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text:
    STATE of Tennessee v. Charles SHARP.
    Court of Criminal Appeals of Tennessee, at Jackson.
    June 2, 2009 Session.
    Feb. 22, 2010.
    Petition to Rehear Denied March 12, 2010.

      Christine W. Stephens and Brett A. Schubert, Memphis, Tennessee, attorneys for the appellant, Charles Sharp.
    Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney General; for the appellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which JOHN EVERETT WILLIAMS and CAMILLE R. McMULLEN, JJ„ joined.

The Shelby County Grand Jury indicted Appellant, Charles Sharp, for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, and one count of vandalism. An initial trial resulted in an acquittal for all charges except the especially aggravated sexual exploitation of a minor. At the second trial, a key witness was unavailable. Over the objection of Appellant, her redacted testimony from the first trial was read to the jury and presented as evidence. The jury convicted Appellant as charged. He was sentenced to nine years as a Range I, standard offender. On appeal, Appellant argues that his constitutional right of confrontation was violated by the State’s presentation of the previous testimony of this witness, that the evidence was insufficient to support his conviction, that the trial court erred in sentencing Appellant to nine years as a Range I, standard offender, and that the trial court erred in denying probation. After a thorough review of the record, we have determined that the evidence is sufficient to sustain the verdict and that Appellant was properly sentenced. The State’s failure to adequately prove that it had made a good faith effort to locate the missing witness’ testimony from Appellant’s first trial violated Appellant’s constitutional right to confront the witness. Therefore, this case is reversed and remanded for a new trial.

Appellant was employed by the Tennessee Department of Children’s Services (“DCS”). Stan Lang was his supervisor. In 2005, DCS was holding “Teen Panel” meetings in Memphis during which foster children and individuals who had been in foster care would discuss their experiences with potential foster parents. Mr. Lang asked Appellant to transport several individuals who were in foster care at the time or who had been in foster care to the Teen Panel meetings. Appellant drove a van that had a driver’s seat and passenger seat in the front and two rows of bench seats behind the driver’s seat.

In January, February and March 2005, Appellant drove several individuals including D’Army Watson, Daisy Winston, and D.F. to the Teen Panel meetings. On March 23, 2005, the meeting was held at the Centenary Methodist Church. At the time of the meeting, D.F. was fourteen, Ms. Winston was eighteen, and Mr. Watson was twenty-one. Mr. Watson brought a video camera with him to videotape the meeting. After the meeting, Appellant drove several meeting participants home. Mr. Watson began to videotape the individuals in the van. Eventually, Mr. Watson, Ms. Winston and D.F. were the only meeting participants left in the van that Appellant was driving. Mr. Watson gave Ms. Winston the video camera and asked her to record. D.F. and Mr. Watson were sitting in the first bench seat directly behind Appellant and began to flirt and touch each other. Ms. Winston was videotaping the encounter.

D.F. and Mr. Watson moved to the rearmost bench seat, and D.F. was lying on her back. Mr. Watson began to fondle D.F.’s breasts after her shirt was removed. Mr. Watson proceeded to remove D.F.’s pants and underwear and began to digitally penetrate her. While this activity was occurring, Ms. Winston was in the bench seat immediately behind the driver’s seat, videotaping Mr. Watson and D.F. Ms. Winston was using the light source on the camera to illuminate the activity between Mr. Watson and D.F. while she was filming it. Ms. Winston moved around so as to get different angles of the sexual activity for the videotape. D.F. stated that it would have been “impossible not to be noticed.” The van was equipped with a functional rearview mirror.

Mr. Watson told Ms. Winston to stop filming, and he and D.F. began to have sexual intercourse in the rearseat of the van. D.F. testified that the back of the seat immediately behind the driver’s seat came to the middle of hér back while she and Mr. Watson were having intercourse. Appellant told Mr. Watson and D.F. to not let anyone see what they were doing and told them he would get on the expressway so it would be harder for other drivers to see them.- According to testimony at trial, Ms. Winston took the camera to the front of the van and replayed portions of the videotape for Appellant. Appellant never told the three participants to stop. Appellant took Mr. Watson home first after taking an indirect route.

After D.F. arrived home, Lieutenant Wilton Cleveland with the Memphis Police Department became involved in the case. As a result of the investigation, Lieutenant Cleveland obtained the videotape from Mr. Watson. Mr. Watson was later arrested and charged with statutory rape.

In January 2006, the Shelby County Grand Jury indicted Appellant for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, and one count of vandalism. A trial was held on May 31, 2006, which resulted in a hung jury with regard to the especially aggravated sexual exploitation of a minor charge and acquittals for the remaining charges.

On April 28 to May 1, 2008, a new trial was held solely on the charge for especially aggravated sexual exploitation of a minor. The jury found Appellant guilty as charged. On May 29, 2008, the trial court held a sentencing hearing. At the conclusion of the hearing, the trial court sentenced Appellant to nine years as a Range I, standard offender. Appellant filed a timely notice of appeal.

ANALYSIS

Unavailable Witness

Appellant’s first issue is that the trial court erred in declaring Ms. Winston as an unavailable witness in the second trial and allowing her redacted testimony to be read to the jury at the second trial because the trial court relied solely on representations by the State. The State argues that despite its good faith efforts, the witness could not be located, and the trial court did not abuse it discretion.

The Constitution of the United States provides the accused in a criminal prosecution the right “to be confronted with witnesses.” U.S. Const. amend. VI. The Tennessee Constitution provides the right “to meet witnesses face to face.” Term. Const. art. I, § 9.

