### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ugus t 1, 200 6 S es sio n

STATE OF TENNESS EE v . JI MMIE LEE H ART

Appeal f romthe Circ uit Court for Lake Coun ty No. 05-CR -8715 R. Lee Moore , Jr., Judge

No. W2005-02938-C CA-R 3-CD - F iled October 30, 2006

The de fenda nt, J immie L ee H art, wa s convicted of possession of one-ha lf g ram or more of c ocaine with the intent to sell or deliver, a C lass B felony
, and was sentenc ed to t hirty y ear s imprisonment

as a c ar e e r o f

f e n d e r

. H e ap p e a ls h is c o n v ic ti o n , c o n te n d in g ( 1 ) th a t th e c o n v ic ti n g e v id e n c e was ins uf fi c ie nt a nd(2 ) tha t th e tr ia l c ou rt e rr e d in re fu sin g to i ns truc t the jury on the me a nin g of

the us e of the F if th A me nd me nt rig ht a g a ins t se lf -i nc ri min a tio n. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opinion of the court, in which D AVI D G. H AYES and R O BERT W. W EDEMEYER , J J ., joined.

Jame s T . Po we ll, Un ion City , T e nn e sse e , f or the app e lla nt, Jimmie L e e Ha rt

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt er; Sop hia S. L e e , A ssi sta nt A tto rn e y Ge ne ra l; C. Phill ip Bivens, District Attorne y Gene ral; and K are n Waddel l Bu rn s, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

P o l i ce ar re s t ed t h e d ef

en d an tas a r es u l to f a n u n d e r c o v e r d ru g b u y o p er at i o n i n v o l v i n g a confide ntial informant that took place on J anuary 14, 2005. At the t rial, the state pr esente d evidenc e from th e la w e n f

o r c e me n t o f

f ic e r s in v o lv e d in th e u n d e r c o v e r o p e r a ti o n

. L a k e Co u n ty She riff’ s I nvestig ator Jason Allison t estified that he w as involved in the investi gation of the de fenda nt on J anuary 14, 2005, as we re L ake County Sheriff’ s Chief Deputy Ronnie Moore a nd Tiptonvill e Police I nv e sti g a tor

Joe E ng la nd . I nv e sti g a tor Al lis on state d th a t th e of

fi c e rs us e d a

c on fi de nti a l in fo rm a nt, Pete Perkins, to buy

drug s from the defenda nt. He said that a rec ording device called a

“kell set” was pla c e d o n Pe rkins a ndthat he ins truc te d Per kin s to ta lk a s mu c h a s p os sib le wh ile wi th the de fe nd a nt. I nvestig ator Allison g ave Perkins $160 in ma rked $20 bills t o be used during the sale. He instructed P er k ins that, during the transac tion, he was to count the “ buy money ” and to ke ep the pur chase d d ru gs i n h i s l ef

t h an d

. I n v es t i gat o r Al l i s o n s ai d h i s p ri m ar y re s p o n s i b i l i t y wa s t o re co v ert h e d ru gs-2-

from Perkins. He als o gav e P er k i n s a code phrase that Perkins was to say when the sa le was completed: “Ma n, it’s cold out here .”

I nvestig ator Allison testified that he a nd I nvestig ator Eng land followed Per kins, who was driving his own truck, in an unmarke d police car. He said that the kell set was functioning and that he could he ar Per

kins in the truck. P erkins drove from Tipt onville to Ridge ly
, wher e he pic ked up the defe ndant. I nvestig ator Allison said the defe ndant reque sted that Perkins driv e t o a n ea rby

car wash be cause came ras wer e monitoring the location wher e Perkins picked him up. I nvestig ators Allison and Eng land foll owed the tr uck to the ca

rwa sh. I nvestig ator Allison said the long est period in w hich they lost sig ht of the truck was seve n to ten seconds while the truck pulled into the ca rwa sh. He said no one else g ot into the t ruck besides the def endant a nd Perkins. The investig ators par ked the ir c ar a c ro ss the str e e t fr om the c arw a sh wh ile Pe rkins ’ truc k wa s idl e

