State v. Michael A. Braswell

IN THE COURT OF CRIMINAL APPEALS OF
TENNESSEE

AT NASHVILLE FILED
MAY 1999 SESSION

STATE OF TENNESSEE, * No.
01C01-9807-CC-00304
October 29, 1999
Appellee *
WILLIAMSON COUNTY

V. * Hon. Cecil Crowson, Jr.
Henry Denmark Bell, Judge
Appellate Court Clerk
MICHAEL A. BRASWELL, *
(Aggravated Burglary, Theft)

Appellant. *

For Appellant For Appellee

Eugene J. Honea Paul G. Summers
Assistant Public Defender Attorney General and Reporter
P.O. Box 68 425 Fifth Avenue North
Franklin, TN 37065-0068 Nashville, TN 37243-0493

Elizabeth B. Marney
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493

Derek Smith
Assistant District Attorney
P.O. Box 937
Franklin, TN 37065-0937

OPINION FILED:

AFFIRMED IN PART; JUDGMENT MODIFIED

NORMA MCGEE OGLE, JUDGE
 OPINION

On December 11, 1997, the appellant, Michael A. Braswell, pled guilty

in the Williamson County Circuit Court to one count of theft upon the understanding
that the trial court would determine his sentence. The following day a jury

additionally found him guilty of aggravated burglary. Following a sentencing hearing

on July 24, 1998, the trial court imposed concurrent sentences of four years
incarceration in the Tennessee Department of Correction for the aggravated

burglary conviction and two years incarceration for the theft conviction. On appeal,

the appellant challenges the sufficiency of the evidence underlying his conviction of
aggravated burglary and also appeals his sentences for both aggravated burglary

and theft. Following a thorough review of the record and the parties’ briefs, we

affirm the judgment of the trial court in the aggravated burglary case and affirm in
part and modify the judgment of the trial court in the theft case.

I. Factual Background

The appellant and his co-defendant, Jasper Hatcher, were tried jointly

for the aggravated burglary of Charles Crawford’s home.1 The evidence adduced at
trial established that, on April 10, 1997, Charles Crawford returned to his Brentwood

home in Williamson County after work to find that several tools were missing from

his garage, including an electric drill, a sheet or palm sander, a belt sander, a
circular saw, a jigsaw, a reciprocating saw, a chain saw, and a battery charger.

At the appellant’s trial, Mr. Crawford testified that he lives with his wife
and three children. His house is built into the side of a hill and has three levels,

including the garage, which serves primarily as a basement and contains laundry

facilities, various household items, and Mr. Crawford’s tools. The garage has

garage doors leading outside and also a door leading into the Crawford’s living
quarters. Mr. Crawford testified that, prior to the burglary of his home, the family

habitually neglected to lock these doors.

1
Mr. H atch er ch ose to als o sub mit to the ju ry the is sue of his guilt or innoc enc e of th eft of prop erty.

2
 On the day of the appellant’s offenses, Mr. Crawford left his home

through the garage. At that time, he noticed that his tools were in their customary

location. Mr. Crawford left the garage door open behind him, because several
family members were still inside the house. Mr. Crawford testified that, as a general

rule, the last member of his family to leave the house closed the garage door.

However, when he returned home that evening at 5:30 or 6:00 p.m., nobody was
home, the garage door was open, and his tools were missing.

Mr. Crawford notified the Williamson County Sheriff’s Department of
the burglary and provided serial identification numbers and descriptions for the

stolen items. Roddy Parker, a detective with the Sheriff’s Department, subsequently

recovered five of the stolen items from two pawnshops located in Davidson County.
The recovered tools included the circular saw, the jigsaw, the reciprocating saw, the

belt sander, and the chain saw. Mr. Crawford positively identified these items at

trial.

Mr. Crawford additionally related to the jury that he had known the
appellant for six or seven years. The appellant was a friend of his son, Justin, had

visited the Crawford’s home on numerous occasions, and had been inside the

garage. Mr. Crawford further indicated that the appellant’s co-defendant, Jasper
Hatcher, was also an acquaintance of his son, but Mr. Crawford did not recall that

Mr. Hatcher had ever visited his home. Mr. Crawford concluded that he had never

given either the appellant or Mr. Hatcher permission to take any tools from his
garage.

In addition to Mr. Crawford’s testimony, the State also presented the

testimony of Autumn Alley, the appellant’s girlfriend. She testified that, on the
morning of April 10, 1997, she and the appellant were at her home in Unionville,

Tennessee, when the appellant’s co-defendant, Jasper Hatcher, paged the

appellant. After the appellant telephoned Mr. Hatcher, he and Ms. Alley drove in the
appellant’s car to Mr Hatcher’s residence in Davidson County. According to Ms.

