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 controlled 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 controlled 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 officers'testimony 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

WADE, P.J., delivered the opinion of the court, in which RILEY and OGLE, JJ., joined.

John B. Nisbet III, Cookeville, Tennessee, for the appellant, Charles E. Kilpatrick, Jr.

Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney

General, and Owen G. Burnett, Assistant District 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 substance in a penal institution. The trial court imposed 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 judgment of the trial court.

On September 28, 1997, the defendant was incarcerated in the Overton County Jail.

In a routine inspection of the defendant's cell, Officer Mike Randolph found a green army jacket

underneath the defendant's mattress. The jacket, which was too small for the defendant to wear, had
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pockets in which there was 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 defendant was wearing. In a more extensive search made after the defendant was

removed from his cell, Officer Randolph found another bag of green leaf-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 provided

it to Sergeant Schoettle, who taped the envelope and locked it in the trunk of his car. Ultimately,

the sergeant provided the envelope to Chief Investigator Greg Phillips. Later, Sergeant Schoettle

and Officers 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

sealed and initialed envelope on October 3, 1997. The laboratory number appeared in the report.

Writing on the envelope established that Officer Randolph had provided the seal on the date of the

offense. There were three bags of marijuana in the envelope. The seeds were not marked 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 presented to Officer Chip Buck in

November of 1997. Officer Buck returned the evidence to the Overton County Sheriff's

Department's evidence officer, who insured placement in the evidence room. Sergeant Schoettle,

who shared exclusive access with Sergeant Frank Dial, removed the envelope for presentation as

evidence at the trial.

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 underneath the bunk. 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 shared the cell with the defendant, also contended that Officer

Randolph found all of the marijuana in a milk crate under the bunk and found nothing in a pat-down

of the defendant. Another inmate, Jonah Mainwaring, 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 reasonable inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). When the sufficiency of the evidence is challenged, the relevant question for an

appellate court is whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Evans, 838 S.W.2d 185, 190-191 (Tenn. 1992). 
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In a bench trial, the findings of the trial 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 the witnesses, the weight and value to be given their

testimony, and all factual issues raised by the proof are matters entrusted to the trier of fact. State

v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 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 Randolph, and specifically rejected the testimony offered 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 prerogative of the fact-finder to resolve conflicting evidence.

The elements of the offense at issue are as follows: 

It is unlawful for any person to:

Knowingly possess [weapons, ammunition, explosives, intoxicants,

legend drugs, or any controlled substances] while present in any penal

institution where prisoners are quartered or under custodial

supervision without the express written consent of the chief

administrator of the institution. 

Tenn. Code Ann. § 39-16-201(a)(2).

The defendant asserts that the evidence is insufficient because the term "penal

institution" is not defined in the applicable statute. He maintains 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 panel of this court held that Hay House, a community

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 are quartered or under custodial supervision. . . ." Tenn. Code

Ann. § 39-16-201(a)(1). 

"The cardinal rule of statutory construction is to effectuate legislative intent, with all

rules of construction being aides to that end." Browder v. Morris, 975 S.W.2d 308, 311 (Tenn.

1998). The meaning of a statute is to be determined not from specific words in a single sentence or

section but from the act in its entirety in light 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 (Tenn. 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 not required:

Construction of criminal code.--The provisions of this title shall be
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construed according to the fair import of their terms, including

reference to judicial decisions and common law interpretations, to

promote justice, and effect the objectives of the criminal code. 

Tenn. Code Ann. § 39-11-104. 

While the term penal institution is not defined in Tenn. 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]onvicted of a crime[,] or [a]djudicated 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. Crim. App. 1996), the county jail in

which the defendant was detained falls, in 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 argues that the state failed to establish a proper chain of custody

for the marijuana offered as evidence at trial. He contends that Sergeant Schoettle was unable to

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 Laboratory, could not establish that the

evidence seized was that which went into the hands 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 of custody. State v. Goodman, 643

S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody requirement is to

"demonstrate that there 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 establish facts which exclude every possibility of

tampering, the circumstances established must reasonably assure the identity of the evidence and its

integrity. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). The rule does 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 trial court, and the court's

determination will not be disturbed in the absence of a clearly mistaken exercise of such discretion.

