             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JUNE 1996 SESSION
                                                       FILED
                                                        August 18, 1997

STATE OF TENNESSEE,           )                     Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
                              )
             Appellee,        )    No. 02C01-9512-CC-00389
                              )
                              )    Madison County
v.                            )
                              )    Honorable Franklin Murchison, Judge
                              )
GEORGE E. MARTIN, JR.,        )     (Possession with the intent to sell cocaine)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

George Morton Googe                Charles W. Burson
District Public Defender           Attorney General of Tennessee
   and                                    and
Pamela J. Drewery                  Robin L. Harris
Assistant Public Defender          Assistant Attorney General of Tennessee 227
W. Baltimore Street                450 James Robertson Parkway
Jackson, TN 38301                  Nashville, TN 37243-0493

                                   Jerry Woodall
                                   District Attorney General
                                           and
                                   Nick Nicola
                                   Assistant District Attorney General
                                   P.O. Box 2825
                                   Jackson, TN 38302




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                               OPINION



                 The defendant, George E. Martin, Jr., appeals as of right from his

conviction by a jury in the Circuit Court of Madison County for possession with the intent

to sell cocaine, a Class B felony. The trial court sentenced the defendant as a Range I,

standard offender to nine years to serve ninety days in the county jail and eight years

and nine months on community corrections. The trial court also imposed a fine of two

thousand dollars. On appeal, the defendant contends that:

                 (1) the trial court erred by denying his motion to suppress;

                 (2) the prosecutor engaged in improper argument by
                 commenting on the absence of witnesses;

                 (3) the trial court erred by allowing into evidence the cocaine
                 seized by the officers because the state failed to establish the
                 proper chain of custody of the evidence, by failing to take
                 judicial notice of newspaper articles reporting the desecration
                 of the Drug Task Force’s evidence vault, and by not allowing
                 the defendant more time to gather proof regarding the
                 desecration; and

                 (4) the trial court erred in sentencing the defendant because it
                 failed to consider mitigating factors and improperly considered
                 an enhancement factor.1

We hold that the trial court did not err. We affirm the defendant’s judgment of

conviction.



                 Officers Greg Robinson and Tim Willis of the Madison County Sheriff’s

Department were conducting a drug sweep at Merry Lane Courts. Initially, they

observed the defendant walking towards them through a playground approximately



                 1
                   Although the defendant does not present it in his statement of the issues, he begins the
argument portion of his brief with a claim that the guilty verdict “is against the great weight and
preponderance of the evidence,” pointing to perceived weakn esses in the sta te’s pro of. This claim
pres ents no cogn izable iss ue. See State v. Matthews, 805 S.W .2d 776, 778-7 9 (T enn . Crim . App . 1990).
Appellate review of the sufficienc y of the e viden ce d oes not allow us to rew eigh the eviden ce o r to
consider how it might preponderate. Rather, we must afford the state the strongest legitimate view of the
evidence contained in the record, including all reasonable and legitimate inferences which may be drawn
there from . State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978). Then, it is only when the facts, so
viewed, are insufficient as a matter of law for a rational trier of fact to find guilt beyond a reasonable doubt
may we conclude that the evidence is insufficient. In this respect, our review of the evidence in this case
leads us to the conclusion that the defendant was convicted upon sufficient evidence.

                                                       2
seventy-five yards away. When the defendant was within fifty yards of the officers, the

defendant reached inside his pocket, removed something and dropped it on the ground.

The defendant then turned to the right and began walking away from the officers.

Officer Willis stopped the defendant and asked him for identification. Meanwhile,

Officer Robinson returned to the playground area to search for the item dropped by the

defendant. Officer Willis permitted the defendant to leave before Officer Robinson

discovered a plastic bag containing a substance that appeared to be crack cocaine.

The plastic bag contained fourteen rocks of a cocaine-based substance having a street

value of about two hundred and fifty to two hundred and eighty dollars. The officers

then arrested the defendant as he entered Kentucky Fried Chicken, finding three

hundred and ten dollars in cash and a pager on the defendant.



                               I. MOTION TO SUPPRESS

              The defendant contends that the trial court should have granted his

motion to suppress in that the police lacked probable cause for the warrantless stop of

him. However, the defendant has failed to raise the issue in his motion for new trial.

