IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 24, 2001 Session
STATE OF TENNESSEE v. MELVIN E. BEARD
Direct Appeal from the Criminal Court for Williamson County
No. I-1098-345 Timothy L. Easter, Judge
No. M2000-02207-CCA-R3-CD - Filed January 31, 2002
After being indicted for aggravated perjury, the defendant, Melvin E. Beard, filed a motion for a bill
of particulars. In response, the state filed two bills of particulars, one on January 22, 1999 and one
on August 5, 1999. At the conclusion of a jury trial, which was held on March 8-9, 2000, the jury
convicted the defendant of aggravated perjury. The trial court sentenced the defendant as a Range
II multiple offender to serve five years in confinement. The defendant now brings this appeal
challenging his conviction and sentence on several grounds. Following a thorough review, we find
none of the issues raised warrant relief and we therefore affirm the conviction and sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL , J., joined.
Eric L. Davis, Franklin, Tennessee, for appellant, Melvin E. Beard.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ron Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for
appellee, State of Tennessee.
OPINION
Factual Background
On May 19, 1997, following a conviction of driving after being declared a motor vehicle
habitual offender, the defendant was ordered to serve a four-year term in the Community Corrections
program. On May 5, 1998, Tracie Johnson, who was serving as a confidential informant for the drug
task force of the Williamson County Sheriff’s Department, contacted the defendant, one of her drug
suppliers, and arranged to meet him in order to buy some crack cocaine from him. Ms. Johnson, who
had arranged to meet the defendant at his trailer, saw the defendant in a parking lot before their
scheduled meeting time and purchased the crack cocaine from him at that time. The police
monitored this transaction via a recording device that Ms. Johnson had agreed to wear. After the
transaction was completed, Ms. Johnson met the police and gave the cocaine to them. Subsequent
testing determined the weight of the cocaine to be 0.2 grams. Shortly thereafter, Ms. Johnson and
Mr. Bennett, Ms. Johnson’s husband who had also accompanied her when she made the earlier
cocaine purchase, drove to the defendant’s trailer to make a second cocaine purchase. Mr. Bennett
purchased the cocaine this time while Ms. Johnson waited outside the defendant’s trailer. Mr.
Bennett and Ms. Johnson then met the police and gave them the cocaine from this transaction. The
police later determined this amount to be 0.1 grams.
On May 7, 1998, Ms. Johnson and Mr. Bennett went to the defendant’s trailer in order to
make another cocaine purchase. The police also monitored this transaction through the wire
transmitter that Ms. Johnson had agreed to wear. Once Ms. Johnson and Mr. Bennett arrived, Ms.
Johnson showed the defendant her money, indicating that she wished to make a cocaine purchase.
The defendant directed Ms. Johnson to a gentleman known to her as “Painter.” Painter allotted a
certain amount of crack cocaine for Ms. Johnson; asked the defendant if that amount was
appropriate,1 to which the defendant nodded his head affirmatively; and then gave Ms. Johnson the
cocaine.
On September 28, 1998, a court held a hearing to investigate the defendant’s alleged
Community Corrections program violation, as he had tested positive for cocaine use. At the
hearing, the prosecutor asked the defendant, “While you’ve been on this Community Corrections
program, have you been involved in any way in the sale of crack cocaine?” The defendant
responded, “Not that I know of.”2 The defendant gave this testimony while under oath. The trial
court revoked the defendant’s participation in the Community Corrections program, and the
defendant was tried and convicted of aggravated perjury. He now brings this appeal challenging his
conviction on eight grounds, alleging (1) that the evidence admitted at trial was insufficient to
support his conviction; (2) that the trial court erred by allowing a police officer to offer hearsay by
testifying about his conversation with Ms. Johnson; (3) that the trial court erred by giving the jury
an unconstitutionally vague definition of material; (4) that the trial court erred by refusing to give
one of the defendant’s proposed jury instructions; (5) that the trial court erred by refusing to instruct
the jury regarding ignorance of mistake of fact; (6) that the trial court erred by refusing to grant the
defendant’s motion for judgment of acquittal; (7) that the trial court erred when sentencing the
defendant; and (8) that the trial court erred by failing to arrest judgement, as the presentment failed
to charge an offense. After reviewing these allegations, we find that none of them merit relief.