These guaranties were created in order to: (1) have the witness testify under oath and subject to the penalties for perjury; (2) enable the fact-finder to observe the manner or demeanor of the witness and assess his or her credibility; and (3) have the witness available for cross-examination. See Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (internal quotation omitted); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Hughes, 713 S.W.2d 58 (Tenn.1986). Notwithstanding these objectives, the right of confrontation is not absolute and must occasionally give way to considerations of public policy and necessities of the case. State v. Kennedy, 7 S.W.3d 58, 65 (Tenn.Crim.App.1999) (citing Jenkins v. State, 627 N.E.2d 789, 793 (Ind.1993)). Thus, the United States Supreme Court has repeatedly refused to apply a literal interpretation of the Confrontation Clause which would bar the use of any hearsay. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); see also Sherman v. Scott, 62 F.3d 136, 140 (5th Cir.1995), cert. denied, 516 U.S. 1180, 116 S.Ct. 1279, 134 L.Ed.2d 225 (1996).

The Tennessee Supreme Court has addressed the standards and criteria that must be met in order for out-of-court statements to satisfy the Confrontation Clause of both the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Tennessee Constitution. See State v. Armes, 607 S.W.2d 234, 236 (Tenn.1980); State v. Henderson, 554 S.W.2d 117 (Tenn.1977). In Henderson, our supreme court recognized that valid claims of an unconstitutional abridgement of the right to confront witnesses arise when:

(1) [T]he hearsay evidence is crucial to proving the State’s case, i.e., the evidence is offered to prove an essential element of the crime or it connects the defendant directly to the commission of the crime;
(2) there is no proof that the witness is unavailable, i.e., the State must make a good faith effort to secure the presence of the person whose statement is to be offered against the defendant; and
(3) the hearsay evidence is lacking its own indicia of reliability.

Henderson, 554 S.W.2d at 120.

As stated above, the prosecutor and Appellant’s attorney read Ms. Winston’s testimony from the previous trial into evidence. Ms. Winston testified that at the time of the first trial she was nineteen-years-old and that she had been in foster care since she was two months old. When she testified she was no longer in foster care and was living with her sister. In 2005, her caseworker, a Ms. Coleman, asked Ms. Winston to participate in the Teen Panel meetings. She stated that the purpose of the meetings was for potential foster parents to ask questions of the foster children on the panel. She started participating in the panel meetings in January. She went once a month.

Appellant provided transportation to the meetings. Ms. Winston testified that he was a DCS worker who worked in the Independent Living program. Other children also participated in the meetings, but she did not know them outside of the meetings. Ms. Winston went to the meetings in January, February and March. The victim also went to these meetings. When Appellant picked up Ms. Winston for the March meeting, Mr. Watson was already in the van. The victim was the last person to be picked up. The meeting lasted an hour and a half. After the meeting, Appellant began to drive everyone home. Everyone on the bus was pretty excited. Mr. Watson had a video camera and began taping on the van. Eventually, Mr. Watson, Ms. Winston, and the victim were the only individuals left in the van. At this point, Mr. Watson and the victim began touching each other. They were located behind the driver’s and passenger’s seats. The van contained individual seats for the driver and passenger and then two rows of bench seats. She stated that the rows were “very close together.” Ms. Winston was in the passenger’s seat at this time.

Mr. Watson asked Ms. Winston to videotape his encounter with the victim. She began to videotape them while she was seated in the passenger seat. At some point, Mr. Watson and the victim moved to the back row of the van. Ms. Winston moved to the first bench seat in order to videotape them. Ms. Winston testified that as she was videotaping the couple there would have been nothing that she knew of to obstruct Appellant’s view of what they were doing. There was a functional rearview mirror in the van. At some point, Ms. Winston was not sitting on the seat videotaping, but rather standing in the walkway between the seat and the door to film from a different angle. She stated that there was nothing to obstruct Appellant’s view of her standing in the walkway. Eventually, Mr. Watson asked Ms. Winston to stop videotaping. At this point, Ms. Winston testified, she took the video tape to the front of the van and held it up for Appellant to watch. As he was viewing the video tape, Appellant told Ms. Winston that she “was moving too much.” While she was showing the video to Appellant, Mr. Watson and the victim were having sexual intercourse in the back row of the van. Appellant was telling the couple to change positions so that no one else outside the van could see them.

The couple engaged in intercourse until they arrived at Mr. Watson’s house. Both Mr. Watson and the victim put on their clothes, and Mr. Watson got out of the van. The police came to Ms. Winston’s house later that night, and she told them what had happened. Ms. Winston then identified Appellant.

Appellant’s attorney read Ms. Winston’s cross-examination into evidence. She was initially questioned regarding the January Teen Panel meeting. Appellant picked up Ms. Winston from her house to go to the January meeting. Both Mr. Watson and the victim were there along with some other individuals. After the meeting, Appellant drove everyone home. There were no other DCS employees in the van.

For the February meeting, Appellant once again drove Ms. Winston, Mr. Watson and the victim and other individuals to the meeting. There was not another DCS worker in the van. After the meeting, they stopped at Church’s Chicken where Mr. Watson worked and ate chicken. After eating at Church’s, Appellant had to find someone who had run away. He took the children in the van with him to look for the runaway. He drove to an apartment complex and got out of the van. He left the children from the Teen Panel meeting in the van. While he was away from the van, Mr. Watson and the victim “began touching each other.” The victim also asked Ms. Winston to touch her, and she did. Ms. Winston testified that Mr. Watson and the victim “were going together.” Appellant came back to the van and asked them what they were doing.

For the March meeting, once again, Appellant was the only DCS worker in the van. Appellant drove several individuals to them meeting. When he picked up Ms. Winston, everyone except the victim was already in the van. They picked up the victim and proceeded to the meeting. With regard to the van, Ms. Winston agreed that the seat back of the driver’s seat came to the back of Appellant’s head. She also agreed that there were two cushions on either side of the first bench seat. She testified that she was in the walkway. She stated that if he looked in the rear-view mirror he could see Mr. Watson and the victim.

