State of Tennessee v. Dwaylan Dupree House

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 9, 2013

STATE OF TENNESSEE v. DWAYLAN DUPREE HOUSE

Appeal from the Circuit Court for Lauderdale County
No. 9123 Joseph H. Walker, III, Judge

No. W2012-01272-CCA-R3-CD - Filed June 21, 2013

The Defendant, Dwaylan Dupree House, contends (1) that the evidence presented at trial was
insufficient to support his jury convictions, (2) that the trial court erred in denying his motion
for judgment of acquittal and motion for new trial, and (3) that the trial court’s imposition
of a ten-year sentence and $2,882.22 in restitution was excessive. Following our review of
the record and the applicable authorities, we affirm the Defendant’s convictions for
vandalism and burglary, reverse the sentence imposed, and remand for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part, Reversed in Part, and Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Robert L. Thomas, Jackson, Tennessee, for the appellant, Dwaylan Dupree House.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Julie K. Pillow, Assistant
District Attorney General; for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Defendant was indicted on October 3, 2011, for burglary of a building and
vandalism, over $1,000 but less than $10,000, both Class D felonies. A trial was held, and
the following evidence was presented.

Dwayne Johnson testified that he had been an employee with the United States
Department of Agriculture (USDA), Natural Resources Conservation, for thirty-seven years.
He testified that he was the sole employee in his office building, the USDA Service Center,
on June 16, 2011, when the instant offenses occurred. Mr. Johnson explained that he was
working late and was waiting on his wife to pick him up when it began to storm outside. The
wind and rain increased, and the lights went out. The emergency lights, two spotlight-like
lights at each end of the approximately 100 foot-long hallway, came on shortly thereafter.
Some time later, he heard a crash-like noise. Mr. Johnson said that he assumed that the storm
had knocked over some garbage cans located in the back of his building and that he did not
think much of it. Then, Mr. Johnson heard a “rattle racket” sound and thought it was
strange, so he decided to go check it out. Investigating the sound, he proceeded down the
hallway of his building, which he shared with the Farm Services Agency (FSA). After
walking approximately seventy-five feet down the hallway, on the FSA side of the building,
he saw a window; the blinds were moving, and he saw a leg – from the thigh down – coming
through the broken window. He explained that he decided to leave the building to call the
police because he was afraid that he would be heard if he called the police from inside. In
exiting the building, he paused at the door to scan his surroundings and ensure that no one
else was outside. He said that there was a white car parked directly in front of the steel door;
the headlights were not on nor was the engine running, and no one was inside the car. He
did not recognize the car as belonging to any one employed at the USDA or surrounding
buildings. Mr. Johnson explained that the only other cars left in the parking lot were
government vehicles that the employees were not allowed to take home.

Mr. Johnson walked to a funeral home, located adjacent to the USDA building, and
called 911. Minutes later, a Ripley police car arrived, and the officer spotlighted the
building. Mr. Johnson did not approach the officer because he did not think it was a good
idea; instead, he observed the USDA building from the awning area of the funeral home. Mr.
Johnson saw the suspect exit the FSA side door. The suspect stood for a few seconds,
looking around, then he got in the white car and came in Mr. Johnson’s direction. The white
car came around the back of the building, and the officer began trailing the car. Mr. Johnson
said that the officer pulled beside the car, and after a short conversation, the white car left.
A second officer arrived, and Mr. Johnson did approach this officer, informing him that the
burglary suspect was the man in the white car and that he was getting away. The officers
attempted to catch up with the white car but were unable to do so. When the officers
returned, they, along with Mr. Johnson and the owner of the building, walked through the
premises to identify any damage: the window was broken, and a fire-proof file cabinet
labeled “deposits” had also been “broken into.” The file cabinet did not have any cash in it
but contained bank account numbers, social security numbers (SSNs), etc.

Mr. Johnson testified that he was certain that the man in the white car was the one
who broke into the building because he had “full view” and never lost sight of the suspect

-2-
once the man left the building. He described the suspect as an African-American man, slim
build. Mr. Johnson testified that he never gave anyone consent to break into the building or
vandalize the cabinet.

