            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                        FEBRUARY SESSION, 1999       FILED
                                                     March 17, 1999

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9805-CR-00232
      Appellee              )
                            )    SUMNER COUNTY
vs.                         )
                            )    Hon. Jane Wheatcraft, Judge
FREDERICK NEBLETT,          )
                            )    (Community Corrections
      Appellant             )    Revocation)



For the Appellant:               For the Appellee:

Regan L. Rudland                 John Knox Walkup
Asst. Public Defender            Attorney General and Reporter
117 East Main Street
Gallatin, TN 37066               Clinton J. Morgan
                                 Assistant Attorney General
David Allen Doyle                Criminal Justice Division
District Public Defender         425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493

                                 Lawrence Ray Whitley
                                 District Attorney General

                                 Dee Gay
                                 Asst. District Attorney General
                                 Cordell Hull Building
                                 Gallatin, TN 37066




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



       The appellant, Frederick Neblett, appeals the judgment of the Sumner

County Criminal Court revoking his Community Correction sentence and reinstating

the original sentence of four years in the Department of Correction.1 Specifically,

the appellant contends that the trial court improperly relied upon “unreliable

hearsay,” an uncertified facsimile transmission of an arrest warrant, as the sole

basis for revoking the appellant from his non-incarcerative status.



       After a review of the record, we affirm the judgment of the trial court.




                                         Background



       On March 12, 1998, a warrant issued alleging that the appellant had violated

the terms and conditions of his Community Correction sentence. Specifically, the

warrant alleged that the appellant had violated Rule #6 which states:

       the offender shall obey the laws of the United States and the State of
       Tennessee as well as any municipal ordinances. Report all arrests,
       including traffic citations regardless of disposition to the case officer; In
       that Mr. Neblett was arrested in Nashville, Tennessee for Possession
       of Cocaine N458697, Possession of paraphernalia N458698, Driving
       on a suspended license N458699.



       A revocation hearing was held on April 21, 1998, at which time the State

presented the testimony of Carlton Drumwright, the appellant’s Community

Correction case officer. Mr. Drumwright stated that, on February 27, the appellant

was arrested in Davidson County. On March 2, the appellant contacted him to

inform him that he had “accepted a plea bargain and that he would be receiving 16


       1
         The appellant’s placement in the Community Correction program stems from his October
16, 1997, guilty plea to the offense of theft of property over $1,000, resulting in a four year
sentence in Community Correction after service of one hundred and seven days in the Sumner
Cou nty Ja il.

                                              2
days in jail.” The State then introduced, through the testimony of Mr. Drumwright, a

facsimile transmission of the Davidson County warrant charging the appellant with

possession of cocaine to which the appellant pled guilty. Defense counsel objected

to the introduction of the warrant on the basis that the warrant was an uncertified

facsimile copy. Mr. Drumwright then explained that the Davidson County Clerk’s

Office had “faxed” the warrants to Judge Wheatcraft’s facsimile machine. The trial

court authenticated the facsimile copies by verifying the appellant’s social security

number and birthdate and admitted the facsimile of the arrest warrant into evidence.

In so ruling, the trial court stated “I’m going to allow that, but, really, they should be

certified copies. We should not get in the habit of using fax copies.” The State then

offered to obtain certified copies of the arrest warrants which the court declined. No

further proof was presented.



       The trial court found that the evidence presented showed “by a

preponderance of the evidence that the appellant has received these convictions.”

Continuing, the court stated:

              He didn’t last on probation even 30 days. This Court just can’t
       tolerate people being placed on community corrections or probation
       and blatantly going out and picking up new charges.

             I’m going to revoke the defendant’s probation and allow the four
       year sentence to go into effect.




                                         Analysis



       Again, the appellant contends that the trial court abused its discretion by

basing its decision to revoke the appellant’s Community Correction sentence solely

on the basis of unauthenticated and uncertified facsimile documents. Thus, the

question before this court is whether the facsimile copy of the Davidson County

arrest warrant was properly admitted by the trial court.



                                           3
         Before any real and demonstrative evidence is admissible, the evidence must

be properly authenticated, i.e., it must be shown to be genuine. See Tenn. R. Evid.

901. In other words, the proponent of its admission bears the burden of

demonstrating that the object is what it is claimed to be. Without such a showing

that the object is what it is claimed to be, the object is simply irrelevant as there

must be a logical nexus between the evidence and the point on which it is offered.

The proponent’s burden is satisfied when the trier of fact has sufficient proof to

determine that the evidence is what its proponent claims. See Tenn. R. Evid. 901.

See also State v. Byrd, No. 01C01-9609-CC-00411 (Tenn. Crim. App. at Nashville,

May 1, 1998).