Ms. Winston testified that she did not know why Mr. Watson brought the video camera that night. She stated that she did not own one, but she had seen them before. Mr. Watson showed her how to operate it. Mr. Watson had already turned on the camera for her. He told her how to stop it. Ms. Winston testified that she did not know how to rewind it. Mr. Watson asked Ms. Winston to video tape his sexual activities with the victim. He asked her while she was sitting in the passenger seat and Appellant was in the driver’s seat. Ms. Winston was eighteen at the time of the March meeting. She was not sure how old the victim was because the victim kept telling everyone different ages. Ms. Winston did not find out how old the victim was until she spoke with the police.

On cross-examination, Ms. Winston agreed that while she was filming, she told the victim to pull her shirt back up and told Mr. Watson to open the victim’s vagina with his fingers. Ms. Winston testified that she showed the video to Appellant because he wanted to see it. When they arrived at Mr. Watson’s house, the victim also got out. Appellant said, “don’t be as long as you all was the last time.” The victim was talking to Mr. Watson and his brother while Appellant spoke with Mr. Watson’s mother.

It is clear that Ms. Winston’s testimony is crucial to the State’s case. Her testimony demonstrates that Appellant knew that she was videotaping Mr. Watson’s and the victim’s sexual activity. She stated that Appellant would have been able to see her videotaping; would have been able to see Mr. Watson and the victim engaging in sexual activity; and wanted to see the video. She also testified that she showed him the video and he told her that she was “moving too much.” This testimony proves that Appellant was permitting a minor to participate in the production of a videotape showing the minor engaging in sexual activity, which are the requirements for a violation of Tennessee Code Annotated section 39-17-1005(a), especially aggravated exploitation of a minor.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court announced the test to determine admissibility under the Confrontation Clause of hearsay offered against an accused. Testimonial statements such as redacted transcript in this case may not be offered into evidence unless two requirements are satisfied: (1) the declarant/witness. must be unavailable and (2) the defendant must have had a prior opportunity to cross-examine the declarant/witness. Id. at 68, 124 S.Ct. 1354. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69, 124 S.Ct. 1354.

There is no question in the case at hand that Ms. Winston’s prior testimony would be considered testimonial. Rather, the question raised is whether or not the State proved that Ms. Winston was “unavailable.” As stated above, our supreme court stated in Henderson that the State must prove that it made a good faith effort to secure the presence of the witness in question. “Good faith” has been defined as “[t]he lengths to which the prosecution must go to produce a witness ... [and] is a question of reasonableness.” Roberts, 448 U.S. at 74, 100 S.Ct. 2531. The decision of the trial court will be affirmed absent an abuse of discretion. Hicks v. State, 490 S.W.2d 174, 179 (Tenn.Crim.App.1972).

In State v. Armes, 607 S.W.2d 234 (Tenn.1980), our supreme court visited the issue as to what constitutes a good faith effort. 607 S.W.2d at 237. In Armes, the State attempted to subpoena the witness before trial and discovered that the witness had disappeared. Id. at 236. This disappearance resulted in a mistrial. Id. One week before the second trial and again one day before the second trial, the State attempted to subpoena the witness. Not surprisingly, the State was unable to locate the witness. Id. At trial the State attempted to present the testimony of the witness at the preliminary hearing. Id. To prove the witness’s unavailability, the State failed to provide any independent evidence of an attempt to locate the witness other than a statement by the prosecutor. Our supreme court stated, “The prosecuting attorney’s statement to the Court concerning the efforts of the State’s investigator to locate the witness cannot be considered as evidence of proof on the issue of the State’s good faith effort.” Id. at 237. Our supreme court also stated that the State, was on notice that extra effort would be required to locate the witness because he did not appear for the first trial date. Id.

As in Armes, in the case at hand, the State did not provide any independent evidence of its efforts to locate Ms. Winston. A copy of the subpoena dated September 4, 2007, was included in the record. Handwritten on the subpoena was a notation that Ms. Winston had moved to Atlanta, Georgia. At a hearing on the matter, the State presented the subpoena then stated on the record after contacting Ms. Winston’s foster mother the State acquired a telephone number and had repeatedly tried to contact Ms. Winston by telephone over a six to eight month period. At some point, according the assistant district attorney, the telephone was disconnected.

By the State’s own admission, it had been attempting to locate Ms. Winston for six to eight months. It appears that the State should have realized early on that placing telephone calls in and of itself would not be sufficient to contact the witness in question. The State failed to present any other witnesses to demonstrate the efforts extended to locate the witness.We conclude that the State has not proven that it made a good faith effort to locate Ms. Winston and, therefore, cannot meet the requirement that it has proven that Ms. Winston was unavailable under the test set out in Crawford. The trial court abused its discretion in allowing her testimony from the prior trial to be read at trial and entered as evidence.

Appellant’s constitutional right to confrontation has been breached, and this requires that his conviction be reversed based upon this fact alone. However, as required by our supreme court, we address Appellant’s other issues.

Sufficiency of the Evidence

Appellant also argues that the evidence was insufficient to support his conviction. The State contends that the evidence was sufficient.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the state “the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn.Crim.App.1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990). Further, questions concerning the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.1990).

