        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              December 8, 2015 Session

               STATE OF TENNESSEE v. KEITH TRAMMELL

                  Appeal from the Criminal Court for Shelby County
               Nos. 13-03215, 13-03989  James C. Beasley, Jr., Judge


             No. W2014-02433-CCA-R3-CD - Filed February 19, 2016



The defendant, Keith Trammell, was convicted by a Shelby County jury of theft over
$1000, a Class D felony; vandalism over $500, a Class E felony; and two counts of
coercion of a witness, a Class D felony. The trial court sentenced him as a career
offender to twelve years for the theft conviction, six years for the vandalism conviction,
and twelve years for each of the coercion convictions. The court ordered the theft and
vandalism sentences to be served concurrently to each other and the coercion sentences to
be served concurrently to each other but consecutively to the theft and vandalism
sentences, for a total effective sentence of twenty-four years at 60% in the Department of
Correction. On appeal, the defendant argues that the trial court erred by sentencing him
as a career offender and by allowing the State to introduce evidence of uncharged crimes.
Following our review, we affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

Terrell L. Tooten, Memphis, Tennessee (on appeal and elbow counsel at trial); and Keith
Trammell, Pro Se (at trial), for the appellant, Keith Trammell.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                               OPINION

                                                FACTS

       On Wednesday, March 20, 2013, Memphis homeowner and resident Wendy
Trenthem and her teenaged son discovered two men lifting her central air conditioning
condenser unit into the back of a pickup truck. Mrs. Trenthem took the men‟s
photographs, went inside to call the police, and watched from her kitchen as the men
attempted to start the pickup truck. When the truck would not start, one of the men fled
on foot. The other man, whom she later identified as the defendant, managed to get the
truck‟s engine started and the vehicle to move backwards a short distance down her
driveway but apparently was unable to get it into drive. After briefly walking away, the
defendant returned, got back inside the truck, and gunned the engine, which caused the
vehicle to shoot backwards down Mrs. Trenthem‟s drive, scraping against the side of her
house and knocking down the gate to her backyard fence. At that point, the defendant
again exited the truck and walked away. He was arrested a few minutes later
approximately four houses north of Mrs. Trenthem‟s home.

       On Saturday, March 23, 2013, Mrs. Trenthem received four letters, all of which
had been sent from the county jail and were postmarked March 22. Menacing messages
were handwritten on the envelopes of three of the letters, with certain words underlined
for emphasis. The letter that was designated as “#1” contains the return addressee “Terri
Hill” at “201 Poplar Ave”1 and the following message on the back of the envelope2: “Do
you watch T.V. The times of today‟s world are in they last people are doing all kind of
crazy things. This is not a charge that would cost once life in jail. That murder or killing
someone and get away!!!”

       The letter designated as #2 contains the return addressee “Mac Crip” at “201
Poplar Ave” and the following message on the back of the envelope:

       Those photo and lie cost more than what you want to pay. Don‟t need you
       in court thanks. Forget all court date & photo. Police don‟t care. Put life
       of family in danger no reason. Your house address and family is now being
       watched, because you let them get away, and lied on wrong person.

       The return addressee on the envelope of the letter designated as “#3” was “Do or
Die” at “201 Poplar” and contained a handwritten note on the front, stating: “Maybe you
move your family Mrs Show Out).” On the back of the envelope was a handwritten note
       1
           201 Poplar Avenue is the address of the Shelby County Jail.
       2
           We have made no attempt to correct spelling or grammar.
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that stated: “Please read You can trust what you want. But I watch your family better
than police. I will know if the police hear about these letters. Than you know.”

       The return addressee of the letter designated as “#4” was “May God Bless Us” at
“201 Poplar Ave.” Nothing other than Mrs. Trenthem‟s name and address was written on
this envelope. Mrs. Trenthem did not open any of the envelopes but instead contacted the
police, whose investigation uncovered the defendant‟s fingerprints on the letter
designated as “#1” and on the envelope of the letter designated as “#2.”

       On July 16, 2013, the Shelby County Grand Jury indicted the defendant for theft
over $1000 and vandalism over $500 for the March 20, 2013 theft and vandalism of Mrs.
Trenthem‟s property. On August 20, 2013, the Shelby County Grand Jury returned a
second indictment charging the defendant with two counts of the coercion of a witness,
based on letters #1 and #2. At the defendant‟s request, the two cases were consolidated
for trial. The defendant elected to represent himself at trial, with elbow counsel
appointed to assist him, and was convicted of the indicted offenses. The defendant
subsequently elected to have his elbow counsel represent him at sentencing, at the motion
for new trial, and on appeal. At the conclusion of the sentencing hearing, the trial court
found that the defendant had 13 prior felony convictions in Tennessee and four prior
felony convictions in North Carolina and sentenced the defendant as a career offender to
an effective sentence of twenty-four years in the Department of Correction. Following
the denial of his motion for new trial, the defendant filed a notice of appeal to this court
in which he challenges his classification as a career offender and the trial court‟s
admission of letters #3 and #4 into evidence.

                                    ANALYSIS

                        I. Career Offender Classification

        The defendant first contends that the trial court erred by sentencing him as a career
offender. Specifically, he argues that the trial court should not have relied on his
presentence report, which contained inaccurate and unreliable information about his
convictions, in finding that he had the requisite number of prior felonies to be sentenced
as a career offender. He asserts that because he did not stipulate to the report‟s accuracy,
and because he denied during his sentencing hearing testimony that he had the eleven
prior felony convictions listed by the State in its notice of enhanced punishment, “the pre-
sentence report should have been certified.” The defendant points out that several of his
felony convictions have the same offense date and argues that they should have been
considered as one offense for range classification purposes. He also asserts that all his
prior North Carolina convictions were misdemeanors, rather than felonies.

