        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on briefs at Knoxville December 13, 2011

          STATE OF TENNESSEE v. WILLIAM THOMAS MAYERS

                   Appeal from the Davidson County Criminal Court
                      No. 2010A572     J. Randall Wyatt, Judge


                 No. M2011-00954-CCA-R3-CD - Filed October 1, 2012



After a trial by jury, the defendant was found guilty of aggravated burglary, a Class C felony,
attempted aggravated burglary, a Class D felony, and theft of property over $500, a Class E
felony. He was sentenced to a total effective sentence of 25 years. On appeal, the defendant
claims that the trial court erred by (1) denying his motion to dismiss his indictment or
suppress testimony regarding destroyed evidence; (2) allowing the State to present certain
photographs taken of the defendant, on grounds that they were not properly authenticated;
and (3) ordering him to serve his sentence on the attempted aggravated burglary
consecutively to his sentence for aggravated burglary because both crimes should have been
considered part of the same criminal episode. We conclude that the defendant has waived
the first claim by virtue of his failure to prepare an adequate brief and record and that the trial
court did not err by allowing admitting the photographs and ordering consecutive sentences.
We affirm the judgments of the trial court accordingly.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.
.
Caesar Cirigliano, Nashville, Tennessee, and Lee Sprouse, Nashville, TN for the appellant,
William Thomas Mayers.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Robert Homlar,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                            OPINION


       The defendant raises numerous claims concerning missing evidence. In addition, the
defendant claims that the trial court erred by permitting the authentication and admission of
five pictures taken by a CVS store security camera and erred by ordering the defendant to
serve his sentences for aggravated burglary and attempted aggravated burglary consecutively.
For the reasons that follow, we deny these claims and affirm the judgments of the trial court.

                                                 I.

        The statement of facts contained in the defendant’s brief is woefully inadequate and
fails to comply with the relevant appellate rules. It consists almost entirely of fragmented
sentences, a list of witness names, and imprecise and unexplained citations to the record.
This is unacceptable. Tennessee Rule of Appellate Procedure 27(a)(6) provides: “The brief
of the appellant shall contain . . . [a] statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the record.” The trial transcripts
relevant to the defendant’s first issue – from a pretrial hearing through the jury charge –
consist of 412 pages. The sentencing hearing transcript relevant to the defendant’s third
issue is contained in yet another volume. The defendant’s failure direct our attention to
specific portions of these transcripts renders review of his claim unnecessarily onerous.

        The defendant’s statement of facts consists of one and one-half pages of cryptic
statements of only some of the trial witnesses. It does not give an intelligent account of the
evidence heard by the trial court and the jury that potentially relates to his claims to assist us
in determining whether an error occurred in the court below. Moreover, it is neither
comprehensive nor sufficient enough to assist this court in determining whether an error, if
any, is prejudicial.

        Failure to include a meaningful statement of facts may result in waiver of an
appellant’s claims.      See, e.g., State of Tennessee v. David Humphreys, NO.
01C01-9511-CR-00363, 1996 Tenn. Crim. App. LEXIS 519, at ** 16-18 (Tenn. Crim. App.
Aug. 22, 1996). The appellate rules aid the efficient administration of justice on appeal.
They must be scrupulously followed. The filing of such a brief in the future will not be
tolerated.

                                                II.

      With respect to the defendant’s first claim, the inadequacy of the defendant’s
statement of facts is compounded by his failure to clearly and precisely state the nature of his

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claims concerning missing evidence. While the defendant cites the Due Process Clause of
the Fourteenth Amendment and summarizes a leading case concerning missing evidence
(State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999)) and a brace of important U.S. Supreme
Court cases concerning the Confrontation Clause of the Sixth Amendment, the defendant
never clearly specifies what evidence he believes was missing or explains how its absence
violates his rights. There is simply no coherent legal argument on this issue. “Issues which
are not supported by argument, citation to authorities, or appropriate references to the record
[are] treated as waived in this court.” Tenn. R. Ct. Crim. App. 10; see also T.R.A.P.
27(a)(7).

        We learn from the State’s brief that the defendant is complaining about two gold rings
that were discovered in a pawn shop during the course of the police investigation. According
to the State, an investigating officer contacted one of the defendant’s victims and asked her
to meet him at a pawn shop, where she identified two gold rings (pawned by the defendant)
as stolen property belonging to her. The State claims that the police officer left these rings
in the custody of the pawn shop, as per police procedure, and they were later inadvertently
melted down by the shop. According to the State, the defendant filed a motion to dismiss the
indictment or in the alternative to suppress testimony concerning this missing evidence. The
State claims that the trial court denied this motion but provided a curative instruction to the
jury, explaining that if the jury found that the State had failed in its duty to gather and
preserve evidence, “you may infer that the absent evidence would be favorable to the
defendant.” Obviously, these facts, this procedural history, and these arguments should have
been contained somewhere in the defendant’s brief. They were not.

