### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

uly 19, 2000 Sessi

on
STATE OF TENNESSEE v. ARNOLD L. JONES
Appeal as of Right from the Circuit Court for Williamson County Nos. II-1-98-353 & II-498-140 Timothy L. Easter, Judge

No. M1999-00851-CCA-R3-CD - Filed December 14, 2000

The appel lant, Arnol d L. Jones, was convictedin the Williamson County Circuit Court, pursu

ant to
a bench trial, of one count

of f ail ure t o ap pear in c our t, a cla ss E fel ony. Sub seq uen tly, a jury in the Williamson County Circuit Court convicted the appellant of one count of introducing drugs into a penal institution, a class C felony, and one count of delivery of

over .5 grams of

cocaine, a cla

ss B fel ony. The trial court se ntenced the appe

llant, as a Range II offender, to eight y ears incarceration in the Tennessee Depar

tm ent of Correction for introduction of drugs into a penal institution. The trial court also sentenced the appellant, as a Rang e II offender, to fifteen years incarcer ation in the Tennessee Department of Cor rection for deliv

ery of over .5 grams of cocaine, and assessed a fine of $10,000. The trial court further ordered that these sentences be served con curr ent ly. A ddi tio nal ly, the trial court sentenced the appellant to three years incarceration in the Tennesse e Department of Correction for failureto appear in cour t, and ordered th

is sentence to be s

erved consecut

ively to the other sentences for the drug

convictions. The appellant raises the following issues for our review: (1) whether the evidence

presented at trial was sufficient to support a finding by a rational trier of fact that the appellant is guilty beyond a re as onable doubt; and (2) whe

ther the trial cou

rt erred in imposing excessive sentences. Upon review of the recor d and the parties’ briefs, we affirm the judgment of the tr

ial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the cou rt, in which D AVID G. H AYES , and T HOMAS T. W OODALL , JJ., joined. Cynthia Fort, Nashville, Tennessee, J. Craig Myrick, Nashville, Tennessee, for the appellant, Ar

nold L. Jones.

Paul G. Sum mers, Attor ney Gene ral an d Repo rter, Jenn ifer L. Bledsoe, Assistant Attorney Ge

neral, and Derek Smith, Assistant District Attorney General, for the appellee, State of Tenne ssee.
OPINION-2- I. Factual Backgr

ound A. Failure to appear On September 18, 1998, the appellant, Arnol d L. Jones,failed to appear in court for
a trial on charges of the delivery of over .5 grams of

crack cocaine

and the introducti

on of drugs into
a pen al f aci lit y. At a subsequent bench trial for failure to appear, the appellant testified that he had notappeared in court

because he had car trouble on the way to court. The a ppellant also asserted

that he had used all of his c

hange to place a call to his son, who in turn called the appellant’s a

ttorney to notify the appellant’s attorney of the de lay. The appellant ’s son left a message with the attorney’s secretary that his father was having car trouble. The secretary assured the appellant’s son that she would relay the message, but told him to try to g et the appellant to court. The appellant’s son picked up the appellant and stated that “everything was taken care

of.” The appellant and his son returned homeby noon at the

latest. Seven day

s later, a b ail bondsman took the appellant into custody for failure to appear in court. Alt hough the appellant testified that, later that week, he repeatedly tried to contact hi s attorney rega rding his court date, he ne ver tried to conta

ct the court to expla

in his absence.

Pursuant

to abench trial, the t

rial court ruled t

hat, while the appellant’s excuse of car trouble was a reasonable excuse for not attending court that morning, the appellant acted unreasonably

in failing to inform the court, after returning home that day, concerning the reason for his absence, especially considering the appellant’s pre vious experience with the criminal justice system. The trial judge found the appellant guilty of failure to appear in court. However , the trial court postponed se

ntencing until af

ter the appellan

t’s trial on the dru

g charges. B. Drugs RobinOliver, an inmat e in the John I. Easle y Correctio

n Facility l

ocated in Williamson County, also known as the Criminal Justice Center (herei nafter “CJC”), contacted Detective Jack Frantz with the Williamson County Narcotics Division. Oliver tol d Detective Fra

ntz that the appellant was responsible for bringing drugs into the C JC and that sh e would assist the police in catching him. Oliver did no t rece ive money, r educed charg

es, or a lesser se

ntence in exchange for assisting the police.