. I nv e sti g a tor Al len sa id that as the truc k was lea ving the car wash, he hear d Perkins say t h e co d e phrase. Soon there afte r, Chief Deputy Moore, in his own vehicle, stopped Perkins’ truck, and I nvestig ator Allison hear d the defe ndant say , “Oh, man, y ou know what y ou did.” I nvestig ator Alli son said that afte r the stop, Perkins had in hi s left hand “ eig ht rock-like w hite substance[s]” that “appe are d to be cr ack c ocaine .” A pill bottl e and e leven more rocks we re f ound scatter ed on the floorboar d of the truck. H e said that the pill bottl e wa s in the cente r of the f loor and that the rocks we re sc attere d along the driver ’s side. He sa id $990 in cash and two c ellular tele phones we re a lso recove red f rom the def

endant’ s person. Th e $1 60 bu y

mon e y wa s f ou ndin the truc k b e tw e e n th e dr ive r’ s a ndpa sse ng e r’ s se a ts.

On cr oss-examinatio n , I n v es t i gat o r A l l i s o n t es t i fi ed t h at h e d i d n o tt ak e f i n ger p ri n t s off e ither the plastic pill bottl e or the buy money

. He said about one minute elapse d betwee n the time the truck pulled into the car wash a nd the time it was stopped. He sa id he gave Perkins $40 afte r t he oper ation ended a nd did not know if Perkins was other wi s e employ ed at the time. He said he c ould not see inside the tru ck wh i le Perkins and the de fenda nt were in it, although he c ould hear what wa s h ap p en i n g. He d i d n o ts ee an y cr i m i n al ac t i v i t y t ak i n g p l ac e i n s i d e t h e t ru ck
, an d n ei t h ert h e d ru gs nor the mar

ked mon ey we re fo u n d on the def endant’ s person. He stated that it was Perkins who mentioned the def

endant’ s name a s a possible subject of an underc over investigation a nd that he had

never used Perkins in any

prior investig ations. On re- direc t examination, I nvestig ator Allison stated that Perkins did not request payment for his service s and that the decision to g ive him money was made a fter the operation ended.

Chief Deputy

Ronnie Moore testified that he was involved in the unde rcove r investig ation on J anu ar y 14, 2005. He sa id that he had known Pete Perkins, who had on many prior occ asions
g iven him acc urate information that led to ar rests, althoug h J anuary

14, 2005, was the f

irst time he ha d u se d Pe rkins “ wi th a bo dy wi re on a dr ug bu y .” De pu ty Mo or e sa id h e se arc he d Pe rkins a ndhis truck befor e the drug buy and did not f ind any drug s, money , or a pill bottle. He said he conducte d

a tho ro ug h s e arc h o f P e rkins by pa tti ng do wn his bo dy on the ou tsi de of his c lothe s, un fa ste nin g his pants and be lt buckle, shaking his waistband, and pa tting his fee t without shoes.

Chief Deputy

Moore testified tha t aft er t he investig ating team lef t their meeting place , he drove a lone in an unmar

ked patr ol car . He f

ollowed Perkins and I nvestig ators Allison and Eng land,-3-

althoug h he stay ed out of sig ht. He said he used his cellular telephone to spe ak with I nvestig ator Allison and could hear some of P erkins’ conversation with the defendant that was be ing tr ansmitted to Inv e sti g a tor

En g la nd ’s c a

r. He sa id h e he ardwo rd s th a t in dic a te d “ dr ug tal k, ” such a s “ pa

rt y tonight” a nd “these will work.” I n v es t i gator Alli son alerte d him to when Perkins said the code phrase , and he drove to w here Perkins’ truck was stopped at a four- way intersec tion. He said he ke pt his fo c us on the de fe nd a nt in the pa sse ng e r’ s seat and sa w the de fe nd a nt m a ke a mot ion wi th h is a

rm

. He or dere d the defe ndant out of the truck and saw money in the middle of the fr ont seat of the tr uck. Chief Deputy Moore said that he asked the defe ndant whose money it wa s and th at t h e d ef endant responde d, “My

damn money . I

worke d for it.” He said he also saw a pill bottle in the middl e of the floorboa

rd of the tr uck and cra ck coca ine rocks scatter ed along the floorboa rd of the driver’s side. He sa id he sea

rche d the def

endant a nd found $990 in ca sh, two cellular telephones, and a te lephone calling car d. He sa id that in his ex perie nce, it is com m o n t o fi n d l arg e amounts of money and

c e llu lar t e le ph on e s o n d ru g su sp e c ts.