       In addition, the defendant failed to include a transcript of the hearing that the trial
court held concerning his motion to suppress. It is the appellant’s duty to prepare a record
on appeal that “convey[s] a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). Because of
these omissions, “we must conclusively presume that the ruling of the trial court . . . was
correct.” State v. Roberts, 755 S.W.2d 833 (Tenn. Crim. App. 1988). The defendant’s claims
concerning any error that may have been committed by the trial court with respect to its
treatment of missing evidence are deemed waived and are denied accordingly.

                                             III.

       The defendant claims that the trial court erred by denying the defense’s pre-trial
motion in limine and allowing the admission of certain photographs taken by a CVS store
surveillance camera on the grounds that this evidence was not “[a]uthenticated per the [r]ule
of evidence in that no [c]hain of custody was ever established.” The trial court addressed the
issue of the admissibility of these photographs – which the prosecution intended to offer to

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prove that the defendant was in the vicinity of the burglary and the attempted burglary around
the time they were committed – in a jury-out hearing immediately following voir dire.
During that hearing, the State presented the testimony of manager of the Murfreesboro Road
CVS, Mr. Tony Henson. Mr. Henson testified that he had been working at that location for
the last ten months, but he was not working there on November 13, 2009 – the date stamped
on the photographs. He testified that he was familiar with the scene depicted in the
photographs and recognized it as the entrance to his store. He testified that his predecessor
had given a CD containing the photographs to detectives and that his predecessor was no
longer with the company. He testified that the store only retains camera footage for two
months, that he could no longer reproduce the photographs, and that while he had seen the
photographs when a detective showed him the CD, he had never had custody or control over
the photographs themselves.

        The State supported Mr. Henson’s testimony with the testimony of Ms. Robin Tate-
Johnson, an eyewitness to the events depicted in the photographs. Ms. Tate-Johnson testified
that on November 13, 2009, she was across the street from the CVS pharmacy in question.
She testified that she recognized the individual depicted in the photograph because he had
walked back and forth in front of her house earlier in the day. She testified that at
approximately 10:30 a.m., she saw this individual enter the CVS store, and she testified that
the photographs at issue were a fair and accurate representation of what she saw that day,
albeit from a different angle.

        Detective Kevin Wallace of the Metropolitan Nashville Police Department testified
that during his investigation of the crimes at issue he had learned from a witness that the
defendant had entered the CVS store in question. As a result, he had contacted the store
manager and asked to review the store’s surveillance footage. He received a CD from the
store’s then-general manager, but due to some technical difficulties, that CD contained only
still photographs taken by the store’s surveillance camera on the day in question. He testified
that the five photographs which the State sought to enter into evidence were fair and accurate
representations of photographs he received on the CD on that day. On cross-examination,
Detective Wallace acknowledged that he was not present when the CVS store manager
“burned” the CD and that he never viewed the security footage with the store manager. At
the conclusion of this testimony, the trial court heard arguments from the parties and denied
the defendant’s motion in limine on grounds that the current CVS manager had knowledge
of the store and its surveillance system which was sufficient, when combined with the other
testimony, to establish the identity and integrity of the photographs and thereby render them
admissible.

      Tennessee Rule of Evidence 901(a), which governs the authentication of evidence,
provides: “The requirement of authentication or identification as a condition precedent to

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admissibility is satisfied by evidence sufficient to the court to support a finding by the trier
of fact that the matter in question is what its proponent claims.” Our courts have construed
this rule as imposing a requirement that “as a condition precedent to the introduction of
tangible evidence, a witness must be able to identify the evidence or establish an unbroken
chain of custody.” State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998).
Whether evidence has been sufficiently authenticated to be admissible pursuant to this rule
is a question left “to the sound discretion of the trial court, and the court’s determination will
not be disturbed in the absence of a clearly mistaken exercise of such discretion.” Id. at 701.

        It is plain from the record that the former CVS manager who actually made the CD
containing the five still pictures did not testify. Thus, the chain of custody was only
established from the point at which the CD left the former manager’s hands and was given
to the officer. “However, the failure to call all of the witnesses who handled the evidence
does not necessarily preclude its admission into evidence.” Id. The State must only establish
circumstances that reasonably assure the identity of the evidence and its integrity, not exclude
every possibility of tampering. See id.

