                                                                                                           02/03/2020
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      August 20, 2019 Session

            STATE OF TENNESSEE v. DERRICK JEROME MILLER

                    Appeal from the Criminal Court for Putnam County
                       No. 2016-CR-928 Gary McKenzie, Judge


                                  No. M2019-00214-CCA-R3-CD


The defendant, Derrick Jerome Miller, appeals his Putnam County Criminal Court jury
conviction of reckless endangerment, arguing that the trial court erred by admitting into
evidence a certain document, that the evidence was insufficient to support his conviction,
and that the trial court erred by denying him probation. Discerning no error, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Craig P. Fickling (on appeal), Allison R. West (at trial and on appeal), and Benjamin
Marsee (at trial), Assistant District Public Defenders, for appellant, Derrick Jerome
Miller.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Bryant C. Dunaway, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

             In December of 2016, the Putnam County Grand Jury charged the
defendant with one count of reckless endangerment with a deadly weapon.1

            At the November 2017 trial, Tennessee Highway Patrol (“THP”) Trooper
Darryl Winningham testified that he had been trained to conduct Level 1 vehicle

1
       The trial transcript indicates that the State dismissed a second charge of failure to maintain certain
braking devices on a trailer under Tennessee Code Annotated section 55-9-204(c)(1); however, the
indictment in the record contains only the single count of reckless endangerment with a deadly weapon.
inspections, qualifying him “to inspect trucks, trailers, brakes, brake chambers, break-
away devices, rims, tires, everything about a vehicle.” He explained that “Level 1 is a
complete and full inspection,” whereas a Level 3 inspection is “just paperwork which
checks your log books, your shipping papers, and all of your documents.” Trooper
Winningham explained that a THP trooper must attend school to become a Level 1
inspector. Trooper Winningham estimated that he had conducted hundreds of Level 1
inspections in his career.

              Trooper Winningham acknowledged that he was not a mechanic but stated
that he had been trained to inspect vehicles to determine whether a commercial vehicle
was safe to be on the road. In his inspections, Trooper Winningham used a Federal
Motor Carrier Safety Administration book to determine whether the vehicle met the
criteria to render it “out of service.” Trooper Winningham explained that a vehicle
inspection could take from 30 to 90 minutes or more depending on the “[d]efficiency
issues that you have.” He acknowledged that weight requirements of commercial
vehicles can change and asserted that he kept up to date on the current requirements.

               Trooper Winningham explained that, when a vehicle is pulling a trailer, the
trailer should have brakes separate from the vehicle’s brakes and that the towing vehicle
should be equipped with “a brake box.” When the brake box is properly functioning, a
driver’s depressing the brake pedal in the vehicle should automatically apply the trailer’s
brakes. Trooper Winningham stated that trailers were also designed with a break-away
device, which he described as a safety feature that should automatically deploy the
trailer’s brakes in the event that the trailer becomes detached from the vehicle.

              Trooper Winningham testified that, when inspecting a trailer’s brakes, he
would allow the driver to “adjust their brake box the way they want it,” then, with the
vehicle rolling forward slowly, the driver would manually apply the brake box, which
action should bring the vehicle and trailer to a stop without the use of the vehicle’s brake
pedal. To test a break-away device, Trooper Winningham would have the driver
manually pull the break-away device out and pull the vehicle forward. When properly
functioning, the “trailer brakes will stop” the trailer after a few feet of movement.
Trooper Winningham stated that, during an inspection, the driver is permitted to use the
vehicle’s foot brake only if the brake box does not work properly.

             On June 30, 2016, Trooper Winningham was working at the Knox County
Scales on Interstate 40 (“I-40”) westbound conducting inspections. He conducted a
Level 1 inspection of the defendant’s 2015 Dodge pickup truck and car hauler trailer
loaded with vehicles, which Trooper Winningham estimated to weigh between 25,000
and 30,000 pounds. When conducting the brake box inspection, the defendant’s vehicle
                                            -2-
and trailer did not slow down or stop as it should have when the defendant manually
applied the brake box. Trooper Winningham determined from the inspection that the
defendant’s brake box was inoperable. Similarly, during Trooper Winningham’s
inspection of the defendant’s break-away device, the trailer did not slow down or stop,
leading Trooper Winningham to determine that that device was also defective. Trooper
Winningham stated that the brake box and the break-away device are required and that it
was unsafe for a vehicle and trailer without these features to be on the road, explaining
that, without these functions, “if you apply the truck brake when you’re driving down the
roadway, your trailer is not going to assist you any.” He acknowledged that a driver
would be able to stop the vehicle “eventually,” but it would take longer to bring the
vehicle to a stop.

