        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs February 19, 2015 at Knoxville

                   STATE OF TENNESSEE v. JARUS SMITH

                 Appeal from the Circuit Court for Hickman County
                   No. 12-5132CRB Timothy L. Easter, Judge



                No. M2014-01130-CCA-R3-CD – Filed August 6, 2015


The Defendant, Jarus Smith, appeals as of right from his jury convictions for facilitation
of attempted second degree murder, possession of contraband in a penal institution, and
two counts of aggravated assault. One count of aggravated assault was merged into the
facilitation conviction, and the trial court imposed consecutive terms of ten years for each
of the remaining three convictions, resulting in a total effective sentence of thirty years‟
incarceration. On appeal, the Defendant raises the following issues for our review: (1)
whether the evidence was sufficient to support his convictions; (2) whether hearsay
statements made by one of the victims were grounds for a mistrial and the curative
instructions given were inadequate to address the harm; (3) whether the trial court abused
its discretion by denying the Defendant‟s motion for a continuance; (4) whether the
superseding indictment, which added multiple counts of aggravated assault, should been
dismissed as violative of the Tennessee Rules of Criminal Procedure; and (5) whether the
trial court erred by enhancing the length of his sentencing terms for his facilitation of
attempted second degree murder and contraband possession convictions. Following our
review, we affirm the trial court‟s judgments.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Richard H. Boehms (at trial and on appeal), Duck River, Tennessee; and Derek K. Smith
(at trial), Franklin, Tennessee, for the appellant, Jarus Smith.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim R. Helper, District Attorney General; and Michael J. Fahey, II, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION
                                   FACTUAL BACKGROUND

       This case arises from prison unrest inside the Turney Center Industrial Complex
on May 4, 2012, involving the Defendant and fellow inmates, Adam Dansby Frazier and
Javoris Sparkman. For their actions, a Hickman County grand jury charged the
Defendant, along with Frazier and Sparkman, in August 2012, with four counts of
attempted first degree premeditated murder and each separately with one count of
possession of contraband in a penal institution. In February 2013, a grand jury issued a
superseding indictment, which included the original charges and the additional charges of
six counts of aggravated assault.

        In October 2013, the trial court conducted a jury trial, and prior to the beginning of
that trial, the State dismissed some of the charges. The Defendant, along with Frazier and
Sparkman, proceeded to trial on the charges of attempted first degree premeditated
murder of prison guard Cody Hellam; attempted first degree premeditated murder of
prison guard Paula Miller; possession of contraband in a penal institution; aggravated
assault of Officer Miller; and aggravated assault of Officer Hellam.

       Investigator Nicky Jordan, a special agent with the Tennessee Department of
Correction (“DOC”), Division of Law Enforcement, testified that Turney Center is a
“medium/close security facility[,]” meaning that it is “a prison where inmates that have a
substantial amount of time go to do that time.” According to Inv. Jordan, the prison
houses approximately 1,250 inmates with about 128 prisoners per pod, and the guards at
Turney Center do not carry weapons because of the high inmate-to-guard ratio.

        On May 4, 2012, both Officers Hellam and Miller were working in different areas
of the prison and responded from their respective stations to a “code”1 in Unit 1, Pod B
following a disturbance. Pursuant to standard policy, the prison guards were attempting
to move all inmates back into their respective prison cells to quell any further uprising.
When Officer Hellam arrived in the unit, he heard “a lot of yelling and screaming going
on,” and he attempted to “hurry up and get everybody locked down, try to contain the
situation, get control of it.” In so doing, Officer Hellam found himself in the midst of a
group of inmates, and “the next thing” that he remembered was “fighting [his] way
through” that group. Otherwise, he did not remember many details about the attack


1
  At the sentencing hearing, the facts about this prior incident were revealed. Inv. Jordan testified that
these same three defendants had been involved in stabbing two other inmates on the lower level of this
unit. According to Inv. Jordan, his investigation revealed that Sparkman and Frazier went inside the cell
and attacked the inmates, and the Defendant stayed outside the cell acting as a lookout. Inv. Jordan
believed this first attack by these defendants was gang-related.
                                                     -2-
except thinking that “[he] just got punched” and “seeing Officer Miller . . . [being]
assaulted by an inmate.” Officer Hellam was asked to explain his injuries:

               I received a stab wound to the right side of my head, lost vision in
        my right eye, hearing in my right ear. They don‟t know if they can repair it
        or what‟s causing all the pain or anything, and they don‟t know what else
        they can do. My eyesight returns every so often and then it goes away.
        Sometimes I can make shapes out and that‟s it. Like I said, they don‟t
        know if they can fix it. Along with PTSD. There‟s really not much else
        they can do.

Photographs of his injuries were admitted as trial exhibits, showing a stab wound to the
head and bleeding from the ear.

       Officer Miller explained that, when she arrived on the second floor walkway of
Unit 1, Pod B, she was “stabbed in the face, [she] was stabbed six times across the back
and the shoulder[s],” and she was beaten “with a sock full of dominoes.” Officer Miller
described the facial wound: The “weapon went inside . . . my face, it cut my jaw open, it
cut my tongue partial way out, and it‟s right on the edge of the motor nerve.”2
Photographs of her injuries were also admitted into evidence, showing a jagged, crescent-
shaped stab wound to her face, profuse bleeding, and multiple bruises.

       Video surveillance footage from Turney Center on May 4, 2012, shows the
Defendant, Sparkman, and Frazier standing on a second-floor walkway of Unit 1, Pod B
while other inmates wandered about. The Defendant can be seen holding what appears to
be a sock within which some sort of weighted object is concealed, and co-defendant
Frazier can be seen holding a knife. The Defendant is swaying the sock back and forth as
he walks about.

       Within a short period of time, the three men encounter another group of inmates
along the walkway. The groups come to a standoff, and a fight looms. A short time later,
Officer Hellam appears on the walkway and walks from one side to the other, eventually
disappearing from view of the camera. He then reappears on the walkway, followed by
the Defendant, Sparkman, and Frazier. Around that same time, Officer Miller, who has
arrived upstairs, attempts to assist Officer Hellam in separating the two groups by
speaking with co-defendant Sparkman.



2
 The jury was later instructed to disregard her comments about a “sock full of dominoes” and “it‟s right
on the edge of a motor nerve.”
                                                   -3-
        Both officers are now amongst the group of inmates, and co-defendant Sparkman
then looks at Officer Hellam and suddenly punches him in the side of the face. Officer
Hellam ducks, and the Defendant is visible swinging the weighted sock at him. Officer
Hellam escapes from the group, but Officer Miller is now in their midst. Co-defendant
Frazier can be seen forcibly stabbing Officer Miller at least three times, while the
Defendant swings his weighted sock at her. Officer Miller also manages to escape.
However, all three men can still be seen on the walkway strutting together and attempting
to progress towards Officer Miller, and the Defendant is still swaying his sock back and
forth in an aggressive manner. They only completely stop forward progress once
additional officers arrive on the walkway. The Defendant, Sparkman, and Frazier then
retreat to a cell. Just before he enters the cell, co-defendant Frazier can be seen tossing
something along the walkway. Also, Officer Hellam can be seen staggering across the
lower level of the unit where he collapses on the floor. The attack on the two prison
guards lasted only seconds.

       Other Turney Center correctional officers testified at trial and identified each of
the three men and the officers on the surveillance video. These same officers also
described the injuries they viewed to Officers Miller and Hellam that day.

       Inv. Jordan was also asked about what was classified as “contraband” in the
Turney Center. He agreed that some items by their very nature qualified as contraband,
like marijuana or a sharp knife, and that an inmate could not have such an item without
the express written consent of the chief administrator. Inv. Jordan did not know of any
instance where an inmate had been given written consent to possess a knife, and none of
these three defendants had said consent from the chief administrator. He described legal
items which could be fashioned into a weapon:

             An inmate would be allowed to purchase soap from the commissary
      in order to take showers, to clean hisself [sic], but he wouldn‟t be allowed
      to take that soap and put it in a sock and use it as a battering ram, or an
      inmate would not be allowed to take items such as gaming—if he was
      allowed to have domino[e]s and then put those into a sock and use those as
      a weapon, or pick up rocks off the yard and put them in a sock and use
      them as a weapon.