       We do not believe that the trial court abused its discretion in concluding that the State
presented sufficient evidence to reasonably establish the identity and integrity of the
evidence. As the CVS store’s current manager, Mr. Henson had working knowledge of the
store and its security system. He had the knowledge necessary to attest to the fact that the
five pictures at issue were taken by CVS security cameras and depicted the front of the
particular CVS store in question. While some residual doubt might have remained about
whether the pictures were in fact taken on the date and time reflected on their time stamp –
and Mr. Henson did not have any personal knowledge relevant to this issue – any such doubt
was alleviated by Ms. Tate-Johnson’s testimony to the effect that the pictures accurately
reflected events that she had personally viewed on the date and time that was reflected on the
time stamp. Taken together, the testimony presented by the State reasonably assured the
identity and integrity of the still photographs. The trial court did not abuse its discretion by
denying the defendant’s motion in limine.

                                               IV.

       The defendant claims that the trial court erred by ordering him to serve two of his
sentences consecutively. In support of his argument, the defendant cites to two cases, both
of which concern the severance of indictments and neither of which discusses consecutive
sentencing. The State’s brief also fails to discuss consecutive sentencing, instead arguing
that the defendant’s dual convictions for aggravated burglary and attempted aggravated




                                               -5-
burglary do not violate double jeopardy and due process principles.1 A transcript of the
sentencing hearing has been included in the record, however, and notwithstanding the
defendant’s arguable waiver of the sentencing issue due to inadequate briefing, the state of
the record on appeal is sufficient to allow us to engage in meaningful review of the issue.

        The burden of demonstrating that a sentence is erroneous is placed upon the appealing
party. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). “When a sentence is challenged,
‘the appellate court shall conduct a de novo review on the record of the issues . . . with a
presumption that the determinations made by the court from which the appeal is taken are
correct.’” State v. Cross, 362 S.W.3d 512, 525 (Tenn. 2012) (quoting T.C.A. §§
40-35-401(d); 40-35-402(d)). The presumption that the sentencing court’s factual
determinations are correct “‘is conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.’”
Carter, 254 S.W.3d at 344-45 (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)).
If the trial court fails to follow the sentencing act, the presumption of correctness fails and
our review becomes simply de novo. See id. at 345.

        “Whether sentences are to be served concurrently or consecutively is primarily within
the discretion of the trial court.” State v. Dorantes, 331 S.W.3d 370, 392 (Tenn. 2011). A
trial court may order sentences to be served consecutively if it finds by a preponderance of
the evidence that, inter alia, that “[t]he defendant is a professional criminal who has
knowingly devoted the defendant’s life to criminal acts as a major source of livelihood,”
“[t]he defendant is an offender whose record of criminal activity is extensive,” or “the
defendant is sentenced for an offense committed while on probation.” T.C.A. §§
40-35-115(b)(1); 40-35-115(b)(2); 40-35-115(b)(6). Before imposing a consecutive
sentence, a trial court should also consider general sentencing principles, including whether
the length of a sentence is justly deserved in relation to the seriousness of the offense. See
State v. Imfeld, 70 S. W.3d 698, 708 (Tenn. 2002).

        The trial court found that the defendant qualified for consecutive sentencing on all
three grounds discussed above, and the record supports this conclusion. With respect to the
trial court’s finding that the defendant was an offender whose record of criminal activity was
extensive and that he was a professional criminal using criminal acts as a major source of his
livelihood, the defendant’s presentence report reflects that he has numerous prior convictions
for aggravated burglary, burglary, and theft of property. The defendant has at least eight
prior felony convictions and fifteen prior misdemeanor convictions, some going as far back
as 1999. While the defendant reported on his presentence report that he had previously been
employed at a number of landscaping and cleaning businesses, none of these employment

       1
           Neither of these constitutional issues is raised in the defendant’s brief.

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claims could be verified, and there is no other proof in the record that the defendant has been
gainfully employed for any significant period of time. With respect to the remaining factor,
the record also reflects, as the trial court found, that the defendant was on probation for a
2009 burglary conviction when he committed these crimes.

        Any one of these findings would have sufficed to support a decision by the trial court
to impose consecutive sentences; the trial court did not err by ordering the defendant to serve
two of his three sentences consecutively after finding that all three factors were present. Nor
can a twenty-five year effective sentence be considered unjust in light of the defendant’s
burglaries, which according to the testimony of the victims included the needless destruction
of one victim’s garage door, the breaking of additional doors (and a window) beyond those
necessary to accomplish the crimes, additional wanton vandalism and destruction committed
inside one of the residences, and the needless mistreatment and reckless endangerment of
several pets. The defendant’s claim that the trial court erred by ordering him to serve two
of his three sentences consecutively is denied.

                                      CONCLUSION

       For the foregoing reasons, the judgments of the trial court are affirmed.

                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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