Appellant argues that the evidence presented by the State is purely circumstantial. A criminal offense may be established exclusively by circumstantial evidence. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn.1987); State v. Jones, 901 S.W.2d 393, 396 (Tenn.Crim.App.1995). However, the trier of fact must be able to “determine from the proof that all other reasonable theories except that of guilt are excluded....” Jones, 901 S.W.2d at 396; see also, e.g., Tharpe, 726 S.W.2d at 900. We may not substitute our own “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

In addition, we point out that the United States Supreme Court has held that when a conviction is reversed due to the admittance of inadmissible evidence the appellate court must still consider the evidence in question when determining whether the evidence was sufficient to support he conviction. Lockhart v. Nelson, 488 U.S. 33, 40-12, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988). With this in mind, we now turn to our review.

Appellant was convicted of violating Tennessee Code Annotated section 39-17-1005(a), especially aggravated exploitation of a minor, which states:

(a) It is unlawful for á person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance of, or in the production of, acts or material that includes the minor engaging in:
(1) Sexual activity; or
(2) Simulated sexual activity that is patently offensive.

When taken in the light most favorable to the State, the evidence shows that Appellant was transporting the victim and other individuals in a van to their homes from an evening meeting for potential foster parents set up by DCS. When only the victim, Ms. Winston, and Mr. Watson remained in the van, the victim and Mr. Watson began to engage in sexual conduct. Ms. Winston began filming the encounter under Mr. Watson’s direction. During the filming the victim was undressed, and Mr. Watson fondled her breasts and digitally-penetrated her. The witnesses at trial testified that the video camera had an attached light source that was used during the filming. This film was shown to the jury. The victim and Mr. Watson were in the rearmost seat of the van. According to the witnesses at trial, Appellant told Mr. Watson and the victim to not let other drivers on the road see that they were having intercourse and that he would get on the expressway. There was also evidence presented that Ms. Winston showed the video of Mr. Watson’s and the victim’s sexual encounter immediately after filming it.

We conclude that a reasonable trier of fact could determine that Appellant had ample knowledge of Mr. Watson’s and the victim’s sexual activities two rows behind him in the van. It is reasonable from the evidence presented, for the jury to conclude that Appellant knew of both the video taping and the sexual activity occurring two rows behind him in the van. As stated above, we may not substitute our own judgment for that of the jury. Sufficient evidence was presented to support the jury’s conclusion.

Therefore, this issue is without merit.

Sentencing

Appellant also argues on appeal that the trial court erred in denying probation and in imposing a nine year sentence. The State argues that the trial court did not err.

‘When reviewing sentencing issues ..., the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action 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, 828 S.W.2d 166, 169 (Tenn.1991). In conducting our review, we must consider the defendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the presentence report, the sentencing principles, sentencing alternative arguments, the nature and character of the offense, the enhancing and mitigating factors, and the defendant’s statements. T.C.A. §§ 40-85-108(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169. In making its sentencing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the propriety of sentencing alternatives by considering: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the enhancement and mitigating factors; (6) any statements the defendant wishes to make in the defendant’s behalf about sentencing; and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5); State v. Williams, 920 S.W.2d 247, 258 (Tenn.Crim.App.1995).

In response to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Tennessee Legislature amended Tennessee Code Annotated section 40-35-210. Compare T.C.A. § 40-35-210(c) (2003) with T.C.A. § 40-35-210(c) (2006). This amendment became effective on June 7, 2005. The legislature also provided that this amendment would apply to defendants who committed a criminal offense on or after June 7, 2005. 2005 Tenn. Pub. Act ch. 358, § 18. In addition, if a defendant committed a criminal offense on or after July 1, 1982 and was sentenced after June 7, 2005, such defendant can elect to be sentenced under these provisions by executing a waiver of their ex post facto protections. Id. Appellant herein committed the offenses prior to June 7, 2005, and there is no ex post facto waiver executed by Appellant in the record herein. Thus, the amendments to Tennessee Code Annotated section 40-35-210 do not apply to Appellant.

Length of Sentence

Appellant did not raise at the sentencing hearing or on appeal any claim that the judge’s findings of the above-described enhancement factors violated his rights under the Sixth Amendment pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, without reciting the long line of jurisprudence beginning with Blakely and ending in this State with State v. Gomez, 239 S.W.3d 733 (Tenn.2007), it now appears to be settled law that under the Sixth Amendment’s provision for a right to a jury trial only a jury may make the factual findings necessary to lengthen a sentence beyond the sentence actually authorized by the verdict of guilt. Id. at 740. The only exceptions to this requirement are enhancing a sentence based on a record of prior convictions or if the defendant admits to the enhancement factors. Cunningham v. California, 549 U.S. 270, 275, 127 S.Ct. 856, 860, 166 L.Ed.2d 856 (2007).

Appellant was convicted of Tennessee Code Annotated section 39-17-1005(a), especially aggravated exploitation of a minor, which is a Class B felony. The trial court determined that Appellant was a Range I, standard offender. At the sentencing hearing the trial court applied the enhancement factors that Appellant had a previous history of criminal convictions or criminal behavior and that Appellant abused a position of public or private trust. T.C.A. § 40-35-114(1), (14) (2003). The trial court did not find any statutory mitigating factors but stated that Appellant’s “educational ability,” his maintenance of employment for a substantial time period, and seeking and obtaining custody of his children weighed in his favor. After applying enhancement and mitigating factors the trial court sentenced Appellant to nine years.

As stated above, a trial court is allowed to apply enhancement factors under Blakely and its progeny that are either prior criminal history or facts admitted by the defendant. There is no dispute that the trial court properly applied these two factors. Appellant’s presentence report clearly shows that he has a history of prior criminal convictions and conduct. At trial, Appellant testified that as part of his employment with DCS he was required to transport the minor victim and the other individuals to a DCS meeting held for potential foster parents. We agree with the trial court that Appellant was indeed placed in a position of trust in that he was entrusted with the care of the individuals he transported in the van.

