IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on briefs at Knoxville December 13, 2011

STATE OF TENNESSEE v. WILLIAM THOMAS MAYERS

Appeal from the Davidson County Criminal Court

No. 2010A572 J. Randall Wyatt, Judge

No. M2011-00954-CCA-R3-CD - Filed October 1, 2012

After a trial by jury, the defendant was found guilty of aggravated burglary, a Class C felony,

attempted aggravated burglary, a Class D felony, and theft of property over $500, a Class E

felony. He was sentenced to a total effective sentence of 25 years. On appeal, the defendant

claims that the trial court erred by (1) denying his motion to dismiss his indictment or

suppress testimony regarding destroyed evidence; (2) allowing the State to present certain

photographs taken of the defendant, on grounds that they were not properly authenticated;

and (3) ordering him to serve his sentence on the attempted aggravated burglary

consecutively to his sentence for aggravated burglary because both crimes should have been

considered part of the same criminal episode. We conclude that the defendant has waived

the first claim by virtue of his failure to prepare an adequate brief and record and that the trial

court did not err by allowing admitting the photographs and ordering consecutive sentences.

We affirm the judgments of the trial court accordingly.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETTWILLIAMS,J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J., and JAMES CURWOOD WITT, JR., J., joined.

.

Caesar Cirigliano, Nashville, Tennessee, and Lee Sprouse, Nashville, TN for the appellant,

William Thomas Mayers.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Victor S. Johnson III, District Attorney General; and Robert Homlar,

Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The defendant raises numerous claims concerning missing evidence. In addition, the

defendant claims that the trial court erred by permitting the authentication and admission of

five pictures taken by a CVS store security camera and erred by ordering the defendant to

serve hissentencesfor aggravated burglary and attempted aggravated burglary consecutively.

For the reasons that follow, we deny these claims and affirm the judgments of the trial court.

I.

The statement of facts contained in the defendant’s brief is woefully inadequate and

fails to comply with the relevant appellate rules. It consists almost entirely of fragmented

sentences, a list of witness names, and imprecise and unexplained citations to the record.

This is unacceptable. Tennessee Rule of Appellate Procedure 27(a)(6) provides: “The brief

of the appellant shall contain . . . [a] statement of facts, setting forth the facts relevant to the

issues presented for review with appropriate references to the record.” The trial transcripts

relevant to the defendant’s first issue – from a pretrial hearing through the jury charge –

consist of 412 pages. The sentencing hearing transcript relevant to the defendant’s third

issue is contained in yet another volume. The defendant’s failure direct our attention to

specific portions of these transcripts renders review of his claim unnecessarily onerous.

The defendant’s statement of facts consists of one and one-half pages of cryptic

statements of only some of the trial witnesses. It does not give an intelligent account of the

evidence heard by the trial court and the jury that potentially relates to his claims to assist us

in determining whether an error occurred in the court below. Moreover, it is neither

comprehensive nor sufficient enough to assist this court in determining whether an error, if

any, is prejudicial.

Failure to include a meaningful statement of facts may result in waiver of an

appellant’s claims. See, e.g., State of Tennessee v. David Humphreys, NO.

01C01-9511-CR-00363, 1996 Tenn. Crim. App. LEXIS 519, at ** 16-18 (Tenn. Crim. App.

Aug. 22, 1996). The appellate rules aid the efficient administration of justice on appeal.

They must be scrupulously followed. The filing of such a brief in the future will not be

tolerated.

II.

With respect to the defendant’s first claim, the inadequacy of the defendant’s

statement of facts is compounded by his failure to clearly and precisely state the nature of his

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claims concerning missing evidence. While the defendant cites the Due Process Clause of

the Fourteenth Amendment and summarizes a leading case concerning missing evidence

(State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999)) and a brace of important U.S. Supreme

Court cases concerning the Confrontation Clause of the Sixth Amendment, the defendant

never clearly specifies what evidence he believes was missing or explains how its absence

violates his rights. There is simply no coherent legal argument on this issue. “Issues which

are not supported by argument, citation to authorities, or appropriate references to the record

[are] treated as waived in this court.” Tenn. R. Ct. Crim. App. 10; see also T.R.A.P.

27(a)(7).