              Trooper Winningham informed the defendant that his brake box and break-
away device were not functioning properly, and Trooper Winningham “placed [the
defendant] out of service until the repairs were made.” He wrote a report that detailed the
findings of his inspection and contained the statement, “Vehicle out of service until all
out of service items are repaired.” The defendant signed a copy of the report, which
included the defendant’s U.S. Department of Transportation number, 2891016, and a
section for the certification to be completed by a repairman after the necessary repairs
were completed. Trooper Winningham said that he provided the defendant with a verbal
explanation of the results of the inspection and the requirement for a repairman to certify
the repairs. After concluding the inspection, Trooper Winningham returned to the scale
house and saw the defendant walk around his truck and trailer, “pull up and back up once
or twice, and then was gone” less than 30 minutes after the inspection was completed.
Trooper Winningham stated that he did not see a repairman at the defendant’s vehicle.
Trooper Winningham notified THP Trooper Craig Wilkerson in the Cookeville district
that the defendant had left the Knox County Scales heading west on I-40. Trooper
Winningham acknowledged that there were several counties between Knox and Putnam,
but he did not notify any troopers in those counties. He stated that he contacted Trooper
Wilkerson because he was “somebody I knew.”

              During cross-examination, Trooper Winningham stated that, during his
Level 1 certification training, he learned how tractor trailer and truck brake systems
“work, what to look for, how to check the adjustments, how to tell if they’re properly
adjusted, check for leaks around [the] brake drums, and all of that.” He was also trained
on the necessary safety equipment of certain vehicles. Trooper Winningham explained
that when he conducted an inspection, he would print two copies of the inspection report
– one to give to the driver and one to keep in his file. He stated that copies of the reports
that were printed from the Aspen system should be identical to the reports that he prints
during the inspection, but he acknowledged that a copy of the defendant’s report printed
                                             -3-
from the Aspen system included the phrase “Query Central 3.4” which was not included
on the copy of the report that he printed at the time of the inspection. He also
acknowledged that one report had the name of a passenger in the defendant’s vehicle
while the other did not. Similarly, one report had the words “Out of Service” where the
other report had the abbreviation “OOS.” Trooper Winningham could not say whether
the defendant had received a copy of the report with the words “Out of Service.”

               Trooper Winningham described the defendant’s vehicle as a Dodge pickup
truck with a flatbed with a trailer attached to the flatbed. A brake box was attached to the
dash inside the cab of the truck with an electric connection from the brake box to the
trailer brakes through a connector that plugged into the side of the trailer. Trooper
Winningham agreed that a malfunction in the electrical connection would render the
trailer brakes inoperable and that such a malfunction could occur by the connector
becoming unplugged, corroded, or dirty. Trooper Winningham explained that the
electrical connection could be restored “[i]f you clean [the connector] up and do it the
way it’s supposed to.”

               Trooper Winningham stated that the law required trailers engaged in
interstate commerce to be equipped with functioning brakes. He agreed that farming
trailers could also be big and heavy but that farm trailers were not required to have brakes
unless they were driven over a certain speed. Trooper Winningham acknowledged that,
under Code section 55-9-204, a farming trailer carrying the same amount of weight as a
commercial trailer did not have to be equipped with the same brakes. He agreed that,
“[t]o a point,” not every heavy trailer was required to have operational brakes, noting that
trailers used in farming operations are exempted from the requirement “[u]nless they go
beyond the hour miles.” Trooper Winningham stated that he had never arrested someone
for reckless endangerment for driving a farming trailer without trailer brakes.

              THP Trooper Martin Mahan testified that on June 30, 2016, he was driving
westbound on I-40 in Putnam County where traffic was “[h]eavy.” Trooper Mahan had
been alerted to keep a look out for the defendant’s vehicle, which he described as a
“dually truck pulling a . . . car hauler with five cars,” and when he saw the defendant, he
effectuated a traffic stop, which was captured by the video recording equipment attached
to Trooper Mahan’s vehicle. He explained that there was an audio recording device
inside the vehicle as well as on his belt but said that the audio was difficult to hear on the
recording because it was recorded from the side of the interstate. Trooper Mahan stated
that the defendant was “slow to stop” after Trooper Mahan activated his emergency
lights, and, after the defendant stopped, Trooper Mahan instructed him to move his
vehicle “past the guardrail” on the side of the road.


                                             -4-
               Trooper Mahan said that he was qualified to do Level 3 inspections, which
included “check[ing] the driver’s log books and paperwork.” Although, Trooper Mahan
was not qualified to do brake inspections, Trooper Wilkerson, a certified Level 1
inspector, arrived on the scene shortly after the defendant was stopped. From the side of
the interstate, Trooper Mahan instructed the defendant to drive to a truck stop at exit 288
for a brake inspection. Troopers Mahan and Wilkerson followed the defendant to the
truck stop where the defendant acknowledged that he knew he had been placed out of
service but said that he thought he had fixed the problem. Trooper Mahan stated that the
amount of traffic seen on I-40 on the video was typical for that time of day.