On cross-examination, Chief Deputy Moore testified that he had never paid Perkins for a ny help he ha d g iven in the past. He said he did not sear ch P erkins’ underwe ar, and he a dmitted that drug users will hide drug s “whe reve r they can,” including in their

underw ear . He sa id, how ever , that he believe d an y drug s hidden in a per son’s underw ear would fall out if the per son’s pants wer e shaken “ hard enoug h.” Chief Deputy Moore said he sea rche d under the seats on both sides of the extended cab tr

uck. He said he a lso searc h ed the g love compar tment and looked in the opene d

a sh tr a y . H e sa id h e fe lt u nd e rn e a th the da sh bo ardof the truc k a ndse arc he d ev e ry wh e re he c ou ld f it his ha nd , b ut n ot the ve nts be c a us e he “ ne ve r f ou nda ve nt [h e ] c ou ld sti c k [his ] h a ndin. ” He sa id there may have be en small “nicks or tear s” in the seat of the truck but no holes lar g e enoug h for a small bag o f drug s. He a cknowledg ed that many people who a

re not drug deale rs ca

rry cellular telephones a nd cash.

I nv e sti g a tor Joe En g la nd te sti fi e d tha t he wa s a memb e r o f the Wes t T e nn e sse e Dr ug Ta sk For ce and that he had worke d on about 300 drug case s. He said he wor ked on the c ase involving the defe ndant in which Pete Per kins was used as a conf

idential informant. He said that Perkins had
pr ov ide d th e po lic e wi th r e lia ble a nda c c ur a te inf

or ma tio n in pa st i nv e sti g a tio ns . H e sa id h is m a in role in the investig ation was to oper ate the elec tronics and to drive the unmarke d patrol ca r while the kell s et was running . He sa id the kell set operated like a one -wa y radio sy stem and allowe d them to hear and re cord sounds picke d up by the transmitter, which was attached to Perkins. He said the ke ll se t wa s wor

kin g a ndwa s p la y ing fr om the c ar tha t he dr ov e wi th Inv e sti g a tor Al lis on . H e sa id he and I nvestig ator Allison followe d Perkins to Ridg ely
, wher e Perkins picked up the def endant a nd drove to a car wash. He said that no one e lse was in the truc k and that they lost sight of the truck for no more than a

few seconds a t a time. I nvestig ator Eng land said that Perkins and the def endant we re in the “ca rwa sh are a” f

or about one minute. He said the defendant did not say much whil e he w as in the truc k, th ou gh th e de fe nd a nt d id t e ll Pe rkins to d ri ve to the c arw a sh in o rd e r t o a vo id surveillance came ras. I nvestig ator Eng land said the de fenda nt also told P erkins, “Y ou know what
y ou done,” a fter the truck wa s stopped.-4-

On cr oss-exami n at i o n , I n v es t i gat o r E n gl an d t es t i fi ed t h at h e h ad n ev eru s ed P er k i n s ’ services in an under cover

operation. He said he could not see inside the truc k from his ca r. He said that the drug s found in the ca

r we re on the driver’ s si d e o f the floorboa rd, that the pill bottle was on the “hump” ove r the transmissi on in the m iddle of t he floor, and that the m oney was in the middle of the

s ea t

. He ad m i t t ed t h at n o ev i d en ce s h o we d t h at t h e d ef en d an tev ert o u ch ed t h e m o n ey o r t h e d ru gs and that it was possi ble t hat t he drugs belonge d to Perkins. I nvestig ator England said he only knew what happe ned throug h Perkins.

Dana Parmenter , specia l ag ent fore nsic scientist with the Tennesse e B ureau of I nvestig ation (TB I ) Crime L ab, wa s stipulated as an e x pert in the fie ld of che mical ana ly sis. She testified that the drug s rec overe d in this case we re c ocaine . She said the coc aine r ecove red d i re ct l y from P erkins constituted 1.2 g rams and the rocks found on the floor of the truck constituted 1.7 g rams, for a total of 2. 9 g ra ms. She te sti fi e d o n c ro ss- e xami na tio n tha t sh e ha d no pe rs on a l kn ow le dg e of the arr e st

or the or ig in o f the dr

ug s.