The failure to raise the issue in the motion for new trial constitutes a waiver of the issue

on appeal. See T.R.A.P. 3(e) and 36(a). Also, the defendant has not included a

transcript of the hearing on the motion to suppress in the record on appeal. It is the

defendant’s duty “to have prepared a transcript of such part of the evidence or

proceedings as is necessary to convey a fair, accurate and complete account of what

transpired with respect to the issues that are the bases of appeal.” T.R.A.P. 24(b).

When necessary parts of the record are not included on appeal, the court must

presume that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d 554, 559

(Tenn. Crim. App. 1991). Such is the case before us.




                                             3
                            II. PROSECUTOR ARGUMENT

             Next, the defendant contends that the prosecutor committed prosecutorial

misconduct during his closing argument by commenting on the absence of witnesses.

He argues that the witnesses were not knowledgeable about material facts and could

have testified only to collateral matters. He asserts that the comments were especially

damaging because the defendant’s credibility had been attacked.



             During the trial, the defendant testified that he had borrowed his sister’s

car to visit his cousin, Yolanda Brown, at Merry Lane Courts. He said that he had left

Brown’s apartment to walk to Kentucky Fried Chicken to get something to eat at the

time that he was arrested. He also stated that he was living with his mother at the time.

Regarding the three hundred and ten dollars that he had with him at the time of his

arrest, the defendant claimed that he had received approximately one hundred and fifty

dollars from an income tax refund and that he had won the rest of the money gambling.

The defendant also testified that he had the pager to keep in contact with his friends.

He conceded that he had lied to the officers about the source of the money. On cross-

examination, the defendant admitted that his mother, sister, cousin and his friends who

contacted him through his pager were not there to testify.



             In relevant part, the prosecutor’s argument was as follows:

                     Now, . . . the Judge is going to instruct you that you can
             weigh the credibility of witnesses and he is also going to
             instruct you that the burden of proof is upon the State. And
             that burden never shifts. However, the defendant here today,
             it’s his cho[ic]e to present testimony and puts his own
             credi[]bility into issue that you can weigh.

                     Now, imagine this if it were. If Investigator Robinson
             had testified we found crack cocaine, we saw the defendant
             drop it, and that was the only proof. We wouldn’t bring Willis
             to say he had all the money, we didn’t bring in the lab person
             to say this in fact was crack cocaine. You may very well say,
             you didn’t carry your burden through. And, that would be fine.
             But, we brought in these people to show you each step that
             was taken. The defendant, on the other hand doesn’t even
             bring in his own mother to say in fact that he did live in


                                             4
              Denmark, at some time. Doesn’t bring in the people that he
              was supposed to be gambling with. Doesn’t bring in all these
              people who needed to contact him, by use of his pager.
              Doesn’t bring in his sister, who’s car he said he borrowed and
              most of all, and most importantly, doesn’t even bring in the
              cousin that he says he was there to visit. Now, would you allow
              the State to take steps like that?

                     MS. DREWERY: Your Honor. The burden’s different for
              the State, than it is for the Defense.

                     THE COURT: Well, the burden is on the State. The
              Defendant doesn’t have to prove anything. The state has to
              prove the case.

The prosecutor continued his argument by acknowledging that the state had the burden

of proof in the case, but asserted that the jury was not required to accept the

defendant’s proof without question.



              The prosecutor also stated that the defendant had offered no plausible

explanation for being in a high crime area, arguing:

              You have his word, but none of the corroborating. None of the
              people, who could supposedly back his word up. And, what’s
              his word worth? Well, he’s told you once, at least once, that
              he lied to the officers, while out there on the scene. He lied
              about where the money came from. Perhaps, he lied about
              what he was actually doing out there.

The prosecutor then argued that the defendant wanted the jury to believe that the

officers had lied but that “he doesn’t offer anything to back it up. He doesn’t offer the

supposed cousin, he was out there visiting.”



              The defendant refers to the comments made by the prosecutor as

references to missing witnesses for the purpose of the jury inferring that the witnesses’

testimony would have been unfavorable had they testified. “As a predicate for

comment on a missing witness, the evidence must show that the witness had

knowledge of material facts, that a relationship exists between the witness and the party

that would naturally incline the witness to favor the party and that the missing witness

was available to the process of the Court for the trial.” Delk v. State, 590 S.W.2d 435,



                                             5
440 (Tenn. 1979). The mere fact that a party fails to produce a particular person who

may have some knowledge of the facts involved does not justify application of the

inference. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984).



