            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE            FILED
                              OCTOBER 1996 SESSION
                                                            March 4, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate Court Clerk
STATE OF TENNESSEE,              *        C.C.A. # 03C01-9512-CC-00406
                                 *
                 Appellee,       *        BRADLEY COUNTY
VS.                              *
                                 *        Hon. Mayo L. Mashburn, Judge
RICK J. GOULTRIE,                *
                                 *        (Public Intoxication and
                 Appellant.      *        Possession of Marijuana)
                                 *


For Appellant:                            For Appellee:

A. Wayne Carter                           Charles W. Burson
Assistant Public Defender                 Attorney General & Reporter
P.0. Box 1453
Cleveland, TN 37364-1453                  Hunt Brown
                                          Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          Joe Rehyansky
                                          Assistant District Attorney General
                                          P.O. Box 1351
                                          Cleveland, TN 37364-1351




OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              After a jury trial, the defendant, Rick Goultrie, was convicted of

possession of marijuana and public intoxication. The trial court imposed

consecutive sentences of eleven months twenty-nine days for the possession

conviction and thirty days for the public intoxication conviction. The defendant was

required to serve seventy-five percent of the sentences in the county jail.



              In addition to his challenge to the sufficiency of the evidence, the

defendant presents the following issues for appellate review:

              (1) whether the trial judge erred by denying a motion to
              recuse;

              (2) whether the chain of custody for the marijuana
              evidence was sufficiently established; and

              (3) whether the sentence was excessive.



              We affirm the judgment of the trial court.



              At about 3:30 A.M. on December 10th, 1994, Patrolman Steve Tyson

of the Cleveland Police Department noticed a woman talking to someone inside a

parked car. The car was on the wrong side of the street and the motor was

running. Mindful of recent complaints about drug trafficking in the area, Officer

Tyson approached the vehicle; he could smell alcohol through the open windows of

the car. After talking with the driver, Danny McCutchen, Officer Tyson determined

that he had been drinking, gave him a field sobriety test, and then placed him under

arrest for driving under the influence (DUI).



              At that point, Officer Tyson's ride-along student pointed out that the

defendant, who was seated in the front passenger seat, was dumping a green leafy


                                  2
material out of a cigarette package, where it was stored between the paper package

and the cellophane wrapper. Officer Tyson determined that the substance was

marijuana when the defendant stepped out of the car. Officer Tyson removed the

cigarette package from his grip and placed it on the roof of the car. When the

defendant was handcuffed and in the car, Officer Tyson picked up the cigarette

package and placed it into his patrol car.



              The defendant refused to take any blood or breath alcohol test.

Officer Tyson sealed the cigarette package in an envelope, initialed it, and turned it

over to his supervisor. His supervisor dropped the envelope into the evidence room

drop slot. Later, an evidence officer unlocked the room, removed all of the secured

evidence envelopes, and delivered them to the TBI crime lab in Chattanooga. This

was standard procedure. On the day of trial, Officer Tyson picked up the envelope

from the evidence officer and confirmed his initials.



              Defense witness Tracy Manus, in the company of the defendant and

McCutchen on the night of the arrest, testified that neither she nor her companions

drank that night. She contended that the cigarette package was never in the

possession of the defendant.



              McCutchen admitted that he had had "too much" to drink on the night

of his arrest. He testified that he saw Officer Tyson pick something up off the

ground, but was unable to see what it was.




                                  3
              While acknowledging a "buzz" from beer, the defendant strongly

denied that he was intoxicated or had trouble standing. He also denied ownership

of the marijuana.



              On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the jury as triers of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              Public intoxication occurs when a person "appears in a public place

under the influence" of an "intoxicating substance to the degree that: (1) The

offender may be endangered; (2) There is endangerment to other persons or

property; or (3) The offender unreasonably annoys people in the vicinity." Tenn.

Code. Ann. § 39-17-310(a). Officer Tyson testified that the defendant had a strong

smell of alcohol, had a glazed look in his eye, was unable to keep his balance while

standing, and responded slowly to commands. The defendant was unable to exit

the car or stand without help. Officer Tyson, who knew the defendant from prior

encounters, had seen his sober behavior and believed that the defendant was a

danger to himself because of his level of intoxication.



              In our view, this was adequate evidence that the defendant was guilty


                                   4
of public intoxication.



              Simple possession is defined as "knowingly possess[ing] ... a

controlled substance unless the substance was obtained" with a valid prescription.

Tenn. Code Ann. § 39-17-418(a). Marijuana is, of course, a controlled substance.

Officer Tyson testified that the defendant was holding a cigarette package with a

green leafy substance tucked inside. The floorboard of the passenger's side of the

car was littered with the same green substance. Having years of experience with

the substance, the officer recognized it by the look and smell. TBI laboratory tests

confirmed that the substance was marijuana. Clearly, the evidence is sufficient to

support a conviction of possession of marijuana.



                                            I

              The defendant argues that the trial judge should have granted his

motion for recusal. Because he had appeared before the trial judge on a number of

previous charges, the defendant claims the judge lacked impartially. The defendant

insists that the judge had always ruled against him and imposed lengthy sentences.



              Whether recusal is necessary rests within the discretion of the trial

court. Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). A judge

should grant a motion for recusal whenever his or her "impartiality might reasonably

be questioned." Code of Judicial Conduct, Canon 3(C); Tenn. Sup. Ct. R. 10; State

v. Jimmy D. Dillingham, No. 03C01-9110-CR-00319 (Tenn. Crim. App., at Knoxville,

February 3, 1993). This court will not interfere with the trial court's discretion unless

clear abuse appears on the face of the record. Caruthers, 814 S.W.2d at 67.

              Here, the record simply does not support the defendant's claims of

prejudice. There was no proof whatsoever that the trial judge had acted impartially


                                   5
in any of the prior cases or had made comments in this case indicative of bias.