State v. 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, rather than absolute assurance, 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 aspect of the chain of custody. Likewise, Agent Everett was able to confirm that the
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envelope, routinely 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 from the defendant.

In a related issue, the defendant complains that 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. 

The 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 except when the defendant is actually prejudiced by the failure to comply with the rule

and when the prejudice cannot otherwise be eradicated. State v. Baker, 751 S.W.2d 154, 164-65

(Tenn. Crim. App. 1987); State v. Morris, 750 S.W.2d 746, 749 (Tenn. Crim. App. 1987); 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 chain of custody. Had this proof not been allowed, he submits that the trial

court would have excluded the marijuana. 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 procedural in 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, nothing would have been gained by the defense had the trial

been continued to a later date. The defense knew or should have known that when chain of custody

is challenged, a litany of witnesses, who otherwise know little about the case, will testify for the

state. Thus, there was no prejudice. 

As his last issue, the defendant complains that the trial court erred by imposing a sixyear sentence, the maximum within the range, and by requiring 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, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review with a presumption that the determinations

made by the trial court are correct. 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 State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate

factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
1

The first four criteria are found in Gray. A fifth category in Gray, based on a specific

number of prior felony convictions, may enhance the sentence range but is no longer a listed

criterion. See Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments.

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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 sentencing 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 the 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 sentence even if it would have preferred a different result. State v. Fletcher, 805

S.W.2d 785 (Tenn. Crim. App. 1991). The presumption of correctness is, however, "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 ruled that aggravating circumstances 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 established an additional category for those defendants 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 of consecutive terms must be reasonably

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. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial

court only upon a determination that one or more of the following criteria1 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 criminal activity is

extensive;
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(3) The defendant is a dangerous mentally abnormal person so

declared by a competent psychiatrist who concludes as a result of an

investigation prior to sentencing that the defendant's criminal conduct

has been characterized by a pattern of repetitive or compulsive

behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing

a crime in which the risk to human life is high; 

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between the

defendant 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 residual, physical and mental damage to the victim

or victims;

(6) The defendant is sentenced for an offense committed while on

probation;

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserved 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 term has a three-year minimum and

a six-year maximum. Tenn. Code Ann. § 40-35-112(a)(3). The trial court found the following

enhancement factors: 

(1) that the defendant had a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the

appropriate range; 

(8) that the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release into the

community.

Tenn. Code Ann. § 40-35-114. 
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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 serious bodilyinjury"

and that "the defendant committed the offense under such unusual circumstances 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 marijuana on a weekly basis

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 lenient dispositions. The presentencing report includes an admission that the defendant had experimented 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

five years on probation. In 1998, the defendant was convicted in this state of possession of

Diazepam, a Schedule IV controlled substance, for sale or delivery; one count of possession of

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

a Schedule IV substance, for sale or delivery; and one count of possession of one-half ounce of

marijuana for sale or delivery. The Tennessee court imposed a sentence of four and 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 history, the trial court was warranted, in our view, in giving significant weight to

enhancement factors (1) and (8). Moreover, the trial court exercised reasonable discretion in

rejecting altogether or giving little weight to the defendant's contention that his conduct threatened

no injury or lacked a sustained intent to violate the law. In fact, the defendant's conduct suggests

a sustained intent to violate the law prohibiting the presence of drugs 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 others in the

jail access to the marijuana. A six-year sentence was justified.

At the time of this offense, the defendant had not fully served his 1991 Georgia

sentence of five years confinement and five years on probation. Tenn. R. Crim. P. 32(c)(2) provides,

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 consecutive thereto unless the court shall

determine in the exercise of its discretion that good cause exists to

run the sentence concurrently and explicitly so orders. 

The trial court concluded that the 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 also 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 latter conclusion. Under all of the circumstances, the defendant deserved the
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consecutive sentence. See Lane, 3 S.W.3d at 460-61. 

Accordingly, the judgment is affirmed.