State of Tennessee v. Mark Dewayne Culbertson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 22, 2007 Session

STATE OF TENNESSEE V. MARK DEWAYNE CULBERTSON

Direct Appeal from the Circuit Court for Sevier County
No. 9589-II Rex Henry Ogle, Judge

No. E2006-01572-CCA-R3-CD - Filed January 7, 2008

A Sevier County jury convicted the Defendant, Mark Dewayne Culbertson, of possession of a
controlled substance in a penal institution, a class C felony. The trial court sentenced the
Defendant, a Range II offender, to eight years and six months in prison. On appeal, the
Defendant contends that the trial court erred when it: (1) denied his motion to suppress his
statement; (2) denied his motion for judgment of acquittal; (3) denied his motion for a new trial
because he was not notified pretrial that the controlled substance was destroyed during testing;
(4) denied his motion for new trial based upon prosecutorial misconduct; (5) failed to order a
new trial because of newly discovered evidence; and (6) improperly sentenced the Defendant.
Finding that there exists no error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

Robert L. Vogel, Knoxville, Tennessee (on appeal) and James Greenlee, Sevierville, Tennessee
(at trial) for the Appellant, Mark Culbertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Leslie E. Price, Assistant Attorney General; Al Schmutzer, District Attorney General; Jeremy
Ball, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION
I. Facts
A. Trial

The Sevier County Grand Jury indicted the Defendant on one count of possession of a
controlled substance in a penal institution. At the Defendant’s trial on this charge, the following
evidence was presented: Brian Smith, a corrections officer at the Sevier County Jail, testified
that, on November 26, 2002, he searched the Defendant before admitting him into jail. When the
Defendant entered the jail, Officer Smith asked the Defendant to place everything that he had on
his person on the counter so that he could log it into the jail’s property files. Officer Smith
specifically asked the Defendant if the Defendant possessed any needles, drugs, or tobacco, and
the Defendant responded negatively. Officer Smith patted down the Defendant and did not find
anything. He then asked the Defendant to have a seat and to remove his shoes. In the
Defendant’s right shoe, the officer found a plastic bag containing a white substance. The officer
described the shoes as similar to tennis shoes. The Defendant asked the officer if the officer was
going to “charge him with it,” and the officer said that decision was not his.

Officer Smith took the Defendant to Sergeant Mays, who said the substance must be sent
to the crime laboratory for testing. The officer then brought the Defendant to a detective at the
Sheriff’s Office. Officer Smith testified that the Defendant became upset after Sergeant Mays
decided that the officer should contact the detectives at the Sheriff’s Office. The Defendant
made statements that the officers did not have to contact detectives and “things of that nature.”

On cross-examination, the Officer Smith testified that he described this event in an
incident report. Officer Smith said there was no possibility the Defendant’s shoes were boots.
He agreed that immediately after he found the substance he went to his sergeant because Officer
Smith could not identify the substance. The officer and the sergeant returned to the Defendant
shortly thereafter to “see if he would acknowledge what the substance was.” The officers did not
offer the Defendant Miranda warnings but still asked him about the substance. The Defendant
asked the officers “not to charge him for it.” The officer said that “the first time” the Defendant
asked that he not be charged was in response to this inquiry.

Jeff McCarter, a detective with the Sevier County Sheriff’s Department, testified that on
November 26, 2002, Officer Smith came to his office because the officer confiscated some
contraband from a man he booked into jail. The detective sent the substance to the Tennessee
Bureau of Investigations (“TBI”) crime laboratory for examination.

Jacob White, a special agent with the TBI, testified that he analyzed the substance found
in this case and determined that the substance contained psilocin, a hallucinogenic substance
contained in some varieties of mushrooms. He said that psilocin is a controlled substance in
Tennessee. Agent White determined that the substance weighted 0.6 grams. On cross-
examination, the agent testified that the substance was consumed by the analysis, meaning that
the entire sample was necessary to make an identification of the controlled substance contained
in the material. The agent described the substance as “porous” and said the sample was roughly
the size of a half dollar.

