        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 27, 2016

            STATE OF TENNESSEE v. DEVIN LAMAR JAMISON

                  Appeal from the Criminal Court for Knox County
                          No. 101604   Bob McGee, Judge


                 No. E2015-01894-CCA-R3-CD – Filed June 14, 2016


Aggrieved of his Knox County Criminal Court jury convictions of aggravated assault,
possession with intent to sell more than one-half ounce of marijuana in a drug free school
zone, evading arrest, resisting arrest, driving with a suspended license, failing to comply
with the financial responsibility law, and violating the safety belt requirement and vehicle
registration requirements, the defendant, Devin Lamar Jamison, appeals. In this appeal,
the defendant claims that the trial court erred by refusing to admit a video recording into
evidence, that the trial court erred by imposing a fine greater than $10 for the safety belt
violation, and that the court erred by imposing consecutive sentences. Because the trial
court erred by taxing the costs associated with the safety belt violation to the defendant,
we remand that count to the trial court for the entry of a corrected judgment. We affirm
the judgments of the trial court in all other respects.

  Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed
                             and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Russell Green, Knoxville,
Tennessee (at trial), for the appellant, Devin Lamar Jamison.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Jennifer Welch and
Deborah Malone, Assistant District Attorneys General, for the appellee, State of
Tennessee.
                                        OPINION

              While patrolling Arbor Place, a Knoxville‟s Community Development
Corporation (“KCDC”) property, on June 8, 2012, Knoxville Police Department (“KPD”)
Officer Clayton Madison exited his patrol car to investigate two trucks with out-of-state
tags. After satisfying himself that the trucks belonged on the KCDC property, the officer
walked back toward his patrol car. As he walked, he saw the defendant‟s car
“approaching from the east on Hall of Fame” Drive and noticed that the defendant was
not wearing a safety belt. When the defendant pulled into the apartment complex parking
lot, Officer Madison, “raised [his] hand and motioned for [the defendant] to stop.” The
defendant stopped his car and opened the door as the officer approached.

              When he got to the defendant‟s vehicle, Officer Madison encountered a
strong odor of “raw marijuana” and a “very, very nervous” defendant. The defendant
was unable to produce a driver‟s license or other form of identification. At that point,
Officer Madison reached for his radio to call in the stop, and the defendant pushed past
him and “ran east up the hill . . . through the complex.” Officer Madison gave chase.
When the defendant “slipped back down the hill,” Officer Madison attempted to
incapacitate the defendant with his taser, but both “prongs” of the taser failed to make
contact. At that point, Officer Madison attempted to effectuate a “drive stun” to
“complete the cycle so he‟s incapacitated.” The two men struggled, and Officer Madison
“was unable to drive stun” the defendant. The defendant ran “west through the complex”
with Officer Madison in pursuit.

              Officer Madison eventually caught up to the defendant, and as the two men
struggled a second time, the defendant gained control of the officer‟s taser and stunned
the officer. The defendant then ran “east through the apartment complex,” and Officer
Madison, despite having been stunned by the taser, followed.

               Officer Madison gained and lost control of the defendant two more times
before “other officers arrived and helped [Officer Madison] take him into custody.” As a
result of his struggle to apprehend the defendant, Officer Madison suffered injuries to his
shoulder, hip, back, and knee. Cartilage in his shoulder that was torn during the melee
had been surgically repaired by the time of trial, but the officer had yet to undergo
surgery to repair torn cartilage in his hip because he could not afford to be out of work for
the six to 12 months required for recovery. The cluster of injuries, he said, caused him
considerable pain on a daily basis.

             KPD Officer Brad Boruff responded to the scene after he heard Officer
Madison‟s “yelling and screaming on the radio.” When Officer Boruff arrived, he saw
Officer Madison lying on the ground and other officers “fighting with the defendant in a
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struggle trying to get him handcuffed.” Officer Boruff walked to the defendant‟s car, and
he “could smell a strong odor of marijuana coming from the car. Like really strong. The
doors was shut, the windows were up, and you could still smell the odor.” Upon
searching the defendant‟s car, Officer Boruff discovered “a yellow Dollar General bag
and it had a bunch of baggies, and then it had one baggie [that] was full of marijuana and
a couple of scales.” The marijuana had a field weight of 74 grams. Later testing by the
Tennessee Bureau of Investigation confirmed that the material recovered from the
defendant‟s car was 73.97 ounces of marijuana.

               Officer Boruff also found two cellular telephones in the car. He did not
find any drug paraphernalia of the type used to consume marijuana. The license tag
affixed to the defendant‟s car was registered to a different vehicle.

               KPD Officer Jason Kalmenak testified that he responded to Officer
Madison‟s call for assistance. When he arrived, he saw Officer Madison and two other
officers attempting to subdue the defendant, who was “actively fighting all three of them
at the same time.” After the defendant was handcuffed, Officer Kalmenak recovered
from the defendant‟s person “a large wad of money,” totaling $1,923, that was “wrapped
around an EBT card” that bore the defendant‟s name. The officer described an EBT card
as a card equivalent to food stamps. The defendant told Officer Kalmenak that he did not
have a job at the time of his arrest.