Acco rdi ngly, on February 24, 1998, Oliver made a telephone call to the appellant and asked the appellant to bring her cigarettes and a “two” of crac k cocaine into the jail. The call was monitored and recorded by the police. Oliver instructed the appellant to leave the contraband in the trash can of the women’s restroom in the lobby of the CJC, which was ac

cessible to the public, for later retrieval by one of the trustees of the jail. Oliver would then obtain the contraband from the trustee. The appellant agreed to bring the contraband into the jail, and further told O liver that he would leave the items at 10:00 a.m. on February 25, 1998, in the specified location.

On February 25, the police staked out the lobby and the parking lot of the CJC. The appellant did not arrive. However, on Fe bruary 26,

1998, Officer D

ustin McDade, pur

suant toa tip byO liver, searched the trash can in the women’s bathroom located in the lobby of the C JC an d discovered

cigarettes and crack cocaine. At the request of the police, Oliver made another telephone1 The appellant does not challenge his conviction for fai lure to appear.
-3- callto the appellant in or

der to verify

that he left the dr

ugs. The appella

nt repeatedly

assured Oliver that he had left her one gram of crack cocaine.

A jur y in t he W ill iam son Cou nty C ircuit Court found the appellant guilty of one count of introdu cing drugs into a penal institution, a class C felony, and one count of delivery of over .5 grams of cocaine, a c

lass B felony. T

he trial court sen

tenced the appe

llant, as a Range II offender, to eight yea

rs incarcerat

ion in the Tennesse

e Department of C

o rrection for introducing

drugs into
a penal institution. The trial court also sentenced the appellant, as a Range I Ioffender, to fifteen yearsincarceration in the Tennessee Department of Correction for delivery of over .5 grams of cocaine and assessed a fine of $10,000. The trial court further ordered that these sentences be served
con curr ent ly. Additionally, the trial court sentenced the appellant to three years incarceration in the Tennessee Department of Correction for failure to appear in court, and ordered that this sentence be served consecutively

to the other two sen

tences. The appellant raises the following issues for our review: (1) whether the evidence presented at trial was sufficient to support a finding by a rational trier of fact that the appellant is guilty beyond a rea sonable doubt; and (2) whether the trial court erred in imposing excessive sentences. II. Analysis A. Sufficiency of the Evidence The a ppellant first challenges the sufficiency of the evidenc e to suppo rt hi s convictions for introducing drugs into a penal institution and delivery of over .5 grams of cocaine. 1 In Tennessee, a jury conviction removes the presumption of innocence the appellant enjoyed at trial andreplaces it with a presumption guilt on appeal

. St ate v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Accordingly, the appellant carries the burden of demonstrating to this court why the evidence will not support the jury’s findings. Id. Put another way, the appellant must demonstrate to

this court that no reasonable t

r ier of fact could have found the essential elements of the offense bey ond a reasonable

doubt. Jackson v. Virgini a , 44 3 U.S. 307 , 319, 99 S. Ct. 2781, 27 89 (1979); Tenn. R. App. P. 13(e).
Furthermore, the tri er of fact, and not the appellate courts, resolves all questions concerning the credibility of witnesses and th

e weight and va

lue to be given th

e evidence, as w

ell
as all factu al issues raised by the evidence. State v. Pruett ,788 S.W.2d 559, 561 (Tenn. 1990). Therefore, on appeal, the State is entitled to the strongest legitimat e vie w of the evidence

and all reasonable

inferences which may be drawn therefrom. State v. Wi lliams , 657 S.W.2d 405, 410 (Tenn. 1983).

In order to

sustain a conviction for introducing drugs into a penal institution, the State must prove that the appellant, knowin gly and with unlawful i

ntent, did take, se

nd, or otherwise c

ause drugs to be taken into a penal institution where prisoners are quartered or are under custodial supervision. Tenn. Code Ann. § 39-16-201(a)( 1)-(2)(1997). A dditionally,

to sustain

a conviction for delivery of

over .5 grams of cocaine, the State must establish

that the appellan

t knowingly-4-

del iveredover.5 grams or more of any substance containing cocaine. Tenn. Code Ann. § 39-17

- 417(a)(2)&(c)(1)(1997). Furthermor e, Tenn. Code Ann. § 39-11-106(20)(1997) states that “[a] person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.”