Sufficiency
The defendant challenges the sufficiency of the evidence presented at trial to support his
conviction. When a defendant challenges the sufficiency of the evidence, this Court is obliged to
1
Painter asked the defendant, “What do you think, Melvin?” Ms. Johnson testified at trial that she
believed that this question evidenced that the defendant was the actual dealer and that he w as allow ing P ainter to handle
the drug transaction for him.
2
The state filed a bill of particulars on January 22, 1999 and another on August 5, 1999 stating that the
above statement, made in the context of a Community Corrections violation hearing held in a Williamson C oun ty court,
was the alleged ly perjured statem ent.
-2-
review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury
and “approved by the trial judge, accredits the testimony of the” state’s witnesses and resolves all
conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the state “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing
or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d
380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from
circumstantial evidence." Matthews, 805 S.W.2d at 779.
The defendant was convicted of aggravated perjury. Tennessee Code Annotated section 39-
16-703 sets forth the elements of this offense: (a) A person commits an offense who, with intent to
deceive: (1) Commits perjury as defined in § 39-16-702; (2) The false statement is made during or
in connection with an official proceeding; and (3) The false statement is material. Tenn. Code Ann.
§ 39-16-703. Section 39-16-702 defines perjury as follows: (a) A person commits an offense who,
with intent to deceive: (1) Makes a false statement, under oath; (2) Makes a statement, under oath,
that confirms the truth of a false statement previously made and the statement is required or
authorized by law to be made under oath; . . . . Tenn. Code Ann. § 39-16-702.
The defendant argues that the state failed to prove, beyond a reasonable doubt, that the
defendant made a false statement under oath, that the defendant made the statement with the intent
to deceive, or that the defendant’s statement was material. However, after reviewing the record, we
find that a rational trier of fact could have found the defendant guilty of every element of aggravated
perjury beyond a reasonable doubt.
The defendant claims that the state failed to meet its burden of proving that his statement was
false because his response was merely a vague, either true or half-true, response to the state’s overly
broad question. The defendant claims that the state purposefully asked the defendant an overly broad
question, rather than a series of specific questions about the defendant’s various drug transactions,
thereby hoping to illicit a superficially false response. However, we find that the question that the
state posed to the defendant, namely, “While you’ve been on this Community Corrections program,
have you been involved in any way in the sale of crack cocaine?,” was sufficiently specific to convey
to the defendant what types of conduct the question encompassed. Moreover, the defendant’s
response, “Not that I know of,” was neither true nor half-true, but literally false. C.f. State v. Forbes,
918 S.W.2d 431 (Tenn. Crim. App.1995) (holding that a “half truth,” i.e. a literally true statement
omitting the truth of the matter, was “legally [in]sufficient to support a conviction for making a false
representation of fact”). The police monitored three separate crack cocaine sales by the defendant
during the period in which the defendant was placed in the Community Corrections program,
indicating that the defendant had indeed been involved in the sale of crack cocaine while in the
-3-
Community Corrections program. While the defendant argues that he did not make those drug sales,
the jury’s verdict of guilt accredits the state’s witnesses, who testified that the defendant did indeed
sell cocaine on these three occasions. Moreover, there is no evidence in the record to support a
finding that his statement was literally true. Therefore, a rational jury could have found that the
defendant’s response to the state’s question was a literally false statement.
The defendant also avers that his statement was not made with an intent to deceive, arguing
that the state erroneously failed to refresh the defendant’s recollection. However, as noted above,
the defendant did indeed sell crack cocaine while he was in the Community Corrections program,
and the record indicates he understood the question posed to him as to whether he had been involved
in cocaine transactions during this period. Therefore, a rational jury could have found that the
defendant made the false statement at his hearing because he intended to deceive the court and
thereby procure a less harsh punishment for his Community Corrections violation.