We learn from the State’s brief that the defendant is complaining about two gold rings

that were discovered in a pawn shop during the course of the police investigation. According

to the State, an investigating officer contacted one of the defendant’s victims and asked her

to meet him at a pawn shop, where she identified two gold rings (pawned by the defendant)

as stolen property belonging to her. The State claims that the police officer left these rings

in the custody of the pawn shop, as per police procedure, and they were later inadvertently

melted down by the shop. According to the State, the defendant filed a motion to dismiss the

indictment or in the alternative to suppress testimony concerning this missing evidence. The

State claims that the trial court denied this motion but provided a curative instruction to the

jury, explaining that if the jury found that the State had failed in its duty to gather and

preserve evidence, “you may infer that the absent evidence would be favorable to the

defendant.” Obviously, these facts, this procedural history, and these arguments should have

been contained somewhere in the defendant’s brief. They were not.

In addition, the defendant failed to include a transcript of the hearing that the trial

court held concerning his motion to suppress. It is the appellant’s duty to prepare a record

on appeal that “convey[s] a fair, accurate and complete account of what transpired with

respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). Because of

these omissions, “we must conclusively presume that the ruling of the trial court . . . was

correct.” State v. Roberts, 755 S.W.2d 833 (Tenn. Crim. App. 1988). The defendant’s claims

concerning any error that may have been committed by the trial court with respect to its

treatment of missing evidence are deemed waived and are denied accordingly.

III.

The defendant claims that the trial court erred by denying the defense’s pre-trial

motion in limine and allowing the admission of certain photographs taken by a CVS store

surveillance camera on the grounds that this evidence was not “[a]uthenticated per the [r]ule

of evidence in that no [c]hain of custody was ever established.” The trial court addressed the

issue of the admissibility of these photographs – which the prosecution intended to offer to

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prove that the defendant was in the vicinity of the burglary and the attempted burglary around

the time they were committed – in a jury-out hearing immediately following voir dire.

During that hearing, the State presented the testimony of manager of the Murfreesboro Road

CVS, Mr. Tony Henson. Mr. Henson testified that he had been working at that location for

the last ten months, but he was not working there on November 13, 2009 – the date stamped

on the photographs. He testified that he was familiar with the scene depicted in the

photographs and recognized it as the entrance to his store. He testified that his predecessor

had given a CD containing the photographs to detectives and that his predecessor was no

longer with the company. He testified that the store only retains camera footage for two

months, that he could no longer reproduce the photographs, and that while he had seen the

photographs when a detective showed him the CD, he had never had custody or control over

the photographs themselves.

The State supported Mr. Henson’s testimony with the testimony of Ms. Robin TateJohnson, an eyewitnessto the events depicted in the photographs. Ms. Tate-Johnson testified

that on November 13, 2009, she was across the street from the CVS pharmacy in question.

She testified that she recognized the individual depicted in the photograph because he had

walked back and forth in front of her house earlier in the day. She testified that at

approximately 10:30 a.m., she saw this individual enter the CVS store, and she testified that

the photographs at issue were a fair and accurate representation of what she saw that day,

albeit from a different angle.

Detective Kevin Wallace of the Metropolitan Nashville Police Department testified

that during his investigation of the crimes at issue he had learned from a witness that the

defendant had entered the CVS store in question. As a result, he had contacted the store

manager and asked to review the store’s surveillance footage. He received a CD from the

store’s then-general manager, but due to some technical difficulties, that CD contained only

still photographs taken by the store’s surveillance camera on the day in question. He testified

that the five photographs which the State sought to enter into evidence were fair and accurate

representations of photographs he received on the CD on that day. On cross-examination,

Detective Wallace acknowledged that he was not present when the CVS store manager

“burned” the CD and that he never viewed the security footage with the store manager. At

the conclusion of this testimony, the trial court heard arguments from the parties and denied

the defendant’s motion in limine on grounds that the current CVS manager had knowledge

of the store and its surveillance system which was sufficient, when combined with the other

testimony, to establish the identity and integrity of the photographs and thereby render them

admissible.

Tennessee Rule of Evidence 901(a), which governs the authentication of evidence,

provides: “The requirement of authentication or identification as a condition precedent to

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admissibility is satisfied by evidence sufficient to the court to support a finding by the trier

of fact that the matter in question is what its proponent claims.” Our courts have construed

this rule as imposing a requirement that “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. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998).

Whether evidence has been sufficiently authenticated to be admissible pursuant to this rule

is a question left “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.” Id. at 701.

It is plain from the record that the former CVS manager who actually made the CD

containing the five still pictures did not testify. Thus, the chain of custody was only

established from the point at which the CD left the former manager’s hands and was given

to the officer. “However, the failure to call all of the witnesses who handled the evidence

does not necessarily preclude its admission into evidence.” Id. The State must only establish

circumstancesthat reasonably assure the identity of the evidence and itsintegrity, not exclude

every possibility of tampering. See id.