               During cross-examination, Trooper Mahan stated that the defendant was
placing other motorists in imminent danger of death or serious bodily injury while
driving on I-40. Trooper Mahan first stated that he followed the defendant for
approximately one-fourth of a mile before activating his blue lights, but when pressed,
Trooper Mahan acknowledged that he followed the defendant approximately three miles,
before activating his emergency lights despite his knowing that the defendant had been
placed out of service for brake issues. He also acknowledged that he instructed the
defendant to drive another mile down the interstate to a truck stop despite the danger
posed by the defendant’s trailer. Trooper Mahan maintained that every person that the
defendant passed on the road was in imminent danger despite his allowing the defendant
to continue for three miles before stopping him. Trooper Mahan acknowledged that the
defendant drove within the speed limit, maintained his lane of travel, and did not
otherwise drive unsafely and that the defendant was able to stop his vehicle despite the
defective trailer brakes.

            On redirect examination, Trooper Mahan stated that Putnam County abuts
Cumberland County at mile marker 304 on I-40. He acknowledged that by the time the
defendant was stopped at mile marker 290, he had been driving in Putnam County for 14
miles.

              THP Trooper Craig Wilkerson, who was certified to conduct Level 1
inspections, testified that, on June 30, 2016, Trooper Winningham notified him that the
defendant had left the Knox County Scales after failing a brake inspection. Trooper
Wilkerson arrived on the scene shortly after Trooper Mahan had stopped the defendant
on I-40. Because Trooper Wilkerson knew of the defendant’s brake deficiencies, he had
the defendant proceed to a truck stop in order to inspect his brakes. During the
inspection, the defendant’s manual application of the brake box failed to slow or stop the
vehicle. After allowing the defendant to retry the test more than once, Trooper Wilkerson
determined that the defendant’s trailer’s “electric brakes [we]re inoperable.” Trooper
Wilkerson also tested the defendant’s break-away device, which also failed to operate
                                            -5-
correctly.

              Trooper Wilkerson explained that a repairman was supposed to sign the
inspection report after completing the necessary repairs. Although the defendant told
Trooper Wilkerson that he thought he had fixed the brake issues himself, the defendant
did not sign the repairman certification portion of the report. Trooper Wilkerson stated
that I-40 Tires, Inc. Truck and Trailer Repair (“I-40 Tires”) was located “directly behind
the truck stop” where he had inspected the defendant’s brakes. Trooper Wilkerson
reviewed an invoice from I-40 Tires dated July 1, 2016, which invoice included the
defendant’s name and U.S. Department of Transportation number. The invoice also
included a hand-written list of invoiced services with corresponding prices2 and the
number “6” in a column labeled “Quan.” next to the word “LABOR.”

               During cross-examination, Trooper Wilkerson testified that he followed the
defendant for approximately two miles behind Trooper Mahan before Trooper Mahan
effectuated a traffic stop, and Trooper Wilkerson did not observe any unsafe driving by
the defendant. He acknowledged that the video recording showed the defendant safely
stopping his vehicle five times, including at least once while on a downgrade. Trooper
Wilkerson estimated that he allowed the defendant to attempt the manual brake test at
least three times, and each time, the defendant had to use the vehicle’s foot brake to stop
the vehicle and trailer.

              On redirect examination, Trooper Wilkerson posited that “[i]t would take a
lot longer” to stop the vehicle quickly without functioning trailer brakes “based on the
speed the vehicle is traveling and the efficiency of the actual brakes themselves.”

               On recross-examination, Trooper Wilkerson acknowledged that the
defendant was traveling at “interstate speeds” when Trooper Mahan effectuated the
traffic stop and that the defendant was able to bring his vehicle to a stop at that time. On
further redirect examination, Trooper Wilkerson said that, at no point during the
encounter captured by the video recording, did the defendant have to stop his vehicle
2
        The hand-written list of invoiced services is listed below:

QUAN.                            DESCRIPTION                          PRICE       AMOUNT
6        Grease Seal                                                       4.75       28.44
3        LH Ele Brake Assembly                                            69.68      209.04
3        RH Ele Brake Assembly                                            69.68      209.04
12       Brake Clean                                                                  78.76
         Parts Run                                                                    25.00


                                                    -6-
quickly. During further recross-examination, Trooper Wilkerson acknowledged that no
vehicle carrying the weight of the defendant’s load could “[s]top on a dime” even with
fully functioning brakes.

               On this evidence, the jury found the defendant guilty of the lesser included
offense of reckless endangerment and fixed a fine of $2,500. After a sentencing hearing,
the trial court imposed a sentence of 120 days’ incarceration of which the defendant
must serve 75 percent before becoming eligible for work release, furlough, trusty status,
or rehabilitative programs. Following a timely but unsuccessful motion for a new trial,
the defendant filed this timely appeal and argues that the evidence at trial was
insufficient to support his conviction, that the trial court erred by admitting the I-40
Tires invoice into evidence, and that the trial court erred by denying him probation.