For the Defendant, Thomas Carr testified that he used to live with the Defendant in
Gatlinburg. When they moved into the apartment, there was a pair of boots Carr described as
steel-toed, brown, and above the ankle. He said that he let the Defendant wear those boots in
November of 2003. On cross-examination, Carr testified that he knew the Defendant because he
and the Defendant both worked for John Tate’s construction company. Carr explained that the

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boots were size 10 or 10½ and that he never saw the Defendant wearing them.

John Tate testified that he knew the Defendant because his cabin rental company
previously employed the Defendant as a maintenance man. Tate testified the Defendant was
working for him the day that he was arrested. He noticed that the Defendant wore dark-colored,
steel-toed boots. The Defendant had previously told Tate that the boots had been left at Carr’s
cabin. Tate testified he trusted the Defendant with the keys to approximately 120 cabins, and he
never suffered a loss as a result of the Defendant having those keys. Tate described the
Defendant as having a reputation in the community for honesty.

On cross-examination, Tate recalled the Defendant was arrested in November 2002,
shortly before Thanksgiving. Tate knew of the Defendant’s previous convictions and that he
served time in jail, but he did not know of the Defendant’s specific convictions for class C
felony theft, class D felony theft, two counts of class E felony theft, aggravated burglary, and
misdemeanor theft. Tate said he felt the Defendant was honest from working with him, but he
agreed he did not take into account his previous convictions.

The Defendant testified that, the day he was arrested, he was wearing a pair of boots that
he borrowed from his roommate, Carr. He said that the officer pulled out the insoles of his boots
and found “some substance” in a clear little baggie. The jailer asked him what the substance
was, and the Defendant said, “I don’t know . . . . I’ve never seen it before.” The Defendant
denied telling the jailer that the jailer did not have to “charge [him].” The Defendant said he was
not given a chance to explain that the boots were not his, and he did not knowingly put the
substance in his boot.

On cross-examination, the Defendant said that the jailer took the boots from him after
intake because “you are not allowed to wear steel-toed boots” in the jail, and he did not receive
the boots back until he left the jail. Further, he said he did not own a pair of Airwalk tennis
shoes, but he had a pair of Nike tennis shoes. The Defendant conceded he had previous
convictions, and the State went through each of those convictions. The Defendant clarified that
he usually wore tennis shoes to work and only wore boots the day he was arrested because he
was pressure washing and needed boots.

Based upon this evidence, the jury convicted the Defendant of introducing a controlled
substance into a penal institution.

B. Sentencing Hearing

At the sentencing hearing, the State presented evidence that the Defendant had several
felony convictions. On February 1, 1994, the Defendant pled guilty to two counts of felony theft
and two counts of aggravated burglary. He was convicted of aggravated burglary in 1995 and of
felony reckless endangerment on April 28, 1997. Further, the Defendant had been convicted of
several misdemeanors, for a total of fourteen prior convictions. The State argued that the trial
court should sentence the Defendant, a Range II offender, to the top of the six to ten year
applicable range. The Defendant testified that he has tried to be a good citizen since he got out

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of prison, and he did not intend to introduce contraband into the jail. The Defendant agreed he
had several parole and probation violations but stated that those violations were for not paying
all of his fines.

The trial court found that there were no applicable mitigating factors and that two
enhancement factors applied: that the Defendant had an extensive criminal history; and that he
had previously failed to comply with the terms of probation. Based upon this evidence, the trial
court sentenced the Defendant as a Range II offender to eight and a half years in prison.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it: (1) denied his
motion to suppress his statement; (2) denied his motion for judgment of acquittal; (3) denied his
motion for a new trial because he was not notified pretrial that the controlled substance was
destroyed during testing; (4) denied his motion for new trial based upon prosecutorial
misconduct; (5) failed to order a new trial because of newly discovered evidence; and (6)
improperly sentenced the Defendant.

A. Motion to Suppress

The Defendant contends that the trial court erred when it admitted the Defendant’s
statement into evidence. He asserts that for Miranda purposes, he gave this statement while in
custody, and that his statement was the result of an illegal interrogation and not voluntarily
given. The State counters that the Defendant was in jail being booked on unrelated charges and
that he was not in custody for Miranda purposes.