              Other proof established that the offenses occurred within 1,000 feet of
Green Magnet School and the Green Magnet YMCA After School Care as well as within
1,000 feet of a public park.

               The jury convicted the defendant in count one of aggravated assault, in
count two of possession with intent to sell more than one-half ounce but less than 10
pounds of marijuana within 1,000 feet of a public school, in count three of possession
with intent to deliver more than one-half ounce but less than 10 pounds of marijuana
within 1,000 feet of a public school, in count four of possession with intent to sell more
than one-half ounce but less than 10 pounds of marijuana within 1,000 feet of a public
park, in count five of possession with intent to deliver more than one-half ounce but less
than 10 pounds of marijuana within 1,000 feet of a public park, in count six of evading
arrest, in count seven of resisting arrest, in count nine of driving with a suspended
license, in count 10 of failure to comply with the financial responsibility law, in count 11
of a violation of the safety belt law, and in count 12 of a violation of the registration law.
The trial court imposed a sentence of four years for the defendant‟s conviction of
aggravated assault. The court merged counts three, four, and five into count two and
imposed a two-year sentence for the resulting drug conviction, to be served consecutively
to the four-year sentence imposed in count one. The court imposed a sentence of 11
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months and 29 days for the conviction of evading arrest, sentences of six months for the
convictions of resisting arrest and driving with a suspended license, and sentences of 30
days for failing to comply with financial responsibility and vehicle registration
requirements. The court ordered the sentences imposed for the misdemeanor convictions
to be served concurrently to the four-year sentence imposed in count one. The total
effective sentence is, therefore, six years.

               The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant contends that the trial court
erred by excluding from evidence the video recording taken from the KCDC cruiser
driven by Officer Madison, by assessing a fine and costs in excess of that allowed by the
statute for his violating the safety belt law, and by imposing consecutive sentences. We
consider each claim in turn.

                                     I. Video Recording

                The defendant first asserts that the trial court erred by refusing to admit into
evidence the video recording purportedly captured from the camera inside the KCDC
cruiser that Officer Madison was driving at the time of the offenses. The State contends
that the trial court correctly excluded the video recording because it was not relevant and
was not properly authenticated prior to its being offered as evidence. The State also
argues that any error in the exclusion of the recording was harmless because the jury
viewed the recording in its entirety during the defendant‟s cross-examination of Officer
Madison.

               We note initially that the proffered video recording was not included in the
record on appeal. The duty to prepare an adequate appellate record falls on the appellant,
see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), and, in the absence of an
adequate record, this court must presume the trial court‟s ruling was correct, see State v.
Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Here, the defendant asks
this court to reverse his conviction on grounds that the trial court improperly excluded a
video recording without providing us the opportunity to view the recording. Making a
proper assessment of the trial court‟s ruling in the context of the entire record without
viewing the video recording is impossible. Consequently, we must presume that the
ruling of the trial court is correct.

              Moreover, although Officer Madison testified that the cruiser he drove on
the day of the offenses was outfitted with a camera that recorded “one frame per second,”
the cruiser, and hence the camera, was pointed away from his interaction with the
defendant. He had not reviewed the recording prior to the defendant‟s trial, and, upon
viewing the video in court in front of the jury, Officer Madison could not say with
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certainty that the recording was actually that captured by the camera in his cruiser on the
day of the offenses. This testimony supports the trial court‟s decision to exclude the
recording on grounds that the defendant had failed to establish that “this is the video that
was actually taken on this day of that car, of that event.” Finally, any error occasioned by
the trial court‟s ruling would have been harmless given that the jury had seen the
recording in its entirety, Officer Madison had been cross-examined regarding its contents,
and the trial court did not instruct the jury to disregard either the recording or the
testimony.

                        II. Fine and Costs for Safety Belt Violation

              The defendant next contends that the trial court erred by approving and
imposing the $50 fine set by the jury for his violation of the safety belt law, arguing that
Code section 55-9-603 caps the fine for a safety belt violation at $10. The State contends
that Code section 55-9-603 contains no such cap, and therefore, the trial court had the
authority to impose a fine of $50, the general limit for a Class C misdemeanor conviction.

               At the time of the offense, Code section 55-9-603 provided that a violation
of the safety belt requirement was “a Class C misdemeanor” and that “[a] person charged
with a violation of this section may, in lieu of appearance in court, submit a fine of ten
dollars ($10.00) for a first violation . . . to the clerk of the court.” T.C.A. § 55-9-
603(d)(1), (2) (2012). The statute also specified that “[n]o clerk‟s fee nor court costs . . .
shall be imposed or assessed against anyone convicted of a violation of this section.” Id.
§ 55-9-603(e). Code section 40-35-111 provides that the authorized sentence for a Class
C misdemeanor is “not greater than thirty (30) days or a fine not to exceed fifty dollars
($50.00), or both, unless otherwise provided by statute.” Id. § 40-35-111(e)(3).