                               I. Sufficiency of the Evidence

             The defendant contends that the State failed to present sufficient evidence
to support his conviction of reckless endangerment and that the trial court erred by
denying his motion for judgment of acquittal. We disagree.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 324 (1979) (superseded on other grounds); State v. Winters, 137 S.W.3d 641, 654
(Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As relevant to this case, “[a] person commits an offense who recklessly
engages in conduct that places or may place another person in imminent danger of death
or serious bodily injury.” T.C.A. § 39-13-103(a). “[A] person acts recklessly . . . when
                                             -7-
the person is aware of, but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur” and when the risk is “of such a nature
and degree that its disregard constitutes a gross deviation from the standard of care that
an ordinary person would exercise under all the circumstances as viewed from the
accused person’s standpoint.” Id. § 39-11-106(a)(31). The danger of death or serious
bodily injury is imminent when a person is “placed in a reasonable probability of danger
as opposed to a mere possibility of danger.” State v. Payne, 7 S.W.3d 25, 28 (Tenn.
1999) (citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App. 1996)). The person
placed in imminent danger may be a “class of persons occupying [a] ‘zone of danger.’”
Payne, 7 S.W.3d at 28.

              Here, the State’s evidence established that the defendant was driving a
truck and pulling a car hauler trailer loaded with 5 cars, which Trooper Winningham
estimated to weigh 25,000 to 30,000 pounds. The defendant’s brake box and break-away
device were deemed inoperable during an inspection at the Knoxville scales, and Trooper
Winningham told the defendant that his vehicle was “out of service” until repairs to these
items were made and certified by a repairman. Trooper Winningham also gave the
defendant an inspection report with that same information. Despite being told his vehicle
was out of service, the defendant proceeded to drive westbound on I-40 at “interstate
speeds” until he was stopped by Trooper Mahan in Putnam County. During a second
inspection by Trooper Wilkerson, the defendant’s brake box and break-away device were
again determined to be inoperable. Trooper Winningham testified that a functioning
brake box and break-away device were required by law, and both Troopers Winningham
and Wilkerson testified that the defendant’s driving his vehicle and trailer without
functioning trailer brakes was unsafe because it would be more difficult for the defendant
to stop his vehicle. Trooper Mahan testified that there was heavy traffic on I-40 at the
time, and the jury saw a video recording of the defendant’s driving on I-40 when other
vehicles were present on the road.

              Although a violation of Code section 55-9-204 is not per se reckless
endangerment, under these facts, a rational trier of fact could have found beyond a
reasonable doubt that the defendant recklessly drove a vehicle pulling a trailer that lacked
the required brakes, placing other persons in a reasonable probability of danger of death
or serious bodily injury.

             Accordingly, we hold that sufficient evidence exists to support the
defendant’s conviction for misdemeanor reckless endangerment.

                             II. Admission of Repair Invoice


                                            -8-
              The defendant contends that the trial court erred by admitting into evidence
a repair invoice from I-40 Tires, arguing that the State failed to comply with the notice
requirement of evidence rule 902(11), that the invoice was admitted in violation of
evidence rule 407, and that the invoice and its accompanying affidavit violated the
hearsay rules and deprived him of his right to confrontation.

               Both the rules of evidence and the common law designate the trial court as
the “arbiter of authentication issues,” and, accordingly, that court’s ruling will not be
disturbed absent a showing that the court clearly abused its discretion. See Tenn. R.
Evid. 901, Advisory Comm’n Comments; State v. Mickens, 123 S.W.3d 355, 376 (Tenn.
Crim. App. 2003). Similarly, an appellate court reviews the “trial court’s decision to
admit or exclude evidence under Tennessee Rule of Evidence 407 under an abuse of
discretion standard.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 87 (Tenn. 2008)
(citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). An abuse of discretion occurs
when the trial court applies an incorrect legal standard or reaches a conclusion that is
“illogical or unreasonable and causes an injustice to the party complaining.” State v. Ruiz,
204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)), overruled on other grounds by State v. Patterson, 564 S.W.3d 423, 433-34 (Tenn.
2018); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

                                        A. Rule 902(11)

              The defendant first argues that the State failed to give notice of its intent to
offer the invoice as evidence as required by evidence rule 902(11).

              Evidence rule 901(a) requires that evidence be authenticated or identified as
a condition precedent to its admissibility. Tenn. R. Evid. 901(a). Generally,
authentication of tangible evidence requires the testimony of a witness, see State v.
Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000); however, the rules provide for the
self-authentication of certain documents. As relevant here, evidence rule 902(11)
provides:

              Extrinsic evidence of authenticity as a condition precedent to
              admissibility is not required as to . . . [t]he original or a
              duplicate of a domestic record of regularly conducted activity
              that would be admissible under Rule 803(6) if accompanied
              by an affidavit of its custodian or other qualified person
              certifying that the record:



                                             -9-
                    (A) was made at or near the time of the occurrence of
              the matters set forth by, or from information transmitted by, a
              person with knowledge of and a business duty to record or
              transmit those matters;

                      (B) was kept in the course of the regularly conducted
              activity; and

                     (C) was made by the regularly conducted activity as a
              regular practice.

