitive or compulsive behavior with hee

dless indifferen

ce to consequenc

es; (4) The defendant is a dangerous offender whose behavior indicates littleor no regard for human life, and nohesitation about committing a crime in which th

e risk to human life

is high; (5) The defendant is convicted of two (2) or more statutory offenses invo lving sexual abuse of a minor with consideration of th e aggravating circumstances arising from the relationship between the de fendant and victim or victims, the time span of defendant's undetected

sexual activity, the nature and scope of the sexual acts and the extent of the r

esidual, physical

and mental damage

to the victim or victims; (6) The defendant is

sen tenced for an offense committed while on probation; (7) The defenda

nt is sentenced fo

r criminal contem

pt. Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserve

d in relation to the seriousness of the offense," Tenn. Code Ann. § 40-35- 102(1), and "no greater than that deserved" under

the circumstances, Tenn. Code Ann. § 40-35- 103(2); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

Initially, possession of illegal drugs in a penal institution is a Class C felony offense. Tenn. Code Ann. § 39-16-201(b). For a Range I offender, the te

rm has a three-year minimum and a six-year maximum. Tenn. Code Ann. § 40-35-112(a)(3). The trial cour t fo und the following enhancement fa

ctors: (1) that the defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to est ablish the appropriate ra

nge; (8) that th e defendant has

a previous history

of unwillingness to complywi th th e conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114.-8- The trial court gave "little or no weight . . . to the mitigating factors" claimed by the defendant: that " the defendant's criminal conduct neither caused nor threatened seriou s bodily injury " and that "the defendant

committed the offense under s uch unusual circ

umstances that it is

unlikely that a sustained intent

to violate the law motivated the criminal conduct." Tenn. Code Ann. § 40-35- 113(1), (11).
The record establishes that the defendant began using mariju

ana on a weekly b

asis in 1980 and continued

to do so until early

1998. His prior criminal offenses include possession of marijuana, shoplifting, and a series of other charges which resulted in lenientdispositions. The presentencing report includes an admission that the defendant had experiment ed with Valium and cocaine, although marijuana was "his drug of choice." In 1991, he was convicted for violating the Georgia Controlled Substances Act and was sentenced in Georgia to five years of confinement and fi ve ye ars on probation. In 1998, the defendant was convicted in this state of possession of Diaz epam, a Schedule IV co ntrolled substanc

e, for sale or de

livery; one count o

f possession o f Lorazepam,

a Schedule IV substance, for sale or delivery; one count of possession of Alprazolam, a Schedule IV substa

nce, for sale or delivery; and one count of possession of one-half ounce of marijuana for sale or delivery . The Tennessee court imposed a se

ntence of four a

nd one-half

years, to be served consecutively to the 1991 Georgia sentence.

Because of the nature of the offense in this case and the nature of the defendant's prior criminal his tory, the trial cou rt was warrante

d, in our view, in giv

ing significant we

ight to enhancement

factors (1) and (8). Moreover, the trial court exercised reasonable discr et ion in rejecting altogether or giving little weight to the defendant's contention that his conduct threatened no injury or lacked a

sustained intent to v

iolate the law. In fact, the defendant's con

duct suggests a sustained intent to violate the law prohibiting the p resence of dr ugs in a jail cell. The circumstances of his crime suggest that the defendant had developed a plan to acquire illegal drugs while incarcerated, hide the contraband from jail officials, and either use or provide for other s in the jail access to the marijuana. A six-year sentence was justified.

At the time of this offense, the defendant had n ot f ully served his 1991 Georgia sentence of five years confinement and five years on pro

bation. Tenn. R. Cri

m. P. 32(c)(2) prov

ides, in pertinent part,

as follows:
If the defendant has additional sentences or portions thereof

to serve, as the result of his conviction in other states or in federal court, the sentence imposed

shall be consecu

tive thereto

unless the court sh

all determine in the exercise of its di scretio n that good cause e xists to run the sentence concurrently and explicitly so orders.
The trial court concluded that th e consecutive sentence was warranted because the defendant was convicted while on probation for the Georgia offense. See

Tenn. Code Ann. § 40-35- 115(b)(6). The record supports the probationary status. The trial court a lso ruled that the defendant had an extensive record of prior criminal activity. Tenn. Code Ann. § 40-35-115(b)(2). The record also supports that la

tter conclusion. Under all of the circumstances, the defendant deserved the-9-

consecutive sentence. See Lane , 3 S.W.3d at 460-61.

Accordingly, the judgment is affirmed.