We find that the application of these two enhancement factors supports the trial courts increase of the minimum sentence by one year from eight years to nine years.

Therefore this issue is without merit.

Probation

Appellant also argues that the trial court erred in refusing to grant probation. A defendant convicted under Tennessee Code Annotated section 39-17-1005 at this time is not eligible for probation. T.C.A. § 40-35-303 (Supp.2008). However, at the time Appellant committed the offense, it was not a prohibited offense in regard to the granting of probation. Therefore, the current prohibition does not apply to Appellant.

At the time Appellant committed the offense in this case Tennessee Code Annotated § 40-35-102(5) provided as follows:

In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration....

T.C.A. § 40-35-102(5) (2003).

A defendant who does not fall within this class of offenders “and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.” T.C.A. § 40-35-102(6) (2003). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court must presume that a defendant sentenced to eight years or less and not an offender for whom incarceration would result in successful rehabilitation .... ” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn.Crim.App.1993); see also T.C.A. § 40-35-303(a).

All offenders who meet the criteria are not entitled to relief; instead, sentencing issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.Crim.App.1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if:

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. ...

T.C.A. § 40-35-103(l)(A)-(C). In choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn.Crim.App.1994). The . trial court may consider a defendant’s untruthfulness and lack of candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.Crim.App.1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn.1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn.Crim.App.1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn.Crim.App.1995); State v. Dowdy, 894 S.W.2d at 305-06.

In this case, Appellant was convicted of a Class B felony and sentenced to more than eight years. Thus, he is not presumed a favorable candidate for alternative sentencing in the absence of evidence to the contrary. The trial court noted that Appellant had violation of probation from a prior conviction. The trial court was more troubled by the fact that Appellant continued to deny any responsibility for the offense and for that reason questioned Appellant’s potential for rehabilitation.

We find that there is ample support for the trial court’s refusal to grant probation. Therefore, this issue is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed.

      . It is the policy of this Court to refer to minor victims by their initials.


author: NORMA McGEE OGLE, J.,

text:
    STATE of Tennessee v. Danny Ralph TROUTMAN.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Nov. 27, 2007 Session.
    Oct. 30, 2008.

      Keith A. Haas, Newport, Tennessee, for the appellant, Danny Ralph Troutman.
    Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

NORMA McGEE OGLE, J.,

delivered the opinion of the court,

in which ALAN E. GLENN and D. KELLY THOMAS, JR., JJ., joined.

The appellant, Danny Ralph Troutman, was found guilty by a jury in the Cocke County Circuit Court of driving under the influence, fourth offense, a Class E felony. The trial court imposed a sentence of two years. On appeal, the appellant questions whether “[t]he State failed to properly self authenticate the [appellant’s] Tennessee driving record,” and he challenges the sufficiency of the evidence supporting his conviction. Upon our review of the record and the parties’ briefs, we reverse the appellant’s conviction for DUI, fourth offense; modify the conviction to reflect the appellant’s guilt of DUI, first offense; and remand for resentencing on the new conviction.

I. Factual Background

In November 2005, the Cocke County Grand Jury returned a multi-count indictment charging the appellant with driving under the influence (DUI), fourth offense; possession of marijuana; possession of drug paraphernalia; and violation of the implied consent law. At trial, Deputy Kevin Benton with the Cocke County Sheriff’s Department testified that in the early morning hours of July 2, 2005, he and Deputy Steve Johnson were assisting the Tennessee Highway Patrol with a roadblock being conducted during the July 4th holiday weekend. The roadblock was in Cocke County.

At approximately 1:00 a.m., Deputy Benton observed the appellant driving at a high rate of speed toward the roadblock. The officers had to “wave down” the appellant using orange cone flashlights to get the appellant to stop the vehicle. Deputy Benton approached the driver’s side of the appellant’s vehicle, and when the appellant rolled down the window, Deputy Benton smelled the odor of alcohol. As the appellant spoke, Deputy Benton noticed that the appellant’s speech was slurred.

Deputy Benton instructed the appellant to pull into a nearby parking lot for field sobriety tests to be administered. When the appellant parked his vehicle, Deputy Benton asked the appellant for his driver’s license. The appellant got the license from his wallet without any difficulty. Deputy Benton asked the appellant to exit the vehicle. The appellant was unsteady on his feet when he stepped out of the vehicle. Deputy Benton said that the appellant’s unsteadiness was not attributable to any visible injury. Deputy Benton recalled that the appellant’s vehicle smelled of alcohol, but the smell of alcohol was stronger on the appellant.

Deputy Benton said that he instructed the appellant to perform three field sobriety tests. The appellant informed Deputy Benton that he had no health problems which would hinder his performance on the field sobriety tests. The first field sobriety test Deputy Benton asked the appellant to perform was the “heel-to-toe” test. Deputy Benton demonstrated the test for the appellant, explaining that he needed to “stand and put one foot right in front of the other [and] take nine steps forward [on a real or imaginary line], touching heel to toe on each step, turn around and then take nine steps back to where [he] began.” However, the appellant missed placing his toe to his heel two or three times and he stepped off the line during the test. Deputy Benton opined that the appellant failed the heel-to-toe test.

Next, Deputy Benton instructed the appellant to recite the alphabet starting at D and ending at Q. Prior to attempting the test, the appellant told Deputy Benton that he knew the alphabet. Deputy Benton recalled that the appellant “tried it two times and he kept throwing letters in when they wasn’t supposed to be” and would then start again with the letter D. Therefore, Deputy Benton opined that the appellant failed the alphabet test.

Deputy Benton explained that to perform the third field sobriety test “normally it’s hands out to the side, tilt your head back and spread your fingers wide. And what you do is you have them close their eyes and bring their finger in and touch the tip of their nose.” Deputy Benton said that two misses on the “touch the nose” test is considered a failure. The appellant missed his nose four times, failing the third field sobriety test.