3
Alley, Mr. Hatcher indicated that Justin Crawford had stolen his car radio. He asked

the appellant to provide directions to the Crawford residence in order that Mr.

Hatcher could search Justin’s car for the radio. The group then proceeded in Mr.
Hatcher’s car to Justin Crawford’s house. Ms. Alley asserted that no one stated any

intention to steal any items from the Crawford residence.

Ms. Alley further recounted that, when the group arrived at the

Crawford residence, they did not see Justin’s car. She asserted that, while she and

the appellant waited inside Mr. Hatcher’s car, Mr. Hatcher got out of the car and
approached the garage door, which was closed. Mr. Hatcher opened the door and

went inside the garage, quickly reemerging with several tools. After placing the tools

in the trunk of his car, he returned to the garage for more tools. Following his
second trip, Mr. Hatcher got back into his car and drove the group back to Davidson

County. Again, Ms. Alley insisted at trial that neither she nor the appellant ever left

Mr. Hatcher’s car while at the Crawford residence.

After the burglary, the group drove to several pawnshops on
Nolensville Road in Davidson County. Ms. Alley related that, at the first pawnshop,

both the appellant and Mr. Hatcher attempted to pawn the chain saw. However,

because they were unable to operate the saw, the pawnshop refused to accept the
item. They then drove to another pawnshop, where both the appellant and Mr.

Hatcher successfully pawned several items. When they returned to the car, the

appellant handed Mr. Hatcher approximately $60.00. Finally, the group drove to one
last pawnshop. This time, Mr. Hatcher entered the shop alone, stating that he knew

someone inside the shop. Afterwards, the group returned to Mr. Hatcher’s house,

and the appellant and Ms. Alley proceeded to Ms. Alley’s orthodontist appointment.

Ms. Alley conceded that she never informed anyone what had

happened until the appellant was arrested. She testified that she was in love with

the appellant and explained that the appellant assisted Mr. Hatcher in pawning the
tools only because Mr. Hatcher did not possess adequate identification. Ms. Alley

4
maintained that the appellant never received any portion of the money obtained in

return for the various tools. She also testified that, sometime after the appellant’s

offenses, the appellant expressed regret for his cooperation with Mr. Hatcher,
because he and Justin had been friends.

Mark Wiedeman, the manager of Cash America Pawn of Nashville,
testified that his shop’s business records reflect that, at 1:39 p.m. on April 10, 1997,

Michael Braswell pawned a circular saw, a reciprocating saw, and a belt sander in

return for seventy dollars ($70.00). The appellant presented a Tennessee driver’s
license for the purpose of identification. Mr. W iedeman explained that customers

are required to present some form of identification, usually a driver’s license, in

order to pawn any item. The customer’s identity and a description of the pawned
item are then routinely provided to the police department.

Alexander O’Kieff, the manager of Easy Money Pawn & Loan, also

testified on behalf of the State. He stated that his shop’s business records reflect

that, at 2:19 p.m. on April 10, 1997, Jasper Hatcher sold a chain saw and a jigsaw
for forty dollars ($40.00). Mr. Hatcher provided proof of his identity in the form of a

valid driver’s license. Mr. O’Kieff also personally recalled that both the appellant and

Mr. Hatcher entered his shop on the date of these offenses. He stated that, to his
knowledge, no one in the shop knew Mr. Hatcher. However, he recognized the

appellant as a former customer.

The State concluded its proof with the testimony of Detective Roddy

Parker of the Williamson County Sheriff’s Department. Detective Parker testified

that, upon his assignment to this case, he was able to quickly recover several of the

stolen tools, because the serial identification numbers provided by the victim
matched the numbers recorded on a pawn ticket furnished to the police by Cash

America Pawn of Nashville. As a result of information obtained from this

establishment, Detective Parker obtained an arrest warrant for the appellant.

5
 On April 22, 1997, Detective Parker executed the arrest warrant at the

appellant’s home. Detective Parker testified that the appellant did not resist arrest

and, after being advised of his Miranda rights, agreed to provide a statement to the
police. The appellant indicated in his statement that, on the day of his offenses, a

“Jay Thatcher” called him and requested his assistance in locating Justin Crawford’s

house. Mr. “Thatcher” expressed his belief that Justin Crawford had stolen his car
radio and stated that he intended to break into Justin’s car in order to retrieve the

radio. Later that morning, Mr. “Thatcher” drove to the appellant’s home in Davidson

County and picked up the appellant and Ms. Alley. The group drove to the Crawford
residence, but did not see Justin’s car. The appellant informed Mr. “Thatcher” that

Justin sometimes parks his car in the garage. Accordingly, Mr. “Thatcher” looked

into the garage through a window but again did not see Justin’s car. The appellant
then suggested that the radio was inside the garage and informed Mr. “Thatcher”

that the Crawfords did not lock the garage door. Mr. “Thatcher” opened the door,

entered the garage, and soon reemerged with various tools. According to the

appellant, Mr. “Thatcher” completed a total amount of two trips into the garage.

Immediately thereafter, the group drove to a pawnshop where the

appellant pawned three items. The appellant asserted in his statement that Mr.

“Thatcher” could not pawn the items, because his identification was “washed out.”
The appellant obtained seventy dollars ($70.00) in return for the three tools and

gave the proceeds to Mr. “Thatcher.” The group then stopped briefly at a

McDonald’s restaurant before returning to the appellant’s residence. The following
day, Mr. “Thatcher” informed the appellant that he had pawned the other items at

another pawnshop. The appellant also recounted that, more recently, Mr.

“Thatcher” visited his home and the appellant observed the stolen battery charger in

the rear seat of Mr. “Thatcher’s” car.

On April 23, 1997, Detective Parker again questioned the appellant,

because he could not locate any “Jay Thatcher.” The appellant stated that he was
unsure of his companion’s surname. Moreover, the appellant indicated that he

6
wished to change several items in his original statement. First, he conceded that he

and Ms. Alley drove to Mr. Hatcher’s home on the morning of the offense. Second,

he admitted that he did get out of Mr. Hatcher’s car at the Crawford residence, but
maintained that he never entered the Crawford’s garage. Third, the appellant

admitted that, on April 10, he also accompanied Mr. Hatcher to Easy Pawn & Loan,

where Mr. Hatcher pawned the chain saw and the jigsaw.

Upon providing this additional information, the appellant directed

Detective Parker to Easy Pawn & Loan. Due to information obtained from this
establishment, Detective Parker was able to arrest Mr. Hatcher. Following Mr.

Hatcher’s arrest, Detective Parker recovered the stolen battery charger from the

trunk of Mr. Hatcher’s car.

The appellant declined to testify at trial. However, Mr. Hatcher elected

to testify. Mr. Hatcher stated that he was twenty-one years old and did not possess

a criminal record, other than several traffic violations. He is a high school graduate

and was employed by New Beginnings Credit Association on the date of the instant
offenses. He earned five dollars ($5.00) to nine dollars ($9.00) per hour. Moreover,

he did not owe any significant debts.

According to Mr. Hatcher, he first met the appellant in February of

1997, several months before these offenses. He also knew Justin Crawford, but not

as well as he knew the appellant. Mr. Hatcher had been to Justin’s house several
times, although he had never met Justin Crawford’s father and had never been

inside the Crawfords’ garage. Mr. Hatcher asserted that he knew the directions to

Justin’s house from his own house and did not require directions from the appellant.

He did concede that, prior to these offenses, he and the appellant discussed the
Crawfords’ habit of leaving their garage unlocked.

According to Mr. Hatcher, on April 10, 1997, the appellant telephoned
him and informed him that the appellant was coming to his house. The appellant

7
arrived at his house one and one half hours later, accompanied by Ms. Alley. The

appellant asked Mr. Hatcher to drive him to Justin’s house in order to retrieve the

keys to his tire rims, which he believed were in Justin’s car. The appellant
additionally complained that Justin had previously borrowed his tire rims and had

damaged them. In any event, Mr. Hatcher agreed to drive the appellant to the

Crawford residence.2

When the group arrived at the Crawford residence, Justin’s car was

not there. The appellant got out of the car, looked into the garage through a
window, opened the garage door, and entered. Mr. Hatcher next observed the

appellant walking from the rear of the Crawford residence. He assumed that the

appellant had entered the Crawford’s living quarters and had exited the house
through another door. The appellant again entered the garage and began carrying

out numerous tools, which he placed primarily in the rear of Mr. Hatcher’s car, on

the floorboard. At the appellant’s request, Mr. Hatcher then drove the appellant and

Ms. Alley to Mr. Hatcher’s house, where the appellant had parked his car. Upon

retrieving his driver’s license from his car, the appellant directed Mr. Hatcher to drive
to several pawn shops, where they pawned the stolen tools.

Mr. Hatcher asserted at trial that, at the time of the offenses, he
assumed that the appellant had permission to take the tools and pawn them.3

Additionally, he testified that he pawned the chain saw and the jigsaw at Easy Pawn

& Loan because the appellant did not know how to operate the chain saw in order to
demonstrate its condition to the pawnshop employee. W ith respect to the battery

charger recovered from his car, he asserted that he was not aware that the

appellant had left the item in his car, although he admitted that he probably moved

the battery charger from the back seat of his car to his trunk at some point following

2
Mr. H atch er de nied t hat h e wis hed to go to the Craw ford resid enc e bec aus e he s usp ecte d Jus tin
of stealing his car radio. Mr. Hatcher explained that his car radio was stolen while his car was in a
repair sh op in Bre ntwood , and he h ad no re ason to believe tha t Justin ha d com mitted th e theft.
According to Mr. Hatcher, he reported the theft to the Brentwood police.
3
According to Mr. Hatcher’s statement to the police, the appellant informed him that he was taking
the tools in repayment for the damage to his tire rims.

8
these offenses. Mr. Hatcher denied knowing the location of the electric drill and the

palm sander, neither of which tools were ever recovered by the police. Finally, he

asserted that he did not receive any proceeds from the pawning or sale of Mr.
Crawford’s tools.

II. Analysis

A. Motion for Judgment of Acquittal

The appellant contends that, with respect to his conviction of

aggravated burglary, the trial court erroneously denied his motion for a judgment of
acquittal at the conclusion of the State’s proof. A trial court must grant a motion for

a judgment of acquittal if the evidence is legally insufficient to sustain a conviction of

the charged offense. Tenn. R. Crim. P. 29. In making this determination, the trial
court may not address the weight of the evidence, but must afford the State the

strongest legitimate view of the evidence, including all reasonable inferences which

may be drawn from the evidence. State v. Blanton, 926 S.W.2d 953, 957-958

(Tenn. Crim. App. 1996). An appellate court applies the same standard as the trial

court when resolving issues predicated upon the grant or denial of a motion for
judgment of acquittal. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App.

1995). See also State v. Smith, No. 02C01-9506-CR-00157, 1999 WL 162958, at

*2 (Tenn. Crim. App. at Jackson, March 25, 1999).

Tenn. Code. Ann. § 39-14-403 (1997) provides that a person commits

aggravated burglary who, without the effective consent of the owner, enters a
habitation with the intent to commit a theft. See also Tenn. Code. Ann. § 39-14-

402(a)(1) (1997). Moreover, in the instant case, the trial court instructed the jury on

criminal responsibility for the conduct of another pursuant to Tenn. Code. Ann. § 39-

11-402(2) (1997), which provides,
A person is criminally responsible for an offense
committed by the conduct of another if:
***
Acting with intent to promote or assist the commission of
the offense, or to benefit in the proceeds or results of the
offense, the person solicits, direct, aids, or attempts to
aid another person to commit the offense . . . .

9
 The appellant first contends that the State failed to present any proof

that the appellant entered the Crawford residence. However, this assertion does not

absolve the appellant of criminal responsibility. Assuming that Mr. Hatcher entered
the garage, the appellant is criminally responsible for the aggravated burglary if he

acted with the intent to assist Mr. Hatcher in committing the offense and if he

provided assistance to Mr. Hatcher. Tenn. Code. Ann. § 39-11-402(2).

The State’s proof clearly established that the appellant assisted Mr.

Hatcher in entering the Crawford residence. According to his own statement to the
police, the appellant directed Mr. Hatcher to the Crawford residence and informed

Mr. Hatcher that the garage door was unlocked. Thus, the only question is whether

the appellant intended to assist Mr. Hatcher in entering the Crawford residence for
the purpose of committing a theft.

A crime may be established by the use of circumstantial evidence

alone. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.1987); Marable v. State,

313 S.W.2d 451, 456-457 (1958); State v. Knight, 969 S.W.2d 939, 941 (Tenn.
Crim. App. 1997). Moreover, in all criminal cases, the one element which is most

often proven by circumstantial evidence is the culpable mental state of the

defendant. State v. Smith, No. 02C01-9602-CR-00051, 1997 WL 291179, at *3

(Tenn. Crim. App. at Jackson, June 3, 1997). As in the case of direct evidence, the

weight to be given circumstantial evidence and “‘[t]he inferences to be drawn from

such evidence, and the extent to which the circumstances are consistent with guilt
and inconsistent with innocence, are questions primarily for the jury.’” Marable, 313

S.W.2d at 457 (citation omitted). See also State v. Katz, No. 03C01-9704-CC-

00150, 1998 WL 334378, at *3 (Tenn. Crim. App. at Knoxville, June 25, 1998),

perm. to appeal denied, (Tenn. 1999).

Viewing the State’s proof in a light most favorable to the State, the

appellant in this case knew the Crawfords and had previously visited their home.
Specifically, Mr. Crawford testified that the appellant had been in the garage from

10
which the tools were stolen. Moreover, the appellant was aware that the Crawfords

kept the garage door unlocked and provided this information to Mr. Hatcher. On the

day of the offense, the appellant provided Mr. Hatcher with directions to the
Crawford residence. While he and Ms. Alley waited outside, Mr. Hatcher entered

the garage and retrieved numerous tools. The group then proceeded immediately

to several pawnshops where they pawned or sold the items for cash. At one
pawnshop, the appellant conducted the transaction without the assistance or

presence of Mr. Hatcher. Finally, in pleading guilty to theft prior to his trial for the

charge of aggravated burglary, the appellant admitted that he was aware that the
tools were stolen when he assisted in the sale or pawning of Mr. Crawford’s

property.

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. Chrisman, 885

S.W.2d 834, 838 (Tenn. Crim. App. 1994); State v. Burkley, 804 S.W.2d 458, 460

(Tenn. Crim. App. 1990); State v. Bogus, No. 02C01-9506-CC-00169, 1998 WL
22031, at *9 (Tenn. Crim. App. at Jackson), perm. to appeal denied, (Tenn. 1998).

However, the appellant argues that both he and Ms. Alley testified concerning their

belief that Mr. Hatcher was looking for his car radio at the time he entered the
garage. In essence, the appellant asks this court to conclude that, as a matter of

law, this testimony was credible and therefore outweighed the State’s strong

circumstantial evidence to the contrary. We decline this invitation. The weighing of
the testimony of the appellant and his girlfriend, on the one hand, and the State's

strong circumstantial evidence against the appellant, on the other, was a question of

credibility for the jury, not the trial court, to resolve. State v. Bellamy, No.

03C01-9612-CR-00476, 1998 WL 88426, at *3 (Tenn.Crim.App. at Knoxville, March
3, 1998). This issue is without merit.

B. Sufficiency of the Evidence

11
 The appellant additionally challenges the sufficiency of all the evidence

adduced at trial to support his conviction of aggravated burglary. We have already

noted that, with respect to the State’s proof, the appellant’s guilt depended upon the
jury’s assessment of his credibility and the credibility of Ms. Alley. Moreover, the

appellant concedes that Mr. Hatcher’s testimony only presented another issue of

credibility for the jury to resolve.

In reviewing a challenge to the sufficiency of the evidence, as in

resolving issues predicated upon the grant or denial of a motion for judgment of
acquittal, this court will not re-weigh the evidence adduced at trial. 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. State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990). On appeal, the burden is upon the appellant to establish that no

“reasonable trier of fact” could have found the essential elements of the charged

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789 (1979); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Tenn.
R. App. P. 13(e). We conclude that the appellant has failed to carry this burden.

Nevertheless, the appellant argues that the jury’s conviction of both
the appellant and Mr. Hatcher conclusively demonstrates that the jury’s verdict in the

appellant’s case was a product of “speculation and conjecture.” In other words, the

appellant contends that the verdicts are inconsistent. We note in passing that
verdicts need not be consistent between co-defendants as long as the evidence

supports the verdicts. State v. Graham, No. 02C01-9507-CR-00189, 1999 WL

225853, at *4 (Tenn. Crim. App. at Jackson, April 20, 1999). In any case, we have

previously concluded that the strong circumstantial evidence adduced by the State
supported the jury’s finding that both the appellant and Mr. Hatcher are criminally

responsible for the burglary of the Crawford residence. This issue is likewise

without merit.

12
C. Sentencing

The trial court conducted a hearing on July 24, 1998, in order to

determine the appellant’s sentences for theft and aggravated burglary. At the
sentencing hearing, the State relied upon the pre-sentence report. The report

reflects the appellant’s history of criminal convictions as an adult, including his

conviction on July 18, 1996, of worthless checks and his conviction on September
16, 1997, of misdemeanor theft. According to the report, the appellant was placed

on probation pursuant to his conviction of worthless checks. His probationary

sentence was subsequently revoked.4 Additionally, as a juvenile, the appellant was
adjudicated on March 11, 1992, to have committed ten counts of burglary of a

residence.5

The appellant testified on his own behalf at the sentencing hearing.

He stated that he was twenty-three years old. He related that, while he was

incarcerated at Woodland Hills Youth Development Center pursuant to his juvenile

adjudications, he obtained his GED and also attended classes at the Nashville

Technical Institute. At the time of the sentencing hearing, he was working for
Haywood Pool Products, where he had been employed since June 1997. He also

worked on weekends for Myers Realtors and had been employed by that agency

since March 1997. He stated that he currently worked a total amount of sixty to
seventy hours per week.

With respect to his previous work history, the appellant testified that he
had worked for Exxon from August 1996 until March 1997. During the summer of

1996, he visited a family member in California and briefly worked for Subway and A

& J Studios. Finally, from October 1994 until March 1996, he worked as a manager

for Sub Depot.

4
The appellant testified at the hearing that he failed to pay restitution in that case.
5
The appellant also admitted abuse of marijuana as a juvenile. However, only those delinquent
acts tha t would co nstitute a fe lony if com mitted b y an adult m ay be con sidered to enhan ce a se ntence .
State v. Haywood, No. 02C01-9707-CR-00289, 1998 WL 855436, at *16 (Tenn. Crim. App. at
Jackson, De cembe r 11, 1998).

13
 With respect to the appellant’s history of criminal convictions and

behavior, the appellant indicated that his offenses as a juvenile stemmed from his

drug and alcohol abuse. He asserted that he successfully underwent drug and
alcohol treatment in 1991 or 1992. Yet, he conceded that he had engaged in

criminal behavior since completing his treatment.

In addition to his convictions as an adult of worthless checks and

misdemeanor theft, the appellant added that he had previously been charged as an

adult with the theft of more than one thousand dollars ($1,000.00) from Sub Depot.
The charges, however, were retired in return for the appellant’s agreement to pay

two thousand and two hundred dollars ($2,200.00) in restitution to his former

employer. At the sentencing hearing in this case, the appellant indicated that he
had in fact paid one thousand and six hundred dollars ($1,600.00) to Sub Depot,

although he still owed six hundred dollars ($600.00). The appellant denied stealing

any money from Sub Depot, asserting that the company only held him responsible

for the theft of the money due to the appellant’s position as a manager at the time of

the theft. The appellant also supplemented the pre-sentence report with the
information that in 1997 he attempted to steal a pair of shorts from a Castner Knott

department store. Although the appellant confirmed his guilt of the offense, he

noted that the resultant charge of theft was retired.

With respect to the instant offenses, the appellant acknowledged his

responsibility by stating that he “was there” and there was “nothing [he] could do
about it.” The appellant also explained that, at the time of these offenses, he was

“going through a tough time.” He continued to deny any knowledge that Mr. Hatcher

intended to steal Mr. Crawford’s tools at the time of Mr. Hatcher’s entry into the

Crawford’s garage. In any event, the appellant concluded that he and his girlfriend
had agreed that he would no longer engage in criminal behavior, and he stated his

willingness to abide by any conditions of probation or a community corrections

sentence.

14
 At the conclusion of the sentencing hearing, the trial court found the

following enhancement factors pursuant to Tenn. Code. Ann. § 40-35-114 (1997):

(1) the appellant’s previous history of criminal convictions or behavior; (8) the
appellant’s previous history of unwillingness to comply with a sentence involving

release in the community; and (20) the appellant was adjudicated to have committed

delinquent acts as a juvenile that would constitute felonies if committed by an adult.
The trial court concluded that these factors outweighed any mitigating factors

supported by the record.

As a Range I offender, the appellant was subject to a sentence of not

less than one nor more than two years incarceration in the Tennessee Department

of Correction for the offense of theft of property worth more than five hundred
dollars ($500.00). See Tenn. Code. Ann. § 39-14-105 (2) (1997) and Tenn. Code.

Ann. § 40-35-112(a)(5) (1997). The trial court imposed a maximum sentence of two

years incarceration. For the aggravated burglary conviction, the appellant was

subject to a sentence of not less than three nor more than six years incarceration.

See Tenn. Code. Ann. § 39-14-403(b) and Tenn. Code. Ann. § 40-35-112(a)(3).
The trial court imposed a mid-range sentence of four years incarceration.

Additionally, the trial court denied the appellant any form of sentencing alternative to

incarceration, particularly noting the appellant’s poor potential for rehabilitation.

On appeal, the appellant challenges both the length of his sentences

and the trial court’s denial of a sentencing alternative to incarceration. Appellate
review of the length, range, or manner of service of a sentence is de novo. Tenn.

Code. Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court

considers the following factors: (1) the evidence, if any, received at the trial and the

sentencing hearing; (2) the pre-sentence 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

enhancement and mitigating factors; (6) any statement by the defendant on his own
behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code. Ann. § 40-

15
35-102, -103, -210 (1997). See also State v. Ashby, 823 S.W.2d 166, 168 (Tenn.

1991). The burden is upon the appellant to demonstrate the impropriety of his

sentences. Tenn. Code. Ann. § 40-35-401, Sentencing Commission Comments.
Moreover, if the record reveals that the trial court adequately considered sentencing

principles and all relevant facts and circumstances, this court will accord the trial

court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d

at 169.

i. Excessive Sentences
With respect to the length of his sentences, the appellant initially

asserts that the trial court’s sentencing determinations do not warrant a presumption

of correctness because the trial court failed to make separate findings for each
offense. Moreover, the appellant asserts that, in the absence of such findings, a

maximum sentence for the theft conviction and a mid-range sentence for the

aggravated burglary conviction are inconsistent. We must agree.

In State v. Mayo, No. 01C01-9308-CC-00287, 1994 WL 585420, at *5

(Tenn. Crim. App. at Nashville, October 20, 1994), the trial court similarly declined to

make separate findings for each of the defendant’s convictions. It appeared from

the record that the trial court had found one enhancement factor, which was equally
applicable to all of the defendant’s offenses. Id. The trial court found no mitigating

factors. Id. Nevertheless, the trial court imposed both minimum and mid-range

sentences. Id. This court remanded the case for re-sentencing, observing that,
unless a trial court attaches a different weight to the enhancement factors applied to

one offense in comparison to another offense, the same factors cannot support a

minimum sentence for one offense and a mid-range sentence for another. The

same logic applies to mid-range and maximum sentences. However, in contrast to
this court’s opinion in Mayo, we do not find it necessary to remand this case for re-

sentencing.

The statutorily prescribed procedure for determining the length of a

16
felony sentence is set forth in Tenn. Code. Ann. § 40-35-210. The presumptive

sentence for both class E and C felonies is the minimum sentence in the range. Id.

at (c). However, if there are enhancement and mitigating factors, a court must start
at the minimum sentence in the range, enhance the sentence as appropriate for the

enhancement factors, and then reduce the sentence as appropriate for the

mitigating factors. Id. at (e).

With respect to enhancement factors, we agree with the State that

factors (1), (8), and (20) are equally applicable to both of the appellant’s convictions.
Tenn. Code. Ann. § 40-35-114. The appellant concedes, as he must, that the

application of factor (8), concerning the appellant’s history of unwillingness to

comply with the conditions of a sentence involving release in the community, is
appropriate. Moreover, we reject the appellant’s argument that application of both

enhancement factor (1) and enhancement factor (20) constitutes double

enhancement. Rather, a court may only consider adult convictions and adult

criminal behavior in enhancing a sentence pursuant to Tenn. Code. Ann. § 40-35-

114(1). State v. Brown, No. 02C01-9710-CC-00419, 1998 WL 742350, at *2 (Tenn.

Crim. App. at Jackson, October 26, 1998). In contrast, a sentencing court may only

consider juvenile adjudications, that would have been felonies if committed by an

adult, in enhancing a sentence pursuant to Tenn. Code. Ann. § 40-35-114(20). Id.

Accordingly, the application of each factor in this case is supported by different

evidence presented at the sentencing hearing. The record reflects adult convictions

or criminal behavior including a 1996 worthless checks conviction, a 1997
misdemeanor theft conviction, and the appellant’s attempt in 1997 to steal a pair of

shorts from a Castner Knott department store. The appellant’s juvenile record

includes ten previous burglaries.

With respect to mitigating factors, we agree with the appellant and the

State concedes that the appellant’s conduct in committing both offenses neither

caused nor threatened serious bodily injury to another within the meaning of Tenn.

17
Code. Ann. § 40-35-113(1) (1997). 6 State v. Cobb, No. 01C01-9802-CC-00054,

1998 WL 798962, at *4 (Tenn. Crim. App. at Nashville, November 13, 1998).

Moreover, we agree with the appellant than Tenn. Code. Ann. § 40-35-113 (9) and
(10) have some application to both offenses. The record does reflect that, following

his arrest, the appellant assisted Detective Parker in locating some of the stolen

tools. Indeed, the appellant provided Detective Parker with directions to Easy Pawn
& Loan. This information, in turn, enabled Detective Parker to locate Mr. Hatcher,

the appellant’s co-defendant. That having been said, we also agree with the State

that the appellant’s assistance was motivated largely by his desire to exculpate
himself.

Our de novo review of the record has uncovered no other
enhancement or mitigating factors of significant weight. As to the aforementioned

factors, we conclude that the enhancement factors outweigh the mitigating factors

and justify mid-range sentences for both of the appellant’s offenses. Accordingly,

we affirm the appellant’s sentence for aggravated burglary and modify the

appellant’s sentence for theft to one year and four months.

ii. Sentencing Alternative to Incarceration

The appellant next argues that the trial court should have granted him
a sentencing alternative to incarceration. We initially note that the trial court failed to

state on the record whether it applied the presumption in favor of alternative

sentencing set forth in Tenn. Code. Ann. § 40-35-102 (6). Nevertheless, even
assuming that the appellant is entitled to the presumption, we conclude that

“evidence to the contrary” not only overcomes the presumption but militates in favor

of the appellant’s confinement.

The appellant received sentences of less than eight years for his

convictions of aggravated burglary and theft and, accordingly, is eligible for

probation. Tenn. Code. Ann. § 40-35-303(a) (1997). Moreover, the appellant meets

6
Arguably, the trial court did afford some consideration to this factor, remarking that the factor
helpe d the appe llant m ore th an it hu rt him .

18
the eligibility criteria for alternative sentencing under the Community Corrections Act.

Tenn. Code. Ann. § 40-36-106(a) (1997). Nevertheless, the appellant’s sentences

of confinement are appropriate due to his lengthy history of criminal conduct, his
failure to respond to measures less restrictive than confinement, and his lack of

amenability to rehabilitation. Tenn. Code. Ann. § 40-35-103(1)(A) and (C), (5).

We accord particular weight to the appellant’s poor potential for

rehabilitation. The appellant’s credibility and willingness to accept responsibility for

his crimes are circumstances germane to his rehabilitation potential. State v. Zeolia,

928 S.W.2d 457, 463 (Tenn. Crim. App. 1996). In this case, the appellant’s

credibility at the sentencing hearing was undermined by his lapses in honesty. For

example, with respect to the appellant’s theft of a pair of shorts from Castner Knott,
the appellant at the sentencing hearing initially denied stealing the shorts, only

admitting his guilt after further questioning by the prosecutor. We also note that, in

his statement to the probation officer who prepared the pre-sentence report, the

appellant denied that he accompanied Mr. Hatcher into Easy Pawn & Loan. This

statement was flatly contradicted at trial by Mr. O’Kieff, who testified that both the
appellant and Mr. Hatcher entered his pawnshop on April 10, 1997, and that he had

recognized the appellant as a former customer. The appellant’s lack of candor on

this point reflects the inadequacy of his purported acceptance of responsibility for
the instant offenses. Indeed, when asked at the sentencing hearing why he

committed the offenses, the appellant informed the trial court that he “was there”

and there was “nothing [he] could do about it.” The appellant also cited “hard times”
as an excuse for his conduct.7

Finally, the appellant argues that the trial court’s denial of an

alternative sentence is inconsistent with the trial court’s suspension of Mr. Hatcher’s
sentence. We simply conclude that the record justifies the disparity in sentencing.

See, e.g., State v. Williams, No. 02C01-9711-CR-00439, 1998 WL 902586, at *6

7
At the sentencing hearing, the appellant argued that his successful completion of his drug and
alcohol treatment and his steady em ployment dem onstrate his amenab ility to rehabilitation. However,
as no ted b y the tria l cour t, neith er ac com plishm ent h as de terre d the appe llant fr om enga ging in
criminal behavior.

19
(Tenn. Crim. App. at Jackson, December 29, 1998). 8

III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in

the aggravated burglary case and affirm in part and modify the judgment in the theft

case to reflect a sentence of one year and four months.

Norma McGee Ogle, Judge

CONCUR:

David G. Hayes, Judge

Jerry L. Smith, Judge

8
The State asserts in its brief that the record is devoid of sentencing information relating to Mr.
Hatch er. The State is inco rrect. Mr. H atcher’s senten cing hea ring is include d in the rec ord in its
entirety.

20