IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 7, 2006 Session

STATE OF TENNESSEE v. ROBERT A. WILEY, AKA JABO

 Appeal from the Circuit Court for McNairy County

No. 1740 Weber McCraw, Judge

No. W2005-01662-CA-R3-CD - Filed May 19, 2006

The Defendant, Robert A. Wiley, aka Jabo, was convicted by a McNairy County jury of identity

theft, violation of a Motor Vehicle Habitual Offender (MVHO) order, and driving while license

cancelled, suspended, or revoked. For these convictions, the Defendant received an effective threeyear sentence as a Range I, standard offender. In this appeal as of right, the Defendant argues that:

(1) the trial court made several errors in instructing the jury, (2) the evidence was insufficient to

support his conviction for identity theft, and (3) the trial court committed sentencing errors. Finding

plain error, double jeopardy principles require us to vacate the Defendant’s conviction for driving

while license cancelled, suspended, or revoked. The remaining judgments of the trial court are

affirmed in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;

Reversed in Part

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA

MCGEE OGLE, JJ., joined.

Wayne T. Dewees, Bolivar, Tennessee, for the appellant, Robert A. Wiley.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

and Elizabeth Rice, District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

On June 14, 2002, a McNairy County grand jury indicted the Defendant for identity theft,

violation of a MVHO order, and driving while license cancelled, suspended, or revoked. A jury trial

was held on November 2, 2004.
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The State’s first witness was Officer Byron Maxedon of the Selmer Police Department.

Officer Maxedon testified that, “midday” June 10, 2003, he was patrolling the “north area” of the

City of Selmer, when he encountered the Defendant. According to Officer Maxedon, he passed the

Defendant, who was driving a Mercedes-Benz, and recognized the Defendant “through the front

windshield of the vehicle.” He also recognized the vehicle as belonging to the Defendant. Officer

Maxedon testified that he knew the Defendant’s driver’s license was revoked. Additionally, Officer

Maxedon observed that the side windows of the Defendant’s vehicle were heavily tinted, and he

believed “that [the Defendant’s] window tint was in violation under the Tennessee Window Tint

Code.” Based upon Officer Maxedon’s knowledge of the status of the Defendant’s driver’s license

and the window tint violation, he stopped the vehicle.

Officer Maxedon informed the Defendant of the window tint violation and asked him if he

had a driver’s license. The Defendant produced a license that was issued on November 27, 2002,

which stated the Defendant’s name as “ROBERT ARRON WILEY JR.” However, Officer Maxedon

knew the Defendant as “Robert Allen Wiley.” The information on the license was otherwise

accurate. He then asked the Defendant to exit the vehicle and advised him of his Miranda rights. 

Officer Maxedon asked the Defendant to state his social security number, and the Defendant

“spit out the social security number of 255 -- I can’t remember the whole number without looking

at it, but I remember the first part was 255.” Officer Maxedon then asked the Defendant where he

was born, to which the Defendant replied that he was born in Tennessee. Officer Maxedon inquired

of the Defendant, “If you were born in Tennessee, how did you obtain a 255 social security number?”

The Defendant had no response. 

In order to establish that the Defendant’s license was revoked at the time of the stop, the State

introduced into evidence a certified copy of the Defendant’s Department of Safety Driving

Certification and a certified copy of the order declaring the Defendant an habitual offender under the

MVHO Act. The State then called Circuit Court Clerk Ronnie Brooks, who testified that, after a

search of his records, he found no petition by the Defendant to restore his driving privileges. 

Robert Arron Wiley, Jr., testified that he was an engineer and lived in the State of Georgia.

Mr. Wiley was shown a Department of Safety Document, which contained the Defendant’s picture

and identification information. Mr. Wiley testified that the social security number on the document

belonged to him. The license the Defendant presented to Officer Maxedon was then passed to Mr.