Detective Jack Fr

antz te stifie d that t he CJC is a penal institution where prisoners are under custodial supervision. Glenn Ev erett, a forensic scientist with the Tennessee Bureau of Investigation, confirmed

that the substance recovered from the women’s restroom in the CJC lobby was .6 grams of

crack cocaine. Additionally, in the first tape recorded conversation, the appe llant agreed to bring cocaine to Oliver and to leave it in the women’s restroom in the CJC lobby

. Furthermo re, in the second tape recorded conversation, the appellant assured Oliver that he had brought her a gram of crack cocaine. Therefore, the sufficiency of the

evidence essentially depends on the admissibility of the two audio taped conversations between the appellant and Oliver.

The appellant specifically argues that the trial court erred

in admitting into evidence the audio tapes of the

appellant’s conv

ersations with th

e info rmant, Robin Oliver, without the testimonyof Oliver to authenticate the tape pursuant to the Tennessee Rules of Eviden ce. The appellant contends that the a

udio tape should not have been played for the jury when neither

Oliver nor the appellant authenticated the tape or corroborated the conversation. We disagree

.

This court has stated that “whether tangible evidence has been properly authentica ted is left to the discre

tion of the trial co

urt” and this

court will not disturb that d

ecision “absent a

clearly mistaken exercise of that discretion.” State v. Young , No. 0 1C01- 9601- CC-00 195, 1 997 W L 4 6 990, at *4 (Tenn. Crim. App. at Nashville, August 15, 1997)(citations omitted). Furthermore, T enn. R. Evid. 901 provides a non-exhaustive list of methods for authenticating evidence, such as audio tape s, for admission into e vidence . The appellant essentially argues that without the testimony of the appellant or Oliver, the tapes could n o t be properly authenticated. However, other methods of authentication exist. See Tenn. R. Evid. 901. T he State compli

ed with T enn. R. Evid. 901(b)(5) which provides that voices may be identified “whether heard firsthand or throug h mechanical or electronic transmission or recording, by opinion based upon h earing t he voice at any time under circumstances connecting it with the alleged speaker.”

At trial, the audio taped conversations between the appellant and Oliver w ere sufficiently

authenticated by

Detective Fra

ntz. He testif

ied t hat he was present when the conversations took place and could verify that the statements of Oliver on the audio tapes were an accurate reflection of the statements he heard her make during the telephone conversations. See Stroup v. State , 552 S.W.2d 418, 420 (Tenn. Crim. App. 1977). Moreover, Detective Frantz testified that he had heard the appellant’s voice on a few oc casions and could

positively identify the voices
on the tapes as belonging to the appellant and Oliver. See State v. Click , No. 162, 1991 WL 188882, at *3-4 (Tenn. Crim. App. at Knoxville, September26, 1991)(finding proper authentication by an officer who had not heard the conversation simultaneously

withits recording, but who could identify bothof the voices on the tape). Additionally, two of the appellant’s sisters, Doris Dy

e and Claudell-5-

Vaughn, identified the appellant as b eing one of the s

peakers on the ta

pes. See State v. Smith, 612 S.W.2d 493, 498 (Tenn. Crim. App. 1980).

Detective Frantz testified that, on a few occasions, he had the opportunity to listen to the appellant’s voice. Accordingly, Detective Frantz asserted tha t he could positively identify the appellant as being oneof the speakers o n the tape becau

se the appellant h

as a distinctive voice. See Statev. Radley , No. 01C01-9311-CC-0382, 1994 WL 377212, at *4 (Tenn. Crim. App. at Nashville, July 14, 1994). Moreover, “tape recor dings may be presented by any witness who was present during the recording

as long as he ca

n identify th

e declarant with

certainty and his testimony comports with other rules of evidence.” State v. Gibson , 973 S.W.2d 231, 243 (T enn. Crim. App. 1997)(citing State v. Jones , 598 S.W.2d 209, 223 (Tenn. 1980)). The audiotapes wer e properly authenticated and presented to the jury.

The appellant also contends that his right to confrontation was infringed because he could not cross-examine Oliver concerning the conversations. However, t he statements made by Oliver only served

to elic it statements from the appellant and provide context for the appellant’s responses,andthe Sta te’ s pr ima ry goa l wa s to bri ng th e app ell ant ’s s tat eme nts befo re t he j ury. Gibson , 973 S.W.2d at 243. Moreover , the appella nt attacked Olive

r’s credibility

in other way

s, namely through the

testimony of Oliver’s grandmother stating that Oliver had planned to “set up” the appellant and through the testimony of V aughn, the appellant’s sister, who stated that Oliver could have been helpin

g the police so tha

t she would not get

into additional trou

ble for being caught withdrug paraphernalia in the jail. See Gibson , 973 S.W.2d at 243. Furthermore, al though “t he
mere fact cross-e xamining [Oliver ] would have been a defense lawy

er’s delight, a

nd that this opportunity

did not present itself, does not operate to add constitutional dimension to the situation.” Jones , 598 S.W.2d at 223.