              The initial problem with the defendant’s position, though, is that he did not

object to the argument based upon the missing witness inference. Rather, he objected

to the state’s argument because it tended to shift the burden of proof to him. The trial

court sustained this objection and gave a curative instruction, which was immediately

followed by the state’s acknowledgment that the defendant did not have any burden of

proof. The defendant may not object on one ground and then assert a new or different

theory to support the objection in the motion for new trial or on appeal. State v.

Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994). Raising a new ground on

appeal for objecting to the introduction of evidence results in a waiver of the issue on

appeal. Id. at 635.



              In any event, we do not believe that the prosecutor’s argument was

improper as claimed by the defendant. During cross-examination, the prosecutor asked

the defendant, without objection, whether his mother, sister, cousin and friends who

contacted him on his beeper were present to testify. The defendant stated that they

were not present and admitted that they could have testified in his behalf. In this

respect, the prosecutor’s reference to the witnesses’ absence was a permissible

comment on the evidence.



              Also, we see some defusion from the missing witness inference in that the

prosecutor’s comments actually focused upon the defendant’s credibility and not

directly upon what could be inferred from “missing witnesses” about their potential

testimony. In this context, we do not believe that the prosecutor’s argument was




                                             6
improperly prejudicial to the defendant, and thus, it did not constitute prosecutorial

misconduct. See Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).



                                 III. INTRODUCTION OF COCAINE

                 The defendant asserts that the trial court erred by allowing evidence of

cocaine over his objection regarding the adequacy of the chain of custody. He argues

that the trial court should have either taken judicial notice of newspaper articles2

reporting the “desecration” of the Drug Task Force’s evidence vault or given him more

time to gather proof regarding the desecration. We hold that the trial court did not err

by permitting the introduction of the cocaine into evidence.



                 At trial, Officer Greg Robinson testified that he took the plastic bag that he

retrieved from the ground near the playground, sealed it in the appropriate evidence

envelopes with an evidence tag, and placed it in the evidence vault. Officer Robinson

identified the plastic bag and the evidence bag containing the case number, the charge,

the defendant’s name, and the seals with his initials on the tape. He stated that he took

the evidence bag from the vault and brought it to court. He said that the bag was

sealed and had one additional piece of tape on it which was added by the crime lab.



                 During the prosecutor’s questioning of Officer Robinson regarding the

chain of custody of the cocaine, a jury-out hearing was held at which defense counsel

objected to the admission of the cocaine, stating that the Drug Task Force had

experienced problems with its evidence room. The prosecutor asserted that defense

counsel was referring to articles contained in The Jackson Sun but stated that defense

counsel had no proof of the problem. The trial court overruled the defendant’s

objection, stating that the state must establish chain of custody.




                 2
                    W e note that the newspaper articles are not contained in the record. It is the
defend ant’s o bligation to prepare an adeq uate reco rd for app ellate review. T .R.A .P. 24 .

                                                       7
              Officer Willis testified that the evidence was placed inside the vault and

that it was not removed until he took it to the crime lab for analysis. TBI Agent Lisa

Mayes testified that she received a sealed, plastic bag of cocaine from Officer Willis.

She said that after analyzing the substance, she placed the plastic bag back inside the

evidence bag, sealed it, wrote the lab number and her initials on the bag, and then

placed the evidence inside the evidence vault. At trial, she identified the evidence and

confirmed that the lab number matched that of the evidence she analyzed.



              At the motion for new trial, the defendant argued that the state had failed

to establish the chain of custody of the cocaine. The defendant asserted that the trial

court could take judicial notice that the Drug Task Force’s vault was broken into based

upon the newspaper articles, but the prosecutor objected to the introduction of the

articles. Defense counsel then requested that more time be allowed to prove that the

vault had been broken into, and the prosecutor responded, “We had a trial.” The trial

court did not directly rule on either request, but instead stated, “Go ahead.” Defense

counsel proceeded to her next issue contained in the motion for new trial. At the

conclusion of the hearing, the trial court denied the defendant’s motion for new trial.



                                            A.