Wiley. Mr. Wiley stated that it was his name on the license but that none of the other identification

information was his. According to Mr. Wiley, he had a Tennessee driver’s license for approximately

ten months in 1988. Mr. Wiley stated that he was in the Army National Guard for about one year

and was discharged in 1989. Mr. Wiley testified, “When my separation time came up, I went to the

office, signed the papers and as everything was processed, they were just mailed to me.” On crossexamination, Mr. Wiley said that he had never met the Defendant, who was black, and that he was

white. Additionally, he did not know whether a copy of his discharge had ever been mailed to the

Defendant. 
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The Defendant presented Brian Dickey, McNairy County Register of Deeds, as a witness.

Mr. Dickey testified that the Defendant recorded an Army discharge document with his office in

2001. On cross-examination, Mr. Dickey acknowledged that he could not “vouch[] for the

authenticity” of the document. 

The Defendant then testified on his own behalf. He stated that he was born in McNairy

County, had a 9th grade education, and served in the Army National Guard for sixteen years and was

discharged in 1989. According to the Defendant, he “went to Adamsville to see what [he] had to do

to get [his ] license reinstated.” He asked an employee of the license office what he would need to

obtain a license and, as a result of that conversation, he filled out an application for a license.

According to the Defendant, he put the name “Robert A. Wiley” on the application. He also

presented a birth certificate, which stated his middle name as “Allen,” a tax receipt as proof of

residence, and a National Guard discharge. Based upon this information, he was issued the license

he presented to Officer Maxedon. Additionally, the Defendant testified that he had never received

notice from the State of Tennessee that his license was revoked. 

The Defendant testified that, on two prior occasions, he had been stopped by other officers,

who looked at the license and let him go. According to the Defendant, he received his National

Guard discharge paper in the mail in 1989 but did not examine it closely. He testified that he “put

it up” until he recorded it in 2001. 

On cross-examination, the Defendant acknowledged that his middle name was “Allen” not

“Arron.” He testified that he had two or three different names and two different social security

numbers. According to the Defendant, these multiple names and social security numbers resulted

from the National Guard discharge paper issued to him. He explained that he had two social security

numbers because: “Ever since I was born I had one and then when I come [sic] out of the . . .

National Guard, I was issued another one.” According to the Defendant, the social security number

issued to him at birth began with “411.” The State then introduced into evidence a “mug shot” of

the Defendant, which contained the “411” social security number. 

The Defendant admitted that he was a tank operator and not a “basic electricity and

electronics avionics repairman” as stated on the discharge paper. The Defendant explained that he

did not register the discharge paper until 2001 because: “I just didn’t know I had to register it and

I just registered it, Imean, you know.” The Defendant testified that he had not used the “255” social

security number for any other purpose. He stated that he copied the information from the discharge

paper in filling out his driver’s license application. 

Additionally, the Defendant acknowledged that he had signed the 1999 order declaring him

an habitual offender. Regarding any court appearance relating to the order, the Defendant stated, “I

came down here and talked to a lady concerning that and that was all that was [sic] to it.” Moreover,

he admitted that he had not petitioned the court to have his license reinstated. On re-direct

examination, he stated that, at his court appearance, he was informed he was an habitual offender
We note that the trial court did not specify whether the Defendant’s sentences were to be served concurrently 1

or consecutively. Therefore, by operation of law, the Defendant’s sentences are concurrent. Under Tennessee procedure,

concurrent sentencing is the baseline or presumptive arrangement of multiple sentences: “Sentences shall be ordered to

run concurrently, if the criteria noted in [section 40-35-115](b) are not met, unless consecutive sentences are specifically

required by statute or the Tennessee Rules of Criminal Procedure.” Tenn. Code Ann. § 40-35- 115(d) (2003); see also

Tenn. R. Crim. P. 32(c)(1) (“Unless it is made to affirmatively appear that the sentences are consecutive, they shall be

deemed to be concurrent.”). Moreover, the manner of service indicates that the trial court intended the sentences to be

concurrent.