Finally, the defendant argues that the evidence was not sufficient to prove that the statement
was material, as defined by Tennessee Code Annotated section 39-16-701(1). Section 39-16-701(1)
defines the test for materiality as whether “the statement, irrespective of its admissibility under the
rules of evidence, could have affected the course or outcome of the official proceeding.” Tenn. Code
Ann. § 39-16-701(1). The defendant argues that the evidence presented to the jury was insufficient
to allow them to determine whether the defendant’s statement “could have affected the outcome of
the” Community Corrections violation hearing because the jury was not informed of the nature of
the defendant’s alleged violation. If the violation had involved failure to report to a supervisor,
moving without permission, or failing to perform public service hours, the defendant argues, the jury
could have found that the defendant’s statement was immaterial. The defendant argues that without
any information regarding the nature of the defendant’s violation, it was impossible for the jury to
make any determination of materiality.
The state counters that the jury was informed that a trial court has several options when
sentencing a defendant who has violated the conditions of his Community Corrections program.
After finding that a defendant has violated the conditions of this program, the court may revoke his
eligibility to participate in the program and require him to serve his entire sentence, require him to
serve a portion of his sentence and then return him to the program, or return him to the program at
Level One. The state argues that because the trial court had several options as to how to sentence
the defendant for his Community Corrections program violation, a rational jury could have found
that the defendant’s statement disclaiming any participation in illegal drug sales could have affected
the outcome of his violation hearing because the trial court, if properly apprised that the defendant
was selling drugs, could have imposed a different sentence.
We agree that based on the information presented at trial, a rational jury could have found
that the defendant’s statement was material. Although the Community Corrections revocation
proceeding was based on illegal cocaine use, as opposed to the sale of cocaine, the jury was aware
that given the myriad of options available to a trial judge when revoking Community Corrections,
lying about participation in cocaine transactions could effect the ultimate disposition of the
defendant’s revoked Community Corrections sentence.
-4-
Constitutionality of the Materiality Definition
The defendant also asserts that the definition of material as an element of perjury, which is
set forth in Tennessee Code Annotated section 39-16-701(1), is unconstitutionally vague. The Code
defines the test for the materiality element of perjury as whether “the statement, irrespective of its
admissibility under the rules of evidence, could have affected the course or outcome of the official
proceeding.” Tenn. Code Ann. § 39-16-701(1). The defendant asserts that this definition, which
the trial court included in its charge to the jury, is unconstitutionally vague because it includes the
language “could have affected,” which does not clearly define its prohibitions. The defendant asserts
that the inclusion of this language “permit[s] a jury to wildly speculate as to the potential effect of
any false statement []regardless of its actual materiality.”
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions
are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222
(1972). The fair warning requirement embodied in the due process clause prohibits the states from
holding an individual criminally responsible for conduct that he could not have reasonably
understood to be proscribed. United States v. Harriss, 347 U.S. 612, 74 S .Ct. 808, 98 L. Ed. 989
(1954). Due process requires that the law give sufficient warning so that people may avoid conduct
that is forbidden. Rose v. Locke, 423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975). The words
of a statute are to be taken in their natural and ordinary sense without a forced construction to limit
or extend their meaning. Ellenburg v. State, 384 S.W.2d 29, 30 (Tenn. 1964). Initially, trial courts
are charged with upholding the constitutionality of statutes where possible. Dykes v. Hamilton
County, 191 S.W.2d 155, 159 (Tenn. 1945); State v. Joyner, 759 S.W.2d 422, 425 (Tenn. Crim.