Officer Renaldo Maiden, employed with the Ripley Police Department, testified that
he was the first officer to arrive at the USDA building after being dispatched to a robbery in
progress. He spotlighted the building and saw taillights. Officer Maiden pulled behind the
car, activated his blue lights, and ran the tag number. The computers were down, so he did
not get a response on the tag, but he called it in. He then pulled up to the car and spoke with
the driver, later identified as the Defendant. According to Officer Maiden, the Defendant
said that “he was just coming by to pick up his daughter’s vehicle because she didn’t want
to drive in the rain.” Officer Maiden asked him what was going on, and the Defendant said,
“I don’t know. It’s something going on in the back back there, somebody tried to break in
or whatever.” The Defendant told Officer Maiden that he did not have any identification
because he had just “got up”; he explained, “It started storming, she said she didn’t want to
drive in the rain, and I just come down here to pick up -- just to get the vehicle.” Officer
Maiden thanked the Defendant and allowed him to leave. Officer Maiden then drove around
to the back of the building to meet his lieutenant who had arrived on the scene during their
conversation.

Officer Maiden testified that he did not know the Defendant was the burglary suspect
until after he spoke with his lieutenant. He attempted to find the Defendant, thereafter, but
was unable to do so. Officer Maiden testified that the Defendant was the only person he saw
around the area, that the Defendant was the only person in the car, and that there was “no
question” that the Defendant was the driver of the white car. Using the tag number Officer
Maiden had reported on the night of the burglary, the car was later identified as belonging
to a female named Ms. Blue, who Officer Maiden believed was incarcerated at the time of
the burglary. The Defendant was identified as Ms. Blue’s stepfather.

Donna Neal, a program technician at FSA located in the USDA building, testified that
FSA’s Fire King four-drawer lateral cabinet was damaged and a window was broken during
the June 16, 2011 burglary. According to Ms. Neal, the file cabinet was labeled “direct
deposits” and stored names, addresses, SSNs, and bank and savings account numbers; the
cabinet was locked at all times when it was not in use. She testified that the file cabinet
could not be repaired and that it cost $2,882.22 to replace. Ms. Neal also testified that she
had seen the Defendant at the office prior to the burglary. He had come in to see if anyone
was interested in his car cleaning services approximately three to four weeks prior to the
burglary and left a sign containing his contact information and advertising that service. Ms.
Neal further testified that she saw the Defendant at the office again on the day of the
burglary. He again asked about interest in his car cleaning services. Ms. Neal said that she

-3-
had a deposit on her desk at that time and that he asked her for change, to which she
explained that she did not have “that type of change.” She testified that she had not seen the
Defendant since his visit on the day of the burglary.

The jury found the Defendant guilty of the offenses as charged.

A sentencing hearing was held in which the trial court considered letters of support
from the Defendant’s mother and his pastor. The Defendant also gave a statement in which
he apologized and took full responsibility for his actions. He asked the trial court not to
allow him to “be a product of recidivism” and requested its consideration of an alternative
sentence. The Defendant said that he would pay for all the damages sustained as a result of
the burglary.

The trial court found that the Defendant had five prior convictions and, as such, he
must be sentenced as a persistent offender. Additionally, the trial court found that

[t]he Defendant has, in enhancement, convictions in addition to those
necessary to establish the appropriate range.

In mitigation, that he didn’t cause any harm to anyone.

And also I have read the statement submitted by Reverend Reese and
the defendant’s mother, Ms. Meux, and they both feel that he, in mitigation,
that he has a potential for rehabilitation with good moral character.

The trial court sentenced the Defendant to serve ten years on each count, concurrent,
but the instant sentence was to be served consecutively to a prior Hardeman County
conviction because the Defendant was on parole when the instant offenses were committed.
Granting alternative sentencing, the trial court “suspend[ed] a portion of the time, suspend
eight years, requir[ing] 24 months service on the sentences that are consecutive to the parole
violation.” The trial court’s sentencing order also provided that “[i]nformation explaining
the sentence imposed [wa]s available upon request. T.C.A. 40-35-210.” The Defendant was
ordered to pay restitution in Count 1 to Big Properties in the amount of $350 and, in Count
2, $2882.22 to the U.S. Government.