The record is unclear whether the sentence received was probation, to be supervised in the community 2

corrections program, or a community corrections sentence. Community corrections and probation are not fungible

methods of serving an alternative sentence. State v. Kathyrn White Byrd, No. E2002-00417-CCA-R3-CD, 2003 WL

21276499, at *5 (Tenn. Crim. App., Knoxville, May 29, 2003) (citing State v. Pettus, 986 S.W.2d 540, 544 (Tenn.1999))

(“A review of the language of the relevant statutes reveals a clear distinction between community corrections and

probation.”). However, as a condition of probation, a defendant can be placed into a community corrections program.

Tenn. Code Ann. § 40-36-106(f). 

On the judgment forms, the boxes marked “TDOC,” “Probation,” and “Community Based Alternative” are all

checked. Because alternative sentences and sentences to the Department of Correction are distinct sentences with

different program requirements, different conditions, and distinctly different consequences following revocation, it is

important that the correct sentence be noted on the judgment form. Any conditions, such as a period of incarceration,

should be noted in the “special conditions” section of the judgment form. State v. William George Soller, No. E2003-

02970-CCA-R3-CD, 2004 WL 2346024, at *1 n. 1 (Tenn. Crim. App., Knoxville, Oct. 19, 2004), aff’d, 181 S.W.3d 645

(Tenn. 2005). Our conclusion is that this is a case of probation.

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and just signed the paper. In re-cross, he testified that he did not talk with a judge and only spoke

with a “lady.”

Following the presentation of evidence, the jury found the Defendant guilty of all charges.

Thereafter, a sentencing hearing was held on November 10, 2004. The trial court sentenced the

Defendant as a Range I, standard offender to concurrent sentences of three years for identity theft,

1

one year and six monthsfor violation of the MVHO order, and eleven months and twenty-nine days

for driving while license cancelled, suspended, or revoked. As to manner of service, the trial court

imposed “CMC after 120 days in jail 1 year CMC then supervised probation.” After hearing 2

testimony about the Defendant’s financial situation, the trial court reduced the fines imposed by the

jury to “$50.00 per count.” The Defendant filed a motion for new trial, which was denied. This

appeal followed.

ANALYSIS

I. Jury Instructions

The Defendant argues that the trial court erred in its jury instructions in several respects.

First, the Defendant submits that the trial court erred by not instructing the jury as to any lesserincluded offenses for the crime of identity theft. Second, the Defendant contends that the trial court

failed to give a limiting instruction that a prior conviction could only be used to impeach the

Defendant and not as proof that he committed the crime in question. Third, the Defendant contends

that the trial court erred by not charging his defenses. 
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A. Lesser-Included Offenses

The Defendant’s argument in this respect is not clear. The Defendant, in his brief, twice

states the issue as, “The Court failed to instruct the jury as to any lesser included offenses to the

charge of criminal impersonation.” However, in concluding the argument section of his brief on this

issue, the issue is phrased as, “The trial court erred in neglecting to instruct the jury as to the lesser

included offense of criminal negligence where the [D]efendant, a person with very little formal

education or reading skills failed to perceive the risk created by the conduct.” The Defendant was

charged with and convicted of identity theft, not criminal impersonation. Moreover, criminal

negligence is a culpable mental state, not a lesser-included offense. Accordingly, we confine our

analysis to whether criminal impersonation is a lesser-included offense of identity theft. 

Defendant did not raise the trial court’s failure to instruct the jury on any lesser-included

offenses in his motion for new trial. Generally, a defendant waives an issue if he fails to include it

in his motion for new trial. Tenn. R. App. P. 3(e), 36(a). Additionally, the Defendant has failed to

include a transcript of the motion for new trial hearing in the record. It is the duty of the appealing

party to prepare an adequate record for appellate review. Tenn. R. App. P. 24(b). “When a party

seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete

account of what transpired with respect to the issues forming the basis of the appeal.” State v.

Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). 

Furthermore, the Defendant made no written or oral request to the trial court for any lesserincluded instructions. In fact, “no special requests” were made by the Defendant. Relying on

Tennessee Code Annotated section 40-18-110, the State submits that the Defendant has waived this

issue for failure to request the instruction in writing at trial. 