He further stated that an item such as a soda can was not contraband “until it [was] used
for a purpose other than what it was meant to be” used for, such as assaulting someone.
According to Inv. Jordan, the term “weapon” as used in Tennessee Code Annotated
section 39-16-201 was “a broad range legal term that [the DOC] enforce[d].” Inv. Jordan
explained again, “If he had . . . a legal item and used it as a weapon; therefore, it would
become a weapon and contraband.”
                                            -4-
        When Inv. Jordan arrived at Turney Center on May 4, 2012, he found the
defendants in Cell 233. Following the attack, a search was performed of all cells in the
unit, and Inv. Jordan confirmed that no weapons were found therein, not a knife, sock, or
dominoes. Six knives were discovered in the common areas of Unit 1, Pod B, according
to Inv. Jordan, but none of them were traceable to any particular inmate.

      With this evidence, the State rested. Following the trial court‟s denial of all of the
defendants‟ motions for judgments of acquittal and the Momon colloquies,3 the
defendants elected not to testify and chose not to present any proof.

       Based on this evidence, the jury acquitted the Defendant of the attempted first
degree murder of Cody Hellam and convicted the Defendant of the lesser-included
offense of facilitation of the attempted second degree murder of Paula Miller. In
addition, the jury convicted the Defendant as charged of possession of contraband in a
penal institution, the aggravated assault of Officer Hellam, and the aggravated assault of
Officer Miller. Co-defendant Frazier was found not guilty of the attempted first degree
murder of Officer Hellam, convicted of the lesser-included offense of the attempted
second degree murder of Officer Miller, convicted as charged of possession of
contraband in a penal institution, convicted as charged of the aggravated assault of
Officer Miller, and guilty of the lesser-included offense of facilitation of felony reckless
endangerment of Officer Hellam. Co-defendant Sparkman was found not guilty of all
offenses except facilitation of the aggravated assault of Officer Miller and simple assault
of Officer Hellam.

       Following a sentencing hearing, the trial court merged the Defendant‟s aggravated
assault conviction concerning Officer Miller with the facilitation of attempted second
degree murder conviction concerning Officer Miller. The trial court thereafter sentenced
the Defendant to ten years apiece for the facilitation conviction, for the possession of
contraband in a penal institution conviction, and for the aggravated assault conviction
concerning Officer Hellam.         The three ten-year sentences were to be served
consecutively, resulting in a total effective sentence of thirty years‟ incarceration.
Following the denial of his timely motion for new trial, the Defendant filed a timely
notice of appeal to this court. This appeal followed.

                                              ANALYSIS

      In this appeal, the Defendant contends (1) that the evidence was insufficient to
support his convictions; (2) that hearsay statements made by Officer Miller were grounds
3
   The trial court was conducting a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999),
which outlined a prophylactic procedure designed to insure that a defendant‟s waiver of his right to testify
is voluntary, knowing, and intelligent.
                                                  -5-
for a mistrial and that the curative instructions given by the trial court were inadequate to
address the harm; (3) that the trial court abused its discretion by denying the Defendant‟s
motion for a continuance; (4) that the superseding indictment, which added additional
counts of aggravated assault, should have been dismissed as violative of the Tennessee
Rules of Criminal Procedure; and (5) that the trial court erred by enhancing the length of
his sentencing terms for his facilitation of attempted second degree murder and
contraband possession convictions. We will address each issue in turn.

                               I. Sufficiency of the Evidence
       The Defendant contends that the evidence was insufficient to support his
convictions for facilitation of the attempted second degree murder of Officer Miller, for
the aggravated assault of Officer Miller, for the aggravated assault of Officer Hellam, and
for possession of contraband in a penal institution. The State responds in kind that the
evidence was sufficient for a rational juror to find him guilty of these offenses.

       An appellate court‟s standard of review when a defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). “This [standard] 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). The
standard of proof is the same whether the evidence is direct or circumstantial. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “is the same whether the conviction is based upon direct or
circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The duty of this court “on appeal of a conviction is not to contemplate all
plausible inferences in the [d]efendant‟s favor, but to draw all reasonable inferences from
the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).



                                             -6-
                       A. Facilitation of Attempted Second Degree Murder
       Criminal attempt occurs when a person “acting with the kind of culpability
otherwise required for the offense . . . [a]cts with intent to complete a course of action or
cause a result that would constitute the offense, under the circumstances surrounding the
conduct as the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.” Tenn. Code Ann. § 39-12-101(a)(3). To qualify
as a “substantial step,” the person‟s “entire course of action” must be “corroborative of
the intent to commit the offense.” Tenn. Code Ann. § 39-12-101(b). “Second degree
murder is . . . [a] knowing killing of another.” Tenn. Code Ann. § 39-13-210. “A person
acts knowingly with respect to a result of the person‟s conduct when the person is aware
that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-
302(b).

        The Defendant states in the opening section of his brief‟s sufficiency argument
that, “[w]ith the exception of possession of contraband in a penal institution, all of [his]
convictions were obtained by way of criminal responsibility.” The Defendant then
explains what is required for a conviction based upon a theory of criminal responsibility
under Tennessee Code Annotated section 39-11-402(2). However, for this offense,
attempted second degree murder, the Defendant was convicted of facilitation. “A person
is criminally responsible for the facilitation of a felony, if, knowing that another intends
to commit a specific felony, but without the intent required for criminal responsibility
under [section] 39-11-402(2), the person knowingly furnishes substantial assistance in the
commission of the felony.” Therefore, the jury explicitly did not find the Defendant
guilty under section 39-11-402(2), and his opening premise regarding his facilitation of
attempted second degree murder conviction is inherently flawed. What the Defendant is
ostensibly suggesting is that he was not the principal actor in these crimes, except for the
possession of contraband in a penal institution conviction.

        Turning to the Defendant‟s argument on facilitation, after quoting the relevant
statute, he submits that “[t]here is no evidence” that he “had knowledge that co-defendant
Frazier intended to knowingly kill Officer Miller.” He cites to the following facts as
purportedly in his favor: (1) “There is no evidence that [he] knew that co-defendant
Frazier possessed a knife before, during, or after the incident occurred”; (2) “There is no
evidence that the co-defendants discussed any plans regarding the incident”; (3) “The
[Defendant] had only been in the presence of the co-defendants for less than a minute and
a half before the incident took place”; and (4) “There is no evidence that the [Defendant]
knew, or even could have known, that Officer Miller would be in the area where the
incident occurred when the incident occurred.”

       The video surveillance footage clearly shows the Defendant moving back and
forth along a prison walkway while rocking the weighted sock in his hand for more than
                                             -7-
one minute before the attack on Officer Miller. The Defendant is accompanied by co-
defendant Frazier who visibly has a knife in his possession and co-defendant Sparkman.
Their movements can only be described as pompous and boisterous. The three men come
to a standstill with another group of inmates on the walkway, with violence impending.
Officer Miller proceeds upstairs to stop a fight from breaking out and attempts to separate
the two groups, and Officer Hellam approaches from an opposite way of entry. Officer
Miller speaks with co-defendant Sparkman, trying to calm him down and diffuse the
situation according to trial testimony. At that point, the two officers have come together,
and co-defendant Sparkman looks at Officer Hellam and punches him in the side of the
face. The Defendant immediately begins swinging his weighted sock at both officers,
and co-defendant Frazier can be seen forcibly stabbing Officer Miller at least three times.

        Officer Miller testified that the knife entered the side of her face, “cut [her] jaw
open, [and] . . . cut [her] tongue partial way out.” Photographs admitted into evidence
showed a large, jagged, crescent-shaped wound to the right side of Officer Miller‟s face,
which was unquestionably severe. Those same photographs also showed multiple bruises
to Officer Miller‟s body, and the jury could logically infer that these injuries were caused
by blows from the Defendant‟s sock. Fortunately, both officers were able to escape from
the defendants, although the defendants only backed down once additional officers
arrived on the walkway. After the attack, all three men can still be seen on the walkway
strutting together, and the Defendant is still swaying his sock back and forth in an
aggressive manner. As evidenced by the Defendant‟s actions, and given the unprovoked,
frenzied nature of the attack, the jury was certainly free to infer that the Defendant
furnished substantial assistance to co-defendant Frazier in his attempt to knowingly kill
Officer Miller. Viewing this evidence in the light most favorable to the prosecution, we
hold that the evidence adduced at trial supports the Defendant‟s conviction for facilitation
of attempted second degree murder.