At trial, the officer first testified that immediately after he found the substance in the
Defendant’s shoe, the Defendant told the officer that the officer did not have to charge him with
“it.” On cross-examination, the officer testified differently, stating that immediately after he
found the substance he went to his sergeant because he could not identify the substance. The
officer and the sergeant returned to the Defendant shortly thereafter to “see if he would
acknowledge what the substance was.” They did not give the Defendant Miranda warnings, but
they asked him about the substance. The Defendant responded by asking the officers “not to
charge him for it.” The officer said that “the first time” the Defendant asked that he not be
charged was in response to this inquiry. The Defendant’s attorney requested a side bar with the
trial court during which he asserted that the statement was inadmissible because the Defendant
had not been given his Miranda warnings. The trial court disagreed, finding that the officer had
previously testified that the Defendant spontaneously made the statement and that it was,
therefore, an issue that affected the officer’s credibility. At the hearing on the Defendant’s
motion for new trial, the trial court stated:

The statement of [the Defendant] to the officer at the jail, I am satisfied in
my mind that he made it, that he knew it was there, I am satisfied of that. I was
[here] the day of the trial and as I say, I wouldn’t believe him on a stack of Bibles
as high as this courthouse. But whether a jury does or not, again, that’s up for

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 them to decide.

The Fifth Amendment to the United States Constitution provides in part that “no person .
. . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend.
V. Similarly, article I, section 9 of the Tennessee Constitution states that “in all criminal
prosecutions, the accused . . . shall not be compelled to give evidence against himself.” Tenn.
Const. art. I, § 9. The United States Supreme Court has held that the protections afforded by the
Fifth Amendment require that precautions be taken before statements obtained through custodial
interrogation are allowed as evidence against an accused. Miranda v. Arizona, 384 U.S. 436,
479 (1964). Generally, when statements made by an accused are the product of a custodial
interrogation by law enforcement officers, the statements may not be admitted into evidence
unless the accused is:

Warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.

Id. Only when the suspect is informed of his rights via the Miranda warnings may a suspect be
deemed to knowingly and intelligently waive the right to remain silent and the right to an
attorney. Id. Moreover, any statement obtained after a waiver of this right must be voluntary
and not be extracted by “any sort of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper influence.” Bram v. United
States, 168 U.S. 532, 542-43 (1897).

The protections provided under Miranda do not apply in every instance where a police
officer questions a suspect; rather, these protections only apply “when the defendant is in
custody and is subjected to questioning or its functional equivalent.” Walton, 41 S.W.3d at 82.
Miranda warnings are required only when a person is subject to custodial interrogation by law
enforcement. “Custodial” means that the subject of questioning is in “custody or otherwise
deprived of his freedom by the authorities in any significant way.” Miranda 384 U.S. at 479.
“Interrogation” has been interpreted to refer to questions that law enforcement officers should
know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S.
291, 301 (1980). In order for Miranda to apply, the suspect’s statements must be in response to
interrogation by law enforcement personnel, State v. Brown, 664 S.W.2d 318, 321 (Tenn. Crim.
App. 1983), or the suspect must know that he is being interrogated by an agent of the State.
Illinois v. Perkins, 496 U.S. 292, 296-97 (1990). “Absent either one of these prerequisites, the
requirements of Miranda are not implicated.” Id. For instance, on-the-scene questioning does
not require Miranda warnings. Miranda, 384 U.S. at 477; State v. Goss, 995 S.W.2d 617, 629
(Tenn. Crim. App. 1998).1
1

In Miranda, the Supreme court stated:

W hen an individual is in custody on probable cause, the police may, of course, seek out evidence in
the field to be used at trial against him. Such investigation may include inquiry of persons not under
restraint. General on-the-scene questioning as to facts surrounding a crime or other general
questioning of citizens in the fact-finding process is not affected by our holding. It is an act of
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 The Miranda standards are modified, however, when the suspect subjected to questioning
is already in custody because he is incarcerated. In Tennessee, the standard to determine
whether Miranda warnings must precede questioning in a prison setting were set out in State v.
Goss. 995 S.W.2d at 629. In Goss, this Court held that a prisoner is not automatically “in
custody” within the meaning of Miranda; there must be an additional imposition on the inmate’s
freedom of movement. Id. Relevant to this determination is (1) the language used to summon
the inmate, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate
is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain the
inmate. Id. These factors are also the appropriate consideration when determining whether a
defendant, who is being booked into jail on an unrelated charge, is “in custody” for purposes of
Miranda when the defendant gives statements relevant to another offense.