App. 1987). A party challenging the constitutionality of a statute has the burden of rebutting the
presumption that the statute is constitutional. Helms v. Tennessee Dep’t of Safety, 987 S.W.2d 545,
549 (Tenn. 1999); State v. Blanton, 975 S.W.2d 269, 286 (Tenn. 1998). The constitutional test for
vagueness is whether a statute's prohibitions are not clearly defined and are thus susceptible to
different interpretations as to what conduct the statute actually proscribes. State v. Forbes, 918
S.W.2d 431, 447-48 (Tenn. Crim. App. 1995); see also Grayned, 408 U.S. at 108; Baggett v. Bullitt,
377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).
A party challenging the constitutionality of a statute may challenge the statute as
unconstitutional on its face or unconstitutional as applied to that party’s case. See, e.g., State v.
Rhonda Leigh Burkhart, No. 01C01-9804-CC-00174, 1999 WL 1096051, at *3 (Tenn. Crim. App.
at Nashville, December 6, 1999), perm. to appeal granted, (Tenn. 2000). To bring a facial challenge,
the challenging party must prove that no set of circumstances exist under which the act would be
valid. Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520,525 (Tenn. 1993) (quoting
United States v. Salerno, 481 U.S. 739, 745 (1987)). This the defendant has not done.
When considering the constitutionality of the statute as applied to the defendant, the
defendant argues that the jury could not have found that the materiality prong of aggravated perjury
was supported by evidence introduced at trial because the state did not introduce evidence
concerning the nature of the defendant’s Community Corrections violation, namely whether the
defendant tested positive for cocaine use. Accordingly, the defendant argues that the jury could not
have “concluded that the defendant’s alleged false statement ‘could have’ affected the trial court’s
decision as to whether or not the defendant tested positive on July 21, 1998, as it was not informed
-5-
of the nature of the defendant’s alleged violation.” However, the jury was charged not with
determining whether the defendant’s statement could have affected the verdict, but whether his
statement “would have affected the course or outcome of the official proceeding.” Tenn. Code Ann.
§ 39-16-701(1). Although the jury was not informed of the nature of the defendant’s alleged
violation, a rational jury could have found that whether the defendant had violated another term of
enrollment in the program, namely whether he had engaged in the sale of illegal drugs, could have
affected the course or outcome of the hearing, as the trial court’s knowledge of this additional
violation could have affected its sentencing decision.
Admissibility of Hearsay Statement
The defendant argues that the trial court erred by allowing the detective who conducted
surveillance on the defendant to testify regarding the conversation that he had with Ms. Johnson, his
confidential informant, on May 5, 1998. The detective testified that while he was wiring Ms.
Johnson with a transmitting device, she told him that she had already been in contact with the
defendant earlier that day. Defense counsel made a timely objection, and the trial court ruled that
the hearsay was admissible because Ms. Johnson was still available for cross-examination. We agree
that the ruling was error. However, we find it to be harmless error in light of the other evidence
presented at trial.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). The
detective’s statement recounting his conversation with Ms. Johnson was offered for the truth of the
matter asserted, as it was offered to prove that Ms. Johnson did indeed have a conversation with the
defendant before she met with the detective. Moreover, Ms. Johnson’s availability does not cure the
hearsay problem.
The trial court admitted the hearsay statement, which had the effect of bolstering Ms.
Johnson’s testimony because Ms. Johnson had testified earlier in the trial that she had indeed spoken
with the defendant before meeting with the detective on May 5, 1998. However, while this
testimony was erroneously admitted, the defendant fails to allege how the admission of this
testimony affected a substantial right and that the admission “more probably that not affected the
judgment” of this case. See Tenn. R. App. P. 36(b). Moreover, the evidence against the defendant
was strong, as the defendant’s drug sales were recorded and introduced at trial along with Ms.
Johnson’s incriminating testimony. Therefore, because the defendant has failed to demonstrate that
he was prejudiced by this admission and because the evidence against the defendant was strong, we
find that the trial court’s error in admitting this hearsay testimony was, at most, harmless error.