ANALYSIS

In this appeal, the Defendant contends (1) that the evidence presented at trial was
insufficient to support his jury convictions, (2) that the trial court “failed to act as thirteenth

-4-
juror” in denying his motion for judgment of acquittal and motion for new trial because of
said deficiencies in the evidence, and (3) that the trial court’s imposition of a ten-year
sentence and $2,882.22 in restitution was excessive.1 The State responds that the trial court
properly denied the Defendant’s motions for judgment of acquittal and new trial because the
evidence presented at trial was sufficient to support his convictions and that the mid-range
sentence imposed by the trial court was not excessive.

I. Sufficiency of the Evidence

An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the State.
See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); see also State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury's
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).

Our supreme court recently clarified that circumstantial evidence is as probative as
direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the
supreme court rejected the previous standard which “required the State to prove facts and
circumstances so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct
and circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” Id. at 381. To that end, the duty of this court “on appeal of a conviction is
not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all

1
Because the Defendant did not support his restitution challenge with argument or citations to the record or
any legal authority supporting his position that the imposed amount is excessive, he has waived appellate
review of this issue. Tenn. R. Crim. App. 10(b). Furthermore, we note that at sentencing, the Defendant
stated that he would pay restitution for all damages caused by the burglary.

-5-
reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60,
67 (Tenn. 2011).

Rule 29 of the Tennessee Rules of Criminal Procedure governs motions for judgments
of acquittal. It provides, in relevant part, as follows:

On defendant’s motion or its own initiative, the court shall order the entry of
judgment of acquittal of one or more offenses charged in the indictment,
presentment, or information after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). This rule gives the trial court authority to direct a judgment of
acquittal, either at the close of the State’s proof or at the conclusion of all the evidence, when
the evidence is insufficient to support a conviction. See State v. Gilley, 297 S.W.3d 739, 762
(Tenn. Crim. App. 2008). In determining whether to grant a motion for judgment of
acquittal, “the trial court must favor the opponent of the motion with the strongest legitimate
view of the evidence, including all reasonable inferences, and discard any countervailing
evidence.” Id. (citing Hill v. State, 470 S.W.2d 853, 858 (1971)). The trial court applies the
same standard employed on appeal when analyzing the sufficiency of the evidence. Id.

A. Burglary Conviction

Burglary is defined in Tennessee Code Annotated section 39-14-402. It states, in
relevant part,

(a) A person commits burglary who, without the effective consent of the
property owner:

(1) Enters a building other than a habitation (or any portion thereof)
not open to the public, with intent to commit a felony, theft or assault;

....

(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

Tenn. Code Ann. §39-14-402(a)(1), (c). Entry is defined as an “[i]ntrusion of any part of the
body; or [i]ntrusion of any object in physical contact with the body or any object controlled
by remote control, electronic or otherwise. See State v. Johnson, M2010-02664-CCA-R3CD,
2012 WL 1648211, at *4 (Tenn. Crim. App. May 10, 2012)(proof that a defendant’s whole
body made entrance into the building is not necessary; entry of a hand or an instrument is

-6-
sufficient)(citing State v. Crow, 517 S.W.2d 753, 754 (Tenn. 1974)). The intentional element
required for the offense of burglary may be established by circumstantial evidence. Johnson,
2012 WL 1648211, at *4 (citing State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App.
1993); Bollin v. State, 486 S.W.2d 293, 296 (Tenn. Crim. App. 1972). “Generally, when a
person enters an occupied dwelling which contains valuable property, without the permission
of the owner, a jury is entitled to infer that the entry was made with the intent to commit a
theft.” State v. Michael A. Braswell, No. 01C01-9807-CC-00304, 1999 WL 994043, at *7
(Tenn. Crim. App. Oct. 29, 1999)(citing State v. Chrisman, 885 S.W.2d 834, 838 (Tenn.
Crim. App. 1994); State v. Burkley, 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990)); see also
Bollin, 486 S.W.2d at 296.