In the case under submission, if the Defendant’s statement was made spontaneously and
immediately after the jailer found the substance, the statement is clearly admissible. Under those
circumstances, it would not be the result of any question, i.e., interrogation, at all. The closer
question occurs if the statement was made in response to the jailer’s inquiry of the nature of the
substance. Even in that scenario, though, we conclude that the statement is admissible. The
mushroom substance was uncovered in the course of a routine search, and the jailer was unsure
of the substance’s nature, which, as a mushroom, was not readily apparent. The jailer went to
his supervisor to see if the supervisor could identify the substance and determine whether it was
contraband. The supervisor, also unsure of the nature of the substance, asked the Defendant
what the substance was. This questioning took place in the same jail intake area where the
Defendant was being booked on unrelated charges. Under these circumstances, we conclude that
this question occurred during the fact finding process when the officers were attempting to
determine whether the substance was contraband. As such, this question amounted to an on-the-
scene, investigatory question. “‘Responses to general on-the-scene questioning by an officer
during the fact finding process as facts surrounding the crime are admissible evidence.’” Goss,
995 S.W.2d at 629 (quoting State v. Johnson, 685 SW.2d 301, 306 (Tenn. Crim. App. 1984)).
We hold that the trial court properly admitted this statement.

B. Motion for Judgment of Acquittal

The Defendant contends that the trial court erred when it denied his motion for judgment
of acquittal and that the evidence is insufficient to sustain his conviction. He asserts that,
because his statement was inadmissible and could not properly be considered by the jury, the
State did not prove the elements of the crime. The Defendant asserts that the officer contradicted
himself and “admission of the [Defendant’s] statement violated the substantial rights of the
[D]efendant.” Finally, he asserts that the State did not prove that he acted knowingly as is
required for this offense.
responsible citizenship for individuals to give whatever information they may have to aid in law
enforcement. In such situations the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present.

Id. at 477-78 .

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 We apply the same standard when reviewing whether a trial court erred in denying a
motion for judgment of acquittal as when reviewing whether the evidence was sufficient to
sustain a conviction. See State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998); State v.
Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). When an accused challenges the
sufficiency of the evidence, this Court’s standard of review is whether, after considering the
evidence in the light most favorable to the State, “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see Tenn. R. App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004)
(citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
A conviction may be based entirely on circumstantial evidence where the facts are “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the
Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the
weight to be given to circumstantial evidence, and “[t]he inferences to be drawn from such
evidence, and the extent to which the circumstances are consistent with guilt and inconsistent
with innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citations omitted).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-
evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor
may this Court substitute its inferences for those drawn by the trier of fact from the evidence.
State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn.
1956). “Questions concerning the credibility of the 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.”
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court
stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see
the witnesses face to face, hear their testimony and observe their demeanor on the
stand. Thus the trial judge and jury are the primary instrumentality of justice to
determine the weight and credibility to be given to the testimony of witnesses. In
the trial forum alone is there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view of
the evidence contained in the record, as well as all reasonable inferences which may be drawn
from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279
(Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption of
innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden

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of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

In order to sustain a conviction for introducing contraband into a penal institution, the
State must prove that the defendant, knowingly and with unlawful intent, did take, send or
otherwise cause contraband, such as a controlled substance, to be taken into a penal institution
where prisoners are quartered or are under custodial supervision. See T.C.A. § 39-16-201(a)(1)
(2006).

We conclude that the evidence, viewed in the light most favorable to the State, is
sufficient to sustain the Defendant’s conviction, and the trial court, therefore, did not err when it
denied the Defendant’s motion for judgment of acquittal. The Defendant was arrested on an
unrelated matter and transported to the jail. Per jail intake procedures, the jailer asked the
Defendant if the Defendant had any contraband on his person, and the Defendant responded
negatively. The jailer then searched the Defendant, finding an illegal substance located in his
shoe. The Defendant stated that the jailer did not have to charge him for having the substance.
At trial, the Defendant contended that the boots were borrowed, and he had no knowledge that
the mushroom was located in the boot. The jury discredited this testimony, and the trial court
also found the Defendant not credible. We conclude that a rational trier of fact could have found
the essential elements of this crime beyond a reasonable doubt. Accordingly, the Defendant is
not entitled to relief on this issue.