Jury Instruction Challenge
The defendant argues that the trial court erroneously denied his requested jury instruction
regarding how the jury should weigh the defendant’s status as a Community Corrections program
enrollee. Specifically, the defendant requested that the trial court instruct the jury as follows:
You are further instructed that evidence that the [d]efendant was on Community
Corrections for a four year sentence cannot be considered by you for the purpose of
-6-
believing that the [d]efendant had some form of criminal conviction that could affect
his credibility or believability, or in any way be used adverse to him in these
proceedings. That evidence can be considered by you only for the limited purpose
of background information as to why he was participating in this program, and as to
the nature of a Community Corrections program. It cannot be used in any way to
impeach the character or credibility of the [d]efendant in this case.
However, the trial court instructed the jury regarding the defendant’s status as a Community
Corrections enrollee as follows:
You are further instructed that evidence of this alleged offense can only be
considered by you for the limited purpose of background information as to why the
defendant was participating in a program which resulted in his being present at an
alleged official proceeding. You may not consider such evidence to prove his
disposition to commit such a crime as to that on trial.
After the trial judge informed defense counsel that he had modified the defendant’s proposed jury
instruction to reflect the instruction above, defense counsel responded that the modified instruction
was “fine,” and when the trial judge asked for any objections, the prosecuting attorney objected, not
defense counsel. We find that the defendant waived any objection to this modified instruction by
indicating that the modified instruction was acceptable and by failing to make a contemporaneous
objection at trial.3 Moreover, the defendant fails to allege how the modified charge differed from
his proposal in such degree as to render it an erroneous instruction. Accordingly, we find that the
defendant has waived this issue on appeal. See Tenn. R. App. P. 36(a).
The defendant also argues that the trial court erred by refusing to grant the defendant’s
request for a jury instruction regarding ignorance or mistake of fact, as defined in Tennessee Code
Annotated Section 39-11-502. Ignorance or mistake of fact is a defense to prosecution, and the trial
court must instruct the jury on the defense if it is fairly raised by the proof. Tenn. Code Ann. §§
39-11-203(a), (c), -502. In determining whether a defense is fairly raised by the proof, a trial court
should consider the evidence in the light most favorable to the defendant. State v. Shropshire, 874
S.W.2d 634, 639 (Tenn. Crim. App. 1993). Moreover, if an instruction is warranted, the court must
instruct the jury that any reasonable doubt on the existence of the defense requires acquittal. Tenn.
Code Ann. § 39-11-203(d). Ignorance or mistake of fact is “a defense to prosecution if such
ignorance or mistake negates the culpable mental state of the charged offense.” Tenn. Code Ann.
§ 39-11-502(a).
We find that there was insufficient evidence presented at trial to fairly raise the defense of
ignorance or mistake of fact. While the defense’s argument is that the defendant was confused by
the state’s overly broad question posed at the Community Corrections violation hearing and that the
defendant was not in fact directly involved in the sale of crack cocaine, there is no evidence to
support a theory of confusion, ignorance, or mistake of fact. Defense counsel cross-examined the
3
Mo reover, as the state correctly notes in its brief, the defendant asked that the court adopt his requested
instruction “or w ords to that effect” in his reque st for a ju ry instruction, there by im plicitly agreeing to the court’s
mo dification o f his req uested charge.
-7-
state’s witnesses, but during cross-examination, the witnesses refused to concede that the defendant
had not been involved in the sale of crack cocaine to Ms. Johnson. Furthermore, the defense rested
after the presentation of the state’s proof, and neither the defendant himself nor any other witnesses
testified and offered proof supporting this theory. See, e.g., State v. Benjamin F. Dishman, No.
03C01-9610-CR-00361, 1998 WL 191447 (Tenn. Crim. App. at Knoxville, Apr. 23, 1998) (finding
that an instruction on ignorance or mistake of fact was not warranted because it was not fairly raised
by the proof; the defendant did not testify at trial to put forth evidence supporting such a defense and
the victim’s statements were inconsistent with such a defense); State v. Kenneth Wilson, No.