                                      B. Aggravated Assault
        Intentionally or knowingly causing bodily injury to another is an assault. Tenn.
Code Ann. § 39-13-101(a)(1). An assault is aggravated if it “involved the use or display
of a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). A “deadly weapon” is
defined as: “(A) A firearm or anything manifestly designed, made or adapted for the
purpose of inflicting death or serious bodily injury; or (B) Anything that in the manner of
its use or intended use is capable of causing death or serious bodily injury.” Tenn. Code
Ann. § 39-11-106(a)(5). Here, both the indictment and the jury charge provided a
specific weapon, “to-wit: a prison-made knife.”

       “A person is criminally responsible as a party to an offense if the offense is
committed by the person‟s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a). Criminal
                                            -8-
responsibility for the actions of another arises when a defendant, “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, . . . solicits, directs, aids, or attempts to aid another person to commit the
offense.” Tenn. Code Ann. § 39-11-402(2); State v. Lemacks, 996 S.W.2d 166, 170
(Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate, distinct
crime. It is solely a theory by which the State may prove the defendant‟s guilt of the
alleged offense . . . based upon the conduct of another person.”).

        1. Officer Miller. Before we address the sufficiency of the evidence supporting
this conviction, we must first briefly address whether the trial court properly merged this
aggravated assault conviction with the facilitation of attempted second degree murder
conviction. For the first time on appeal, the State argues that the trial court erred in this
regard. Citing to the sentencing hearing, the Defendant responds that “the State waived
the merger argument by agreeing to the merger at trial.” We agree with the Defendant
that the State has waived the issue.

        At the outset of the sentencing hearing, the assistant district attorney general
stated, “I guess I‟ll go ahead and get to this point here, the aggravated assault in count VI,
Your Honor, I believe would merge with count II.” Upon questioning by the trial court,
the assistant district attorney general acknowledged that aggravated assault was not a
lesser-included offense of facilitation to commit attempted second degree murder and that
he had no case law to support a position that merger was appropriate. Later in the
sentencing hearing, the assistant district attorney general actually presented the trial court
with two cases from 2001 supporting merger. In issuing its sentencing determination, the
trial court stated,

               So I am not going to make a large deal out of [merger] because the
       State is not pushing it. In fact, the State seems to agree with the [d]efense.
       But I don‟t think it is as clear as the State wants the [c]ourt to—and the
       [d]efense. I think it‟s an open question. But since the State is not pushing
       it and not seeking it I‟m not going to—I won‟t push it either and we‟ll go
       with the State‟s argument on this, that the count VI merges.

       In addition to the comments at the sentencing hearing, we note that in the Bill of
Particulars, it is stated, “The offense alleged in the indictment is attempted first degree
murder, and alternatively, aggravated assault.” The Bill of Particulars was actually
entered as a trial exhibit and submitted to the jury for its consideration in assessing guilt.

       The State‟s brief does not include any reference to the language of the Bill of
Particulars and completely omits the steps taken by the assistant district attorney general
to advocate for merger of the two counts at the sentencing hearing. The same rules that
                                             -9-
apply to defendants likewise apply to the State. See Tenn. R. App. P. 36(a) (“Nothing in
this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.”). “When an issue is raised for the first time on appeal, it
is typically waived.” State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005);
see also Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991)
(“[I]ssues not raised in the trial court cannot be raised for the first time on appeal.”)
(citations omitted). The Attorney General‟s Office on appeal apparently disagrees with
the assistant district attorney general‟s concession in the trial court that the two offenses
merged. Regardless, “[b]ecause the State failed to present this argument in the trial court,
the trial court did not have the opportunity to pass on it, and we will not consider it.”
State v. Charles A. Kennedy, No. M2013-02207-CCA-R9-CD, 2014 WL 4953586, at *10
(Tenn. Crim. App. Oct. 3, 2014). Accordingly, we decline to address this issue.

       Although the convictions merged, the Defendant can still challenge the sufficiency
of the evidence supporting the separate convictions. See State v. Jose Lemanuel Hall, Jr.,
No. M2013-02090-CCA-R3-CD, 2014 WL 4384318, at *12 (Tenn. Crim. App. Sept. 5,
2014) (citation omitted), perm. app. denied (Tenn. Jan. 16, 2015). In challenging the
sufficiency of the evidence supporting his conviction for aggravated assault of Officer
Miller, the Defendant states that his “conviction for this crime came under the theory of
criminal responsibility, as there was no evidence at any point that he actually possessed a
knife.” He then submits that there was insufficient proof that he intended to promote or
assist co-defendant Frazier in the attack on Officer Miller, noting that “there [was] no
proof that he knew an aggravated assault was about to take place”; “[a]t no point in time
was it ever proven that the [Defendant] knew that co-defendant Frazier possessed a knife;
“[n]or did the video show that the [Defendant] was promoting or assisting the offense, as
the [Defendant] was acting on his accord, not to promote or assist anyone else.”

        Much of the same evidence cited above in support of the facilitation to commit
attempted second degree murder conviction also supports the Defendant‟s conviction for
the aggravated assault of Officer Miller by using or displaying a prison-made knife. His
main argument in this regard was that the evidence is insufficient to support a theory of
criminal responsibility. However, the evidence cited above supports a theory of criminal
responsibility, in addition to facilitation. See also State v. Kevin L. Buford, Sr., No.
M2010-01618-CCA-R3-CD, 2012 WL 1895953, at *21 (Tenn. Crim. App. May 24,
2012) (“Inconsistent jury verdicts are an accepted fact of our legal system and have
never, standing alone, provided any legal basis for a challenging the sufficiency of the
evidence used to convict a defendant.”). It is clear from the video recording that these
three defendants were acting in concert based upon their actions before, during, and after
the attack on these two officers, each with full awareness of the other‟s participation. A
reasonable juror could conclude that the Defendant promoted or assisted co-defendant
                                            -10-
Frazier in the commission of the offense by swinging his weighted sock at the officers,
aiding co-defendant Frazier in his efforts to stab Officer Miller. Again, co-defendant
Frazier can be seen with the knife in his hand prior to the standoff with the other group of
inmates.

       The Defendant‟s statement that the video did not “show that [he] was promoting
or assisting the offense, as [he] was acting on his accord, [and] not to promote or assist
anyone else[,]” insinuates that the jury could have found him guilty only as a principal
actor and not under a theory of criminal responsibility. While a jury could logically infer
that Officer Miller‟s multiple bruises were caused by blows from the Defendant‟s
swinging the weighted sock, such possibility of guilt was not charged to the jury due to
the State‟s designation of a specific weapon for the aggravated assault offenses. The
Defendant‟s misdeeds also support a conviction under a theory of criminal responsibility
for the actions of his co-defendant using or displaying a prison-made knife. The
evidence, viewed in the light most favorable to the State, was sufficient to support the
Defendant‟s conviction for the aggravated assault of Officer Miller.

        2. Officer Hellam. Regarding his sufficiency argument for this aggravated assault
conviction, the Defendant first notes that co-defendant Frazier “was the main actor in
possession of the prison made knife” and that the jury found Frazier not guilty of the
aggravated assault of Officer Hellam, but only of facilitation of the reckless
endangerment of Officer Hellam. The Defendant reiterates, “[T]here was never any
evidence that the [Defendant] ever possessed a knife during the incident[,]” and
“[t]herefore, any guilt on behalf of the [Defendant] would have to be under a theory of
criminal responsibility for the actions of one or both of the co-defendants.” He further
notes that co-defendant Sparkman was found guilty only of simple assault with regard to
Officer Hellam. The Defendant surmises, “In order to be found guilty under a theory of
criminal responsibility, the State must prove all of the elements of the principal
offense[,]” and the State did not do so here because both co-defendants were acquitted of
that offense.