              First, the defendant argues that the trial court erroneously allowed

evidence of the cocaine because the state failed to show the proper chain of custody of

the cocaine. The state responds that the record demonstrates that the testimony of the

officers and Agent Mayes sufficiently established the chain of custody. We agree.



              Before tangible evidence can be introduced, “a witness must be able to

identify the evidence or establish an unbroken chain of custody.” State v. Goodman,

643 S.W.2d 375, 381 (Tenn. Crim. App. 1982); Bolen v. State, 544 S.W.2d 918, 920

(Tenn. Crim. App. 1976). The purpose underlying this requirement is “to demonstrate



                                             8
that there has been no tampering, loss, substitution, or mistake with respect to the

evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). However,

the identity of such evidence need not be proven beyond all possibility of doubt, but

rather the circumstances must establish a reasonable assurance of the identity of the

evidence. Ritter v. State, 3 Tenn. Crim. App. 372, 462 S.W.2d 247, 250 (1970).

Whether the requisite chain of custody has been sufficiently established to justify

admission of evidence is a matter committed to the sound discretion of the trial court,

and the trial court’s determination will not be overturned in the absence of an abuse of

that discretion. Goodman, 643 S.W.2d at 381; Wade v. State, 529 S.W.2d 739, 742

(Tenn. Crim. App. 1975).



               The evidence in this case is sufficient to establish an unbroken chain of

custody. The testimony of Officer Robinson, Officer Willis and Agent Mayes

establishes a reasonable assurance that the substance discovered by Officer Robinson

was the same substance which Agent Mayes tested and which was introduced at trial.



                                                B.

               Next, the defendant asserts that the trial court should have taken judicial

notice of newspaper articles reporting the desecration of the Drug Task Force’s

evidence vault. The state contends that the defendant did not request that the trial

court take judicial notice at trial but instead waited until the motion for new trial. The

state argues that the trial court could not take judicial notice of the articles absent a

request by the defendant. We hold that the trial court did not err by failing to take

judicial notice of the articles.



               Judicial notice is governed by Rule 201, Tenn. R. Evid. A trial court may

take judicial notice of an adjudicative fact that is “not subject to reasonable dispute, in

that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)



                                                9
capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Tenn. R. Evid. 201(a) and (b). A request need not

be made for the trial court to take judicial notice, and such notice may be taken at any

stage of the proceedings. Tenn. R. Evid. 201(c) and (e).



              Rule 201 does not permit a trial court to take judicial notice of hearsay

statements contained in the newspaper articles. Information contained in a newspaper

article is not “capable of accurate and ready determination by resort to sources whose

accuracy cannot be questioned.” Rather, the content of newspaper articles is hearsay

that does not fall within an exception to the hearsay rule, and thus is inadmissible at

trial. Tenn. R. Evid. 801, 802 and 803. Whether the vault had been tampered with was

a matter that was subject to reasonable dispute, and therefore, the defendant was

required to prove the fact. The defendant failed to do so in this case.



                                             C.

              The defendant contends that the trial court should have given him more

time to establish the desecration of the Drug Task Force’s vault. However, the

defendant did not make a request for additional time until the motion for new trial.

Under these circumstances, the defendant is not entitled to relief. See T.R.A.P. 36(a).

In any event, the defendant has failed to establish that the trial court abused its

discretion in admitting the evidence. We hold that the trial court did not err.




                                    IV. SENTENCING

              The defendant asserts that the trial court erred in sentencing the

defendant by failing to consider mitigating factors and by relying on enhancement

factors not provided by T.C.A. § 40-35-114. He argues that the trial court should have



                                            10
imposed the minimum sentence with the lowest level of supervision. The state

contends that the trial court properly sentenced the defendant. We agree.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section notes, the burden is now on the

defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, "the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances."

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



              Also, in conducting a de novo review, we must consider (1) the evidence, if

any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,



                                             11
(6) any statement that the defendant made on his own behalf and (7) the potential for

rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see Ashby, 823 S.W.2d

at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).



                The sentence to be imposed by the trial court is presumptively the minimum

in the range unless there are enhancement factors present. T.C.A. § 40-35-210(c).3

Procedurally, the trial court is to increase the sentence within the range based upon the

existence of enhancement factors and, then, reduce the sentence as appropriate for any

mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be afforded an existing

factor is left to the trial court's discretion so long as it complies with the purposes and

principles of the 1989 Sentencing Act and its findings are adequately supported by the

record. T.C.A. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.