Ovid L eon “Pete ” Perkins testi fied that he is a forme r user of coc aine a nd hy drocodone but that he wa s not using drug s on J anuary 14, 2005. He sa id he ag ree d to work on an unde rcove r drug

case in Ridgely on that date after Chief Deputy Moore approac hed him for a ssistance. He said he
ag ree d to help the offic ers be cause h e h ad t wo y oung children w ho lived and play ed in the ar ea wher e drug s were sold. He said he was not offe red any money when he ag ree d to participate . He said offic ers we re looking for one particula r drug deale r whom he could not locate. He then informed the of

fice rs about the de fenda nt, who Perkins said had offere d to sell drug s to him. Bef ore the drug sale, Perkins met with the off icer s, who sear ched him, plac ed an e lectronic wire on him, and told him t o say , “It’s cold out here ,” whe n the sale w as complete

.

Perkins testified that on J anuary 14, 2005, he called the def endant a nd asked f

or the pric e on an “e ight ba ll,” or 3.5 g rams, of cra ck coca ine. He sa id that he there afte r drove to the defe ndant’s home and that the de fenda nt reque sted they drive to a nea rby car wash. He said the def

endant wa nted
to g o to the c arw a sh be c a us e the pa rking lot of his apa rt me nt w a s mo nit or e d b y c a me ra s. He sa id that at the car wash, he handed $160 to the defe ndant, that the defe ndant pulled out a pill bott le from his po c ke t, a nd that the de fe nd a nt re mov e d e ig ht c ra c k c oc a ine ro c ks fr om the bo ttl e. A ft er this
transac tion w as complete, Per kins said the code phr ase a nd the police stopped him. He said the d e f e n d a n ts a i d t o h i m , “ Y o u k n e w t h i s w a s g o i n g t o h ap p e n , d i d n ’ ty o u ?”

The state the n play ed the tape rec ording g ather ed fr om the kell set place d on Perkins. Much of the tape was inaudible due to loud backg round noise. The dominant voic e on the tape , explained by Pe rk in s to b e h is o w n v o ic e , a s k e d s o me o n e , e xp la in e d b y Pe rk in s to b e th e d e f e n d a n t o n the telephone, a

bout a price . Perkins then spoke into the kell set and sa id that the defendant asked to be picked up. A car door was hear d opening and a second voice, belong ing to th e d ef en d an t , was

a ud ibl e . T he de fe nd a nt m a de a c omm e nt a

bo ut g oin g to a

c arw a sh a ndabo ut the re be ing c a me ra s. L ater , Perkins could be he ard c o u nting to 160 by twenties. Some other c onversa tion ensued, and Perkins said, “Man, it’s c old out here.” Soon therea fter, sounds of police sirens could be he ard, a nd the def endant sa id, “Yea

h, y ou know what y ou’ve done .” P erkins wa s questioned by an off icer , and-5-

he told the officer that the defendant took a pil l bottle out of his pocket and c ounted out eig ht $20 rocks, whic h he g av e t o P erkins and which Perkins kept in his left hand. Per kins said he was

un a wa re of wh a t th e de fe nd a nt d id w ith the pil l bo ttl e a ft e r tha t.

On cr os s-examination, Perkins first testified that he wa s not paid for his help with the inv e sti g a tio n. He la te r sa id that he wa s g ive n $4 0 a s re imb ur se me nt fo r fu e l bu t th a t he didno t pr of it from the e vent. He said he did not have a job at the time beca

use he w as re covering f

rom alcohol and drug addictions. He a g ain stated that he ag ree d to help wi t h t he investig ation beca use he ha d
y oung children a nd wanted to stop drug dealing in their neighborhood. He said he had stopped using drug s no sooner than a few months before the under cover investigation, although a t another time he said it had bee n “a month or two” si nce he had last used drugs. He denied us ing dr ug s within a wee k of January

14, 2005

. P er kins testified that he had ne ver be en paid by police bef

ore f or helping or providing information to them. He did ac knowledg e that he ha d worke d wi t h the TB I on a fe w underc over dr

ug buy s and had r ece ived $100 in pay ment for e ach buy

. Reg arding what wa s hear d on the t ape rec ording
, Perkins testified t hat he was c ounting the
money out to hims elf be cause he knew he could be hear d on the wire. H e ac knowledg ed that he, not the def endant, c ould be hea

rd talking about drug s on the tape. H e said that whe n h e and the defe ndant wer e talking about s ecurity came ras, they also talked about the dang er of crime in the a

rea

. He sa id that it only took a few seconds for the def endant to count the c rac k coca ine roc ks and hand the m to him a nd that the y we re a t the c arw a sh fo r a tot a l of abo ut fi ft e e n to tw e nty se c on ds