        He continues that the State failed to “prove that any weapon was actually used in
the attack on [O]fficer Hell[a]m. However, if [this] court finds that a weapon was used,
the State also did not prove that the weapon was a deadly weapon per the statutory
definition” because “[s]everal prison made knives were found after the incident in the
general area, but none were specifically linked to the incident involving [O]fficer
Hell[a]m.” In conclusion, he asserts that, even if all of the statutory elements of
aggravated assault are deemed sufficient, “the State did not prove criminal responsibility
beyond a reasonable doubt” again because there was no proof that he intended to promote
or assist anyone, “as he himself was directly involved in the incident.”

                                           -11-
        The Defendant initially appears to be arguing that one cannot be convicted
pursuant to a theory of criminal responsibility if there was no other person who was
guilty as the principal. However, he states in his reply brief that he “is not attempting to
claim a defense based on the failed conviction of the two co-defendants[.]” In order to
quickly dispense with any issue in this regard, we agree with the State that the Tennessee
legislature has specifically addressed such situation and excluded any defense put forth
by the Defendant on this ground. See Tenn. Code Ann. § 39-11-407.4

        The Defendant claims that, because his co-defendants were found not guilty of the
principal offense, the State failed to establish all of the essential elements of the offense,
mainly that the State failed to prove that a prison-made knife was used in the attack on
Officer Hellam. The attack began when co-defendant Sparkman punched Officer Hellam
in the face, and the Defendant can then be seen swinging his sock at both officers. No
one was seen stabbing Officer Hellam on the recording. However, Officer Hellam
testified at trial that he “received a stab wound to the right side of [his] head,” losing
vision in his right eye and hearing in his right ear. A photograph of his stab wound was
entered as an exhibit. Because a weapon was never found does not mean that the State
failed to prove that one was used. Officer Hellam‟s testimony, supported by the
photographs, was sufficient to establish that a deadly weapon was used during his assault.
We again reject the Defendant‟s challenge to the theory of criminal responsibility
because he was only a principal actor for the reasons explained in the subsection above.
Sufficient evidence supports the jury‟s verdict for the aggravated assault of Officer
Hellam based on a theory of criminal responsibility.

                       C. Possession of Contraband in a Penal Institution
        At the time of the offense, Tennessee Code Annotated section 39-16-201,
“Introduction or possession of weapons, explosives, intoxicants or drugs into a penal
institution where prisoners are quartered” provided, in pertinent part, as follows:

          (b) It is unlawful for any person to:
                   (1) Knowingly and with unlawful intent take, send or otherwise
          cause to be taken into any penal institution where prisoners are quartered or
4
    This section provides as follows:

                   In a prosecution in which a person‟s criminal responsibility is based upon the
          conduct of another, the person may be convicted on proof of commission of the offense
          and that the person was a party to or facilitated its commission, and it is no defense that . .
          . [t]he person for whose conduct the defendant is criminally responsible has been
          acquitted, has not been prosecuted or convicted, has been convicted of a different offense
          or different type or class of offense, or is immune from prosecution.

Tenn. Code Ann. § 39-11-407(2).
                                                      -12-
      under custodial supervision any weapons, ammunition, explosives,
      intoxicants, legend drugs, or any controlled substances found in chapter 17,
      part 4 of this title; [or]
             (2) Knowingly possess any of the materials prohibited in subdivision
      (b)(1) while present in any penal institution where prisoners are quartered
      or under custodial supervision without the express written consent of the
      chief administrator of the institution[.]

Tenn. Code Ann. § 39-16-201. Here, both the indictment and the jury charge provided
the specific weapon, “to-wit: [a] hard, blunt object wrapped in a garment or cloth.”

       The Defendant notes that neither the “hard, blunt object” nor the sock in which is
it was carried were ever found; that, although Inv. Nicky Jordan was called to testify, the
Chief Administrator of the Turney Center was not; and that there was not “any evidence
admitted regarding whether or not [he] had permission to be in possession of the object
he was carrying.” The Defendant continues that “[t]he State never proved exactly what
this object was,” and therefore, “per the testimony of the State‟s own witness, [C]hief
[I]nvestigator Nicky Jordan, it [was] entirely possible, even probable, that [he] was
carrying an object that he could legally possess inside the prison.” Using this logic, he
submits that the State offered no proof that he possessed the items without the express
written consent of the chief administrator of the institution. He further argues that there
was insufficient circumstantial evidence for a juror to reasonably find that he lacked said
consent because there was no proof that he attempted to conceal the weapon. In support
of this argument, the Defendant cites to several cases: State v. Jonathan C. Carr, No.
M2007-01759-CCA-R3-CD, 2008 WL 4368240, at *7 (Tenn. Crim. App. Sept. 26,
2008); State v. Mitchell Eads, No. E2006-02793-CCA-R3-CD, 2008 WL 2790434, at *5-
6 (Tenn. Crim. App. July 21, 2008); State v. Jeffrey W. Osborne, No. 01C01-9807-CC-
00292, 1999 WL 961384, at *4-5 (Tenn. Crim. App. Oct. 22, 1999); and State v. Jimmy
Cullop, Jr., No. 03C01-9607-CR-00281, 1997 WL 119553, at *2 (Tenn. Crim. App. Mar.
18, 1997). The Defendant then contends that this is an issue of first impression and takes
us down a path of statutory interpretation analysis.

       The Defendant‟s argument is flawed in many respects. First, if the weighted sock
object is not a weapon, there is no need to engage in any further analysis because a
conviction cannot stand. However, many items may have once been mundane but were
then manufactured by inmates into weapons. Engaging in a statutory construction
analysis under a different statutory scheme, this court has held that “possession of a
dangerous weapon by a jailed inmate is equally dangerous whether that weapon was
imported into the jail for an unlawful purpose, or was converted to such an unlawful
purpose after it was innocently introduced, or was manufactured by the inmate on the

                                           -13-
premises.” State v. Harrison, 692 S.W.2d 29, 31 (Tenn. Crim. App. 1985). The same
rationale holds true now.

        The Defendant can be seen on the video footage forcibly swinging a weighted
sock at both of the officers. It appears from the photographs that Officer Miller suffered
bruises from the weapon utilized by the Defendant. To exclude this non-traditional
weapon because it was comprised of formerly legal prison materials would lead to an
absurd result; a “shank” or prison-made knife would also likely be made of formerly
ordinary prison material such as metal or a toothbrush. See, e.g., State v. James Anthony
Hill, No. M2003-00516-CCA-R3-CD, 2004 WL 431481 (Tenn. Crim. App. Mar. 9,
2004) (holding that evidence was sufficient to support possession of a weapon in a penal
institution despite defendant‟s argument that sharpened piece of metal confiscated from
him was not designed or adapted for the purpose of inflicting bodily injury, but rather as
a tool for removing toilet paper from his air conditioning vent). This court has held that
“„weapon‟ is not a technical term which requires legal research to determine its meaning;
in this context, its meaning can be ascertained by [a] person of common intelligence.” Id.
at *6 (quoting State v. Joseph John Henry Morrell, No. E1999-00924-CCA-R3-CD, 2000
WL 218188, at *2 (Tenn. Crim. App. Feb. 25, 2000)). Furthermore, there is no
requirement for the weapon to be found, only for it to be possessed by a defendant, which
it clearly was as seen on the video recording here.

        Next, we address what proof or testimony is required regarding consent from the
chief administrator of the jail. The last clause of Code section 39-16-201(b)(2) works as
an exception to unlawful possession of contraband in a penal institution, meaning that a
prisoner could possess the prohibited items with the express written consent of the chief
administrator of the institution. Direct testimony from the chief administrator that he or
she had in fact not given consent to a defendant has never been a requirement this court
has imposed upon the State. Prior panels of this court have upheld convictions under this
statute, “absent testimony from any administrative personnel within a given jail system,
as long as a „jury had a rational basis for its conclusion [of lack of consent] even though
the [S]tate did not establish by positive proof that consent had not been provided by the
chief administrator of the institution.‟” Osbourne, 1999 WL 961384, at *4 (emphasis
added) (citing Cullop, 1997 WL 119553, at *3).