Tennessee Code Annotated section 40-18-110, in pertinent part, provides:

(b) In the absence of a written request from a party specifically identifying the

particular lesser included offense or offenses on which a jury instruction is sought,

the trial judge may charge the jury on any lesser included offense or offenses, but no

party shall be entitled to any such charge.

(c) Notwithstanding any other provision of law to the contrary, when the

defendant fails to request the instruction of a lesser included offense as required by

this section, such instruction is waived. Absent a written request, the failure of a trial

judge to instruct the jury on any lesser included offense may not be presented as a

ground for relief either in a motion for a new trial or on appeal.

Tenn. Code Ann. § 40-18-110(b), (c). Our supreme court has recently concluded that “Tennessee

Code Annotated section 40-18-110(c) does not violate the constitutional right to trial by jury.” State

v. Robert Page, -- S.W.3d --, No. W2003-01342-SC-R11-CD, at *5 (Tenn., Nashville, Feb. 8, 2006).

Therefore, we agree with the State that this issue is waived. 
In the argument section of the Defendant’s brief on the issue, he states that “it was highly prejudicial for the 3

jury to view any prior booking pictures[.]” This issue has not been briefed as required by our rules. Tenn. R. App. P.

27(a)(7); Tenn. Ct. Crim. App. R. 10(b); see also Harvey v. State, 749 S.W.2d 478, 479 (Tenn. Crim. App.1987). This

issue appears to be an afterthought, and we will treat it as waived.

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Moreover, a panel of this court has held that criminal impersonation is not a lesser-included

offense of identity theft. See State v. Ronald Bowman, No. W2003-02389-CCA-R3-CD, 2005 WL

94365, at *6 (Tenn. Crim. App., Jackson, Jan. 13, 2005) (Wade, P.J., dissenting) (concluding that

fraudulent use of a driver’s license is lesser-included offense of identity theft), perm. to appeal

denied, (Tenn. May 23, 2005). Finally, the Defendant has failed to show that he did not waive this

issue for tactical reasons. Page, 2005 WL 94365, at *6. Defendant is not entitled to relief on this

issue.

B. Prior Conviction

Again, the Defendant’s argument is unclear. The Defendant relies on Tennessee Rule of

Evidence 609 and presents the issue as the trial court committed reversible error by failing to provide

the jury a limiting instruction addressing the MVHO order that contained eight prior driving

convictions. However, it also appears that he is arguing that the trial court erroneously admitted this

unduly prejudicial character evidence without engaging in the requisite analysis. Thus, his argument

can best be interpreted as the trial court erred in admitting the order and, alternatively, if the order

is deemed admissible, the trial court was required to give a limiting instruction concerning use of

prior convictions. 

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Additionally, the Defendant’s reliance on Rule 609 is misplaced because Rule 609 pertains

to attacking the credibility of a witness with a prior conviction. In the present case, the State sought

to introduce the MVHO order assubstantive evidence of the Defendant’s guilt. Thus, the applicable

rule in this situation is Tennessee Rule of Evidence 404. 

Moreover, it appears from the record that the Defendant raised this issue for the first time in

his motion for new trial. The Defendant has failed to include the transcript of the motion for new

trial hearing in the record before this court. It is the duty of the appealing party to prepare an

adequate record for appellate review. Tenn. R. App. P. 24(b). “When a party seeks appellate review

there is a duty to prepare a record which conveys a fair, accurate and complete account of what

transpired with respect to the issues forming the basis of the appeal.” Ballard, 855 S.W.2d at 560.

Notwithstanding, we elect to address the Defendant’s claim.