The evidence presented at trial showed that Mr. Johnson observed a man matching the
Defendant’s description entering the USDA building via a window, at which time Mr.
Johnson called the police. He then observed this man get into a white car, the only non-
government vehicle on the premises, and drive toward the street. Next, Mr. Johnson saw
Officer Maiden pull this white car over and converse with the driver. Unaware that the
driver of the white car was the burglary suspect, Officer Maiden let him go but did call in the
tag number on the car. The car was identified as belonging to Ms. Blue, who was identified
as the Defendant’s step-daughter. Both Officer Maiden and Mr. Johnson testified that driver
of the white car was the only other person on the premises and that he was the sole individual
in the white car. Officer Maiden also testified that the Defendant was the driver of the white
car on the night in question. The proof further established that the Defendant did not have
permission to enter the building and that a file cabinet valued over $2,000 was damaged. It
is for these reasons that we conclude that the evidence was sufficient to support the
Defendant’s conviction for burglary of a building and that the trial court did not err in
denying the Defendant’s motion for judgment of acquittal.

B. Vandalism Conviction

Vandalism is defined in Tennessee Code Annotated section 39-14-408. It states, in
relevant part,

(a) Any person who knowingly causes damage to or the destruction of any real
or personal property of another or of the state, the United States, any county,
city, or town knowing that the person does not have the owner’s effective
consent is guilty of an offense under this section.

Tenn. Code Ann. § 39-14-408(a). “A person acts knowingly with respect to a result of the
person’s conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Tenn. Code Ann. § 39-11-302(b). Whether a defendant acts knowingly is a question

-7-
of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000).

In a light most favorable to the State, the evidence showed that the Defendant
burglarized the USDA building, breaking a window on the FSA side of the building and
entering the room in which the file cabinet labeled “direct deposits” was located. The file
cabinet at issue had been pried open, was irreparable, and cost $2,882.22 to replace. The
Defendant had visited the USDA building three to four weeks before the burglary and again
on the day of the burglary. During the latter visit, he observed Ms. Neal processing a deposit
on her desk and asked her for change. Despite the Defendant visiting her office twice prior
to the burglary, Ms. Neal had not seen him again prior to trial. For the foregoing reasons, we
conclude that the evidence was sufficient for a rational trier of fact to conclude that the
Defendant was guilty of vandalism, over $1,000, and that the trial court’s denial of the
Defendant’s motion for judgment of acquittal was not in error.

II. Thirteenth Juror

Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may grant
a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.” This is the modern equivalent of the thirteenth juror rule and “imposes upon a
trial court judge the mandatory duty to serve as the thirteenth juror in every criminal case,
and that approval by the trial judge of the jury’s verdict as the thirteenth juror is a necessary
prerequisite to imposition of a valid judgment.” State v. Biggs, 218 S.W.3d 643, 653 (Tenn.
Crim. App. 2006) (quoting State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)) (internal
quotation marks omitted). “[W]hen a trial court overrules a motion for new trial without
comment, an appellate court may presume that the trial court approved the verdict as the
thirteenth juror.” Id. (citing Carter, 896 S.W.2d at 122). However, “where the record contains
statements by the trial judge expressing dissatisfaction or disagreement with the weight of
the evidence or the jury’s verdict, or statements indicating that the trial court absolved itself
of its responsibility to act as the thirteenth juror, an appellate court may reverse the trial
court’s judgment.” Carter, 896 S.W.2d at 122.

Here, the trial court denied the Defendant’s motion for new trial without making any
comment. As such, there is no basis for the Defendant’s assertion that the trial court failed
to act as thirteenth juror. The record is devoid of any indication that the trial court did not
agree with the verdict, and therefore, we presume that the trial court approved the verdict.
See Biggs, 218 S.W.3d at 653. Accordingly, we conclude that the trial court properly
fulfilled its duties as the thirteenth juror in this case.

-8-
 II. Sentencing

Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical
that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulate in the record its reasons for imposing the specific
sentence. See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).