       We turn to an analysis of the cases cited by the Defendant. In Cullop, the keeper
of the records at the Sullivan County Sheriff‟s Department had the responsibility of
supervising all entries into inmate files and testified that nothing in the defendant‟s file
indicated that the chief administrator of the jail had authorized the possession of the
marijuana. This court held that the absence of an entry of administrative consent “is
direct proof that the chief administrator had not given his consent.” Cullop, 1997 WL
119553, at *2 (citation omitted). In Osbourne, the State presented testimony from the
                                           -14-
Captain of the Williamson County Sheriff‟s Office. Although the Captain correctly
testified in that case, that the ultimate authority for the jail, as for all aspects of the
Sheriff‟s Department, rested with the Williamson County Sheriff, the Captain‟s testimony
established that he administrated the jail. Thus, the court concluded that the Captain
qualified as a “chief administrator” for purposes of the statute. Osbourne, 1999 WL
961384, at *5. The Osbourne court further noted, “We do not find that the phrase „chief
administrator‟ of a jail has a „technical meaning‟ beyond the capabilities of the jurors to
conclude who is responsible for the day-to-day maintenance of the jail absent a special
instruction.‟” Id. (citing State v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App.
1987)). Moreover, in Eads, the State presented direct testimony from the administrator of
the jail that the defendant did not have permission to have the weapon in the facility.
Eads, 2008 WL 2790434, at *6. The Carr case is the only case cited by the Defendant
that actually affirmed the conviction based solely on circumstantial evidence surrounding
that defendant‟s conduct concealing the evidence, thus permitting a reasonable juror to
conclude that the defendant therein lacked permission to possess the contraband. Carr,
2008 WL 4368240, at *7.

        The Defendant attempts to distinguish his case on its facts by pointing out that he
brandished the weighted sock out in the open and made no attempts to conceal the
weapon when confronted by the prison guards on the walkway. However, the
Defendant‟s case is markedly similar to the facts in Eads. In Eads, the defendant argued
on appeal that the State had failed to present testimony from the chief administrator of the
jail establishing that he did not have his express written consent to possess the weapon
and that there was insufficient circumstantial evidence from which a jury could conclude
that he lacked the express written consent of the sheriff because there was no proof that
he attempted to conceal the weapon. The court held,

              We agree with the State, however, that the mere fact that the
       defendant openly brandished the weapon when executing his escape does
       not mean that he made no attempts to conceal it prior to that time. No
       proof was presented that the defendant, prior to the time of his escape, ever
       flaunted the weapon in front of correctional officers or staff. The jury
       reasonably could have inferred from the evidence that the defendant kept
       the weapon concealed on his person or in his cell, surreptitiously used it to
       saw through his cell door, and openly brandished it only when the right
       opportunity presented itself for his escape.

Eads, 2008 WL 2790434, at *5.

       In the present case, the more likely inference of concealment comes after the
attack on Officers Miller and Hellam. The fact that the weapon was never found works
                                           -15-
against the Defendant rather than in his favor as he would suggest. The disappearance of
the weapon raises a plausible inference that he knew possession of the objects were
prohibited and that he later secreted the items from capture or returned them to their
proper place of origin in an effort to avoid detection. In his reply brief, the Defendant
submits that there was no proof that the object ever in fact disappeared, and even if
disassembled, “it still would have been found in a search of the Defendant‟s cell.” The
testimony elicited by defense counsel at trial directly contradicts this assertion. Defense
counsel asked Inv. Jordan if the inmates‟ cells were searched and if dominoes or a sock
were found in the Defendant‟s possession. Inv. Jordan stated an initial search was
conducted, but they “didn‟t know that there was a sock” involved in the attack at that
time. After reviewing the video footage, the officers searched again and found no sock or
dominoes in the Defendant‟s possession.

       Additionally, there was more than just circumstantial evidence of concealment.
There was also the testimony of Inv. Jordan that the item in question qualified as
contraband. At the time of the Defendant‟s trial, Inv. Jordan worked for the
Commissioner of the Department of Correction as one of three special agents
investigating criminal activity in prisons in Middle Tennessee. Prior to his current job,
Inv. Jordan had worked at Turney Center specifically for twenty-five years, beginning as
a correctional officer and working his “way through the ranks.” For approximately the
last ten years of his employment at Turney Center, he served as an institutional
investigator working “directly for the warden investigating administrative and criminal
matters[.]”

       The Defendant mischaracterizes Inv. Jordan‟s testimony. Inv. Jordan clearly
stated that any ordinary object permitted inside the prison once fashioned into a weapon
or used as a weapon was illegal and considered contraband for purposes of the statute.
Inv. Jordan also knew of no express written consent given by the chief administrator for
any of these three defendants to be in possession of a knife. The Defendant has not
provided any rational basis for the jury to conclude that he had obtained express written
consent from the chief administrator to fashion legal items into a weapon that he had only
recently used to swing at Officers Miller and Hellam. The Defendant‟s argument is
circular, returning to the question of whether the object is in fact a weapon or contraband;
an argument which we have already addressed and found to be without merit.

       While Inv. Jordan was not the chief administrator of the penal institution, he
certainly had access to the jail records, which evidenced an absence of any written
consent, and had knowledge of the internal practices and procedures of the Turney
Center. His testimony was sufficient to establish that the Defendant lacked any express
written consent to possess the weapon by the chief administrator. We conclude,

                                           -16-
therefore, that the evidence, viewed in the light most favorable to the State, was sufficient
to sustain the Defendant‟s conviction for possession of contraband in a penal institution.

                              II. Officer Miller’s Statements
       The Defendant also challenges two statements made by Officer Miller during her
direct examination. The first statement occurred when Officer Miller was asked to
describe the injuries she sustained that day during the prison violence. In giving this
description, she made the statement that she “was beat with a sock of dominoes.”
Defense counsel objected, and a jury-out hearing was held.

       Officer Miller admitted that, at the time of the beating, she did not know what she
was being hit with. When asked how she knew it “was a sack full of dominoes[,]”
Officer Miller replied because she had seen the Defendant swinging “[a] white object
with bulk in his hand” on the video recording and because she “was later told [by
someone] that it was dominoes.” The jury returned to the courtroom, and because the
statement was violative of the hearsay rule, the trial court gave the following curative
instruction:

       Ladies and gentleman, you may recall from my instructions yesterday
       afternoon I told you there may come a point when I would tell you to
       disregard something that a witness testified to. This witness testified that
       she was hit with a sack full of dominoes. I‟m going to ask you to disregard
       that testimony.

Defense counsel never requested a mistrial. The issue was raised in the Defendant‟s
motion for new trial, but no specific argument or ruling occurred on the issue.

       The Defendant concedes that he never objected to the curative instruction by
requesting a mistrial due to the overly prejudicial nature of Officer Miller‟s hearsay
comment about “a sack full of dominoes.” See Tenn. R. App. P. 36; State v. Robinson,
971 S.W.2d 30, 42-43 (Tenn. Crim. App. 1997) (“[F]ailure to make a contemporaneous
objection or motion for mistrial constitutes a waiver of the issue absent the existence of
plain error.”). However, the Defendant then makes no argument that this court should
review the issue for plain error, and we see no reason to do so sua sponte because a jury
is presumed to have followed a trial court‟s curative instruction, see State v. Reid, 164
S.W.3d 286, 342 (Tenn. 2005) (citation omitted). This issue is waived.

       Second, during Officer Miller‟s testimony, she described her facial injuries, stating
that the stab wound to her face partially severed her tongue and that “it‟s right on the
edge of the motor nerve.” Co-defendant Frazier‟s counsel objected, citing the lack of
foundation for this medically-based assertion, and the trial court initially overruled the
                                            -17-
objection, stating, “[Y]ou‟ve admitted that your client assaulted this woman; aggravated
assault.” A jury-out hearing followed, and co-defendant Frazier‟s counsel argued,

        [T]he State charged [Frazier] with aggravated assault with a deadly
        weapon. They specified exactly the manner in which they wished to find
        [Frazier] guilty of aggravated assault. We have conceded, we have pled
        guilty that with a deadly weapon as defined, he assaulted Ms. Miller. 5 We
        have not ever conceded that what Ms. Miller sustained was serious bodily
        injury. Its relevance could indicate for the attempted murder aspect of this
        trial, but only upon qualified evidence . . . but [Ms. Miller] is not entitled to
        now testify to medical evidence as to how close she came to death. The
        jury now has that inference, and I would move for a mistrial based on what
        the jury has just been told.