Recently, in State v. Charles E. Robinson, No. M2004-01163-CCA-R3-CD, 2005 WL

2008186 (Tenn. Crim. App., Nashville, Dec. 27, 2005), this Court addressed a similar situation,

wherein the defendant was convicted of possession of a handgun by a convicted felon. Robinson,

2005 WL 2008186, at *2 (citing Tenn. Code Ann. § 39-17-1307(b)(1)(B)) (defining such offense

as possession of a handgun by an individual convicted of a felony drug offense). Thus, the

defendant’s status as a convicted felon was an essential element of his offense. Id. at *3. The

defendant argued that the trial court erred by admitting evidence that he had several felony drug
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convictions. Id. at *2. The Court concluded that the probative value of the evidence of the

defendant’s prior felony drug convictions outweighed any potential prejudicial effect. Id. at *3. In

doing so, the Court reasoned:

In State v. Wingard, 891 S.W.2d 628 (Tenn. Crim. App. 1994), this Court

held that in the “unique situation” where a “prior conviction [i]s an element of the

offense [charged], . . . the probative value of an essential element of the offense

would almost always outweigh any potential prejudice under Rule 404(b), [and

therefore the] specific nature of the offense w[ould be] admissible.” Id. at 634. This

holding was later limited to situations in which the defendant did not offer to

stipulate to his or her status as a convicted felon. See State v. James, 81 S.W.3d 751,

763 n. 7 (Tenn. 2002) (“We note that in Wingard, there is no evidence that the

defendant offered to stipulate to his prior convictions. Accordingly, we find that the

decision in Wingard remains good law in those situations where the defendant does

not offer to stipulate to his or her prior offenses.”).

Id. at *2. 

In the instant case, Tennessee Code Annotated § 55-10-616 provides, in pertinent part, “It

is unlawful for any person to operate any motor vehicle in this state while the judgment or order of

the court prohibiting the operation remains in effect.” Tenn. Code Ann. § 55-10-616(a). Violation

of a MVHO order is a material element of the indicted offense. Furthermore, there is no evidence

in the record, nor does the Defendant assert, that he offered to stipulate to his status as an habitual

offender. Accordingly, we conclude that the probative value of the order declaring the Defendant

an habitual offender outweighs anypotential prejudicial effect. The trial court properly admitted this

evidence.

Thus, we must consider the Defendant’s alternative argument that the trial court should have

provided the jury with a limiting instruction regarding the order and the prior convictions described

therein. In Robinson, “the trial court instructed the jurors that they could not consider those prior

convictions as evidence of the defendant’s propensity to commit the crime of possession of a

handgun by a convicted felon.” Robinson, 2005 WL 2008186, at *3. No such instruction was given

in the present case.

In addressing whether a limiting instruction should have been given, the Wingard court

stated:

When the defense asked for jury instructions explaining that proof of the prior

felony was admissible to establish the elements of the offense only and for no other

purpose, the trial court denied the request. In our view, the evidence of a first degree

murder conviction prejudiced the defendant--even if that prejudice was outweighed

by the probative value. Under such circumstances, the trial courts should take pains

to place the value of the evidence in proper context. Rule 105 of the Tennessee
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Rules of Evidence provides, in part, as follows: “When evidence which is admissible

. . . for one purpose but not admissible . . . for another purpose is admitted, the court

upon request shall restrict the evidence to its proper scope and instruct the jury

accordingly.” See, e.g., State v. Howell, 868 S.W.2d [238,] 255 [(Tenn. 1993)];

Laird v. State, 565 S.W.2d 38, 40 (Tenn. Crim. App. 1978); Lacey v. State, 506

S.W.2d 809 (Tenn. Crim. App. 1974); see also 1 C. Torcia, Wharton’s Criminal

Evidence, § 264 (14th ed. 1985). In our view, the jury should have been instructed

that the prior conviction or convictions had been admitted into evidence for the sole

purpose of establishing that the defendant had been convicted of a felony--an

essential element of the offense--and for no other purpose. It would have been

preferable for the jurors to have known that no inferences of guilt could have been

drawn by the nature or gravity of the prior offenses.

Id. 