Tenn. R. Evid. 902(11). To admit a record into evidence under this Rule, “[a] party . . .
must provide written notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance of their offer into
evidence to provide an adverse party with a fair opportunity to challenge them.” Id.

               Here, the trial court ruled that the State provided adequate notice by
emailing defense counsel a copy of the invoice and affidavit. The purpose of the notice
requirement is to provide the opposing party adequate time to challenge the evidence.
See Tenn. R. Evid. 902(11); Regions Bank, N.A. v. Williams, No. W2013-00408-COA-
R3-CV, slip op. at 7 (Tenn. Ct. App., Jackson, Feb. 12, 2014). The defendant
acknowledged receipt of the emailed invoice and affidavit and conceded that he could
have inferred that the State intended to offer the invoice as evidence. In this case, the
purpose of the notice requirement was not frustrated because the defendant understood
the State’s intent to offer the invoice as a self-authenticating record. The record supports
the trial court’s ruling, and the trial court did not abuse its discretion in admitting the
invoice.

                                        B. Rule 407

              Next, the defendant challenges the evidentiary relevance of the invoice,
arguing that the invoice was evidence of a subsequent remedial measure and was
admitted in violation of evidence rule 407.

              Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may still be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
                                            -10-
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.

             Relevant evidence may also be inadmissible under evidence rule 407,
which provides:

              When, after an event, measures are taken which, if taken
              previously, would have made the event less likely to occur,
              evidence of the subsequent remedial measures is not
              admissible to prove strict liability, negligence, or culpable
              conduct in connection with the event. This rule does not
              require the exclusion of evidence of subsequent measures
              when offered for another purpose, such as proving
              controverted ownership, control, or feasibility of
              precautionary measures, or impeachment.

Tenn. R. Evid. 407. “The purpose of this evidentiary rule is to ‘encourage remedial
measures in order to serve the public’s interest in a safe environment.’” Martin, 271
S.W.3d at 87 (Tenn. 2008) (quoting NEIL P. COHEN ET AL., TENNESSEE LAW OF
EVIDENCE § 4.07[2] (5th ed. 2005)).

               We disagree with the trial court that Rule 407 is inapplicable in criminal
cases. The policy underlying Rule 407 applies equally in criminal cases as in civil cases.
The public’s interest is served by encouraging both the civil defendant and the criminal
defendant to remedy an unsafe environment. Furthermore, nothing in the rule excludes
its application in the criminal context. See Tenn. R. Evid. 101 (“These rules shall govern
evidence rulings in all trial courts in Tennessee except as otherwise provided by statute or
rules of the Supreme Court of Tennessee.”). Rule 407 does not operate to exclude
evidence of subsequent remedial measures that were mandated by a statute designed to
alleviate the danger posed by the unsafe condition because, in that instance, exclusion of
the evidence is not necessary to encourage the defendant to remedy the dangerous
condition. See Martin, 271 S.W.3d at 88.

              Relevant to this case, Code section 55-9-204(c)(1) provides:

              Every trailer or semitrailer of a gross weight of three
              thousand pounds (3,000 lbs.) or more when operated upon a
              highway shall be equipped with brakes adequate to control
              the movement of and to stop and to hold the vehicle and so
              designed as to be applied by the driver of the towing motor
                                            -11-
              vehicle from its cab, and the brakes shall be so designed and
              connected that in case of an accidental breakaway of the
              towed vehicle, the brakes shall be automatically applied.

T.C.A. § 55-9-204(c)(1). Furthermore, “[a] violation of this section is a Class C
misdemeanor.” We conclude that this statute alone is sufficient to encourage a defendant
to remedy any danger posed by inadequate trailer brakes, and therefore, the application of
Rule 407 was unnecessary.