After the appellant failed the third field sobriety test, Deputy Benton arrested him for DUI. Deputy Benton called for a “rollback” to tow the appellant’s vehicle. While awaiting the rollback, Deputy Benton inventoried the appellant’s vehicle. In the vehicle, Deputy Benton found what he believed to be a marijuana pipe containing marijuana residue.

The appellant was taken to the jail, and Deputy Benton asked him to submit to a blood test to determine his blood alcohol level. Deputy Benton read the appellant the implied consent form, explaining that the appellant could lose his license if he refused the blood test. The appellant refused the test and refused to sign the implied consent form to acknowledge that the form had been read to him.

Deputy Benton said that after the appellant refused to sign the implied consent form, he became irate and started yelling and cursing. At that point, the officers used a taser to subdue the appellant. The appellant was tasered twice in the leg, then, after he spit at an officer, he was tasered once in the groin. Deputy Benton explained that the appellant was tasered in the groin because he was “extremely hostile” and using the taser on the appellant’s leg was insufficient to subdue him.

Deputy Steve Johnson with the Cocke County Sheriffs Department testified that on the morning of July 2, 2005, he and Deputy Benton were assisting the Tennessee Highway Patrol with a roadblock. During the stop of the- appellant’s vehicle, Deputy Johnson dealt with a female passenger who was in the vehicle with the appellant. Deputy Johnson could not recall the details of the appellant’s field sobriety tests.

At the close of the State’s case-in-chief, the appellant moved for a judgment of acquittal on all charges. The trial court granted a judgment of acquittal as to the possession of marijuana and possession of drug paraphernalia charges; however, the trial court denied the motion as to the DUI charge and the violation of the implied consent law.

The appellant testified in his own defense. The appellant said that he was from Elizbethton, but he had been in Kodak all day on July 1, 2005, working on a vehicle that his passenger, Crystal Godsey, was buying from her friend, Melissa Be-vins. The appellant said that while they were at Bevins’ mobile home, he became upset with Godsey because she had been drinking.

The appellant said that when he and Godsey left Bevins’ mobile home, he became lost because he was unfamiliar with the Kodak area. He said that he encountered the roadblock when he was searching for a sign to lead him to Johnson City. The appellant stated that the police probably did smell alcohol in the vehicle because “[i]t was all over the floorboard of the passenger’s side, down one side of my pants leg where Ms. Godsey had puked on me [after drinking that day].” He stated that he did not tell police that Godsey had gotten sick in the vehicle because they did not ask him about it. The appellant said that he had drunk only one “hot beer” in the vehicle. He said he drank the beer to keep Godsey from drinking anymore. The appellant opined that he was not too impaired to drive.

The appellant said that he was “not real good at” the heel-to-toe field sobriety test. He acknowledged that he was “[e]ven worse at” reciting the alphabet. The appellant stated that it was not unusual for him to be “[p]retty terrible” at reciting the alphabet, explaining, “[T]hat’s part of the reason I draw a disability check.”

The appellant said that he recalled being read a form and being asked to sign it. He said that he did not sign the implied consent form because “I can’t read and I didn’t want to sign anything I couldn’t read.” The appellant claimed that at about the same time police asked him to sign the implied consent form, they ta-sered him three or four times on his leg and “next to the center part of the body.”

The jury acquitted the appellant of a violation of the implied consent law but found him guilty of DUI. Thereafter, the court submitted to the jury the question of whether the appellant should be convicted of DUI, fourth offense.

At the beginning of the hearing regarding the appellant’s guilt of DUI, fourth offense, the State called Deputy Benton. Defense counsel immediately requested a sidebar, during which he stated:

I think [the State is] going to ask Mr. Benton if he had pulled the driving history and, of course, then they’ve got copies of the abstracts of judgments. I think the best evidence is just the abstract of records, and then I’d like to have an argument ... about the abstracts of judgments.

At that point, the State had marked as exhibits for identification only copies of “abstracts of the [appellant’s driving] record” that it asserted were “certified as true and accurate by Kenneth Birdwell out of Nashville.” The abstracts reflected that the appellant had been convicted of DUI in Unicoi County on June 28,1990; in Carter County on April 18, 1992; and in Washington County on December 16,1996.

Defense counsel objected to the abstracts being used, arguing that the documents were not self-authenticating under Rule 902(4) of the Tennessee Rules of Evidence, which requires that copies of public records must be certified in accordance with the provisions of Rule 902(1), (2), or (3). Specifically, counsel argued that the documents were not properly signed because they bore only a stamped facsimile signature and did not bear a seal to indicate authenticity or an accompanying attestation of authenticity as required by Rule 902(1) or Rule 902(2). The trial court overruled the objection, stating that

[t]he Rules of Evidence ... are certainly guidelines for a court to follow, but the final decision as to the admission or nonadmission of evidence is obviously left up to this court, and the real rule that I need to follow ... is to whether or not these documents tell the true story. In other words,' the reliability, I guess, of the evidence is the true test. I would be of the opinion that these documents accurately tell exactly the true record of [the appellant]. I don’t think they are forgeries or that any fraud is being practiced upon the Court or the State. So, they will be admitted over the objection, which is noted and which may very well raise an interesting question for those people that grade my papers.

Once the trial court admitted the abstracts, the State did not present the testimony of Deputy Benton nor did it submit the “driving history” mentioned by defense counsel; instead, the State relied solely upon the abstracts. After considering the abstracts, the jury found the appellant guilty of DUI, fourth offense.

On appeal, the appellant argues that the State “failed to properly self authenticate the Tennessee driving record” and that the evidence is insufficient to sustain his conviction.