In this case, the Defendant did not request a limiting instruction advising the jury that the

references to the prior convictions were not to be considered as any evidence ofthe Defendant’s guilt

of the charges for which he was on trial. The issue was not raised during trial, but rather, was raised

for the first time in the motion for new trial. “[C]ounsel must raise a contemporaneous objection to

an incomplete jury charge[.]” State v. Eldridge, 951 S.W. 2d 775, 779 (Tenn. Crim. App. 1986)

(citing State v. Haynes, 720 S.W. 2d 76 (Tenn. Crim. App. 1986)); see also Rhoden v. State, 816

S.W. 2d 56, 62-63 (Tenn. Crim. App. 1991) (“If a trial judge does not give a curative instruction sua

sponte, the party who objects to the testimony must request such an instruction.”). The Defendant

also failed to request that the judgment be redacted to exclude any references to the prior convictions.

“Objections must be timely and specific.” Tenn. R. Evid. 103, Advisory Commission Comments.

Therefore, to the extent that the Defendant argues on appeal that the jury should not have been

exposed to the references of the prior convictions, the issue is waived. Relief is not available to a

party who is responsible for, or fails to take action to prevent, an error. Tenn. R. App. P. 36(a).

C. Defenses

The Defendant argues that the trial court “failed to instruct the jury as to [his] defenses.” The

Defendant does not specify which defenses are applicable to his case. In his motion for new trial,

the Defendant listed the following defenses:

a. That he complied with the directions of the Department [sic] of Tennessee,

Department of Safety when applying for his driver’s license.

b. That the [sic] appeared at the Driver’s License office and submitted all

documentation that was requested of him.

c. That State of Tennessee, Department of Safety, issued a valid driver’s license.

d. That he had [sic] duly issued and valid driver’s license at the time of his arrest.
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e. That there were no restrictions or suspensions to the driver’s license he had in his

possession at the time of his arrest.

f. That a police officer is not a judicial entity and does not have the authority to

suspend or revoke a valid driver’s license.

g. That said duly issued driver’s license issued by the State of Tennessee was never

void, held for naught or suspended/cancelled/revoked by the State of Tennessee. 

It appears from the record that the Defendant raised this issue for the first time in his motion

for new trial. We again note that the Defendant has failed to include the transcript of the motion for

new trial hearing in the record before this court. It is the duty of the appealing party to prepare an

adequate record for appellate review. Tenn. R. App. P. 24(b). “When a party seeks appellate review

there is a duty to prepare a record which conveys a fair, accurate and complete account of what

transpired with respect to the issues forming the basis of the appeal.” Ballard, 855 S.W.2d at 560.

Moreover, this issue has not been briefed as required by Rule 27(a)(7) of the Tennessee Rules of

Appellate Procedure, which provides, in relevant part, that: 

The brief of the appellant shall contain . . . [a]n argument, which may be preceded

by a summary of argument, setting forth the contentions of the appellant with respect

to the issues presented, and the reasons therefor, including the reasons why the

contentions require appellate relief, with citations to the authorities and appropriate

references to the record (which may be quoted verbatim) relied on[.]

Tenn. R. App. P. 27(a)(7); see also Harvey v. State, 749 S.W.2d 478, 479 (Tenn. Crim. App.1987).

“Issues which are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). 

In the present case, the Defendant is correct in his assertion that defenses “fairly raised by

the proof” should be submitted to the jury. See Tenn. Code Ann. § 39-11-203. However, the

Defendant does not provide this Court with any authority that his list constitutes “defenses”

chargeable to a jury. We agree with the State that the Defendant’s list “appears at most to constitute

inferences arguable from the proof at trial.” See generally Tenn. Code Ann. §§ 39-11-501 to -621;

7 Tennessee Practice, Tennessee Pattern Jury Instructions--CRIMINAL§§ 40.01-.18 (Comm. of the

Tenn. Judicial Conference 9th ed. 2005). In sum, the Appellant has failed to comply with Rule 27

of the Tennessee Rules of Appellate Procedure. We also note that the Defendant made no requests

for additional jury instructions. This issue is without merit.

II. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his conviction for identity

theft. Specifically, he argues, “[T]he record is devoid of evidence that the defendant actions [sic]
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preceding his arrest for [identity theft] was in any manner unreasonable or reckless much less

criminal.” 

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant

who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption

of innocence and imposes a presumption of guilt. State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the

sufficiency of the evidence if, after considering the evidence in a light most favorable to the

prosecution, we determine that any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,

8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. Carruthers, 35 S.W.3d at 558;

Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s

witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the weight

and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier

of fact, and this Court will not re-weigh or re-evaluate the evidence. Evans, 108 S.W.3d at 236;

Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from

circumstantial evidence for those drawn by the trier of fact. Evans, 108 S.W.3d at 236-37;

Carruthers, 35 S.W.3d at 557.

Identity theft is defined as knowingly transferring or using, without lawful authority, a means

of identification of another person with the intent to commit any unlawful activity. Tenn. Code Ann.

§ 39-14-150(a) (2003). The Defendant admits that he relied upon the discharge paper of Robert

Arron Wiley, Jr., in getting a driver’s license, but he argues that he believed it was his discharge

paper, he was unaware that a MVHO order had been entered against him, and he lacked sufficient

education or knowledge to understand the conditions of reinstatement. In essence, he submits that

the record does not contain any proof that he intended to commit any unlawful activity. The State

argues that the jury could infer from the evidence that the Defendant intended to evade the MVHO

order. There was proof at trial that, in order to circumvent the MVHO order, the Defendant used

Robert Arron Wiley, Jr.’s name and social security number to obtain a driver’s license. The jury

chose not to accredit the Defendant’s testimony, as was their prerogative. Viewed in the light most

favorable to the State, we conclude that the evidence supports the Defendant’s conviction for identity

theft. See Bowman, 2005 WL 94365, at *2. 
In the conclusion section of the Defendant’s brief, he states that he “was denied his constitutional right pursuant

4

to his 4th and 6th amendment rights to face his accuser, to be safe from unreasonable searches and seizures[.]” This issue

has not been briefed. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); see also Harvey, 749 S.W.2d at 479.

Again, this issue appears to be an afterthought, and we will treat it as waived.

 We note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act 5

of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his

sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,

and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.

The Defendant’s criminal history includes numerous driving convictions in addition to those necessary to

6

establish his status as an habitual offender. 

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III. Sentencing

Finally, the Defendant argues that the trial court committed sentencing errors. First, he titles 4

the issue as “[t]he Court erred in submitting the presentence report and enhancement factors, which

were not admitted into evidence at trial in violation of the Blakely Issue.” However, the argument

section on this issue does not address Blakely v. Washington, 542 U.S. 296 (2004); instead, he

contends that the trial court failed to apply or properly weigh mitigating factors. 

5

The BlakelyCourt held that any fact that increases a sentence beyond the “relevant statutory

maximum,” defined as the maximum sentence that a judge may impose without making any

additional findings of fact, must be submitted and proved to the jury beyond a reasonable doubt

unless admitted by the defendant. Blakely, 542 U.S. at 301-02. Thus, adherence to Blakely requires

that any enhancement factors, other than prior criminal history, can be applied only if found by a jury

or admitted by the defendant. Id. 

First, the Defendant’s sentence was properly enhanced solely on his prior criminal history.

See Tenn. Code Ann. § 40-35-114(2) (2003). Sentencing enhancement based upon prior criminal 6

history is not implicated under Blakely. Second, the Tennessee Supreme Court has just recently

considered the impact of the Blakely ruling on Tennessee’s sentencing scheme and has concluded

that the Criminal Sentencing Reform Act of 1989, under which the Defendant was sentenced, does

not violate a defendant’s Sixth Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn.

2005). Accordingly, the Defendant’s argument on this basis has no merit.