               That being said, we can see no fact of consequence to which the repair
invoice is relevant. The invoice provides the defendant’s name, address, vehicle
information, and charges for certain services and six units of labor. Although Trooper
Wilkerson testified that the invoice bore the defendant’s name and U.S. Department of
Transportation number, the defendant’s identity and control of the vehicle were not in
question. See Thomson v. Thompson, 749 S.W.2d 468, 471 (Tenn. Ct. App. 1988)
(“[E]vidence of subsequent remedial measures becomes relevant only when the defendant
has raised the issue of control and ownership.” (citing E. CLEARY, MCCORMICK’S
HANDBOOK ON THE LAW OF EVIDENCE § 275, at 817 (3d ed. 1984)). The State argued
that it offered the invoice to show that the necessary repairs to the defendant’s brakes
required six hours of labor; however, the invoice shows only the hand-written number
“6” next to the word “Labor” but does not indicate what unit of measurement was used to
calculate the labor. The invoice also indicates that several services were provided but
does not indicate how many units of labor corresponded to each service. Furthermore,
the State offered no evidence that the services listed on the invoice related to the repair of
the defective trailer brakes. Although the invoice seems to indicate services for brake
assembly and cleaning, it does not specify whether those services related to the
defendant’s brake box and break-away device or whether those services repaired the
specific issues that caused the defendant’s vehicle and trailer to be placed out of service.
Consequently, the invoice did not make any fact of consequence more or less probable
and was, therefore, inadmissible. See Tenn. R. Evid. 402.

              Although the trial court erred by admitting the invoice from I-40 Tires into
evidence, we conclude that the error was harmless in light of the other evidence against
the defendant. Troopers Winningham and Wilkerson each inspected the defendant’s
brake box and break-away device, and each deemed the trailer’s brakes to be inoperable.
The defendant drove the 25,000- to 30,000-pound trailer on I-40 at “interstate speeds”
without the required brakes while other motorists were also on the road. It is not likely
that the jury would have reached a different verdict if the I-40 Tires invoice had been
properly excluded. See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (“Where
an error is not of a constitutional variety, Tennessee law places the burden on the
                                            -12-
defendant who is seeking to invalidate his or her conviction to demonstrate that the error
‘more probably than not affected the judgment or would result in prejudice to the judicial
process.’” (quoting Tenn. R. App. 36(b); State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001);
State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999))).

                                       C. Hearsay

              Finally, the defendant contends that the invoice and accompanying affidavit
violate the hearsay rule. Specifically, the defendant argues that he was deprived of his
opportunity to confront Ms. Ward, and thus, her affidavit was inadmissible.

               “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these
rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide
exceptions to the general rule of inadmissibility of hearsay. As relevant here, Rule
803(6) excludes from the hearsay rule certain records of regularly conducted activity:

             A memorandum, report, record, or data compilation, in any
             form, of acts, events, conditions, opinions, or diagnoses made
             at or near the time by or from information transmitted by a
             person with knowledge and a business duty to record or
             transmit if kept in the course of a regularly conducted
             business activity and if it was the regular practice of that
             business activity to make the memorandum, report, record or
             data compilation, all as shown by the testimony of the
             custodian or other qualified witness or by certification that
             complies with Rule 902(11) or a statute permitting
             certification, unless the source of information or the method
             or circumstances of preparation indicate lack of
             trustworthiness.

Tenn. R. Evid. 803(6).

              Our supreme court has confirmed that “[t]he standard of review for rulings
on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.
2015). The “factual and credibility findings” made by the trial court when considering
whether a statement is hearsay, “are binding on a reviewing court unless the evidence in
the record preponderates against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-
61 (Tenn. Crim. App. 2008)). “Once the trial court has made its factual findings, the next
                                           -13-
questions—whether the facts prove that the statement (1) was hearsay and (2) fits under
one [of] the exceptions to the hearsay rule—are questions of law subject to de novo
review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 230 S.W.3d 88, 128
(Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.
2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o factual issue
attends” the trial court’s determination whether a statement is hearsay, “it necessarily is a
question of law”). “If a statement is hearsay, but does not fit one of the exceptions, it is
inadmissible, and the court must exclude the statement. But if a hearsay statement does
fit under one of the exceptions, the trial court may not use the hearsay rule to suppress the
statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 760-61.

              Relatedly, the Sixth Amendment to the federal constitution and article I,
section 9 of the Tennessee Constitution afford the criminal accused the right to confront
the witnesses against him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although
the provisions are not coterminous, our supreme court has “expressly adopted and applied
the same analysis used to evaluate claims based on the Confrontation Clause of the Sixth
Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014) (citing State v. Parker,
350 S.W.3d 883, 898 (Tenn. 2011); State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn.
2010); State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); State v. Lewis, 235 S.W.3d
136, 145 (Tenn. 2007)). In Crawford v. Washington, the United States Supreme Court
held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands . . .
unavailability and a prior opportunity for cross-examination.” Crawford v. Washington,
541 U.S. 36, 68 (2004). “Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers’ design to afford the States flexibility in their development of hearsay
law . . . .” Id. Because the Confrontation Clause does not bar nontestimonial hearsay,
see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton v. Bockting, 549 U.S.
406, 420 (2007), “the threshold question in every case where the Confrontation Clause is
relied upon as a bar to the admission of an out-of-court statement is whether the
challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing Cannon, 254
S.W.3d at 301).