We do not believe that the trial court abused its discretion in concluding that the State

presented sufficient evidence to reasonably establish the identity and integrity of the

evidence. As the CVS store’s current manager, Mr. Henson had working knowledge of the

store and its security system. He had the knowledge necessary to attest to the fact that the

five pictures at issue were taken by CVS security cameras and depicted the front of the

particular CVS store in question. While some residual doubt might have remained about

whether the pictures were in fact taken on the date and time reflected on their time stamp –

and Mr. Henson did not have any personal knowledge relevant to this issue – any such doubt

was alleviated by Ms. Tate-Johnson’s testimony to the effect that the pictures accurately

reflected events that she had personally viewed on the date and time that was reflected on the

time stamp. Taken together, the testimony presented by the State reasonably assured the

identity and integrity of the still photographs. The trial court did not abuse its discretion by

denying the defendant’s motion in limine.

IV.

The defendant claims that the trial court erred by ordering him to serve two of his

sentences consecutively. In support of his argument, the defendant cites to two cases, both

of which concern the severance of indictments and neither of which discusses consecutive

sentencing. The State’s brief also fails to discuss consecutive sentencing, instead arguing

that the defendant’s dual convictions for aggravated burglary and attempted aggravated

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burglary do not violate double jeopardy and due process principles. A transcript of the

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sentencing hearing has been included in the record, however, and notwithstanding the

defendant’s arguable waiver of the sentencing issue due to inadequate briefing, the state of

the record on appeal is sufficient to allow us to engage in meaningful review of the issue.

The burden of demonstrating that a sentence is erroneous is placed upon the appealing

party. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). “When a sentence is challenged,

‘the appellate court shall conduct a de novo review on the record of the issues . . . with a

presumption that the determinations made by the court from which the appeal is taken are

correct.’” State v. Cross, 362 S.W.3d 512, 525 (Tenn. 2012) (quoting T.C.A. §§

40-35-401(d); 40-35-402(d)). The presumption that the sentencing court’s factual

determinations are correct “‘is conditioned upon the affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and circumstances.’”

Carter, 254 S.W.3d at 344-45 (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)).

If the trial court fails to follow the sentencing act, the presumption of correctness fails and

our review becomes simply de novo. See id. at 345.

“Whether sentences are to be served concurrently or consecutively is primarily within

the discretion of the trial court.” State v. Dorantes, 331 S.W.3d 370, 392 (Tenn. 2011). A

trial court may order sentences to be served consecutively if it finds by a preponderance of

the evidence that, inter alia, that “[t]he defendant is a professional criminal who has

knowingly devoted the defendant’s life to criminal acts as a major source of livelihood,”

“[t]he defendant is an offender whose record of criminal activity is extensive,” or “the

defendant is sentenced for an offense committed while on probation.” T.C.A. §§

40-35-115(b)(1); 40-35-115(b)(2); 40-35-115(b)(6). Before imposing a consecutive

sentence, a trial court should also consider general sentencing principles, including whether

the length of a sentence is justly deserved in relation to the seriousness of the offense. See

State v. Imfeld, 70 S. W.3d 698, 708 (Tenn. 2002).

The trial court found that the defendant qualified for consecutive sentencing on all

three grounds discussed above, and the record supports this conclusion. With respect to the

trial court’s finding that the defendant was an offender whose record of criminal activity was

extensive and that he was a professional criminal using criminal acts as a major source of his

livelihood, the defendant’s presentence report reflectsthat he has numerous prior convictions

for aggravated burglary, burglary, and theft of property. The defendant has at least eight

prior felony convictions and fifteen prior misdemeanor convictions, some going as far back

as 1999. While the defendant reported on his presentence report that he had previously been

employed at a number of landscaping and cleaning businesses, none of these employment

 Neither of these constitutional issues is raised in the defendant’s brief. 1

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claims could be verified, and there is no other proof in the record that the defendant has been

gainfully employed for any significant period of time. With respect to the remaining factor,

the record also reflects, as the trial court found, that the defendant was on probation for a

2009 burglary conviction when he committed these crimes.

Any one of these findings would have sufficed to support a decision by the trial court

to impose consecutive sentences; the trial court did not err by ordering the defendant to serve

two of his three sentences consecutively after finding that all three factors were present. Nor

can a twenty-five year effective sentence be considered unjust in light of the defendant’s

burglaries, which according to the testimony of the victims included the needless destruction

of one victim’s garage door, the breaking of additional doors (and a window) beyond those

necessary to accomplish the crimes, additional wanton vandalism and destruction committed

inside one of the residences, and the needless mistreatment and reckless endangerment of

several pets. The defendant’s claim that the trial court erred by ordering him to serve two

of his three sentences consecutively is denied.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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