       The trial court denied the co-defendant Frazier‟s request for a mistrial, brought the
jury back into the courtroom, and gave the following instruction:

               Ladies and gentlemen, you may recall yesterday afternoon, after the
        charges were read to each individual defendant, Mr. Bates, on behalf of [co-
        defendant Frazier], entered a plea to the charge of aggravated assault
        involving Ms. Miller.
               The allegation that has been made in the indictment on that
        particular charge states that [the defendants] caused bodily injury to Paula
        Miller by use of a deadly weapon, to wit: A prison-made knife.
               The legal definition of bodily injury is—and you‟ll get this again in
        the charge, but I wanted to give it to you now based upon some testimony
        that just occurred—but the legal definition for bodily injury is—or it
        includes a cut, abrasion, bruise, burn or disfigurement, physical pain or
        temporary illness or impairment of the function of a bodily member, organ,
        or mental faculty.
               Her testimony to you regarding the damage of a nerve, I‟m going to
        ask you to disregard that evidence and strike that from testimony.

       Again, the issue was raised in the Defendant‟s motion for new trial, but no specific
argument or ruling occurred on the issue. On appeal, the Defendant argues that he was
prejudiced by this statement “because his conviction for facilitation of attempted second
degree murder was based off of co-defendant Frazier‟s conviction for attempted second
degree murder. . . . This statement unduly prejudiced the jury due to the medical nature of

5
  The trial court did not thereupon accept the plea, and the aggravated assault charge was submitted to the
jury.
                                                    -18-
the statement by a lay witness with no established medical knowledge.” Accordingly, he
submits that the trial court‟s instruction to the jury was insufficient to mitigate the
damage caused by Officer Miller‟s statement.

       A mistrial should be declared only if there is a manifest necessity for such action.
Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). A manifest necessity
exists when there is “no feasible alternative to halting the proceedings.” State v. Knight,
616 S.W.2d 593, 596 (Tenn. 1981). The burden of establishing a “manifest necessity”
lies with the party seeking the mistrial. State v. Williams, 929 S.W.2d 385, 388 (Tenn.
Crim. App. 1996). When determining whether a “manifest necessity” exists, “no abstract
formula should be mechanically applied and all circumstances should be taken into
account.” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State,
403 S.W.2d 750, 753 (Tenn. 1966)). “The purpose for declaring a mistrial is to correct
damage done to the judicial process when some event has occurred which precludes an
impartial verdict.” Williams, 929 S.W.2d at 388. A trial court‟s decision regarding
whether to grant a mistrial will only be overturned upon a showing of an abuse of
discretion. Id.

       As stated previously, a jury is presumed to have followed a trial court‟s curative
instruction. See Reid, 164 S.W.3d at 342. Moreover, Officer Miller‟s statement that the
facial wound was “right on the edge of the motor nerve” was relatively innocuous as
“medical knowledge.” Also, the jury was shown video recordings of Officer Miller
repeatedly being stabbed and photographic evidence of her resulting injuries. We
conclude that the trial court did not abuse its discretion by denying the co-defendant‟s
request for a mistrial in this regard.

                                 III. Motion to Continue
      Next, the Defendant argues that the trial court abused its discretion by denying his
motion to continue. His entire argument is as follows:

             In the weeks leading up to the trial, Defendant‟s counsel made an
      oral motion to continue so that the [Defendant] could have more time to
      hire more experienced counsel. This motion was denied by the trial court,
      but no order was entered regarding this decision. [The Defendant‟s]
      appointed attorney was appointed elbow counsel, but was not given a
      continuance of the court date.

       The Defendant has failed to include in his brief to this court any citations to the
record, any citations to legal authority to support his contentions, and any argument
beyond the cursory sentences quoted above. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate references to
                                           -19-
the record will be treated as waived in this court.”); see also Tenn. R. App. P.
27(a)(7)(A). His failure to cite to the record gives us even further pause when he admits
that there is no motion or order in the technical record and we are without any transcript
of a hearing where a motion to continue was ever addressed. The Defendant has failed to
ensure an adequate record for our review, such being his duty. See Tenn. R. App. P.
24(b). For multiple reasons, the Defendant has waived full appellate review of this issue.

                            IV. Motion to Dismiss the Indictment
        The Defendant contends that the trial court erred by denying his motion to dismiss
the superseding indictment, which charged him with six counts of aggravated assault. He
states that, on October 15, 2013, he filed a motion to dismiss four counts of aggravated
assault charged in the superseding indictment, two of which were dismissed prior to trial,
according to the Defendant.6 He submits that “[t]he basis for this motion was that the
counts of aggravated assault were not brought until a superseding indictment was filed
over six months after the original indictment.” In support of his contention, he cites to
Rule 8 of the Tennessee Rules of Criminal Procedure, which governs mandatory joinder
of offenses when the offenses are “based on the same conduct or arise from the same
criminal episode”; and to Rule 48(b) of the Tennessee Rules of Criminal Procedure,
which provides that the trial court may dismiss the indictment “[i]f there is unnecessary
delay in presenting the charge to a grand jury against a defendant who has been held to
answer to the trial court, or if there is unnecessary delay in bringing a defendant to trial.”

      It does appear from the record that the motion was heard on October 15, 2013,
because the record does include a November 1, 2013 order from the trial court denying
the Defendant‟s motion, wherein the trial court references the hearing. In ruling on the
motion, the trial court reasoned as follows:

               The length of the delay in filing the super[s]eding indictment was
        not unreasonable in that it was filed less than a year from the date of the
        offense.     The reasoning for the super[s]eding indictment is not
        unreasonable in that it allows the jury to be instructed on a charge lesser in
        severity than attempted premeditated murder. And, there is no prejudice to
        the [D]efendant resulting from the super[s]eding indictment.


6
  The Defendant appears to be incorrectly stating that there were four counts of aggravated assault in total
that were added by the superseding indictment. Instead, it was six counts involving four victims that were
added; thus, two counts involved alternative theories of guilt for the other two victims not involved in this
case (using a deadly weapon or causing serious bodily injury). All four of those counts involving the
other two victims were dismissed prior to trial. Those four counts involved the two inmates that these
three co-defendants stabbed immediately prior to the attack on the prison guards, but those two inmates
refused to testify against the defendants.
                                                   -20-
Nonetheless, no motion to dismiss stating the grounds for relief is included in the
technical record presented to this court, and we are again faced with a situation where the
Defendant makes no citation to the record and we are without any transcription of the
motion hearing. We agree with the State that the Defendant has failed to provide an
adequate record on appeal and that waiver of appellate review is appropriate. See Tenn.
R. App. P. 24(b); Tenn. Ct. Crim. App. R. 10(b).

                                         V. Sentencing
        The Defendant contends that the trial court “misapplied the statutory enhancing
and mitigating factors” to increase his sentences for facilitation of attempted second
degree murder and possession of contraband in a penal institution to the maximum term
within the applicable range.7 Before a trial court imposes a sentence upon a convicted
criminal defendant, it must consider: (a) the evidence adduced at the trial and the
sentencing hearing; (b) the presentence report; (c) the principles of sentencing and
arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal
conduct involved; (e) evidence and information offered by the parties on the
enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-
35-113 and 40-35-114; (f) any statistical information provided by the Administrative
Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any
statement the defendant wishes to make in the defendant‟s own behalf about sentencing.
Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical that [a]
trial court[] adhere[s] to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulates in the record its reasons for imposing the specific
sentence. State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).