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        The State argues that the defendant has waived any issue regarding the
introduction of the presentence report and the grouping of his various felonies with the
same offense date by not raising objections in the lower court. The State further argues
that, even if the court were to recount the felonies by counting ones with the same offense
date as a single felony, the defendant would still have nine prior felony convictions and
be classified as a career offender.

        As an initial matter, we agree with the State that the defendant has waived his
argument regarding the introduction of the presentence report and the fact the State did
not introduce certified copies of his convictions by his failure to raise an objection before
the trial court. Defense counsel specifically stated at the beginning of the sentencing
hearing that he had no objection to the introduction of the presentence report, although he
did later point out that four of the defendant‟s prior felonies were for forgery and had the
same offense date. Tennessee Code Annotated section 40-35-209(b) provides in
pertinent part that, at a sentencing hearing, “reliable hearsay . . . may be admitted if the
opposing party is accorded a fair opportunity to rebut any hearsay evidence so admitted.”
This court has consistently held that the presentence report is reliable hearsay. See State
v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997). Moreover, we have also held that
certified copies of prior judgments are not required to support a defendant‟s offender
classification and that the court may take judicial notice of information in a presentence
report. See State v. James Alton Campbell a/k/a Jamie Campbell, No. M2006-01817-
CCA-R3-CD, 2007 WL 3275491, at *6 (Tenn. Crim. App. Nov. 7, 2007), perm. app.
denied (Tenn. Apr. 14, 2008).

        We also agree with the State that, even if the felonies in the presentence report that
have the same offense date are counted as single felonies for range classification
purposes, the defendant still has more than enough prior felonies for sentencing as a
career offender. Tennessee Code Annotated section 40-35-108(a)(3) provides that a
career offender is a defendant who has received “[a]t least six (6) prior felony convictions
of any classification if the defendant‟s conviction offense is a Class D or E felony.” The
trial court found that the defendant, based on its review of the presentence report, had
nineteen misdemeanor and thirteen felony convictions in Tennessee and two
misdemeanor and four felony convictions in North Carolina. Eliminating the North
Carolina convictions and counting the felonies with the same offense date as single
felonies, the defendant still has nine prior Tennessee felonies. Accordingly, we conclude
that the trial court properly sentenced the defendant as a career offender.

                         II. Admission of Letters #3 and #4

       The defendant also contends that the trial court erred by admitting the third and
fourth letters into evidence, arguing that because they constituted proof of other crimes,
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the trial court should have conducted a Tennessee Rule of Evidence 404(b) analysis of
whether their probative value outweighed the danger of unfair prejudice. The defendant
asserts that any probative value of the letters was clearly outweighed by their highly
prejudicial impact on the jury given the cumulative nature of the evidence and the fact
that the jurors “very likely . . . confused what language was on which letter” and
convicted him based on language of a letter for which he was not charged.

        The State argues that the defendant has waived the issue because he never argued
at trial that the letters were inadmissible propensity evidence. The State further argues
that the defendant‟s argument fails on its merits because a material issue existed other
than the defendant‟s conduct conforming with a character trait, there was clear and
convincing evidence that the victim received the letters, and there was no indication that
the additional letters caused unfair prejudice to the defendant or confusion to the jury.
We agree with the State.

        The record reveals that the defendant introduced the first letter into evidence, letter
#2, through the testimony of the police officer who was assigned to the coercion case.
Before the jury was brought into the courtroom the next day, the State mentioned its
intention to introduce the other three letters into evidence. The defendant objected,
arguing that there were “a lot” of letters, that he was “only charged with two counts,” and
that the detective who was in court the previous day was the “only one that knows about
the letters.” The defendant went on to argue that the State should have introduced the
letters through the detective because Mrs. Trenthem had not opened or read the letters.
The court explained that the letters could be marked as exhibits assuming that Mrs.
Trenthem could identify them as the ones she received. The court also reassured the
defendant that he could state any objection to the letters at the appropriate point in the
proof and that the court would then rule on his objection. However, at each point in Mrs.
Trenthem‟s testimony that the State moved to introduce the successive letters into
evidence, the defendant stated that he had no objection. We, therefore, agree with the
State that the defendant has waived any 404(b) argument by his failure to give the trial
court an opportunity to address it at trial. See Tenn. R. App. P. 36(a).

        We also agree with the State that, regardless of waiver, the defendant would not be
entitled to relief on the merits of this issue. Tennessee Rule of Evidence 404(b) provides
that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity with the character trait.” Such evidence,
may, however, be admitted for other purposes if it is relevant to some matter at issue in
the case and if its probative value is not outweighed by the danger of its prejudicial
effect. See id. “Issues to which such evidence may be relevant include identity, motive,
common scheme or plan, intent, or the rebuttal of accident or mistake defenses.” State v.
Kiser, 284 S.W.3d 227, 288 (Tenn. 2009) (citations omitted). Closely related to the
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“common scheme or plan” category is the “same transaction” category, which “permits
other acts to be admitted to provide the trier of fact with the „full story‟” of the crime.
Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[13] (6th ed. 2011).

       The introduction of all four letters helped the jury to understand the “full story” of
the crimes, given the fact that Mrs. Trenthem received all four together in the same day‟s
mail. Moreover, evidence of her receipt of the letters was clear and convincing, and there
was no evidence that the probative value of the letters was outweighed by the danger of
unfair prejudice to the defendant‟s case. As the State points out, the indictment clearly
indicated on which letters the charges were based, the jury was appropriately charged in
accordance with the indictment, and the State explained during closing argument the
evidence upon which it relied for the convictions. Accordingly, we conclude that the trial
court did not err in admitting the letters.

                                         CONCLUSION

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


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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