II. Analysis

A. Self-Authentication

First, we will address the appellant’s issue regarding whether the abstracts of the appellant’s driving record were properly authenticated. Tangible evidence, such as documents, must be authenticated as “one essential step toward admissibility” at trial. Neil P. Cohen et al., Tennessee Law of Evidence § 9.01 [2] [b] (LEXIS publishing, 5th ed.2005). Typically, “[t]he requirement of authentication or identification as a condition precedent to 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.” Tenn. R. Evid. 901(a); see also 29A Am.JuR.2d Evidence § 1191 (2008) (“In general, to properly authenticate a document, a party is required to present evidence which demonstrates that the document is what the party claims it to be.”). However, the Rules of Evidence “adopt[ ] the position that the purported signature or recital of authorship on the face of a writing will not be accepted, without more, as sufficient proof of authenticity to secure the admission of the writing in evidence.” 2 McCormick on Evidence § 221, at 57 (Kenneth S. Broun, ed., 6th ed.2006) (interpreting Federal Rule of Evidence 901). In other words, the fact that a document is signed is not enough, standing alone, to establish its authenticity for the purposes of admissibility. Of particular importance to the case before us, when determining the authenticity of a public record or report, “[u]nless the writing is self-authenticating pursuant to rule 902, testimony must be presented by an individual with personal knowledge that the particular writing or record meets the requirements of this rule.” Cohen et al., Tennessee Law of Evidence § 9.01[9]; see also Tenn. R. Evid. 901(b)(7).

Rule 902 of the Tennessee Rules of Evidence, the rule governing self-authentication, “lessens the authentication burden” for certain types of documentary evidence and allows “[a] document or item covered by Rule 902[to] be authenticated by reference to the evidence itself; no other proof is needed in most cases.” Cohen et al, Tennessee Law of Evidence § 9.02[2]. In other words, a proponent of a self-authenticating document need not present testimonial evidence regarding the document’s authenticity. “The rationale underlying the notion of self-authentication is that the likelihood of fabrication or honest error is so slight in comparison with the time and expense involved in authentication that extrinsic evidence is not required.” 4 Michael H. Graham, Handbook of Federal Evidence § 902:0 (6th ed.2007).

Rule 902 provides that the following types of evidence do not require extrinsic evidence of authenticity:

(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the State of Tennessee, ... or of a political subdivision, department, office, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office (including data compilations in any form), certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or the Tennessee Legislature or rule prescribed by the Tennessee Supreme Court.

Tenn. R. Evid. 902(1), (2), and (4). The critical question which must be answered when determining whether a document is self-authenticating “is whether there are sufficient circumstances justifying authenticity that the typical foundation requirements can be omitted.” Cohen et ah, Tennessee Law of Evidence § 9.02[2].

In the instant case, two of the documents in question purport to be copies of abstracts of record from the Tennessee Department of Safety Driver Control Division and the other document is a copy of a Tennessee Department of Safety “court action report.” The documents reflect the appellant’s previous convictions for DUI and were signed by a judge or a clerk. On the back of each document is a red ink stamp containing the facsimile signature of Kenneth W. Birdwell and the following attestation:

I hereby certify that I, Kenneth W. Birdwell, have been appointed by the Commissioner of the Tennessee Department of Safety as Keeper of the Official Driver Records and that this is a true and correct copy of the record on file with this department.

Clearly, the admissibility of the instant documents falls under Rule 902(4) which addresses certified copies of public records. In order to be admitted pursuant to the self-authentication provision of Rule 902(4), a document must meet the certification requirements of Rule 902(1), (2), or (3). Tenn. R. Evid. 902(4). The documents in question are not foreign public documents; therefore, Rule 902(3) is not applicable. Tenn. R. Evid. 902(3). Accordingly, we must determine whether the certification of the documents satisfies subsection (1) or (2).

On appeal, the appellant’s argument that the documents are not properly certified is essentially three-fold. First, the appellant contends that the documents are not properly certified because the signature is only a stamped facsimile of a signature. Second, the appellant contends that the certification is not proper because the documents do not bear a raised or imprinted seal. Third, the appellant contends that the documents are not properly certified because they bear no seal at all.

Regarding the first concern, the appellant argues that the documents are not properly certified because the signature on the certification is a stamped facsimile and is therefore not “genuine.” This court has previously examined a similar issue regarding a rubber-stamped signature. In that case, we concluded that a stamped signature is valid. See State v. Randal Todd Kemper, No. M2004-00219-CCA-RS-CD, 2004 WL 2218471, at *3 (Tenn.Crim.App. at Nashville, Sept. 30, 2004). Therefore, the appellant’s argument fails.

Next, the appellant argues that the documents do not satisfy the seal requirement of Rule 902(1) or (2) because there is “no raised mark similar to a notary public mark” on the documents. We disagree with the appellant’s contention that a docu-. ment must bear a “raised mark” or an embossed seal to be properly authenticated. There is no rule requiring that a seal on a document be raised in order to be valid.

More problematic, however, is the appellant’s contention that the certification on the documents does not bear a seal to indicate authenticity as is required by Rule 902(1) or an accompanying attestation as is required by Rule 902(2). Rule 902(1) requires that a document be “under seal” to be self-authenticating. Rule 902(2) provides that documents “not under seal” may be self-authenticating “if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee [who signed the document] certifies under seal that the signer has the official capacity and that the signature is genuine.” Tenn. R. Evid. 902(2). In other words,

If the certificate is to be self-authenticated under rule 902(1), it must bear a seal of a domestic governmental agency and a signature purporting to be an attestation of execution. If the certificate is to be self-authenticated under Rule 902(2), the certificate may not bear a seal. In fact, the certificate must bear the signature ‘in the official capacity’ of an officer or employee of a domestic public agency that does not have a seal. Further, there must be a second certificate in which another public officer, with duties in the same district or political subdivision as the signer of the first certificate, certifies under seal that the signer’ of the first certificate had the official capacity to sign and that his signature is genuine.