                Before the sentencing hearing, the defendant filed a list of mitigating factors

for the trial court to consider. The defendant requested that the trial court consider that:

                (1) the defendant’s conduct neither caused nor threatened
                serious bodily injury;

                (2) the defendant did not contemplate that his criminal conduct
                would cause or threaten serious bodily injury;

                (3) the defendant, because of his youth, lacked substantial
                judgment in committing the offense; and

                (4) the defendant is attempting to enroll in college.

See T.C.A. § 40-35-113(1), (6) and (13).



                At the sentencing hearing, the then nineteen-year-old defendant testified

that he was not working but planned to attend technical school to study diesel

mechanics and auto body repair in the fall. The defendant conceded that he had not



                3
                   For Class A felonies comm itted on or after July 1, 1995, the presumptive sentence is the
m idpoint of the rang e. See T.C.A. § 40-35 -210(c) (Sup p. 1996).

                                                    12
enrolled at school but asserted that he had talked to someone at the school regarding

enrollment and financial aid. He asserted that he had not looked for a job because of

his plans to go back to school. The defendant said that he was living in Nashville with a

friend and claimed that his mother was giving him money to pay the bills. He admitted

that he had been convicted of misdemeanor possession of marijuana approximately

three to four months earlier.



              The presentence report reflects that the defendant, a high school

graduate, did not have any prior felony convictions. It shows that the defendant was

arrested when he was sixteen years old for shoplifting and was ordered to participate in

the street law program. Regarding his employment history, the report states that the

only job held by the defendant was with the United Parcel Service over the Christmas

holiday as a seasonal employee following his arrest for the present offense. The report

also reflects that the defendant denied having any alcohol or drug abuse problems.



              At the conclusion of the sentencing hearing, the trial court sentenced the

defendant to nine years, with ninety days to be served in the county jail and the

remaining portion in community corrections. In sentencing the defendant, the trial court

concluded that the only enhancement factor that applied was his previous history of

criminal convictions or criminal behavior. See T.C.A. § 40-35-114(1). The trial court

also considered in mitigation that the defendant was eighteen years old at the time he

committed the offense. See T.C.A. § 40-35-113(6) (“The defendant, because of his

youth . . ., lacked substantial judgment in committing the offense.”).



              The defendant argues that the trial court inappropriately considered the

seriousness of the crime for enhancement purposes. We note that the enhancement

factors set forth in T.C.A. § 40-35-114 have been determined to be the factors that may

be applied to increase the length of a defendant’s sentence. State v. Dykes, 803



                                            13
S.W.2d 250, 258 (Tenn. Crim. App. 1990). We also note that although the seriousness

of the offense is not a factor contained in T.C.A. § 40-35-114, the 1989 Sentencing Act

requires the nature and characteristics of the criminal conduct to be considered for

sentencing purposes. See T.C.A. § 40-35-210. In this sense, to the extent that the

circumstances surrounding the criminal conduct relate to existing enhancement factors,

those circumstances may have substantial bearing on the weight that the sentencing

court places upon a particular factor. In any event, though, the record in the present

case does not reflect that the trial court enhanced the defendant’s sentence based

upon the seriousness of the offense. Rather, although the trial court stated the offense

was “very aggravating” and “terrible,” it stated that those circumstances were addressed

by the penalty involved for the offense being a Class B felony. Thus, the trial court did

not inappropriately consider the circumstances of the crime for enhancement purposes.




              The defendant also contends that the trial court failed to address the list of

mitigating factors provided by the defendant before trial. We disagree. The record

shows that the trial court considered but rejected the mitigating factors offered by the

defendant. We agree with the trial court’s decision.



              Regarding the defendant’s claim that he deserved the minimum sentence,

we note that the trial court’s decision regarding the weight to be afforded an existing

factor is discretionary as long as it complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. §

40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,

823 S.W.2d at 169. We conclude that the record adequately supports the trial court’s

sentencing decision.




                                            14
             In consideration of the foregoing and the record as a whole, we affirm the

defendant’s judgment of conviction.




                                                     Joseph M. Tipton, Judge



CONCUR:




David H. Welles, Judge



Jerry L. Smith, Judge




                                          15