Based upon the f

oregoi ng, a rational trier of fact could reasonably ha ve found the appellant guilty of introducing drugs into a penal facility and of the delivery of over .5 grams of cocaine. This issu

e is without merit. B. Sentencing The appellant contends that the tria l court erred by imposing excessive

sentences. Spe cif ica lly, the appellant argues that the trial court erred in refus ing to consi der the mitigating factors offered by the appellant when determining the leng th and range of the sentence imposed. This court conducts a de novo review of the length, range, or manner of service of a sentence. Tenn. Code Ann. § 40-35-401(d) (1997). Additionally, the appellant bears the burden of demonstrating the impropriety

of his sentence(

s). Tenn. Code Ann. § 40-35-401, Sent encing Commission C

omments. Moreover, this court will accord the trial court’s

determinations a p

resumption of cor

rectness if

the record reveals that the trial court correctly considered sentenc ing principles andall relevant facts and circumstances.

Tenn. Code Ann. § 40-35-401(d) ; S tate v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).-6- In conducting our de novo review, this court considers the following factors: (1) the evidence, if

any, received at

the trial and the sentencing hearing; (2) the pre-sentence repor t; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature a nd characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and

mitigating fac

tors; (6) any

statement by

the defendant in

his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also Ashby , 823 S.W.2d at 168. Moreover, trial courts are given wide latitude in their discretio

n in sentencing. This court has stat ed that “no partic

ular weight for each f

actor is prescribed by the statute, as the weight g

iven to each fac

tor is left to the disc

retion of th

e trial court as long

as its findin gs a re supported by the record.” State v. Carter , 986 S.W.2d 596, 598 (Tenn. Crim. App. 1998).
Furthermore, for a Class B, C, D and E felony, the presumptive sentence shall be the minimum sentence in the range if there are no enhancement or

mitigating factors. Tenn. Code Ann. § 40-35-210(c)( 1997); see State v. Lavender , 967 S.W.2d 803, 806 (Tenn.1998). However, if

there
are such factors, a trial court should start at the minimum sentenc

e, then enhance

the sentence with

in the range for

enhancement factors and reduce the sentence within the range for the mitigating fac

tors. See Tenn. Code Ann. § 40-35-210(e). Nevertheless, should there be enhancement factors but no mitigating factors, a trial court may set the sentence abo v e the minimum within the range. Tenn. Code Ann. § 40-35-210(

d); see Lavender , 967 S.W.2d at 806. Furthermor e, because

the appellant is a Range II offender, the

possible terms of incarceration in the Tennessee Department of Correction
are as f oll ows : tw elv e to twe nty ye ars for a B fe lon y; six to ten years for a C felony; two to four years for an E felony. Tenn. Code Ann. § 40-35-112(b)(2), (3), & (5)(1997).

The trial court found

that the following

enhancement fa

ctors apply

to the appellant: (1) the appellant has a previous history of criminal convictions or criminal behavior in addition to tho se necessary to establish the appropriate range; (8) the appellant has a previous hi sto ry o f unwillingness

to comply with

the conditions of a sentence involving release in the community; (13) the fel ony w as co mmi tte d wh ile on a ny o f th e following for ms of release sta

tus if such relea

se is from a prior felony

conviction: (A) ba

il, if the appellan

t is ultimately convicted

of s uch pri or f elo ny; (B) parole; (C)

probation; (D) wo

rk release; (E)

any other ty

pe of release in

to the community under th e dir ect or i ndi rect sup ervi sio n of the dep art men t of corr ect ion or l ocal gove rnm ent al a uth ori ty. Tenn. Code Ann. § 40-35-114(1), (8), & (13)(1997).