               The Crawford court identified, for illustrative purposes, a “core class of
‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially”; “extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions”; and “statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial.” Crawford, 541 U.S. at 51-52 (alteration in original) (citations omitted).
                                            -14-
Similarly, the court observed that some “statements . . . by their nature were not
testimonial,” including, among other things, “business records.” Id.; Dotson, 450 S.W.3d
at 64. Thus, statements that are properly categorized as business records are
nontestimonial, and the Confrontation Clause has no application to their admission into
evidence. Cannon, 254 S.W.3d at 303.

              For those statements that are not easily classified as nontestimonial, our
supreme court has concluded that “a statement is testimonial at least when it passes the
basic evidentiary purpose test plus either the . . . targeted accusation requirement”
adopted by the plurality of the Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012),
or the “formality criterion” espoused by Justice Thomas in his concurring opinion in
Williams, stating that “[o]therwise put, . . . an out-of-court statement is testimonial . . . if
its primary purpose is evidentiary and it is either a targeted accusation or sufficiently
formal in character.” Dotson, 450 S.W.3d at 69 (quoting Young v. United States, 63 A.3d
1033, 1043-44 (D.C. Cir. 2013)).

              A statement is evidentiary when its “primary purpose . . . is to establish or
prove past events potentially relevant to later criminal prosecution.” Dotson, 450 S.W.3d
at 64 (quoting Davis v. Washington, 547 U.W. 813, 822 (2006)). “When determining a
statement’s primary purpose, ‘the relevant inquiry is not the subjective or actual purpose
of the individuals involved in a particular encounter, but rather the purpose that
reasonable participants would have had, as ascertained from the individuals’ statements
and actions and the circumstances in which the encounter occurred.’” Dotson, 450
S.W.3d at 64 (quoting Michigan v. Bryant, 562 U.S. 344, 360 (2011)); see also Williams,
567 U.S. at 84 (“We look for the primary purpose that a reasonable person would have
ascribed to the statement, taking into account all of the surrounding circumstances.”
(citing Bryant, 562 U.S. at 360)).

               Although we acknowledge that other jurisdictions have found that an
affidavit that serves solely as the authenticating document for a business record is
nontestimonial, see, e.g., United States v. Yeley-Davis, 632 F.3d 673, 680 (10th Cir.
2011); United States v. Adefehinti, 510 F.3d 319, 328 (D.C. Cir. 2007); United States v.
Ellis, 460 F.3d 920, 927 (7th Cir. 2006); State v. Brooks, 56 A.3d 1245, 1255 (N.H.
2012); State v. Doss, 754 N.W.2d 150, 163-64 (Wisc. 2000), we are constrained to follow
the test articulated by our supreme court, see Dotson, 450 S.W.3d at 69 (quoting Young v.
United States, 63 A.3d 1033, 1043-44 (D.C. Cir. 2013)).

             The first document at issue here is the invoice from I-40 Tires dated July 1,
2016, and issued to the defendant. The invoice itself qualifies as a business record under
Rule 803(6) and is, in consequence, excepted from the hearsay rule. Additionally, as a
                                             -15-
business record, the invoice was nontestimonial, and its admission did not violate the
Confrontation Clause. See Cannon, 254 S.W.3d at 303.

               The second document at issue is the affidavit of I-40 Tires manager
Jennifer Ward, which was submitted to the jury along with the invoice. Ms. Ward’s
affidavit certified that the invoice was “made at or near the time of occurrence of the
matters set forth by, or from information transmitted by, a person with knowledge of and
a business duty to record or transmit those matters,” “was kept in the course of the
regularly conducted activity of” I-40 Tires, and “was made by the regularly conducted
activity as a regular practice of” I-40 Tires. Under Rule 902(11), an affidavit of the
custodian of a business record “or other qualified person” must accompany the business
record for the record to be self-authenticating. Tenn. R. Evid. 902(11).

              Rule of Evidence 902(11) does not express that the authenticating affidavit
be admitted into evidence with the business record. The affidavit cannot become part of
the business record because it does not satisfy the requirements of Rule 803(6), and
accordingly, is inadmissible hearsay. See Tenn. R. Evid. 803(6). The affidavit is merely
a procedural mechanism by which a business record may be authenticated, see Tenn. R.
Evid. 902(11), and the trial court, not the jury, is tasked with determining the
admissibility of evidence, see Tenn. R. Evid. 104 (“Preliminary questions concerning the
. . . admissibility of evidence shall be determined by the court . . . .”); see also id. at
901(a) (describing authentication as “a condition precedent to admissibility”). Thus, the
jury has no need of the affidavit.

               Although the affidavit here was made for the purposes of criminal
prosecution, a reasonable person would have understood the affidavit to be merely
describing the circumstances relating to the creating of the invoice and not as proving a
past event. See Dotson, 450 S.W.3d at 64. Accordingly, the primary purpose of Ms.
Ward’s affidavit was to authenticate the I-40 Tires invoice as a business record, and,
therefore, it was not evidentiary. Because the primary purpose of the affidavit was not
evidentiary, the Confrontation Clause has no application to its admission. Id.
Additionally, because the affidavit was not evidentiary in nature, we need not address the
second prong of the Dotson analysis, namely, whether the affidavit was “a targeted
accusation or sufficiently formal in character.” See id. at 69.