               The defendant argues that Code section 55-9-603‟s specification of a $10
fine for a first time violation of the safety belt requirement trumps the general provision
of a $50 fine cap found in Code section 40-35-111. The State avers that Code section 55-
9-603‟s specification of a $10 fine is applicable only to those offenders who wish to
submit the fine “in lieu of an appearance in court.” The State also argues that nothing in
the statute prohibits the imposition of court costs to the defendant in this case.

              We agree with the State that Code section 55-9-603 does not prohibit the
$50 fine imposed in this case. The most basic principle of statutory construction is “„to
ascertain and give effect to the legislative intent without unduly restricting or expanding a
statute‟s coverage beyond its intended scope.‟” Houghton v. Aramark Educ. Res., Inc.,
90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn.
1995)). “Legislative intent is determined „from the natural and ordinary meaning of the
statutory language within the context of the entire statute without any forced or subtle
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construction that would extend or limit the statute‟s meaning.‟” Osborn v. Marr, 127
S.W.3d 737, 740 (Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn.
2000)). “When the statutory language is clear and unambiguous, we apply the plain
language in its normal and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291
(Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when
a statute is ambiguous that we may reference the broader statutory scheme, the history of
the legislation, or other sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn.
2010) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn.
1998)).

               Typically, “„[a] special provision in a statute will control a general
provision which would otherwise include that mentioned in the particular provision.‟”
State ex rel. v. Safley, 112 S.W.2d 831, 833 (1938) (quoting Hayes v. Arrington, 68 S.W.
44, 46 (Tenn. 1902)). Applying this maxim of statutory construction, the defendant
argues, necessarily leads to a conclusion that the specific provision of a $10 fine in Code
section 55-9-603(d)(2) governs in this case rather than the general Class C limit of $50.
Code section 55-9-603(d)(2), however, provides that “[a] person charged with a violation
of this section may, in lieu of appearance in court, submit a fine of ten dollars ($10.00)
for a first violation.” T.C.A. § 55-9-603(d)(2) (emphasis added). In our view, the
legislature‟s use of the phrase “in lieu of appearance in court” indicates that the
legislature intended the $10 fine to be applicable only to those offenders who choose to
submit the fine instead of going to court. The lesser fine operates as a largess offered in
exchange for the offender‟s submitting to the fine, using the lower fine as an incentive to
encourage early payment. Accordingly, we do not believe that the trial court erred by
approving and imposing the $50 fine set by the jury for the defendant‟s violation of the
safety belt law.

              We do not agree with the State, however, that the trial court was free to tax
the costs associated with this conviction to the defendant. Code section 55-9-603(e)
plainly states, without exception, that “[n]o clerk‟s fee nor court costs . . . shall be
imposed or assessed against anyone convicted of a violation of this section.” Id. § 55-9-
603(e). Because the trial court erred by taxing the costs associated with this conviction,
we remand that count to the trial court for the entry of a corrected judgment form.

                               III. Consecutive Sentencing

             In his final complaint, the defendant asserts that the trial court erred by
imposing partially consecutive sentences in this case, arguing that the court erroneously
determined him to be a professional criminal. The State contends that the trial court
committed no error.

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               Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

              With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court‟s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).”
State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).

               In this case, the trial court ordered the sentences imposed in counts one and
two to be served consecutively based upon its finding that the defendant was a
professional criminal. See T.C.A. § 40-35-115(b)(1) (“The defendant is a professional
criminal who has knowingly devoted the defendant‟s life to criminal acts as a major
source of livelihood.”). The court observed that “the defendant was found in possession
of a fairly large amount of marijuana” along with “baggies and scales,” indicating that
“the defendant was there to deal marijuana, to sell it.” The court also observed that the
defendant “was found to be in possession of nearly $2,000 in cash” despite having “no
verifiable work history. He‟s 30 years old and has, apparently, never held down a regular
job for any length of time.” The court also noted that “just days after this event he was
found, again, with marijuana and scales.” Based upon this evidence, the court concluded,
“He makes his living dealing marijuana.”

               In our view, the trial court did not abuse its discretion by imposing partially
consecutive sentencing in this case. The defendant had $2,000 in cash and an EBT card
issued in his name in his possession at the time of his arrest. The evidence adduced at
trial established that the defendant possessed a large amount of high-quality marijuana
along with all the accoutrements of a professional drug dealer. The presentence report
supported the trial court‟s conclusion that the defendant, despite his age, had no verifiable
                                             -7-
work history. These facts support the trial court‟s conclusion that the defendant was a
professional criminal.

                                        Conclusion

               Because the trial court erred by taxing the costs associated with the safety
belt violation to the defendant, that count must be remanded to the trial court for the entry
of a corrected judgment. The judgments of the trial court are affirmed in all other
respects.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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