31 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 7138(4) (2008) (footnotes omitted). Analyzing the comparable federal rule, one treatise explained that “[s]inee it is easier to forge a document not under seal than a document under seal, Rule 902(2) provides that domestic public documents not under seal are not self-authenticating unless certified by a public officer who has a seal.” 29A Am.Jur.2d Evidence § 1193 (2008).

In the instant case, the certification on the documents does not comply with Rule 902(1) or 902(2). The signatory did not affix a seal to the documents; therefore, the documents were not “under seal” for the purposes of Rule 902(1). Further, no other officer affixed a seal to the documents or verified the capacity or signature of the signing officer. Therefore, the instant documents are not admissible under Rule 902(2).

Because the rule governing self-authentication “lessens the authentication burden” when “there are sufficient circumstances justifying the authenticity that the typical foundation requirements can be omitted,” parties must strictly comply with the provisions of Rule 902. Cohen et al., Tennessee Law of Evidence § 9.02[2], Said another way, when a party takes advantage of the “evidentiary shortcut” provided by Rule 902 and does not call a witness to testify as to the authenticity of the document, the proponent of the document must ensure compliance with the applicable provisions of Rule 902. The requirements are not difficult to satisfy.

Moreover, evidence of the appellant’s prior convictions was readily available to the State. Notably, Tennessee Code Annotated section 55-10-403(g)(3)(A) (Supp. 2006) expressly provides that “[n]otwith-standing any other rule of evidence or law to the contrary, in the prosecution of second or subsequent offenders under this chapter the official driver record maintained by the department and produced upon a certified computer printout shall constitute prima facie evidence of the prior conviction.” Further, properly certified copies of judgments of conviction would have also been admissible. However, the documents in question do not fall within the parameters of Tennessee Code Annotated section 55-l(M03(g)(3)(A). Further, we can find no other statutory provision which would provide for the admission of the documents in question, and the parties’ on appeal have not directed us to any such provision. Therefore, because the documents do not satisfy either subsection (1) or (2) of Rule 902, we must conclude that they were not self-authenticating.

On appeal, the State argues that, because the documents were public records and were “reliable,” they were properly admitted under Rule 901, which provides that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding by the trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). At trial, the trial court opined that “these documents accurately tell exactly the true record of [the appellant]. I don’t think they are forgeries or that any fraud is being practiced upon the Court or the State.” In other words, the trial court essentially found the documents admissible under Rule 901. We agree with the trial court that the documents appear to be genuine. However, as we earlier stated, if the documents were not self-authenticating, the State was required to present extrinsic evidence regarding the authenticity of the documents. See Cohen et al., Tennessee Law of Evidence § 9.01[9]. The State did not do so. Thus, we are compelled to conclude that the trial court erred in finding the documents admissible.

B. Sufficiency of the Evidence

On appeal, a jury conviction removes the presumption of the appellant’s innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). The appellant must establish that no reasonable trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R.App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). In other words, questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn.1990).

Tennessee Code Annotated section 55-10-401 (2004) provides:

(a) It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while:
(1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system....

Further, a fourth or subsequent DUI conviction is a Class E felony. Tenn.Code Ann. § 55-10-403(a)(l) (2004).

At trial, Deputy Benton testified that he had to “wave [the appellant] down” to get him to stop his vehicle for a roadblock. Deputy Benton recalled that the appellant’s speech was slurred. Also, the appellant’s vehicle smelled like alcohol, but the odor was stronger on the appellant. Deputy Benton said that he administered three field sobriety tests to the appellant, giving the appellant multiple chances to successfully complete the tests. However, the appellant failed all three tests. The appellant testified that he was not inebriated; however, he admitted to drinking one “hot beer” before he stopped for the roadblock. We conclude that the foregoing proof was sufficient to sustain the appellant’s conviction for DUI. However, we concluded supra that the trial court imper-missibly admitted documents which were the State’s sole proof of the appellant’s previous DUI convictions. Therefore, the appellant’s conviction was improperly enhanced to DUI, fourth offense. Thus, we must reduce the appellant’s conviction to DUI, first offense.

III. Conclusion

Based upon the foregoing, we reverse the appellant’s conviction for DUI, fourth offense and remand the case to the trial court for entry of a new judgment of conviction reflecting the appellant’s conviction for DUI, first offense and for resentencing.

      . See Tenn.Code Ann. § 55-10-306(a)-(e) (2004) (providing that every magistrate or judge of a court shall keep a record of every legal form of traffic charge and shall prepare and forward to the department of safety a certified abstract of that record that shall be kept by the department for inspection).

      . Federal Rule of Evidence 901(a), which is virtually identical to Tennessee Rule of Evidence 901(a), provides that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Additionally, a leading treatise on Tennessee evidence maintains that Tennessee Rule of Evidence 902 "is virtually identical with the equivalent federal rule.” Cohen et al., Tennessee Law of Evidence § 9.02[2].

      . Notably, Tennessee Code Annotated section 8-16-114(a) (Supp.2003), which addresses seals for a notary public, provides that the "seal of office may be imprinted by a rubber or other type of stamp.” The statute also provides that embossed seals will no longer be used. Id.

      . The appellant does not raise the issue of whether the documents submitted by the State would have been sufficient to establish the appellant's prior convictions. Because we have concluded that the documents were not self authenticating, we need not address that issue.