Currently, upon a challenge to the sentence imposed, it is the duty of this court to
analyze the issues under “an abuse of discretion standard of review, granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. Those purposes and
principles include “the imposition of a sentence justly deserved in relation to the seriousness
of the offense,” Tennessee Code Annotated section 40-35-102(1), a punishment sufficient
“to prevent crime and promote respect for the law,” Tennessee Code Annotated section 40-
35-102(3), and consideration of a defendant’s “potential or lack of potential for . . .
rehabilitation,” Tennessee Code Annotated section 40-35-103(5). State v. Carter, 254
S.W.3d 335, 344 (Tenn. 2008). The burden of showing that a sentence is improper is upon
the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The 2005 amendments also rendered
advisory the manner in which the trial court selects a sentence within the appropriate range,
allowing the trial court to be guided by – but not bound by – any applicable enhancement
factors when adjusting the length of a sentence. Bise, 380 S.W.3d at 706. In accordance
with the broad discretion now afforded our trial court’s sentencing decisions,

misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as
amended in 2005. So long as there are other reasons consistent with the
purposes and principles of sentencing, as provided by statute, a sentence
imposed by the trial court within the appropriate range should be upheld.

Id.

-9-
 As a preliminarily matter, we deem it necessary to address a line in the trial court’s
sentencing order that states, “Information explaining the sentence imposed is available upon
request. T.C.A. [§] 40-35-210.” This court is aware of no authority which authorizes the
trial court to offer its reasons for imposing a particular sentence only upon request, and the
statute cited above authorizes no such action. As our supreme court stated in Bise, it remains
critical that the trial court articulate on the record its reasons for imposing the specific
sentence. Bise, 380 S.W.3d at 705 n.41 (emphasis added). The order also states that “the
findings on the record are incorporated herein.” Hence, the statement that an explanation of
the sentence was available upon request was erroneous. Moreover, it was unnecessary
because the trial court explained the sentence on the record.

Turning to the issue at hand, the Defendant argues that his ten-year sentence is
excessive. The Defendant’s sole basis for the argument is that “the trial court erred by not
giving him a sentence at the low end of the applicable sentencing range.” Under Bise,
sentencing decisions are afforded broad discretion, and within-range sentences consistent
with the purposes and principles of sentencing will be upheld. See Bise, 380 S.W.3d at 706.
The ten-year sentence imposed by the trial court was within the eight to twelve year range
of punishment for the Defendant’s convictions, and the trial court’s basis for the sentence as
announced from the bench is consistent with the purposes and principles of the sentencing
act. Therefore, this argument is without merit.

Although appellate review generally will extend only to those issues presented for
review, this “court may in its discretion consider other issues in order, among other reasons:
(1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3)
to prevent prejudice to the judicial process.” Tenn. R. App. P. 13(b). It is under this
authority that we review the propriety of the alternative sentence imposed by the trial court.
Sentencing the Defendant to an effective ten-year sentence, the trial court ordered twenty-
four months of that sentence to be served in the DOC with the remainder to be completed on
probation.

Tennessee Code Annotated § 40-35-306 governs split confinement, and it states, in
relevant part,

(a) A defendant receiving probation may be required to serve a portion of the
sentence in continuous confinement for up to one (1) year in the local jail or
workhouse, with probation for a period of time up to and including the
statutory maximum time for the class of the conviction offense.

Tenn. Code Ann. § 40-35-306(a)(emphasis added). The Code grants no authority to extend
the confinement portion of a split confinement sentence beyond 365 days. See State v.

-10-
Matthew I. Tart, E2009-01315-R3-CD, 2010 WL 1610515, at *3 (Tenn. Crim. App. Apr. 21,
2010); see also State v. Kilby, E2011-02462-CCA-R3CD, 2012 WL 3793435, at *1 (Tenn.
Crim. App. Sept. 4, 2012)(sentences resulting in a confinement period of over one year runs
afoul of section 40-35-306(a)). The trial court’s imposition of a ten-year sentence and
requiring twenty-four months of which to be served in the DOC created an illegal sentence
because it contravenes section 40-35-306(a), and it must be reversed. Therefore, we remand
this case to the trial court for resentencing in accordance with this opinion.

CONCLUSION

Based on our review of the record and the applicable law, we affirm the Defendant’s
convictions for vandalism and burglary, reverse the sentence imposed, and remand for
resentencing.

_________________________________
D. KELLY THOMAS, JR., JUDGE

-11-