02C01-9510-CR-00322, 1996 WL 512637 (Tenn. Crim. App. at Jackson, Sept. 11, 1996) (finding
that an instruction on ignorance or mistake of fact was not warranted because the defense attorney
did not ask any questions regarding the defendant’s state of mind and because the defendant also did
not testify regarding his own state of mind at the time of the commission of the crime). But see State
v. Michael S. Nevens, No. M2000-00815-CCA-R3-CD, 2001 WL 430602 (Tenn. Crim. App. at
Nashville, Apr. 27, 2001) (an instruction on ignorance or mistake of fact was fairly raised by the
evidence presented at trial based on both the defendant’s testimony and his mother’s testimony).
Because evidence was not presented at trial to fairly raise this defense, we find that an instruction
on ignorance or mistake of fact was not warranted, and therefore the trial court did not err by
refusing the defendant’s request.
Sufficiency of the Presentment
The defendant argues that the presentment charging him with the offense of aggravated
perjury was fatally deficient because the state failed to include in the presentment the nature of the
defendant’s Community Corrections violation, therefore presenting insufficient information for a
jury to determine if the defendant’s alleged false statement was material. The defendant also alleges
that the presentment was fatally deficient because it failed to comply with the mandates of Tennessee
Code Annotated section 40-13-213, which outlines the allegations that must be pled in an indictment
alleging perjury. See Tenn. Code Ann. § 40-13-213(b). The defendant further argues that because
the presentment was fatally deficient, the trial court erred by refusing to grant the defendant’s request
for judgment of acquittal4 or arrest of judgment.
The presentment charging the defendant with aggravated perjury states the following
accusation, in relevant part:
Melvin E. Beard, heretofore, to-wit, on the 28th day of September, 1998, before a
finding of this presentment, in said County and State, unlawfully, feloniously,
knowingly and with intent to deceive did make a false statement, under oath, and said
4
Regarding his denied motion for judgment of acquittal, the defendant argues that his m otion shou ld
have been granted on two grounds: (1) because the presentment was fatally deficient (discussed infra) and (2 ) becau se
the evidence w as insufficient to support his conviction. A trial judg e m ay grant a motion for judgment of acquittal after
finding that the evidence presented at trial is insufficient to support a conviction. Tenn. R. Crim. P. 29(a). When
reviewing the defendan t’s sufficiency challenge , supra, we determined that the evidence was indeed sufficient to support
his conviction. Accordingly, we find that the trial court did not err by refusing to grant the defendant’s motion for
judgment of acquittal on the grounds that the evidence was insufficient to support the defendant’s conviction.
-8-
false statement was made during and in connection with an official proceeding, and
said false statement was material, in violation of Section 39-16-703, Tennessee Code
Annotated, and against the peace and dignity of the State of Tennessee.
While the above presentment sufficiently alleges the elements of perjury as set forth in Tennessee
Code Annotated section 39-16-703, it does not include the specifics mandated by section
40-13-213(b), which provides that an indictment (or presentment) will be sufficient if it alleges
the substance of the controversy or matter with respect to which the offense was
committed, in what court or before whom the oath alleged to be false was taken, and
that the court or person before whom it was taken had authority to administer it, with
proper allegations of falsity of the matter on which the perjury is assigned.
Tenn. Code Ann. § 40-13-213(b).5 The state, in response to the defendant’s motion for a bill of
particulars, filed two bills to satisfy this requirement. The first bill, which set forth the state’s
question and the defendant’s answer to that question that the state alleged constituted aggravated
perjury, was filed at least a year prior to the date of the defendant’s trial. The second bill, which set
forth that the defendant made the allegedly perjured statement in his Community Corrections
violation hearing and in which court that hearing was held, was filed at least six months prior to trial.
The function of a bill of particulars is to provide a defendant with information about the
details of the charge that are necessary in the preparation of his or her defense and to avoid
prejudicial surprise at trial. See State v. Hicks, 666 S.W.2d 54, 56 (Tenn. 1984) (quoting 1 Charles
Alan Wright, Federal Practice and Procedure, Criminal § 129, at 434 (1982)); see also State v.