         While a properly certified copy of a public record is self-authenticating under

Tenn. R. Evid. 902(4),2 an uncertified public record may be authenticated if certain

conditions are satisfied.3 See Tenn. R. Evid. 901(b)(7).

         First, the writing must be recorded or filed in a public office. Second,
         the recording or filing of the writing must be authorized by law. Third, it
         must be demonstrated to the court’s satisfaction that the proffered
         writing is in fact ‘from the public office where items of this nature are
         kept.’


NEIL P. COHEN ET AL ., TENNESSEE LAW OF EVIDENCE § 901.8 (3D ed. 1995).

However, testimony must be presented by an individual with personal knowledge

that the particular writing or record meets the requirements of the Rule. In the

present case, we cannot conclude that a Community Correction case officer has




         2
          W hen a doc um ent is said t o be s elf-a uthe ntica ting it d oes not n ece ssa rily me an th at it is
irrebuttably presumed to be genuine. Self-authentication merely means that the proponent does
not h ave to prod uce extrin sic ev idenc e of a uthe nticity.

         Had the Davidson County warrant been certified in the present case, there would be no
question as to the facsimile’s admission. Indeed, the certified copy would be an original for
purposes of the rules governing the admissibility of documents, the facsimile would constitute a
duplicate, and there is no indication that it would be unfair to admit the duplicate in lieu of the
original. See gene rally Tenn . R. Evid. 90 2, 1001, 1 003, 100 5. See also Englun d v. State , 907
S.W .2d 937, 9 38-939 (Tex. A pp. 1995 ), aff’d by, 946 S.W .2d 64 (Tex. App. 1997) ( en banc).

         3
          It is of little consequence whether the un certified public record is the original or a
facsim ile transm ission ther eof, as a trustworth y duplicate w ill suffice. See gene rally Tenn. R.
Evid. 1003.

                                                        4
sufficient personal knowledge to establish the necessary criteria under Tenn. R.

Evid. 901 (b)(7).



       Notwithstanding the inability of Mr. Drumwright to authenticate the facsimile

transmission of a Davidson County arrest warrant, we note that, in Tennessee, as

elsewhere, it is generally recognized that there is a wide distinction between a

revocation proceeding and a trial where the questions of guilt or innocence are at

issue. At a revocation hearing, the strict rules of evidence do not apply. See Byrd,

No. 01C01-9609-CC-00411 (citing State v. Allen, 752 S.W.2d 515 (Tenn. Crim.

App. 1988); Barker v. State, 483 S.W.2d 586 (Tenn. Crim. App. 1972)). Reliable

hearsay is admissible so long as the defendant had a fair opportunity to rebut the

evidence and the evidence otherwise was not introduced in violation of constitutional

notions of due process. See Tenn. Code Ann. § 40-35-209(b) (1997); see also

State v. Carney, 752 S.W.2d 513 (Tenn. Crim. App. 1988). See, e.g., State v.

Whitehead, No. 86-220-III (Tenn. Crim. App. at Nashville, Mar. 17, 1987), perm. to

appeal denied, (Tenn. Jun. 1, 1987) (arrest report admissible in determining

probation revocation).



       In the present case, the trial court was careful to assure that the hearsay

document that was introduced was reliable. Before considering the testimony, the

court questioned the witness to assure that the Davidson County arrest warrant was

issued for the appellant by confirming the appellant’s name, date of birth, and social

security number. The facsimile transmission also contained a machine notation

showing the date, time, source telephone number, and source location of the

transmittal, i.e., “Metro Crim Court Clerk Fax: 615-862-5676 Apr 21 ‘98 12:11,”

verifying that the transmission had indeed been sent by the Davidson County Clerk’s

Office. Additionally, the truth of the matter asserted in the transmission was

corroborated by Mr. Drumwright’s testimony that the appellant had reported his

arrest and guilty plea on the misdemeanor possession charge to Mr. Drumwright.


                                         5
Finally, we note that the appellant was provided ample opportunity to cross-examine

Mr. Drumwright regarding the documents, and, otherwise had ample opportunity to

refute the evidence.



       Given the less stringent application of the evidentiary rules at revocation

proceedings, we conclude that the evidence presented by the case officer was

reliable hearsay and that good cause existed to allow its introduction. Accordingly,

the trial court was justified in relying upon the facsimile transmission of the Davidson

County arrest warrant; a sufficient basis upon which to allow the trial court to find

that the appellant had violated a condition of his Community Correction sentence by

a preponderance of the evidence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1991). The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., Judge



___________________________________
JOHN EVERETT W ILLIAMS, Judge




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