C. Testing of the Evidence

The Defendant next contends that the State’s failure to disclose the “forensic interview
summary,” which included information that the recovered substance was destroyed during
testing, violated Rule 16 of the Tennessee Rules of Criminal Procedure. The Defendant asserts
that the State, on direct examination of the TBI forensic agent, offered into evidence a bag that
purportedly contained the contraband substance. Then, on cross-examination, the agent admitted
that the bag was empty because all of the substance was consumed during testing. The
Defendant asserts that the fact that all of the substance had been destroyed should have been
disclosed to him prior to trial. He asserts this prejudiced him because, had he been properly
notified, he could have asked that his own expert either participate in or be permitted to observe
the testing.

Tennessee Rule of Criminal Procedure 16 describes the procedure for the State’s
disclosure of evidence:

(a) Disclosure of Evidence by the State.

(1) Information Subject to Disclosure.

....

(F) Documents and Objects. Upon a defendant’s request, the state

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 shall permit the defendant to inspect and copy or photograph
books, papers, documents, photographs, tangible objects,
buildings, or places, or copies or portions thereof, if the item is
within the state’s possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its
case-in-chief at trial; or
(iii) the item was obtained from or belongs to the
defendant.
(G) Reports of Examinations and Tests. Upon a defendant’s
request, the state shall permit the defendant to inspect and copy or
photograph the results or reports of physical or mental
examinations, and of scientific tests or experiments if:
(i) the item is within the state’s possession, custody,
or control;
(ii) the district attorney general knows--or through
due diligence could know-- that the item exists; and
(iii) the item is material to preparing the defense or
the state intends to use the item in its case-in-chief
at trial.

To enforce the rule, Rule 16(d)(2), provides that if there has been noncompliance, the trial court
may order the offending party to permit the discovery or inspection, grant a continuance,
prohibit the introduction of the evidence not disclosed or enter such other order as the court
deems just under the circumstances. See State v. Leon Goins, No. W1999-01681-CCA-R3-CD,
1999 WL 1531111, at *2 (Tenn. Crim. App., at Jackson, Dec. 27, 1999), perm. app. denied
(Tenn. July 17, 2000). “Thus, it is clear that the court has wide discretion to fashion a remedy
that is appropriate for the circumstances of each case and the sanction must fit the circumstances
of that case.” Id. (citations omitted); see State v.James, 688 S.W.2d 463, 466 (Tenn. Crim. App.
1984). Whether a defendant has been prejudiced by the State’s failure to disclose information is
a significant factor in determining an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270
(Tenn. Crim. App. 1995). The Defendant bears the burden of showing “the degree to which the
impediments to discovery hindered trial preparation and defense at trial.” State v. Brown, 836
S.W.2d 557, 560 (Tenn. 1993).

In the case under submission, our first inquiry is whether the State violated Tennessee
Rule of Criminal Procedure 16. The technical record does not contain a Rule 16 motion for
discovery filed by the Defendant, and the record does not reflect that the trial court ruled upon a
motion for discovery. It is the duty of the appellant to prepare a record that conveys a fair,
accurate, and complete account of what transpired in the trial court with respect to the issues that
form the basis for the appeal. Tenn. R. App. P. 24(b); State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). When
the record is incomplete and does not contain information relevant to a particular issue, this
Court may not make a ruling. State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997);
State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987). In the absence of an adequate

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record, this Court must presume the correctness of the trial court’s ruling. State v. Bibbs, 806
S.W.2d 786, 790 (Tenn. Crim. App. 1991). Appellate courts may only review what is in the
record and not what might have been or should have been included. Dearborne v. State, 575
S.W.2d 259, 264 (Tenn. 1978).

It was only during the trial, when he learned that the substance had been consumed
during testing, that the Defendant objected, arguing that the failure to disclose this consumption
prejudiced him. The Defendant never sought to obtain the substance for testing before trial, nor
did he seek to have an expert present when the substance was tested. The Defendant has not
shown any prejudice. He is not entitled to relief on this issue.