Stephenson, 878 S.W.2d 530, 539 (Tenn. 1994). The defendant should be given enough information
about the events charged so that he or she may diligently prepare for trial. See id.; see also State v.
Hammonds, 30 S.W.3d 294 (Tenn. 2000) (holding that an indictment must inform the accused of
the nature and cause of the accusation); Wyatt v. State, 24 S.W.3d 319 (Tenn. 2000) (holding that
an indictment serves several purposes, one of which is to provide the accused with notice of the
offense charged). Where the indictment is not sufficiently detailed, a bill of particulars will serve
this purpose. See Stephenson, 878 S.W.2d at 539.
Thus, the question of whether a bill of particulars is adequate to cure a deficient presentment
or indictment appears to turn on whether the bill gives sufficient notice to the defendant to allow him
or her to adequately prepare for trial. In the instant case, the state filed both bills of particulars at
least six months prior to trial, thereby giving the defendant adequate notice of the wording of the
allegedly perjured statement and the context in which the alleged perjured statement was made.
Moreover, recent supreme court decisions indicate that the state is no longer required to plead
indictments with strict specificity. In Hammonds, the supreme court reversed this Court’s finding
that an indictment was insufficient, stating that
5
Tennessee Code Anno tated section 40-13-213(a) states that it is not necessary for a perjury indictment
to set forth “[r]ecords or proceedings with which the oath is connected[] or[ t]he commission or authority of the court
or the person before w hom the perjury was com mitted.” Tenn. Cod e Ann . § 40-13-21 3(a).
-9-
[w]e emphasized in [State v.] Hill[, 954 S.W.2d 725 (Tenn. 1997),] that “an
indictment need not conform to traditionally strict pleading requirements.” Id. at
727. Since common law offenses no longer exist, “we now approach ‘attacks upon
indictments, especially of this kind, from the broad and enlightened standpoint of
common sense and right reason rather than from the narrow standpoint of petty
preciosity, pettifogging, technicality or hair splitting fault finding.’” Id. at 728
(quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir.1978)).
In many decisions since Hill discussing the sufficiency of indictments, we
have repeatedly emphasized the relaxation of strict common law pleading
requirements.
...
Indeed, Hill and its progeny leave little doubt that indictments which achieve
the overriding purpose of notice to the accused will be considered sufficient to satisfy
both constitutional and statutory requirements.
Hammonds, 30 S.W.3d at 299.
Looking at the instant presentment in the “enlightened standpoint of common sense and right
reason,” see id., we find that the bills of particulars were sufficient to give the defendant notice of
the allegedly false statement that the presentment charged as constituting aggravated perjury. The
two bills set forth the language of the allegedly false statement and the context in which it was made,
and defense counsel did not indicate that they were surprised or unprepared at trial. We find that the
bills of particulars conveyed sufficient information for the defendant to be able to identify the offense
for which the defendant was being prosecuted, as required by State v. Cutshaw, 967 S.W.2d 332
(Tenn. Crim. App. 1977).6 Accordingly, we find that because the defendant was given adequate
notice of the nature of the charged offense by the filing of the bills of particulars, the defendant was
not prejudiced by any deficiencies in the presentment.
Sentencing Challenge
The defendant argues that the trial court failed to give proper weight to the enhancing and
mitigating factors applicable to the defendant’s case and improperly sentenced him to serve five
years in confinement as a Range II offender. “When reviewing sentencing issues . . . , the appellate
court shall conduct a de novo review on the record of such issues. Such review shall be conducted
with a presumption that the determinations made by the court from which the appeal is taken are
6
The defenda nt arg ues that Cutshaw, a 1977 case in wh ich this Court found a pre sentment to be
insufficient because it failed to sufficiently identify the allegedly perjured statement, is analogous to the instant case and
therefore warrants reversal of the lower court’s decision . See Cutshaw, 967 S.W.2d at 332. However, unlike in the
instant case, in Cutshaw the state did not file a bill of particulars, ther eby failing to give the defendant notice of the
substance of his alleged ly perjured statem ent. See id. We find that Cutshaw is distinguisha ble from the instant case on
that basis and therefore find that its pre cedent does n ot warran t a reve rsal.
