             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                         FEBRUARY SESSION, 1997                           FILED
                                                                           August 15, 1997

                                                                   Cecil W. Crowson
STATE OF TENNESSEE,                        )
                                                                 Appellate Court Clerk
                                           )        No. 01C01-9605-CC-00195
        Appellee                           )
                                           )        WHITE COUNTY
vs.                                        )
                                           )        Hon. LEON BURNS, JR., Judge
CHARLES CLAY YOUNG,                        )
                                           )        (Solicitation to Commit First Degree
        Appellant                          )        Murder -- Two Counts)



                           SEPARATE CONCURRING OPINION



        While I concur in the affirmance of the appellant's convictions, I do so for

reasons other than those announced by the majority. I write separately to

address the issues of venue, authentication of the audio tape and impeachment

by prior conviction.



        First, I find the law dispositive of the issue of venue to be Tenn. Code

Ann. § 39-11-103(d) (1991) which provides in pertinent part: "[i]f one or more

elements of an offense are committed in one county and one or more elements

in another, the offense may be prosecuted in either county." The proof is

undisputed that all or part of the appellant's solicitations to murder his ex-wife

and son occurred in White County. This proof is sufficient to establish venue by

a preponderance of the evidence. Tenn. Code Ann. § 39-11-201(e)(1991). 1



        Next, the appellant argues that introduction of the audio tape into

evidence was error. Specifically, he contends that "no witness testified that any

voice on the tape recording was that of the Defendant." I find the appellant's

argument to be correct. The majority concludes that the audio tape was properly

admitted citing as authority Tenn. R. Evid. 901(a) and case law which holds that

properly authenticated evidence is left to the discretion of the trial court. I find

        1
          In this regard it is noted that the trial court improperly charged the jury that venue must
be p rove n "beyond a rea son able dou bt."
that the controlling law on this issue rests not upon the discretion of the trial court

but upon compliance with Rule 901(a)(5) which deals specifically with the issue

of voice identification. In essence this rule requires that, as a "condition

precedent to admissibility," the voice on the tape recording must be identified "by

opinion based upon hearing the voice at any time under circumstances

connecting it to the alleged speaker." Tenn. R. Evid. 901(b)(5). See also State

v. Parker, No. 02C01-9606-CR-00188 (Tenn. Crim. App. at Jackson, Apr. 23,

1997).



         In the present case, the appellant's voice was not identified prior to the

tape's admission, therefore, the tape was not properly authenticated, and, thus,

was improperly admitted. Parker, No. 02C01-9606-CR-00188 (citing State v.

Smith, 868 S.W.2d 561, 577 (Tenn. 1993)). Notwithstanding error, which I find

to be harmless, the appellant's claim is procedurally defaulted for failing to raise

a contemporaneous objection to its admissibility upon this ground and upon

failure to include the issue in his motion for new trial. See Tenn. R. Evid. R.

103(a) and Tenn. R. App. P. 3(e).



         Finally, the majority concludes that evidence of the appellant's prior

conviction for arson was more prejudicial than probative absent any evidence of

the attendant facts. I respectfully disagree. The appellant's credibility was very

much an issue in this case. A prior conviction for arson, a felony, was relevant to

counter that contention, and was certainly more probative than prejudicial in

value. See State v. Hunter, No. 30 (Tenn. Crim. App. at Jackson, Feb. 8, 1989).



         Based upon the foregoing reasons, I would affirm the appellant's

convictions.




                                     ____________________________________
                                     DAVID G. HAYES, Judge

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