D. Alleged Prosecutorial Misconduct

The Defendant next contends that the State committed prosecutorial misconduct when it
attempted to enter an empty evidence bag into evidence. In order to prevail on a claim of
prosecutorial misconduct, the defendant must demonstrate that the conduct committed by the
prosecution was so inflammatory or improper that it affected the verdict to his detriment.
Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965); State v. Gray, 960 S.W.2d
598, 609 (Tenn. Crim. App. 1997). In making this determination, this Court is guided by five
factors:

1. The conduct complained of viewed in context and in light of the facts and
circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the
record.
5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see State v. Buck, 670 S.W.2d
600, 609 (Tenn. 1984).

We conclude that the State’s actions were not improper. It appears from the trial
transcript that the State questioned the special agent about the testing of the substance. It also
asked the agent about his procedures after testing the substance, and the agent responded that,
after he finished his analysis, he resealed the bag and initialed the seal. The State then asked the
agent to unseal the bag and verify that it contained the same substance he received. On cross-
examination the agent testified that the bag was empty because the substance had been
consumed during analysis. The Defendant made no objection. We conclude that the record does
not show that the State acted improperly. It does not appear that the State attempted to hide from
the Defendant the fact that the substance was consumed. The Defendant is not entitled to relief
on this issue.

E. Newly Discovered Evidence

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 The Defendant next contends that he should be granted a new trial because he provided
the trial court with newly discovered evidence that another person claimed to have owned the
boots and the illegal mushroom contained therein. At the motion for new trial hearing, Rocky
Wolfenbarger testified that he was incarcerated in the Sevier County Jail. He said that he lived
in the apartment before the Defendant, and he left in that apartment a pair of boots in which he
stored an illegal mushroom. He said that he did not come forward before because he did not
know that the Defendant was being prosecuted for this offense. Wolfenbarger then met the
Defendant in jail and learned that he had been prosecuted for the mushroom in Wolfenbarger’s
boots. On cross-examination, Wolfenbarger testified he did not know the mushroom was in his
boots, and he did not tell the Defendant that he hid the mushroom in the boot. He said that he
could have hid the mushroom in the boot. The State then asked Wolfenbarger if “to [his]
knowledge, [the Defendant asked people in jail] to come and testify for him, that it was in fact
their mushroom.” Wolfenbarger responded, “I’m, I’m not sure. Like I said, we w[ere] in there
maybe three weeks together.” Wolfenbarger then said that the Defendant asked one other person
to testify that the mushroom belonged to them.

The trial court found:

This Court, any time that you have a situation such as this, a Court has to
look at it and to make the evaluation about the, certainly the due diligence aspect
of it. That’s probably been met. Although from the testimony of Mr.
Wolfenbarger it’s hard to say. It’s hard to say.

Certainly, based on his testimony that it was his [boot] would have
corroborated the testimony of [the Defendant]. And I will be just extremely
honest with you. I wouldn’t believe [the Defendant] on a stack of Bibles as high
as this courthouse. Because the truth I don’t think is in him, he’s a thief from
head to toe, not worthy of belief on anything.

I think he lied in front of the jury, they thought he lied. But that’s not the
issue this Court has to decide. This man has just, he’s just got a record a mile
long, a thief and a burglar.

Now, looking at Mr. Wolfenbarger’s testimony, depending on which
version of his testimony here today a jury believed, it could support [the
Defendant’s] testimony.

Quite candidly as it relates to myself, I think it’s very dubious that Mr.
Wolfenbarger walk in here after the Statute of Limitations has long long expired
and at one point say it’s his, at one point he says he doesn’t know. At one point
he says it could have been. Again, I wouldn’t believe him, I wouldn’t believe him
at all.

I tend to think this is contrive[d], not by the attorneys, but I tend to think
that this has been a contrive[d story] by [the Defendant] and Mr. Wolfenbarger.

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 But on the other hand, just because I wouldn’t believe him or [the
Defendant] either one do[esn’t] mean a jury wouldn’t.

....

Even if [the jury were to] believe the testimony on [Mr. Wolfenbarger’s]
Affidavit in 2003, that’s six months after this even occurred. . . . Even if th[e jury]
believe what he swor[e] to in this Affidavit he said on cross examination today
that he was sure that that was the year, March of ’03, through the latter part of
’03, that he lived there. That was . . . several months after [the Defendant] was
taken into jail and this event occurred.

So even taking the Affidavit as completely true, it is after this event even
occurred.