Regarding mitigating factors, the Defendant contends:

[T]hat substantial grounds exist tending to excuse or justify the defendants [sic]

criminal conduct, though failing to establish a defense; that the defendant, although

guilty of the crime, committed the offense under such unusual circumstances that it

is unlikely that a sustained intent to violate to law motivated the criminal conduct.
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See Tenn. Code Ann. § 40-35-113(3), (11). Again, we note that this issue has not been briefed as

required by Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure. See also Harvey, 749

S.W.2d at 479. “Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). 

Moreover, the mitigating factors espoused by the Defendant were applicable only if his

testimony was accepted. State v. John C. Walker, III, No. M2005-01432-CCA-RM-CD, 2005 WL

1798758, at *14 (Tenn. Crim. App., Nashville, July 28, 2005). The jury, by its verdict, implicitly

rejected the Defendant’s testimony. Id. The trial court found:

The [D]efendant knew he shouldn’t have been driving. He was driving in violation

of an Habitual Motor Vehicle Offender order. The Court does recall under the facts,

though, that he had a license issued to him. The jury believed that to be by

subterfuge or fraud. The other mitigating factors are that he lacked sufficient

education or knowledge to understand the conditions of reinstatement. The Court,

again, has really heard no proof on that other than the proof presented at the trial,

which the jury disregarded.

We conclude the trial court did not err by rejecting the proposed mitigating factors.

IV. Plain Error

The Defendant has not argued that his dual convictions for driving while license cancelled,

suspended, or revoked and the habitual motor offender offense violate double jeopardy principles.

Typically under these circumstances, our analysis of an issue is waived. See Tenn. R. App. P. 13(b).

Nevertheless, review of this issue is permitted if plain error exists. 

Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “[a]n error which has

affected the substantial rights of an accused may be noticed at any time, even though not raised in

the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court

where necessary to do substantial justice.” In order to find plain error, we must consider five factors:

(a) the record must clearly establish what occurred in the trial court; (b) a clear and

unequivocal rule of law must have been breached; (c) a substantial right of the

accused must have been adversely affected; (d) the accused [must not have waived]

the issue for tactical reasons; and (e) consideration of the error [must be] necessary

to do substantial justice. 

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (citations and quotations

omitted). Taking these factors in sequence, the record clearly establishes that the Defendant was

convicted of both driving while license cancelled, suspended, or revoked and violation of MVHO

order. See Tenn. Code Ann. §§ 55-50-504, 55-10-616. Second, multiple convictions breach a clear

and unequivocal rule of law. Third, a fundamental constitutional right of the Defendant, his Fifth
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Amendment right to be free from double jeopardy, is affected. Fourth, the record is devoid of any

evidence that the Defendant waived the issue for tactical reasons. Fifth, we consider violation of the

Defendant’s protection against double jeopardy to be sufficiently serious as to require our review in

order to do substantial justice. Accordingly, we will review the trial court’s error in this regard in

spite of the Defendant’s failure to raise it as an issue.

This Court has previously concluded that convictions for driving while license cancelled,

suspended, or revoked and a habitual motor offender offense are the “same” under the double

jeopardy principles if the evidence relied upon by the State to establish both crimes was the same.

See State v. Green, 947 S.W.2d 186, 190 (Tenn. Crim. App. 1997) (citing Duchac v. State, 505

S.W.2d 237, 239) (Tenn. 1973)); State v. Morgan L. Ray, No. M2002-02910-CCA-R3-CD, 2003

WL 22888923, at *4 (Tenn. Crim. App., Nashville, Dec. 8, 2003). The Defendant’s convictions for

driving while license cancelled, suspended, or revoked and the habitual motor offender offense were

based upon the same evidence. They both came about as a result of the events on June 10, 2003.

Because of double jeopardy prohibitions, plain error requires us to vacate the judgment of conviction

for driving while license suspended, cancelled, or revoked. We note the Defendant’s effective

sentence remains unchanged.

CONCLUSION

Based upon the foregoing reasons and the record before this Court, we vacate the judgment

of conviction for driving while license cancelled, suspended, or revoked. The Defendant’s

convictions and sentences for identity theft and violation of a MVHO order are affirmed. 

___________________________________ 

DAVID H. WELLES, JUDGE