              Admission of the affidavit did not violate the petitioner’s right to
confrontation, but the affidavit is nonetheless inadmissible hearsay and should not have
not have been submitted to the jury. That being said, because the affidavit here was
unrelated to any conduct of the defendant and instead referenced only the circumstances


                                           -16-
of the invoice, we conclude that the admission of Ms. Ward’s affidavit was harmless. See
Rodriguez, 254 S.W.3d at 372.

               Consequently, the defendant has failed to demonstrate that he is entitled to
relief on any issue related to the admission of the invoice from I-40 Tires.

                                      III. Sentencing

               At the defendant’s April 23, 2018 sentencing hearing, Community
Probation Services Officer Joel Colton testified that he had reviewed the defendant’s
presentence investigation report. Mr. Colton stated that the defendant was scheduled for
a sentencing hearing on January 29, 2018, but that day the defendant tested positive for
marijuana and cocaine. The defendant admitted his use of marijuana; however, the
defendant denied using cocaine. Further testing by Aegis Lab confirmed the defendant’s
positive test for cocaine.

             During cross-examination, Mr. Colton acknowledged that he had difficulty
understanding the defendant’s prior out-of-state-convictions, but he believed the
defendant’s convictions were all misdemeanor offenses resulting in fully suspended
sentences. Mr. Colton stated that it did not appear from the presentence report that the
defendant had any probation violations.

              In rendering its decision to impose a 120 day, fully-incarcerative sentence,
the trial court considered the presentence report and the statutory mitigating and
enhancement factors. The court found no mitigating factors but found the defendant’s
criminal history, “whether it’s four prior misdemeanors or two,” constituted an enhancing
factor. The court expressed concern about the defendant’s positive drug screen, stating,
“[H]e’s coming in and he’s testing positive as he’s about to have his sentencing hearing.
And it looks like we’re just not getting his attention here.” Although the defendant had
previously completed probation successfully, the court noted that one goal of probation
was “to deter the criminal behavior” and that the defendant’s continued criminal
violations spoke to the failure of his past terms of probation to deter his criminal conduct.

              The defendant appeals the trial court’s denial of probation, arguing that
incarceration was unwarranted because he had only prior misdemeanor offenses and no
previous probation violations. The State contends that the trial court did not err.

               Misdemeanor sentencing, in contrast to felony sentencing, is covered by
Code section 40-35-302, the terms of which afford the trial court considerable flexibility
in setting the length and manner of service of the misdemeanor sentence. See T.C.A. §
                                            -17-
40-35-302. For example, a separate sentencing hearing is not mandatory in misdemeanor
cases, and the enhancement and mitigating factors need only be considered when
calculating the percentage of the sentence to be served “in actual confinement” prior to
“consideration for work release, furlough, trusty status and related rehabilitative
programs.” Id. § 40-35-302; State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).
Although our supreme court has not yet applied the standard of review adopted in State v.
Bise—abuse of discretion coupled with a presumption of reasonableness—to
misdemeanor sentencing decisions, it has stated, “The abuse of discretion standard,
accompanied by a presumption of reasonableness, is the appropriate standard of appellate
review for all sentencing decisions.” State v. Pollard, 432 S.W.3d 851, 864 (Tenn.
2013); see also State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014) (holding that,
because “Bise and its progeny establish that the abuse of discretion standard of appellate
review accompanied by a presumption of reasonableness applies to all sentencing
decisions,” the Bise standard is the appropriate standard of appellate review for a trial
court’s sentencing decision to either grant or deny judicial diversion”). Consequently, we
join the other panels of this court that have held that the Bise standard similarly applies to
appellate review of misdemeanor sentencing. See, e.g., State v. Willard Hampton, No.
W2018-00623-CCA-R3-CD, slip op. at 17-18 (Tenn. Crim. App., Jackson, Mar. 12,
2019).

              Because the record establishes that the trial court complied with the
requirements of Code section 40-35-302 relative to misdemeanor sentencing, we “apply a
presumption of reasonableness” to the sentencing decision in this case. Given the latitude
afforded to trial courts in misdemeanor sentencing, the record reflects a basis for
requiring confinement in this case. In determining the manner of service of the
defendant’s sentence, the trial court pointed to the defendant’s prior misdemeanor
convictions and his positive drug screen. The presentence report and Mr. Colton’s
testimony support the trial court’s findings, and we discern no error in the trial court’s
decision to order the defendant to serve his sentence in confinement.

              Accordingly, the judgments of the trial court are affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -18-