                                            II

              Next, the defendant argues that the trial court erred by allowing as

evidence the marijuana in the cellophane wrapper and the report from the TBI crime

lab analyzing the substance. He insists the state failed to adequately establish the

chain of custody.



              The issue of the chain of custody was not made in the motion for a

new trial. "[I]n all cases tried by a jury, no issue presented for review [to an

appellate court] shall be predicated upon error in the admission or exclusion of

evidence ... unless the same was specifically stated in a motion for a new trial;

otherwise such issues will be treated as waived." Tenn. R. App. P. 3(e). Moreover,

there is no transcript of the hearing on the motion. It is the duty of the appellant to

prepare a record which conveys a fair, accurate, and complete account of what

transpired in the trial court with respect to the issues which form the basis of the

appeal. Tenn. R. App. P. 24(b); State v. Rhoden, 739 S.W.2d 6 (Tenn. Crim. App.

1987); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Generally,

this court is precluded from addressing an issue on appeal when the record fails to

include relevant documents. See State v. Bennett, 798 S.W.2d 783 (Tenn. Crim.

App. 1990); Tenn. R. App. P. 24. Because the hearing on the motion for new trial is

not in the record, the issue has been waived.




                                   6
                                           III

              Finally, the defendant argues that the trial court imposed excessive

sentences. He also contends that the trial court erred by imposing consecutive

sentences.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption 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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (l) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory but the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. Tenn. Code

Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance

with the principles, purpose, and goals of the Criminal Sentencing Reform Act of


                                  7
1989. Tenn. Code Ann. §§ 40-35-104, -117, -302; State v. Palmer, 902 S.W.2d

391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an

authorized determinant sentence with a percentage of that sentence designated for

eligibility for rehabilitative programs. Generally, a percentage of not greater than

75% of the sentence should be fixed for a misdemeanor offender; however, a DUI

offender may be required to serve the full 100% of his sentence. Palmer, 902

S.W.2d at 393-94. In determining the percentage of the sentence, the court must

consider enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Id.



              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available is

appropriate. The trial court retains the authority to place the defendant on probation

either immediately or after a period of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing

statute is designed to provide the trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the

felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829 (Tenn. Crim. App. 1994).



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the


                                   8
court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: "[C]onsecutive sentences should not routinely be

imposed ... and ... the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language.

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the

following criteria1 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The defendant is an offender whose record of
                 criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to
                 sentencing that the defendant's criminal conduct has
                 been characterized by a pattern of repetitive or
                 compulsive behavior with heedless indifference to
                 consequences;

                  (4) The defendant is a dangerous offender whose
                  behavior indicates little or no regard for human life, and
                  no hesitation about committing a crime in which the risk
                  to human life is high;

                 (5) The defendant is convicted of two (2) or more
                 statutory offenses involving sexual abuse of a minor with
                 consideration of the aggravating circumstances arising
                 from the relationship between the defendant and victim
                 or victims, the time span of defendant's undetected
                 sexual activity, the nature and scope of the sexual acts
                 and the extent of the residual, physical and mental
                 damage to the victim or victims;



        1
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific num ber
of prior felony convictions, m ay enhance the sentence range but is no longer a listed criterion. See
Tenn. Code Ann. § 40-35-115, Sentencing Com m ission Com m ents.

                                          9
             (6) The defendant is sentenced for an offense
             committed while on probation;

             (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



             In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court held that consecutive sentences cannot be required "unless the terms

reasonably relate to the severity of the offenses committed and are necessary in

order to protect the public (society) from further criminal acts by those persons who

resort to aggravated criminal conduct." The Wilkerson decision, which modified

somewhat the strict factual guidelines for consecutive sentencing adopted in State

v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as

a "human process that neither can nor should be reduced to a set of fixed and

mechanical rules." Wilkerson, 905 S.W.2d at 938.



             To summarize, in addition to fitting into one of the seven statutorily

mandated classifications, the record must also establish that the aggregate

sentence reasonably relates to the severity of the offenses and the total sentence

is necessary for the protection of the public from further crimes by the defendants.

Wilkerson, 905 S.W.2d at 938; Gray, 538 S.W.2d at 392. The record must show

that the sentencing principles and all relevant facts and circumstances were

considered before the presumption of correctness applies.




                                 10
              In this case, the trial court found one mitigating factor, that the

"offense neither caused or threatened serious bodily injury." The trial court also

found two enhancement factors: the defendant had a previous criminal record and

the defendant had a "previous history of unwillingness to comply with the conditions

with a sentence involving release into the community." After weighing the two

enhancement factors against the one mitigating factor, the trial court sentenced the

defendant to very near the maximum possible: thirty days for public intoxication

and eleven months twenty-nine days for possession of marijuana.



              The defendant had an extensive criminal record: two felony

convictions for larceny and burglary, three convictions for DUI, and two convictions

for driving on a revoked license, for a total of seven prior convictions. In that

regard, the defendant qualifies as "an offender whose record of criminal activity is

extensive." Tenn. Code Ann. § 40-35-115(b)(2). The consecutive sentencing was

appropriate. In a separate case, the defendant had appealed DUI and driving on a

revoked license convictions to this court. At the time of sentencing in this present

case, the defendant's convictions had been confirmed by this court; yet he

continued his criminal activity. Thus, enhanced sentences were suitable. In our

view, the trial judge imposed appropriate sentences. The aggregate sentences, in

light of his prior record, bear a reasonable relationship to the seriousness of the

crimes.



              Accordingly, the judgment of the trial court is affirmed.




                                   Gary R. Wade, Judge




                                  11
CONCUR:



David H. Welles, Judge




Jerry L. Smith, Judge




                         12