The Defendant’s attorney then told the trial court that the date on the affidavit was a mistake,
and the correct date was before the events in this case occurred. The trial court then found:

This Court, because the Court has to pass upon the credibility of the
testimony of Mr. Wolfenbarger, that is a crucial element of what the Court has to
decide.

The Court quite candidly, as I said earlier, has great difficulty, and here all
of a sudden a man who now faces no criminal responsibility, comes into this
Court and says ultimately, I suppose, if you want to put it that way, that it was his
mushroom.

In one sense, the issue of the ownership of the shoes is not that
controlling. In fact, that was the defense, that [they were not] his shoes. The
[D]efendant says because of that that he could not have been responsible.

The Court notes that the testimony in this case, this was not pow[d]er, this
was not fragments of a mushroom, this was a mushroom.

Mr. Wolfenbarger stated that those had been his shoes. Well, he hadn’t
been in contact with them for a long time. The Court is troubled that during his
testimony Mr. Wolfenbarger made basically three different statements, if you
include the Affidavit he’s made four different statements. The Affidavit itself
was notarized by someone that didn’t see the witness sign it.

This Court is of the opinion that based, and its basing its decision on the
credibility of Mr. Wolfenbarger, that the Court does not believe Mr.
Wolfenbarger’s Affidavit because of the inconsistency of his testimony.

That the Court feels like that this is a sham that is attempted to be

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 perpetrated on the Court. Not by the attorneys, the Court is not accusing the
attorneys of anything improper.

But the Court finds and so holds that based upon his testimony, the
contradictions in his testimony and in his Affidavit that Mr. Wolfenbarger’s
testimony, to put it mildly, is skeptical, and that the Court must find in order to
order a new trial that it in fact would have made a difference. That it might have
made a difference is not the question.

To be entitled to a new trial on the basis of newly discovered evidence, a defendant must
show: (1) that he or she used reasonable diligence in seeking the newly discovered evidence; (2)
that the new evidence is material; and (3) that the new evidence will likely change the result of
the trial. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). Whether to grant a new trial
on the basis of newly discovered evidence lies within the sound discretion of the trial court. See
State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Accordingly, we review this
issue for an abuse of discretion. See State v. Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App.
1996).

In the case under submission, we conclude that the trial court did not abuse its discretion
when it found that the Defendant was not entitled to a new trial because the newly discovered
evidence would not likely change the result of the trial. As the trial court noted, Wolfenbarger’s
affidavit listed the incorrect date, stating that he rented the same apartment as the Defendant
after these events. Further, the affidavit was not properly notarized. Again, as the trial court
noted, Wolfenbarger’s testimony at the hearing was inconsistent during direct and cross-
examinations and it was inconsistent with his affidavit. Wolfenbarger claimed that the boots and
the mushroom were his, then that the boots were his but the mushroom was not, and then that the
boots were his so the mushroom in them must have been his. He maintained that he left his
boots in the apartment. Both the jury and the trial court found that the Defendant was not
credible. Under these circumstances, we agree with the trial court that the Defendant has not
proven that Wolfenbarger’s testimony would likely change the result of his trial. He is,
therefore, not entitled to relief on this issue.

F. Sentencing

Finally, the Defendant contends that the trial court erred when it sentenced him. The
Defendant asserts that the trial court improperly used his prior convictions to enhance his
sentence when those convictions were also used to establish him as a Range II offender. The
Defendant also complains that the trial court did not create an adequate record because it failed
to make findings of fact supporting his sentence.

When a defendant challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review of the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-

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401(d) (2003).2 This presumption is “conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.”
State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W.2d 540, 543 (Tenn.
1999); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to
the legal conclusions reached by the trial court in sentencing a defendant or to the determinations
made by the trial court that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d
352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). If our review reflects that
the trial court followed the statutory sentencing procedure, imposed a lawful sentence after
having given due consideration and proper weight to the factors and principles set out under the
sentencing law, and made findings of fact that are adequately supported by the record, then we
may not modify the sentence, even if we would have preferred a different result. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We will uphold the sentence imposed
by the trial court if the following are met: (1) the sentence complies with the purposes and
principles of the Sentencing Act; and (2) the trial court’s findings are adequately supported by
the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. See T.C.A. § 40-35-401, Sentencing Comm’n
Cmts.; Arnett, 49 S.W.3d at 257.