-10-
correct.” Tenn. Code Ann. § 40-35-401(d). “However, the presumption of correctness which
accompanies the trial court's action 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the
defendant's potential for rehabilitation, the trial and sentencing hearing evidence, the pre-sentence
report, the sentencing principles, sentencing alternative arguments, the nature and character of the
offense, the enhancing and mitigating factors, and the defendant's statements. Tenn. Code Ann. §§
40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears
“the burden of showing that the sentence is improper.” Ashby, 823 S.W.2d at 169.
In the instant case, the defendant was convicted of aggravated perjury. The trial court found
that based on the defendant’s criminal history, he was a Range II offender and that there were both
enhancement and mitigating factors that were applicable to the defendant’s case. Because aggravated
perjury is a Class D felony and because the trial court found both enhancement and mitigating factors
to be applicable to the sentencing determination, Tennessee Code Annotated section 40-35-210(e)
directs the trial court to start at the minimum sentence in the applicable range, “enhance the sentence
within the range as appropriate for the enhancement factors, and then reduce the sentence within the
range as appropriate for the mitigating factors.” Tenn. Code Ann. § 40-35-210(e). Accordingly, the
trial court was required to start at the minimum sentence for a Range II Class D felony, four years,
see Tenn. Code Ann. § 40-35-112(b)(4), enhance the sentence for the applicable enhancement
factors, and then reduce the sentence for the applicable mitigating factors.
The trial court found that the enhancement factors applicable to the defendant’s case were
the defendant’s criminal history, his prior unwillingness to comply with measures less strict than
confinement, and his commission of the instant crime while enrolled in the Community Corrections
program. The court further found that the mitigating factors applicable to the defendant’s case were
the fact that his crime neither caused nor threatened serious bodily injury and the unlikeliness that
he committed the crime with a sustained intent to violate the law. The defendant argues that the trial
court improperly weighed these factors and therefore gave him an excessive sentence. However, no
particular weight for each factor is prescribed by statute. See State v. Santiago, 914 S.W.2d 116, 125
(Tenn. Crim. App. 1995). The weight given to each factor is left to the discretion of the trial court
as long as it comports with the sentencing principles and purposes of our code and as long as its
findings are supported by the record. Id. The trial court properly found that these enhancement and
mitigating factors were applicable to the defendant’s case,7 as the record supports the trial court’s
findings. Moreover, because the defendant has not proven that the trial court erred in its application
of the relevant enhancement and mitigating factors, the trial court is presumed to have afforded these
factors an appropriate weight, and therefore this court will not re-weigh the enhancement and
mitigating factors and accordingly impose a different sentence.
The defendant also challenges the trial court’s refusal to place the defendant “under
probationary restraint.” However, the trial court was not required to presume that the defendant was
a favorable candidate for alternative sentencing because he is not an especially mitigated or standard
offender, but rather a Range II multiple offender. See Tenn. Code Ann. § 40-35-102(6). Moreover,
7
The defendant does not contest the propriety of the enhancement and mitigating factors that the trial
court found applicable to his case.
-11-
the trial court properly found that the defendant had previously failed to comply with measures less
restrictive than confinement, as the defendant committed the instant crime while serving a sentence
in the Community Corrections program. See Tenn. Code Ann. § 40-35-103(1) (stating that a
defendant’s history of violating terms or conditions of “measures less restrictive than confinement”
is a consideration that may warrant confinement). Accordingly, the trial court found that the
defendant should be confined rather than released under probationary restraint. As the defendant
was not a suitable candidate for alternative sentencing, the trial court properly sentenced the
defendant to serve his term in confinement.
Conclusion
For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.
___________________________________
JERRY L. SMITH, JUDGE
-12-