       The Defendant challenges the imposition of the maximum sentence for his
convictions for facilitation of attempted second degree murder and possession of
contraband in a penal institution. The 2005 amendments to the Sentencing Act “served to
increase the discretionary authority of trial courts in sentencing.” Id. at 708. Currently,
upon a challenge to the length of the sentence imposed, it is the duty of this court to
analyze the issues under “an abuse of discretion standard of review, granting a
7
  The State quotes a phrase in the Defendant‟s brief, “that the sentences he received were excessive[,]”
and then uses that quote to infer that the Defendant may also be challenging the consecutive nature of his
sentences and goes on to address that issue. We decline to make this inference because the Defendant
states that he is “specifically” challenging the trial court‟s application of the statutory enhancing and
mitigating factors. Accordingly, we will not address the consecutive nature of the Defendant‟s sentences.
See Tenn. R. App. P. 27(a)(7)(A) (stating that the Defendant‟s brief must contain an argument “setting
forth [his] contentions . . . with respect to the issues presented, and the reasons therefore, including the
reasons why the contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on”); see also Tenn. Ct. Crim. App. R. 10(b). We also note that the
Defendant makes no challenge to his ten-year sentence for the aggravated assault of Officer Hellam;
therefore, any challenge to that sentence is also waived for the same reasons.
                                                     -21-
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. Those
purposes and principles include “the imposition of a sentence justly deserved in relation
to the seriousness of the offense,” Tennessee Code Annotated section 40-35-102(1), a
punishment sufficient “to prevent crime and promote respect for the law,” Tennessee
Code Annotated section 40-35-102(3), and consideration of a defendant‟s “potential or
lack of potential for . . . rehabilitation,” Tennessee Code Annotated section 40-35-103(5).
State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The burden of showing that a
sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‟n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

      Our amended Sentencing Act no longer imposes a presumptive sentence. Carter,
254 S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to
provide as follows:

             (c) The court shall impose a sentence within the range of
      punishment, determined by whether the defendant is a mitigated, standard,
      persistent, career, or repeat violent offender. In imposing a specific
      sentence within the range of punishment, the court shall consider, but is not
      bound by, the following advisory sentencing guidelines:
             (1) The minimum sentence within the range of punishment is the
      sentence that should be imposed, because the general assembly set the
      minimum length of sentence for each felony class to reflect the relative
      seriousness of each criminal offense in the felony classifications; and
             (2) The sentence length within the range should be adjusted, as
      appropriate, by the presence or absence of mitigating and enhancement
      factors set out in §§ 40-35-113 and 40-35-114.
             (d) The sentence length within the range should be consistent with
      the purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).

       “[T]he 2005 amendments rendered advisory the manner in which the trial court
selects a sentence within the appropriate range, allowing the trial court to be guided by—
but not bound by—any applicable enhancement or mitigating factors when adjusting the
length of a sentence.” Bise, 380 S.W.3d at 706. In accordance with the broad discretion
now afforded a trial court‟s sentencing decision,

      misapplication of an enhancement or mitigating factor does not invalidate
      the sentence imposed unless the trial court wholly departed from the 1989
      Act, as amended in 2005. So long as there are other reasons consistent with
                                           -22-
      the purposes and principles of sentencing, as provided by statute, a sentence
      imposed by the trial court within the appropriate range should be upheld.
Id.

       The Defendant was a Range II, multiple offender who was convicted of Class C
felonies; therefore, he was subject to a sentence between six and ten years on each count.
See Tenn. Code Ann. § 40-35-112(b)(3). The trial court found that three enhancement
factors applied to both of the Defendant‟s convictions for facilitation of attempted second
degree murder and possession of contraband in a penal institution: (1) the Defendant had
a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range; (10) the Defendant had no hesitation about
committing a crime when the risk to human life was high; and (13) at the time the felony
was committed, the Defendant was incarcerated in a penal institution on a felony
conviction. See Tenn. Code Ann. § 40-35-114(1), (10), & (13). The trial court also
applied enhancement factor (6), “The personal injuries inflicted upon, or the amount of
damage to property sustained by or taken from, the victim was particularly great[,]” to the
Defendant‟s facilitation of attempted second degree murder conviction. See Tenn. Code
Ann. § 40-35-114(6). The trial court then considered the Defendant‟s evidence in
mitigation and found that none applied. See Tenn. Code Ann. § 40-35-113.

       At the sentencing hearing, it is clear that the Defendant‟s presentence report was
admitted as an exhibit. However, the presentence report is not a part of the record on
appeal. At this juncture, and in light of waiver of many of the Defendant‟s previous
issues, we feel the need to address the multiple inadequacies of this appellate record, and
this court‟s attempts to remedy them.

        On April 15, 2015, this court ordered that the appellate record be supplemented
with the trial and sentencing exhibits, the motion for new trial, and the renewed motion
for judgment of acquittal; all of which were missing from therein and without which we
would be unable to review the sufficiency of the evidence, the Defendant‟s sentencing
issues, or determine if we had jurisdiction over his remaining issues. This order was filed
after the State had filed its responsive brief noting the various defects in the appellate
record and arguing for waiver of many of the Defendant‟s issues due to those defects. By
this time, the Defendant had also filed a reply brief but had not sought to supplement the
record with any of the items pointed out by the State or any of the items later requested
by this court. On April 29, 2015, we received a letter from the trial court clerk stating
that “the missing exhibit and the motions for new trial” were enclosed. The only
sentencing exhibit sent by the trial court was exhibit number six, which is a collective
exhibit of certified copies of judgments against the Defendant. The presentence report,
exhibit two, was still not included. On May 11, 2015, the Defendant filed a motion for
this court to take judicial notice of the video recordings currently in the co-defendant‟s
                                           -23-
appellate record, see State v. Adam Dansby Frazier, No. M2014-01027-CCA-R3-CD,
2015 WL 3623313 (Tenn. Crim. App. June 11, 2015), and included copies of the
remaining exhibits, but these were not certified as required by our rules. He also
requested consolidation of the two appeals. We granted his request to take judicial notice
of the co-defendant‟s record8 but denied any consolidation of the appeal given the
different paths the two cases had taken up to that date.

       “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 of the appeal.” State v. Robinson, 73 S.W.3d 136, 154 (Tenn. Crim. App.
2001); see Tenn. R. App. P. 24(b). Our inclination is to waive all of the Defendant‟s
sentencing issues for lack of a complete appellate record in the face of our attempts to
alleviate the defects in the sentencing exhibits. However, our supreme court has
cautioned, in sentencing cases, that if “the record is adequate for a meaningful review, the
appellate court may review the merits of the sentencing decision with a presumption that
the missing [evidence] would support the ruling of the trial court.” State v. Caudle, 388
S.W.3d 273, 279 (Tenn. 2012) (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.
App. 1991)).9 The Caudle court concluded that “the mere fact that the [sentencing
evidence] was not made a part of the record on appeal should not preclude review under
the standard adopted in Bise.” Id.

        Accordingly, we will dispense with the Defendant‟s argument on the merits. On
appeal, the Defendant argues that the trial court erred in applying enhancement factors (6)
and (10) and by failing to apply mitigating factors (1) and (4) to his conviction for
facilitation of attempted second degree murder. The Defendant does not challenge the
application of the remaining two factors, leaving (1) and (13) applicable even if we were
to accept the Defendant‟s argument as true. We likewise believe the record supports
application of factors (1) and (13) to the Defendant‟s facilitation conviction. It is clear
from the transcript that the Defendant had a lengthy criminal history in addition to that
necessary to establish the appropriate range and that he was incarcerated for a felony
conviction at the time of the offense.10 See Tenn. Code Ann. § 40-35-114(1) & (13).



8
  It is only because of our painstaking efforts that we were presented with an adequate record to conduct
meaningful appellate review of the sufficiency of the evidence supporting the Defendant‟s various
convictions. We also note that the Defendant‟s presentence report was not mistakenly included in the co-
defendant‟s appellate record.
9
   Caudle addresses a missing guilty plea transcript in a sentencing case, but we see no reason why the
same rationale would not extend to the circumstances presented here.
10
     The trial court noted the Defendant‟s “numerous prior convictions[,]” which included “at least five
misdemeanors and six felonies.”
                                                     -24-
       The State agrees with the Defendant that both enhancement factors (6) and (10)
were improperly applied to the Defendant‟s conviction for facilitation of attempted
second degree murder. In his initial brief, the Defendant argues only that the proof was
insufficient to support these factors. The State responds to the Defendant‟s argument by
citing to State v. James Earl Garrett, Jr., No. M2010-01391-CCA-R3-CD, 2011 WL
3689323, at *3 (Tenn. Crim. App. Aug. 23, 2011), and conceding that both of these
factors “are necessarily included with the offense of facilitation of second degree
murder.” The Defendant, in his reply brief, simply states, “[T]he Defendant would agree
with the State that the [c]ourt misapplied half of the enhancement factors.” We disagree
with both parties on all counts.