. He sa id it could have be en one minute that they wer e ther e. He said he did not know that the mar ked money and drug s were not f

ound on the defe ndant. He said Chief Deputy Moore ha d thoroug hly

sear ched him before t h e b u y b u t did not shake his underw ear . He sa id that every thing in his truck wa s

sear ched, inc luding the g love compartment a nd ashtray
, and that there was no unsear ched a rea of the
truc k w he re he c ou ld h a ve hid de n dr ug s. He sa id the re we re sma ll h ole s o r c ra c ks in the vin y l of his

se a t th a t ma y

ha ve be e n b ig e no ug h to fit a sing le c ra c k r oc k, tho ug h n on e we re larg e e no ug h to fi t a small bag of drug s.

On re -d ir e c t e xami na tio n, Pe rkins te sti fi e d th a t a ll the TB I un de rc ov e r i nv estig a tio ns wi th which he a ssisted resulted in convictions. He said Chief Deputy Moore had sear ched his wa istband, his front crotc h are a, his hips, and his backside. H e said he did not have a ny drug s on him before he purcha sed them fr om the defe ndant. He sa id he knew two individuals name d Ging er B lackbur n

a ndJess e Swi ft

thr ou g h h is p ri or

dr ug us e . H e sa id h e ha d p re vio us ly bo ug ht d ru g s f

ro m th e m.

Th e de fe nd a nt c a lle d Jes se Swi ft , w ho te sti fi e d th a t he kn e w Pe te Pe rkins . Wh e n a sk e d if he e ve r s olddr

ug s to , b ou g ht d ru g s f

ro m, o r u se d d ru g s w it h P erki ns , Sw if t in vo ke d h is F if

th Amendment rig ht ag ainst self-incrimination. S wift said that he wa s subpoenae d to testify at the trial and that he did not wa nt to do so. The defe nse also ca lled Ging er B lackbur n to testify . Bla ckburn
te sti fi e d th a t sh e kn e w Pe te Pe rkins bu t no t pe rs on a lly

. She re fu se d to a ns we r a ny oth e r q ue sti on s, invoking he r F ifth Amendment rig ht ag ainst self-incrimination.-6-

After the conc lusion of trial, the defe ndant was found g uilty of possession of one-ha lf g ram or more of

coca ine with the intent to sell. The trial court sentenced t h e d efendant as a car eer offe nder to thirty

y ear s in the Depa

rtment of Corre ction.

I. SUFF ICIENCY OF THE E VIDENCE

The de fenda nt contends that the e vidence was insuffic ient to support his conviction. He contends that the “we ight of the evidenc e . . . wa s contrary to the jury ’s ver dict.” He arg ues that the state’s c ase de pended sole ly on the information provided by Pete Perkins, who was unr eliable. The

s t a t e ar g u e s t h a t

t h e d e f e n d a n th a s w a i v e d t h i s i s s u e f o r f a i l u r e t o c i t e s u p p o r t i n g a u t h o r i t y. Alterna tively , the state a

rg ues that the c onvicting e vidence was suff icient and that it is not proper for this court to judge the weig ht and cr edibilityof witness testimony

. Although g ener al in nature, the defe ndant does cite authority in his arg ument on this iss ue. We will review this issue.

Our st and ard of

re vie w w he n th e su ff

ic ie nc y of the e vid e nc e is q ue sti on e d o n a pp e a l is “whe ther, afte r viewing the evidenc e in the light most fa vorable to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime bey ond a rea sonable doubt.” Jackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not re weig h the evidenc e but
pr e su me that th e tr ie r o f f a c t ha s r e so lve d a ll c on fl ic ts i n th e te sti mon y a nddr a wn a ll r eason able infere nces f

rom the evide nce i n fa v or of the sta te. See State v. Shef field, 676 S.W.2d 542, 547 (T e nn . 1 98 4) ; State v. Ca bb a g e , 5 71 S.W. 2d83 2, 83 5 ( Te nn . 1 97 8) . Q ue sti on s a bo ut w itn e ss

cre dibilit y

are resolved by

the jury . See State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997).