In conducting a de novo review of a sentence, we must consider the following: (a) any
evidence received at the trial and/or sentencing hearing; (b) the presentence report; (c) the
principles of sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e) the
nature and characteristics of the offense; (f) any mitigating or enhancement factors; (g) any
statements made by the defendant on his or her own behalf; and (h) the defendant’s potential or
lack of potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (1997 & Supp. 2002);
State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).3 The party challenging a sentence
imposed by the trial court has the burden of establishing that the sentence is erroneous. T.C.A. §
40-35-401 (2006), Sentencing Comm’n Cmts. To facilitate appellate review, the trial court is
required to place on the record its reasons for imposing the specific sentence, including the
identification of the mitigating and enhancement factors found, the specific facts supporting each
enhancement factor found, and the method by which the mitigating and enhancement factors
have been evaluated and balanced in determining the sentence. See State v. Samuels, 44 S.W.3d
489, 492 (Tenn. 2001).

In the case under submission, the trial court found when sentencing the Defendant,
“based upon your long, extensive history, based upon the fact that you have . . . been revoked on
probation or parole several times, the Court is going to give you 8½ years as a sentence in this

2
W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102(6), -
114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are inapplicable
to the Defendant’s appeal.
3
Effective June 7, 2005, Tennessee Code Annotated sections 40-35-114 and 40-35-210 were rewritten in their
entirety. See Tenn. Pub. Acts, ch. 353, §§ 5, 6. These sections were replaced with language rendering the enhancement
factors advisory only and abandoning a statutory minimum sentence. See T.C.A. §§ 40-35-114 (2005) (“[t]he court shall
consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant’s sentence”);
-35-210(c) (“In imposing a specific sentence within the range of punishment, the court shall consider, but is not bound
by, the following advisory sentencing guidelines.”).
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case.” This does not adequately show that the trial court properly considered all relevant
sentencing principles. Accordingly we apply no presumption of correctness to the trial court’s
sentencing determinations. See T.C.A. § 40-35-401(d).

At the Defendant’s sentencing hearing, the evidence showed that the Defendant had
fourteen prior convictions, at least four of which were felony convictions. The Defendant
admitted under oath that he had several parole violations. The Defendant did not offer proof of
any mitigating factors. His attorney stated “his prior record, you know, certainly could justify
maybe a one or two year enhancement” and then argued that the Defendant should not be given
the maximum sentence.

The Defendant’s conviction in this case is a class C felony. In order to be classified as a
Range II, multiple offender, a defendant must have: (1) a minimum of two (2) but not more than
four (4) prior felony convictions within the conviction class, a higher class, or within the next
two (2) lower felony classes, where applicable . . . .” T.C.A. § 40-35-106(a)(1) (2003). The
Defendant has been convicted of felony theft of property valued over $1,000, a class D felony, in
1994; aggravated burglary, a class C felony, in 1994; aggravated burglary, a class E felony, in
1995; and reckless endangerment, a class E felony, in 1997. Any two of these convictions are
sufficient to establish the Defendant as a Range II offender, and he was, therefore, properly
classified as a Range II, multiple offender. The applicable sentencing range for his conviction is
six to ten years. See T.C.A. § 40-35-112.

The Defendant is a Range II offender based upon two of his four prior felony
convictions. Further, he has ten other prior convictions, which makes applicable enhancement
factor (2), that the Defendant has a previous history of criminal convictions or criminal behavior
in addition to those necessary to establish the appropriate range. See T.C.A. § 40-35-114(2)
(1997 & Supp. 2002). The State submitted copies of fourteen criminal convictions, which is
sufficiently more than necessary to establish the Defendant as a Range II offender. We conclude
that enhancement factor (2) justifies increasing the Defendant’s sentence from six years to eight
and one-half years. There are no applicable mitigating factors. As such, we agree with the trial
court’s sentencing of the Defendant to eight and one-half years. He is not entitled to relief on
this issue.

III. Conclusion

Because we conclude that the trial court committed no error in the judgment, and based
on the foregoing reasoning and authority, we affirm the judgment of the trial court.

________________________________
ROBERT W. WEDEMEYER, JUDGE

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