        It is true that factor (6), that the injuries inflicted upon the victim were particularly
great, is necessarily included within the offense of facilitation of second degree murder.
See Garrett, 2011 WL 3689323, at *3. However, factor (6) is not likewise an included
element in the crime of facilitation of attempted second degree murder. See State v.
Myron McNeal, No. W2010-01130-CCA-R3-CD, 2012 WL 543054, at *5 (Tenn. Crim.
App. Feb. 16, 2012) (applying enhancement factor (6) to sentence for conviction of
attempted second degree murder) (citing State v. Alexander, 957 S.W.2d 1, 7 (Tenn.
Crim. App. 1997) (“[P]ersonal injuries, great or small, are not an element of attempted
murder.”)). Although the risk of serious injury may be inherent in an attempted murder,
an actual injury is not an element of the offense. Here, Officer Miller suffered from
multiple stab wounds that left her with permanent scarring and injuries that will affect her
mobility for the rest of her life. Due to her injuries, she was unable to return to work at
the Turney Center. We hold that the trial court did not err by finding factor (6) applicable
to the Defendant‟s facilitation of attempted second degree murder conviction.

       We also disagree that factor (10), the Defendant had no hesitation committing a
crime where the risk to human life was high, was wrongly applied here. Previously, this
court has held that when enhancement factor (10) is inherent in the charged offense, it
may still be applied to enhance a sentence where a defendant‟s actions created a risk of
harm to an individual other than the named victim. See, e.g., State v. Joe Carpenter
Tyree, No. M2006-02173-CCA-R3-CD, 2007 WL 2295611, at *8 (Tenn. Crim. App.
Aug. 10, 2007); see also State v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002). That was
precisely the rationale of the trial court here:

       There were many other individuals and people around which I am satisfied
       is a powder keg waiting to explode under the best of circumstances. And
       then to have this type of conduct going on certainly increases the risk to
       human life, not only to the other officers who were working there but the
       other inmates within the pod.

                                              -25-
       Moreover, the Defendant argues that there was “no evidence that he had any
knowledge that the incident taking place around him caused a high risk to human life”;
that he did nothing more “than swing a sock with an unidentified object [in it] a few
times”; and that there was no evidence he “knew that anyone else around him possessed a
knife.” These assertions are completely contradicted by the evidence presented at trial
and at the sentencing hearing that the Defendant openly brandished a weapon in this
penal facility, which he used in an attack on two prison guards; that Officer Miller
suffered injuries from this weapon; that co-defendant Frazier was walking around with a
knife visibly in his hand; that he was involved in a standoff with another group of inmates
just before the attack; and that he had just been involved with these same two co-
defendants in a stabbing attack on two other inmates, which was what caused the “code”
calling for lock-down in the unit in the first place. The evidence does not preponderate
against the trial court‟s finding, and therefore, this factor was properly applied.

       The Defendant suggests that his conduct neither caused nor threatened serious
bodily injury to Officer Miller and that he played a minor role in the commission of the
offense. See Tenn. Code Ann. § 40-35-113(1) & (4). From the Defendant‟s actions in
the facilitation of the attempted murder of Officer Miller, the trial court could certainly
conclude that Officer Miller suffered serious bodily injury regardless of whether the
object the Defendant used was ever recovered. Additionally, the trial court stated that,
“in the [c]ourt‟s mind, [the Defendant] appeared to be the leader,” although the jury saw
it differently. Just because the Defendant was convicted of facilitation does not
necessarily equate to a finding that he played “a minor role in the commission of the
offense.” The trial court‟s decision not to apply these factors in mitigation is supported
by the record.

       Next, regarding the possession of contraband in a penal institution conviction, we
have already found that factors (1) and (10) were properly applied and, accordingly,
would likewise apply to this conviction. In his reply brief, the Defendant argues that the
trial court erred by applying enhancement factor (13)—at the time the felony was
committed, the Defendant was incarcerated in a penal institution on a felony
conviction—because “this factor is actually an element of the crime that he was
convicted of[.]” See Tenn. Code Ann. § 40-35-114(13). This court has previously
addressed the Defendant‟s argument regarding enhancement factor (13) and found it to be
without merit; ironically, this is the same case cited to earlier by the Defendant. See
Eads, 2008 WL 2790434, at *11 (holding that “a defendant‟s incarceration is not an
essential element of the offense of possession of contraband in a penal institution”).
Thus, we find no abuse of discretion in the application of any of the three enhancement
factors to the Defendant‟s possession of contraband in a penal institution conviction.



                                           -26-
       The Defendant again argues that trial court erred in failing to apply mitigating
factor (1), this time because his possession of “a blunt object wrapped in a cloth does not
cause or threaten serious bodily injury.” The Defendant ignores all evidence to the
contrary that he did much more than possess this weapon but indeed used it to strike
Officer Miller causing bodily injury. Finally, he contends that mitigating factor (11)
applied, “The defendant, although guilty of the crime, committed the offense under such
unusual circumstances that it is unlikely that a sustained intent to violate the law
motivated the criminal conduct[.]” See Tenn. Code Ann. § 40-35-113(11). He submits
that he never had any intent to violate the law; however, the jury determined otherwise.
Moreover, the Defendant again ignores the testimony at the sentencing hearing that he
was involved with these two co-defendants in the immediately preceding attack on two
inmates and additional testimony that he had been involved in other incidents while
incarcerated. The trial court was clearly merited in choosing not to apply these
mitigating factors.

        Importantly, what both parties fail to recognize is that, prior to the individual
rulings, the trial court collectively placed great emphasis on the circumstances
surrounding these three defendants‟ conduct. The trial court stated, “[c]ertainly in this
case the nature and characteristics of the criminal conduct involved is an overriding
consideration for the [c]ourt as it was for the [j]ury.” Addressing all three defendants, the
trial court found as follows:

       All three [d]efendants were major players in this conduct and bringing
       about this offense in a place that‟s a very dangerous place to begin with
       where citizens who are willing to work in a dangerous environment, like a
       penal facility, are placed to do nothing more than try to earn a living and
       maintain order among violent offenders and violent people. So the conduct
       that the [c]ourt witnessed on the video and that the [j]ury witnessed is
       nothing short of brutal. I don‟t know what other word describes the
       conduct of all three of these gentlemen that was inflicted on these two
       employees who were trying to earn a living and do the right thing by their
       families in guarding people, t[hree] individuals who have already been
       found to be violators of society‟s rules and laws. And all of that has to
       come into play with the conduct that I saw on the video as well, and
       certainly as the [j]ury saw in rendering their verdict of attempted second
       degree murder at least against a couple of these [d]efendants.
               But all of the [d]efendants‟ conduct in the [c]ourt‟s mind from the
       time that they got involved with the altercation, immediately before the
       stabbing of the guards, until the time that they had to be coerced out of their
       cells to face the music on this charge is just . . . nothing short of brutal,
       severe, vicious and inexcusable. And inexcusable seems like such a light
                                            -27-
       word to place on this conduct, but there‟s just no excuse for the blood-
       thirsty type conduct that these three engaged in. Perhaps blood-thirsty is a
       better word.

       We conclude that the record supports the trial court‟s application of enhancement
factors (1), (10), and (13) to both of the Defendant‟s ten-year sentences for facilitation of
attempted second degree murder and possession of contraband in a penal institution and
of enhancement factor (6) to the facilitation of attempted second degree murder
conviction. Regardless, as stated above, “misapplication of an enhancement or mitigating
factor does not invalidate the sentence imposed unless the trial court wholly departed
from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. In accordance with
the broad discretion now afforded a trial court‟s sentencing decision, a sentence imposed
by the trial court within the appropriate range should be upheld so long as the sentence is
consistent with the principles and purposes of the Act, regardless of the presence or
absence of mitigating and enhancement factors. Id. The trial court in this case
thoroughly considered the purposes and principles of the Sentencing Act in rendering its
decision; therefore, we discern no abuse of discretion, and the imposition of the
maximum sentences in the range is affirmed.

                                      CONCLUSION

        Based upon the foregoing reasoning and authorities, we affirm the judgments of
the trial court.



                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                            -28-