T h e d ef en d an twa s co n v i c t e d o f “ k n o wi n gl y , u n l aw fu l l y an d fe l o n i o u s l y

. . . p o s s es s [ i n g]

w ith in te n t t o s e ll o r

d e li v e r a c o n tr o ll e d s u b s ta n c e , n a me ly
, Co c a in e , in a n a mo u n t o v e r

. 5 g r a m[ ], a Schedule I I

controlled substanc e,” in violation of Tenne ssee Code Annotated se ction 39-17-417. The state’ s evidenc e wa s sufficient to prov e t h e elements of this crime. The state pre sented
te sti mon y of an ey ewi tne ss, Pe te Pe rkins , th a t th e de fe nd a nt s oldhim e ig ht c ra c k c oc a ine ro c ks

. These r ocks we re de termined by analy sis to equal 1. 2 gra m s of coc aine. Anothe r 1.7 g rams of

coca ine wer e found in the truc k wher e the sa le took place. C h i ef DeputyMoore testified tha t he thoroug hly

sear ched Per

kins and his truck for

drug s befor e the sa le and found none. The testimony of the thr e e of

fi c e rs wa s c on sis te nt o n v ir tua lly e ve ry ma tte r a ndc or

ro bo rate d mu c h o f P e rkins ’ testimony

. The defe nse attempted to que stion P erkins’ c redibility and soug ht to convince the jury that the drugs originate d with Perkins. The jury was fr ee to a cce pt or reje ct this theory . I ts verdict ref lects that it chose to believe Perkins. The de fendan t m i s s tates the law when he arg ues that we sh ou ld o ve rtur n th e tr ia l cou rt ’s jud g me nt b e c a us e the we ig ht o f the e vid e nc e is a g a ins t th e ve rd ic t. Even if this wer e tr u e, o u r d uty is to determine whe ther a ny rational juror

could have found the de fe nd a nt g uil ty be y on d a re a so na ble do ub t of the c ri me c ha rg e d. We c on c lud e that a jur or c ou ld ha ve do ne so a ndthat th e e vid e nc e wa s su ff ic ie nt t o c on vic t th e de fe nd a nt.-7- II. JURY INSTRUCTION ON THE FIF TH AMENDMENT

The defe ndant contends that the trial court err ed in not instructing the jury as to the meaning of the wi tne sse s’ inv oc a tio ns of the ir F if th A me nd me nt rig hts a g a ins t se lf -i nc ri min a tio n. A t

the tr ia l, witness es S wi ft and B lackbur n invoked their F ifth Amendment rig hts and ref used to answe r quest i o n s about their involvement with Pete Perkins. At the c onclusion of the def ense’ s case , defe nse counse l asked the trial judge to instruct the jury “as to what the Fifth Ame ndment is, so they

wo n’ t be con fus e d. ” Th e jud g e re fu se d to of fe r a ny ins truc tio ns re la te d to the F if th A me nd me nt. The de fenda nt arg ues t hat t his ref usal prejudice d the defendant because the t estimony of Swift and Bla ckburn w as conf

using to the ju ry an d “[w]i thout certa in understanding of wha t had occ urre d
reg arding the wit nesses’ plea of their Fifth Amendment protections ag ainst self-inc rimination, the jury could not possiblyhave a complete pictur e o f t he ca se at ha nd.” The state re sponds that the defe ndant has wa ived this issue, both for failure to c ite appropriate authorities and for failure to make his request in writing . Alterna tively , the state c ontends that any err or reg arding jury instructions was harmless.

We a g re e wi th the st ate th at th is i ssu e sh ou ld b e wa ive d f or fa ilu re to c ite app ro pr ia te authorities. The r

ules of this court state tha t issues not supported by citations to authorities will be waived. T enn. Ct. Crim. App. R. 10(b); see a lso Tenn. R. App. P. 27(a)( 7 ) (“The brie f of the

app e lla nt s ha ll c on ta in .

. . [a]n arg ume nt .

. . wi th c ita tio ns to the aut ho ri ti es and app ro pr ia te ref ere nces to th e r e c o r d

. . . . ” )

. T h e d e f e n d a n t h a s p r o v id e d u s w ith n o c a s e o r ru le o f law that

su pp orts his arg ume nt tha t the tr ia l cou rt e rr e d in den y ing his re qu e st fo r ins truc tio ns

. Th is i ssu e is waived.

CO NC LU SION

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE