IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JANUARY 1999 SESSION January 22, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9808-CC-00257
Appellee, )
) WEAKLEY COUNTY
VS. )
) HON. WILLIAM B. ACREE, JR.,
ANTHONY E. BRASFIELD, ) JUDGE
)
Appellant. ) (Aggravated Burglary, Escape and
) Criminal Trespass)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN, JR. PAUL G. SUMMERS
113 North Court Square Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185-0026 ELIZABETH T. RYAN
(On Appeal) Assistant Attorney General
Cordell Hull Building, 2nd Floor
JOSEPH P. ATNIP 425 Fifth Avenue North
District Public Defender Nashville, TN 37243-0493
111 Main Street
P.O. Box 734 THOMAS A. THOMAS
Dresden, TN 38225 District Attorney General
(At Trial)
JAMES D. KENDALL
Assistant District Attorney General
121 West Main Street
Dresden, TN 38225-0218
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
A Weakley County jury convicted defendant of aggravated burglary, a Class
C felony; criminal trespass, a Class C misdemeanor; and escape, a Class E felony.
The trial court sentenced defendant as a Range III persistent offender on the
aggravated burglary and escape convictions, for which he received consecutive
sentences of fourteen years and six years, respectively. For criminal trespass he
received a concurrent thirty-day sentence. In this appeal as of right, defendant
raises two issues:
(1) whether the evidence was sufficient to convict
defendant of aggravated burglary; and
(2) whether the effective twenty-year sentence is
excessive.
This Court concludes the evidence was sufficient, and the sentences were proper.
The judgments and sentences imposed by the trial court are AFFIRMED.
FACTS
On August 1, 1997, Christie Sanders heard a noise from the enclosed back
porch area of her home and went to investigate. When she turned on the light, she
saw a black male inside the room. When he ran out, Sanders saw him get into a
“small, red, boxy-type car. . .with backup lights in the middle” that was parked at the
apartments next door. The car was identified as belonging to defendant.
Defendant had recently been released from the penitentiary, so as part of the
investigation, Captain David Moore questioned defendant about his whereabouts
that evening. Defendant denied any involvement in the incident.
On November 29, 1997, around 4:45 a.m., Officer Doug Hollingsworth
spotted defendant’s red car at the apartments next door to Christie Sanders’
residence. As a result, Officer Stacy Bostwick was sent to patrol the neighborhood.
While on patrol, Bostwick heard a noise coming from Dr. Victor Depta’s house. He
shined his flashlight and saw the defendant jump off Depta’s back porch. Bostwick
arrested defendant for trespass and advised him of his Miranda rights.
At approximately 6:00 a.m., Christie Sanders called the police to report that
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the red car involved in the incident at her home in August was again parked at the
apartments next door. The police advised her that someone was already in
custody.
At the police station, defendant asked to speak with Captain David Moore
who had questioned him in August regarding the incident at Christie Sanders’ home.
When Moore got to the station, he again advised defendant of his rights. Defendant
signed a rights waiver and gave Captain Moore a statement in which he admitted
to the trespass on Depta’s property and the earlier aggravated burglary of Sanders’
home. The statement also explained that defendant’s reason for prowling was to
find money.
While being booked into the Weakley County jail for trespass and aggravated
burglary, defendant asked to place a phone call. Jailer, Eric Gordon, removed
defendant’s handcuffs to allow him to do so. While making the call, defendant
threw down the phone and ran out of the Sheriff’s office. Several officers pursued
defendant on foot; he was captured about ten minutes later.
SUFFICIENCY OF THE EVIDENCE
Defendant avers the evidence was insufficient to support a finding of guilt
on the aggravated burglary charge. To support this claim he points only to his own
trial testimony.
In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). A jury verdict approved by the trial judge accredits the state’s witnesses and
resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the
state is entitled to the strongest legitimate view of the evidence and all legitimate or
reasonable inferences which may be drawn therefrom. Id. This court will not
disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant
demonstrates that the facts contained in the record and the inferences which may
be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to
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find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d
1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm
the conviction if the evidence, viewed under these standards, was sufficient for any
rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,
99 S.Ct. 2781, 61 L.Ed.2d 560, 572 (1979); State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994).
Captain Moore testified that defendant admitted his presence in the utility
room of Christie Sanders’ home for the purpose of finding money. Defendant’s trial
testimony contradicted this statement. The jury disbelieved defendant’s trial
testimony. This was the jury’s prerogative. Defendant’s testimony, standing alone,
is insufficient to overcome the presumption of guilt established by the jury verdict.
The evidence was sufficient to find defendant guilty of aggravated burglary.
This issue is without merit.
SENTENCING
The trial court sentenced defendant as a Range III persistent offender to
fourteen years for the aggravated burglary and six years for the felony escape. The
trial court ordered them to run consecutively. A thirty-day sentence for criminal
trespass was run concurrently with these sentences. Defendant does not challenge
his persistent offender status, nor the imposition of thirty days for trespass. He
does assert that the effective twenty-year sentence for the felony convictions is
excessive. Therefore, our review will focus solely on those sentences.
This court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the
appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-
401(d) Sentencing Commission Comments.
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To create the presumption of correctness, the trial court is required, pursuant
to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence received at the trial and the sentencing hearing; (2)
[t]he presentence report; (3) [t]he principles of sentencing; (4) [t]he
nature and characteristics of the criminal conduct involved; (5)
[e]vidence and information offered by the parties on the enhancement
and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
statement the defendant wishes to make in the defendant’s own
behalf about sentencing.
If mitigating or enhancement factors exist, a trial court should start at the
minimum sentence, enhance the minimum sentence within the range for
enhancement factors and then reduce the sentence within the range for the
mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the
discretion of the trial court as long as the trial court complies with the purposes and
principles of the sentencing act and its findings are supported by the record. State
v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848
(Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App.
1995); see State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); Manning v. State,
883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).
The state established five prior felony and five prior misdemeanor
convictions. Furthermore, defendant had his probation or parole revoked on two
separate occasions. Thus, the trial judge determined that, of the five enhancement
factors requested by the state, only two were applicable: defendant had, one, a
previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range; and two, a previous history of
unwillingness to comply with the conditions of a sentence involving release in the
community. Tenn. Code Ann. § 40-35-114(1), (8). The defense offered no
mitigating factors, and none were found.
As for its determination of the length of the sentences, the trial judge followed
the applicable sentencing principles. For the aggravated burglary conviction, he
started at the presumptive ten-year sentence, increased it by four due to the
enhancement factors and set it at fourteen years. For the escape conviction, he
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began at the presumptive sentence of four years, increased it by two, and set it at
six years. Since there were no mitigating factors, these sentences were entirely
appropriate.
Regarding the consecutive nature of the sentences, the trial judge correctly
noted that the escape statute mandates that any sentence received for an escape
conviction be run consecutively to the underlying offense. See Tenn. Code Ann. §
39-16-605(c).
The trial judge in this case created an excellent sentencing record. Before
handing down the sentences, he reviewed the evidence on the record; enumerated
the requirements for determination of the appropriate sentencing range; and recited
the sentencing principles and considerations applicable to the case. The thorough
findings and correct application of sentencing principles by the trial judge eliminate
the need for any appellate intervention in this case.
This issue has no merit.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is AFFIRMED.
____________________________
JOE G. RILEY, JUDGE
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CONCUR:
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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