Init ial ly, we note that

the ap pella nt was sente nced a s a Ran ge II offender. To qualify
as a Range II offender, the offender must have been convicted of at least twoprior felonies. Tenn. Code Ann. § 40-35-106(a)(1)&(c)(1997). The appellant had been convicted of a t least two p rio r felonies, as well as other felonies and misdemeanors. Additionally, the a ppella nt admitted at the sentencing hearing that he had violated parole on at least three occasions. See State v. Adams , 973 S.W.2d 224, 230 (Tenn. Cri m. App. 1997)(find

ing that th e defenda nt’s parole violation and violation of juvenile probation demonstrated unwillingness to comply with the conditions of a sentence involving release in the c ommunity). F

urthermore, the

appellant committe

d the failu

re to appear while on bail for charges relating to the delivery of cocaine,and committed the d rug offenses w

hile2 The appellant does not con test t he lengt h of his sentence for

his failure t

o appear conviction. However, he does contend that t

he trial court erred by orderi ng the senten

ce for fail

ure to appear to run consecutively to his drug convictions.
-7- on parole for a prior felony conviction. The appellant does not arg ue that the trial court

improperly appliedthese enhancement factors. Moreover, we

conclude from our review of the record that the trial court prope

rly applied

the enhancemen

t factors.

The tr ial court found that one mitigating factor applied to the appellant’s drug convictions: the appellant’s conduct neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1)(1997). The State does not dispute the app lication of this mitigating factor. However, this court has found that Tenn. Code Ann. § 40-35-113(1) does no t appl y in cases involving cocaine. See State v. Vanderford , 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997). Acco rdi ngly, because we find that the trial court misapplied this mitigating factor, we have reviewed the appellant’s s

entence without a

presumption of cor

rectness.
The appellant alleges that the trial court should have applied the following mitigating factors to his sentences for delivery of cocaine: the appellant acted und er strong p rovocation; substantial grounds exist tending to excuse or justify the appellant’s crim

inal conduct,

though failing to establish a defe

nse; and the appellant acted under duress or under the domination of another person, even though the duress or the domination of another perso

n is not sufficient t

o constitute a defense to the crime. 2 Tenn. Code Ann. § 40- 35 -113(2), (3), & (12)(1997). At the sentencing hearing, the appellant contended that these mitigating fac tors appli ed because he would not have committed a crime if he had not been berated into delive ring drugs by Oliver. However, notwithstanding the evidenc e against him, the appellant maintained that he did not commit the delivery of

more than .5 gra

ms of cocaine into

the CJC.

The trial court found

that, mitigating fac

tors (2), (3) and

(12) could

possibly appl

y to the appellant. However, because the appellant continued to deny that he had c ommitted the crimes, the trial court would not

apply these factors to the appellant’s sentence. Specifically, the trial court stat edthat these factors would have applied if the appellant had admitted his guilt. However , because the appellant con

tinued to assert his innocence, the trial court did not believe he could argue that he had been coerced into behavior he denied. The appellant contends that the trial court erred in so ruling. We disagree.

The trial court

in this case essentially considered the appellant’s untruthfulness and failure to accept responsibility in determining that the proposed mitigating factors were e

ntitled to little or no weigh

t. Cf. Statev. Anderson , 985 S.W.2d 9, 21 n.1 (Tenn. Crim. App. 1997)(finding that the “defendant’s lack of truthfulness may be considered in dete rmining the weight to be given to an applicable en

hancement f

act or.”); State v. Smith , 910 S.W.2d 457, 462 (Tenn. Crim. App. 1995)(stat ing that a tr ial court ca n acknowled ge a mitigating fa ctor yet, in its discretion, give it no weight). This was entirely within the trial court’s discretion. See Statev. Boggs , 932 S.W.2d 467, 476 (Tenn. Crim. App. 1996)(maintaining that a trial court could give a mitigating factor little or no-8-

weight in accordance

with the discretio

n permi tted the c ourt). We conclude that the trial court correctly sentenc ed the appellant to eight years incarceration in the Tenne ssee Department of Correction for introducing drugs into a penal facility and to fifteen y ears incarceration for the delivery of over .5 grams of cocaine.

The appellant also contends that the trial court erred in ordering that the appellant
serve his sentence for failure to appear cons e cutively to his drug convictions. However, the appellant failedto cite any authority or make any argument

beyond a bald assertion that this constituted error. Tenn. R. App. P. 27(a)(7) states that if the appellant does not cite authority or make ap propriate references to the record, then the issue is waived. See State v. Dickerson , 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993).

In any event, the trial court correctly orde red that the appellant serve his sentences
con secu tiv ely. Tenn. R. Crim. P. 32(c)(3)(C ) man dates consecutive sentences for “a sentence for
a felony where

the defendant wa

s released on ba

il and the [appellant] is convicted of both offenses.” The appellant admitted that he was on bail awaiting trial for the drug offenses at the time he failed to appear in cour

t. This issue is withou

t merit.

III. Conclusion Based upon the foregoing, we affirm the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE