State v. Brian Martin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY SESS ION, 1995

FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9410-CC-00212
) April 30, 1997
Appellee, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
) FAYETTE COUNTY
VS. )
) HON. JON KERRY BLACKWOOD
BRIAN KEITH MARTIN, ) JUDGE
)
Appe llant. ) (Aggravated Burglary)

ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF FAYETTE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RICHARD G. ROSSER CHARLES W. BURSON
102 Eas t Court Squa re Attorney General and Reporter
Somerville, TN 38068
CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

ELIZABETH RICE
District Attorney General

CHRISTOPHER MASHBURN
Assistant District Attorney General
302 Market Street
Somerville, TN 38068

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, Brian Keith Martin, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure. He was convicted by a Fayette

County jury of aggravated burglary. 1 The trial court sentenced him as a Range

II multiple offender to eight years in the Department of Correction. In this a ppea l,

the Defendant presents five issues for review:

(1) That the evid ence supp orting h is conviction is legally insu fficient;
(2) that the trial c ourt er red by failing to cond uct a ju ry-out h earing
regarding the admissibility of police testimony about potential
crimin al cha rges o ther tha n the o ne for w hich h e was on trial;
(3) that the State improperly questioned a witness about the
Defendant’s prior convictions or bad acts;
(4) that the trial co urt erred in allowing th e State to present
testimony that he refused to make a statement to police; and,
(5) that the trial court erred in sentencing him to eight years as a
Range II multiple offender.

After carefully reviewing the record, we conclude the Defendant’s issues lack

merit an d affirm the judgm ent of the tria l court.

W e begin with a brief summary of the relevant facts. On November 3,

1993, the home of Smith and Eva Bowling, located on Highway 59 in Fayette

County, was burglarized. Smith Bowling returned to his home in the middle of the

day to find that the back door had been pried open. As he was looking through

his home to determine if anything was missing, he received a telephone call from

an employee of the First Tennessee Bank in Bartlett, Tennessee regarding a

check presented for payment at their drive-thru window. Bartlett is locate d in

Shelby County, just west of Fayette County. Bowling informed the bank teller that

his home had recently been burglarized and his checkbook was missing. The

1
Tenn. Code A nn. § 39-14-403(a).

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bank teller called th e police, who arrived minutes later and arrested two

individu als in the ca r at the d rive-thru windo w, the D efend ant an d his girlfriend,

Tina Carter. A search of the car revealed many items from the Bowlings’ home,

including a shotgun, a leather jacket , a bottle of prescription medication, a jar of

change, and several pieces of jewelry. Police officers also discovered a loaded

9mm Smith & Wesson handgun which was no t alleged to have been taken from

the Bowlings’ residence.

Tina Carter co nfesse d to breaking into and taking items from the Bowlings’

home. At the Defendant’s trial, she testified that the Defendant slept while she

committed the offense. According to her testimony, the couple was traveling from

Pennsylvan ia toward Memphis. The Defendant drove for seven or eight hours,

and then Carter began driving to allow him to sleep. Carter became lost and

stopped at the Bowlings’ home to ask for directions . She pa rked on the street,

exited the car, and approached the house, all while the Defendant remained

sleeping in the passenger seat. Finding no one home, Carter returned to the car,

retrieved a pry bar, and broke into the house through the back door. She took a

number of items and returned to the car, piling the stolen items on the back seat.

The Defenda nt woke up as she drove away. Upon discovering the stolen items,

he chastised her and asked her to return them. She refused to do so, fearing that

she migh t be ca ught. T hey ev entua lly made their way to the First Tennessee

Bank in Bartlett. Asserting her right against self-incrim ination, C arter dec lined to

answer most questions concerning what had occurred at the bank.

Kelly Dunn, the teller at the drive-thru window of the First Tennessee Bank

in Bartlett, testified that she observed Carter and the Defendant at the window

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early on the afternoon of November 3, 1993. Carter was driving and the

Defendant was awake in the passenger seat. Carter presented a check made

payab le to her from the acco unt of Sm ith Bowling . She had endorsed the check

and included her driver’s license number. Dunn called Smith Bowling, learned

that his checkbook was missing, and called the police. The Defendant never

spoke to Dunn during the entire episode.

In his first issue on appeal, the Defendant argues that the evidence

supporting his conviction is legally insufficient. He contends that there is no

direct evidence linking him to the burglary of the Bowlings’ home. He asserts

that, in fact, the uncontradicted testimony of Tina Carter established that he

neither particip ated in nor was aware o f the burg lary. Citing Cleveland Wrecking

Co. v. Butler, 57 Tenn. App. 570, 421 S.W.2d 380 (1967), the Defendant

contends that where testim ony is not contrad icted by direct proof or

circumstances incon sisten t with its tru th, it must be taken as true. The Defendant

does adm it that po sses sion o f recen tly stolen good s gives rise to a n inference

that the posse ssor ha s stolen th e good s. However, quoting from Bush v. S tate,

541 S.W.2d 391, 395 (Tenn. 1976), he argues that the inference is a “fiction of

the law” and an “assumption of convenience” that disappears when “refuted by

positive testimon y.” Thus , the inferen ce arising from his p ossess ion of the

Bowlings’ recently stolen items disappeared in light of Carter’s uncontradicted

testimony that he was not involved in the burglary, thereby leaving absolutely no

evidence to support his conviction.

When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

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to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crime beyond a reason able do ubt. Jack son v. V irginia, 443 U.S.

307, 319 (1 979). Q uestio ns co ncern ing the credibility of the witnesses, 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, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn . 1973). O n appe al, the Sta te is entitled to the stronge st legitima te

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.

The evidenc e estab lished tha t the Bowlings’ residence had been

burglarized and that several items had been stolen. The proof further established

that the Defendant was at the scene at the time of the crime. He was traveling

with his girlfrie nd, T ina Ca rter, wh o adm itted to c omm itting the crime s. W ithin a

few hours after the burglary, the Defen dant wa s arreste d as he sat in the ca r with

his girlfriend at a ba nk’s dr ive-thru window after she had attempted to pass a

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forged check taken from the burglarized residence. Numerous other items taken

during the burg lary were found in the vehicle with the D efendant an d Carter.

Carter was called as a witness for the Defendant. She testified that the

Defendant stayed in the car and slept while she burglarized the house. She s aid

that he knew nothing about her breaking into the house and stealing the various

items until he woke up after she drove away from th e resid ence . Wh ile it is

accurate to say that her testimony that the Defendant was asleep and thus

unaware of the burglary was uncontroverted, certain ly the jury was not required

to give her testimo ny any credibility, and obviously the jury chose not to do so.

It is well established in Tennessee that the possession of recently stolen

property gives rise to an inference that the possessor has stole n it and may, in

light of surrounding circumstances, suppo rt a convictio n for burg lary. See, e.g.,

State v. Hamilton, 628 S.W .2d 742 , 746 (T enn. C rim. App. 1981) (citations

omitted); see also, State v. Land, 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984)

(citation omitted). The Defendant cites Bush v. S tate, 541 S.W.2d 391, 395

(Tenn. 1976), for the proposition that the inference arising from proof of

possession of recently stolen property is a “fiction of the law” and an “assumption

for convenience” which disappears upon the introduction of contrary proof. The

Defen dant, howeve r, is quoting fro m a se ction of Bush in which the court was

attempting to clarify the often confused terms “presumption” and “inference ,” as

used in case s involvin g pos sess ion of re cently stolen property. Immediately after

this explanation, the Bush court c learly an d suc cinctly stated that “the inference

arising from the proven fact of possession of recently stolen property is not

destroyed by contra dictory evide nce, even the positive testimon y of witness es....”

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Bush, 541 S.W.2d at 395 (emphasis added). The court went on to hold that the

force of the inference does not vanish upon the offering of an explanation by the

defend ant. Rather, the inference “remain s to be weighed by the jury against the

evidence offered by defendant in explanation of his possession of the rec ently

stolen property.” Id.; see also Land, 681 S.W.2d at 591.

Applying that sound reasoning to the case at bar, we believe it was the

jury’s province to weigh the evidence presented by the State, including the

inference arising from the Defendant’s possession of recently stolen prop erty,

against the explanation offered by the Defendant. The jury did so in this case,

by rejecting the explanation of the Defenda nt’s actions and find ing him guilty.

From a review of the record, we con clude tha t the eviden ce pres ented, a long with

the inference which may properly be drawn from the possession of the Bowlings’

recen tly stolen pro perty, is sufficie nt to supp ort the De fendan t’s conviction of

aggravated burgla ry beyo nd a re ason able d oubt. T he De fenda nt’s first is sue is

therefore without m erit.

In his second issue, the Defendant argues that the trial court erred by

failing to conduct a jury-out hearing regarding the admissibility of police testimony

about poten tial crim inal ch arges other th an the one fo r which he wa s on tria l. In

particular, the Defendant complains about the testimony of two officers, How ard

Doyle and David Appleberry, concerning the reason each came to the bank and

one s pecific item, a 9mm handgun, found during the se arch o f the D efend ant’s

car.

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 The Defendant filed a host of pretrial motions. Among them was a motion

in limine requesting that the trial co urt order th e State’s witnesse s not to tes tify

concerning evidence of other potential criminal charges, with specific reference

to forgery and possession of a firearm by a felon.2 The trial court took this motion

under advisement and reserved ruling on its merits until faced with a specific

instance of such testimony at trial. At the same time, however, the trial court’s

order indicated that no State’s witness should testify concerning “any prior bad

acts of the Defendant” until the admissibility of such testimony was determined

at a jury-out hearing.

Officer Doyle testified prior to Officer Appleberry. Before Doyle testified,

the Defendant’s trial counsel asked to approach the bench. At that bench

conference, the Defendant’s counsel vo iced his concern that the police officer

would testify “regarding a forgery, or possession of firearms, espe cially by a

felon.” Counsel contended that such statem ents were irrelevant for purposes

of the charged offense and would be unduly prejudicial. The assistant district

attorney responded that he would not ask if the Defendant “was charged with that

offense ,” but inte nded to ask Office r Doyle what items were discove red in the car.

The trial court instru cted the prosecutor not to elicit testimony regarding the

Defe ndan t’s prior criminal record or status as a felon. The Defendant’s counsel

voiced no further concerns, and the bench conference was concluded.

2
The Defendant was initially represented by an assistant public defender. The assistant
public defender filed a number of pretrial motions, including a typical motion in limine requesting a
hearing pursuant to State v. Morgan, 541 S.W .2d 3 85 (T enn . 197 6), be fore testim ony by t he S tate’s
witnesses about any prior convictions or bad acts of the Defendant. The Defendant’s present counsel
was eventually substituted for the assistant public defender and filed additional pretrial motions,
including a motion in limine seeking to restrict the potential testimony of police officers regarding
forgery or possession of a firearm by a felon.

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 After the bench conference, the assistant district attorney questioned

Officer Doyle as follows:

Q. We re you called to the First Tennessee Bank Branch at the
corner o f Highwa y 64 and 70 in Ba rtlett?
A. Yes, sir.
Q. Okay . Could you tell the jury the nature of the call, and what you
did in response?
A. The c all cam e out fro m dis patch as a fo rgery, w ith the subject
still on the scene in the drive-out lane.

At this point, the Defendant moved for a mistrial based on unfair prejudice arising

from the mention of “forgery.” The trial court denied the motion but instructed the

jury to disregard Officer Doyle’s testimony concerning the reason he came to the

bank. Later in his testimony, Officer Doyle described the items found in the car

after the arre st of the Defe ndan t and T ina Ca rter. Do yle testified that a loaded

9mm Smith & Wesson handgun was discovered during the sea rch of the car.

The handg un was not allege d to have been taken from the Bowlings’ residence.

The Defenda nt made n o contem poraneou s objection to O fficer Doyle’s

testimony abou t the ha ndgu n. After cross -exam ining D oyle, the Defe ndan t’s

counsel again ap proach ed the benc h. At this point, h e obje cted to Doyle ’s

testimony about the 9mm handgun, contending that it was irrelevant for purposes

of the Defe ndant’s a ggravate d burgla ry trial. The trial court overruled the

objection.

Officer David App leberry testified imm ediately after Officer Do yle. The

assistant district attorney questioned Appleberry as follows:

Q. Did you receive a call to come to First Tennessee Bank at the
corner of Highway 64 and 70, on November 3rd, 1993?
A. Yes, I did.
Q. An d how did you receive the ca ll?

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 A. I received the call to come to the First Tenne ssee Bank , in
regards to a subjec t attemp ting to cas h a stolen check, is w hat I was
referred to by the ba nk teller that called the B artlett Dispatcher.

The Defendant made no contemporaneous objection to this testimony.

Appleberry testified further that a 9mm Smith & Wesson handgun was discovered

in the car. Again, the Defendant made no contemporaneous objection.

On appeal, the Defendan t argues that the trial co urt erred b y failing to

conduct a jury-out hearing regarding the admissibility of police testimony about

both the 9mm handgun and being called to the scene of a “forgery” or an attempt

“to cash a stolen check,” especially since the trial court’s pretrial motion order

implied that such a hea ring wo uld be held. The Defendant is presumably relying

on Tennes see Rule o f Evidence 40 4(b) as well as the general relevance and

prejudice principles contained in Tennessee Rules of Evidence 401, 402 and

403. We point out that this issue does not involve a Morgan hearing problem

because we are not face d with imp eachm ent evide nce offer ed purs uant to

Tennessee Rules of Evidence 607, 608 an d 609. See State v. Morgan, 541

S.W .2d 385 (Te nn. 1976).

After careful consideration, we find no reversible error with regard to the

trial court’s m anner o f handling the police testimony about potential criminal

charges not conta ined in the indictme nt. Althoug h the trial judge’s order

concerning the Defendant’s pretrial motions is somewhat confusing, it seems

reaso nably clear that he reserved ruling on the motion in limine to restrict police

testimony about other potential crimin al cha rges u ntil the D efend ant’s concerns

regarding unfair prejudice were implicated. Prior to Officer Doyle’s testimony, the

trial court conducted a bench conference, at which time the Defendant voiced

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concerns about testimony regarding forg ery or p osse ssion of a firea rm, es pecia lly

by a felon. The trial court instructed the prosecutor not to elicit testimony about

the Defendant’s status as a felon.

W e believe that if the Defendant had any lingering concerns in the wake

of the trial c ourt’s in structio ns at th e ben ch co nferen ce, it was h is duty to request

a jury-out he aring to ad dress tho se con cerns, m aking ap propriate references to

any authority that suppo rted his po sition. See Tenn. R . Evid. 404(b)(1); Neil P.

Cohen et al., Tennessee Law of Eviden ce § 40 4.7 (3rd e d. 1995 ); see also State

v. Copenny, 888 S.W.2d 450, 456 (Tenn. Crim . App. 1993 ) (citations omitted).

Obviously, the trial judge believed he had addressed the Defendant’s concerns

at the bench conference. Absent a request by the Defendant, we find no error

with the trial court’s failure to conduct a jury-out hearing after having already

considered the Defendant’s issue at the bench conference.

In any event, the trial court sp ecifically instructed the jury to disregard

Officer Doyle ’s testimony concerning the reason he came to the bank, namely the

“forgery” call. In the absence of proof to the contrary, we must presume that the

jury followe d the tria l court’s curative instruc tion. See State v. Compton, 642

S.W.2d 745, 74 6 (Ten n. Crim. A pp. 198 2); Frazier v. State, 566 S.W.2d 545, 551

(Tenn. Crim. App. 1977) (citations omitted). Thus, we conclude that the trial

court’s limiting instruction cured any error regarding Officer Doyle’s testimony

about forgery.

Moreover, although the Defen dant co mplain s of App leberry’s re ference to

a subject “attempting to cash a stolen check” on appeal, he did not object to the

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testimony at trial, no r did he request a jury-out hearing at the bench conference

immed iately prior to the testimony. Furthermore, he did not request a limiting

instruction even though it seems reasonable to conclude that the trial cou rt would

have given one similar to the instruction given after Officer Doyle’s testimony

concerning forgery. We conclude that the Defendant cannot now complain about

Officer Appleberry’s testimony in light of his own failure to object at the time

Appleberry testified. See T.R.A.P. 36 (a); Teag ue v. State , 772 S.W.2d 915, 926

(Tenn. Crim. App. 19 88); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim.

App. 1988 ).

Likewise, the Defendant made no contemporaneous objection to the

testimony from both officers concerning the 9mm handgun discovered during the

search of the car. Both officers tes tified about the han dgun as the y were

describing the items retrieved from the car. Neither officer offered any detailed

testimony about the firearm. On cross-examination of the State’s witnesses, the

Defendant elicited testim ony tha t the ha ndgu n was discov ered u nder th e drive r’s

side seat. Furthermore, Tina Carter testified that the handgun belonged to her.

She stated that she had borrowed the handgun from a friend in Pennsylvania and

was carrying it for protection purposes.

Although the handgun evidence may have been irrelevant and the trial

court may have erred in adm itting tes timon y abou t the firea rm, we can o nly

conclude that any error was harmless beyond a reasonable doubt. The handgun

evidence was certainly not critical to the case. In fact, the Defendant was

effective ly distanced from the wea pon thro ugh the testimon y of both Tina Carter

and witnesses for the State. We are satisfied that the jury would have convicted

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the Defendant even in the absence of the testimony about the 9mm handgun.

See T.R.A.P. 36 (b); Tenn. R . Crim. P. 52(a).

From a review of the record, we conclude that the trial court committed no

revers ible error in failing to condu ct a jury-ou t hearing regardin g the ad missibility

of police testimony about other potential criminal charges. The Defendant had

amp le opportunity to request such a hearing when faced with testimony which

implicated his conc erns, bu t never did so. Add itionally, none of the testimony

complained of affirmatively a ppears to have a ffected the result of the trial. The

Defen dant’s se cond iss ue is there fore witho ut merit.

In his third issue, the Defendant argues that the State im prope rly

questioned a witne ss ab out the Defe ndan t’s prior convictions or bad acts. Tina

Carter testified for the defense. On direct examination, she testified as follows:

Q. Did Brian Martin go into the Smith Bowling house?
A. No.
Q. Did he help you burglarize that house?
A. No. As a matter of fact, we got into a fight, after he found out
what I did.
Q. W hy is that?
A. Because he had already been in some trouble, and he wanted
me to take the stuff back to the house, and I was afraid if I did, I’d be
caugh t. You kn ow, I did n’t get caught in the house when I left, so I
didn’t figure I’d get in any trouble for it.

This testimony concluded direct examination. The assistant district attorney

began cross-examination by asking, “Mr. Martin had already been in some

trouble?” Carter replied, “In h is past. That w as befo re I knew him.” At this point,

the Defen dant’s co unsel as ked to approach the bench and ap parently m oved to

dismiss the case.3 The trial court denied the motion but, stating that the

3
A portion of defense counsel’s statements to the court were marked as “indiscernible” in the
record. It is reasonably clear, however, that he moved to dismiss the case at the bench conference.

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Defe ndan t’s character was not at issue, instructed the assistant district attorney

not to go any further into his prior record. No limiting instruction was requested,

nor was one given.

After reviewing the record, we agree with the Defendant that the assistant

district attorney’s question was improper. See Tenn . R. Evid. 40 4(b). We

believe, however, that the error was harmless in the context of the present case.

Tina Carter’s testimony was first elicited by the Defendant on direct examination.

The assistant dis trict attor ney’s im prope r ques tion m erely re peate d Car ter’s

previous testimony. The colloquy added no significant information beyond that

which had been brought forth during direct examination. As a result, we are

satisfied that the D efenda nt would have been convicted even without the

improper question, and the error in asking th e que stion d oes n ot affirm atively

appear to have affected the result of the trial. We therefore conclude that the

error was ha rmless beyond a reaso nable d oubt. See State v. Williams, 851

S.W.2d 828, 833 (Tenn. Crim. App. 1992); T.R.A.P. 36(b); Tenn. R. Crim. P.

52(a). T he De fendan t’s third issue lacks m erit.

In his fourth issue, the D efendant arg ues that the trial court erred in

allowing the State to prese nt testimo ny that he had refu sed to make a statement

to the police upon his arrest. He contends tha t references by two police officers

to his refusal to make a statement violated his right against self-incrimination

secured by the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 9 of the Tennessee Constitution.

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 The testimony at issue came from Officers David Appleberry and Don

Pugh. Officer Appleberry testified on direct examination as follows:

Q. All right. W hen you arrested the subjects, including the
defend ant, did they make any statements to you, or did you engage
them in conversation?
A. The conversation was limited. We mainly secured the scene . ...
Q. And the defendant did not make any statements to the Ba rtlett
Police?
A. To my rec ollectio n, I don ’t recall.

The Defendant made no objection to the testimony. After conducting cross-

examination of Appleberry, the Defendant moved to dismiss the case based on

the assistant district attorney’s questions about whether he had made a

statement to police upon arrest. The trial court denied the motion but instructed

the assis tant district atto rney not to ask que stions “ab out any s tateme nts.”

Officer Pugh testified after Officer Appleberry. Officer Pugh gave the

following testimony on direct examination:

Q. Okay. Now, after the Fayette County Sheriff’s Department took
the defendant and Ms. Carte r into cu stody, d id you ascertain w here
they had come from?
A. I did.
Q. Oka y. Wh ere was that?
A. Carlisle, Pennsylvania.
Q. Both of them?
A. I think so. I’d have to look back on my note s. I talked to Mr.
Martin first, and advise d him of his rights, and about the extent of
our conversation, I asked him how long they had been on the road,
and he told m e appro ximately tw o weeks. I asked him, “Was that
the reason you broke into the house?” And he did not an swer tha t,
and refused to talk anymore on the advice o f his attorney.

At this point, the Defendant objected and again moved to dismiss the case. The

trial court denied the motion.

It is well-established that a defe ndan t has a cons titutiona l right to re main

silent in the face o f accu sation , not on ly during trial but a lso up on arre st and while

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in custody. The prosecution may not use at trial the fact that a defendant claimed

the privilege. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966); Brade n v. State, 534 S.W.2d 657, 66 0 (Ten n. 1976 ); Wa re v. State ,

565 S.W.2d 906, 908 (Tenn. Crim. App. 19 78). Furth ermor e, a defen dant’s po st-

arrest silence ordina rily cann ot be u sed to impe ach h is testim ony at tr ial. See

Doyle v. Ohio , 426 U.S . 610, 96 S .Ct. 2240, 49 L.Ed.2d 91 (1976); Honeycu tt v.

State, 544 S.W .2d 912, 917 -18 (Tenn . Crim. App. 19 76). Simply put, when a

defendant exercises his constitutional right to remain silent, the fact that he or

she does so genera lly cannot be use d against him or her.

On appeal, the Defendant argues that the testimony about his refusal to

make a statement violated his right against self-incrimination and that the the trial

court erred in ad mitting the testimon y. W e believe that the assistant district

attorne y’s questions to O fficer Appleberry we re improp er. See, e.g., Hone ycutt,

544 S.W.2d at 917. The Defendant, however, did not make a contemporaneous

objec tion to the testim ony of O fficer Ap plebe rry. Mor eover , Apple berry’s

testimony indicated only that he did not recall whether the Defendant had made

a statement. It appears to this Court that A pplebe rry’s testimo ny was n ot a

reference to the refusal of the Defendant to make a statement, but rather a

comment on the limited nature of both his duties at the scene and h is interaction

with the D efenda nt.

With regard to Officer Pugh, it is clear that his comments specifically

concerning the Defendant’s refusal to make a statement were ina ppropria te. W e

note that the assistant district attorney did not elicit that testimony, nor was the

questioning so broa d and s ugges tive as to risk eliciting improper tes timony.

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Nevertheless, Pugh ’s testim ony infr inged upon the De fenda nt’s co nstitutio nal

right to rem ain silent. Id.

W e believe, ho wever, tha t any error in the adm ission of the testimony of

Officers Appleberry and Pugh was harmless beyond a re ason able d oubt. It is

important to note th at the assistant district attorney made no comment

whatsoever on the Defendant’s post-arrest silence d uring arg umen t. In this way,

the case at bar is distinguishable from cases such as State v. Mabe, 655 S.W.2d

203 (Ten n. Crim . App. 1 983), w herein the prosecutor’s closing argument focused

heavily upon the defendant’s failure to make a statement upon arrest and

resulted in the reversal of the defe ndant’s conviction . Moreover, the trial court

gave a jury ins truction regard ing the Defe ndan t’s right to remain silent and the

fact that no inference can be drawn from such silence. We must presume that

the jury followed the trial cour t’s instruction s. See State v. Locke, 771 S.W .2d

132, 138-39 (Tenn. Crim. App. 1988) (citing Ford v. S tate, 101 Tenn. 454, 458,

47 S.W. 703, 705 (1898)). In the absence of prejudicial comments by the

assistant district attorney, we conclude that the trial court’s instructions cured any

possibility of harm from the testimony of Officers Appleberry and Pugh in the

context of the pres ent case . See State v. Flanagan, 223 Tenn. 134, 138-39, 443

S.W.2d 25, 27 (T enn. 19 69); see also Johns on v. Sta te, 596 S.W .2d 97, 104

(Tenn. Crim . App. 1 979). T he De fenda nt’s fou rth issu e is therefore without m erit.

In his fifth iss ue, the Defe ndan t argue s that th e trial co urt erre d in

sentencing him to eight years as a Range II multip le offender. When an accused

challenges the length, range, or the manner of service of a sente nce, this court

has a duty to conduct a de novo review of the sentence with a presumption that

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the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presum ption is "conditioned upon the affirm ative show ing in the

record that the trial court con sidered the sentencing principles and all relevant

facts and circums tances ." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a se ntenc e, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own be half; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial c ourt's fin dings of fact a re ade quate ly supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The Defendant has three specific complaints about his sentence, the first

of which involves the State’s notice of intent to seek sentencing as a multiple

offender. The Defendant contends that the State’s notice was defective because

it did not include properly certified copies of his convictions from Pennsylvania.

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As a result, he argues that the trial court erred in senten cing him as a Ra nge II

multiple offende r.

The Defendant was tried on April 8, 1994. On November 24, 1993, m ore

than four months prior to trial, the State filed its notice to seek enhanced

punish ment. In that notice, the State listed s ix prior convictions from

Pennsylvania.4 The notice set forth the date of conviction, the nature of the

conviction, and the court of conviction.

The Defenda nt argues that the State’s no tice did no t comp ly with

Tennessee Code Annotated section 40-35-202(a) in that it did not include

prope rly certified copies of the Pennsylvania convictions. We do not believe that

Tennessee Code Annotated section 4 0-35-20 2(a) requ ires the S tate to include

certified copies of convictions when filing its notice to seek enhanced

punish ment. The on ly requirem ent in term s of conte nt of the notice is that it

“must set forth the nature of the prior felony convictions, the dates of the

convictions and the identity of the courts of the convictions.” Tenn. Code Ann.

§ 40-35-202(a) (1990). It is clear that the State’s notice in the present case

complied with those requirements. Accordingly, we conclude the Defendant’s

first allegation of senten cing erro r lacks m erit.

In his second allegation of sentencing error, the Defendant contends that

the copies of the Pennsylvania convictions introduced at his sentencing hearing

4
At the sentencing hearing, the State offered proof of seven Pennsylvania convictions. One
of them, a misdemeanor theft charge alleged to have occurred on February 18, 1990 to which the
Def end ant p leade d guilt y on Ju ne 5, 1990 (#60 1 Crim inal 19 90(B -1)), w as no t listed on th e Sta te’s
notic e to s eek enha nce d pun ishm ent. A s su ch, w e will no t con side r that c onvic tion in revie wing this
issue.

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were not pro perly ce rtified. W e belie ve the D efend ant’s c onten tion is cle arly

without merit. Each of the convictions introduced by the State at the sentencing

hearing is certified as a true copy from the records of the Clerk of the Courts of

Cumberland County, Pennsylvania. A Deputy Clerk signed the copies and

affixed the seal of the Cumberland County Courts. We therefore conclude that

the certified copies of the Defendant’s prior convictions were properly admitted

pursuant to Tennessee Rules of Evidence 902. The Defendant’s second

allegation of a sente ncing err or is withou t merit.

In his third allegation of a sentencing error, the Defendant contends that

the trial court improperly applied and weighed enhancement and mitigating

factors. The sentencing hearing took place on April 28, 1994. The State’s proof

established that the Defendant had at least three prior felony convictions and

qualified as a Ra nge II m ultiple offende r. See Tenn. Code Ann. § 40-35-

106(a)(1). The appropriate sentencing range for aggravated burglary, a class C

felony, was six to ten years . At the conclusion of the hearing, the trial cou rt

sentenced the Defendant to eight years imprisonment. The trial court later

entered an order reflecting what had occurred at the sentencing hearing.

The record is somewha t unclear as to wh ich enhanc ement fac tors were

applied. There is no dou bt that the trial c ourt applied the “previous history of

criminal behavior in addition to that necessary to establish the sentencing range”

enhan ceme nt factor. See Tenn. C ode Ann . § 40-35-114 (1).

The trial court also applied as an enhancement factor that the offense

involved “more than one actor.” This language does not correspond to any of the

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statutory enhancement factors set forth at Tennessee Code Annotated section

40-35-114. From a review of th e argument prior to the imposition of sentence,

however, it appears that the trial court was referring to the “leader in the

commission of an offense involving two or more actors” enhancement factor.

See Tenn. C ode Ann . § 40-35-114 (2).

In addition, in the sentencing order entered after the imposition of sentence

at the sentencing hearing, the trial judge stated that he applied the enhancement

factor for a “felony com mitted while on p arole.” See Tenn . Code Ann. § 40-35-

114(13)(B ). As he imposed sentence at the hearing, however, the trial judge

stated that he was not considering whether the Defendant was on parole at the

time of the prese nt offen se. Th is state men t cam e in res pons e to the Defe ndan t’s

objection to the he arsay in the prese ntence repo rt concerning his parole status

from two burglary convictions in Pennsylvania. Given the Defendant’s objection

to that aspe ct of the presentence report and the trial court’s recognition of that

objection at the sente ncing hearing, we will not consider Tennessee Code

Annotated section 40-35-114(13)(B) as an enhancement factor in our review of

this issue.

It is clear from the record that the trial court applied only one mitigating

factor, nam ely that th e “con duct n either c ause d nor th reaten ed se rious b odily

injury.” See Tenn. Code Ann. § 40-35-113(1). The Defendant offered several

other mitigating fac tors for con sideration , all of which th e trial court re jected. It

is also clear that the trial court found that the enhancement factors outweighed

the mitigating factor.

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 W e find no erro r with regard to the trial court’s application of the “previous

history of criminal behavior” enhancement factor. The State introduced proof of

multip le misdemeanor convictions in addition to the felony co nvictions u sed to

support sentencing the Defendant as a Range II multiple offender. Likewise, we

find no error with regard to the trial court’s application of only one mitigating

factor, that the Defendant’s conduct “neither caused nor threatened serious

bodily injury.”

From our review of t he record, ho wever, we co nclude that the trial cou rt

erred in applying the “leader in the commission of the offense” enhancement

factor pursuant to Tennessee Code Annotated section 40-35-114(2). The

Defe ndan t’s conviction rested on the circumstances discovered upon his arrest

at the bank and the inference arising from possession of recently stolen prop erty.

The State offered no proof at trial or at the sentencing hearing from which the trial

court could have reasonably concluded that the Defendant qualified as a leader

in the com mission of the offense. As a result, it was e rror for the trial c ourt to

apply that enha nceme nt factor.

Yet we believe that there was anothe r approp riate enhancement factor not

applied by the trial court. The certified copies of convictions from P enns ylvania

clearly reveal that two of the Defendant’s prior felony convictions for bu rglary,

numbe rs 601 Criminal 1990(A-2) and 1928 Crimina l 1989 , were c omm itted “wh ile

the defendant was on parole or otherwise out of jail.” Given that evidence, we

believe that trial c ourt co uld have properly found that the Defendant has a

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“previous history of unwillingness to comply with the conditions of a sentence

involving release into the comm unity.” See Tenn. C ode Ann . § 40-35-114 (8). 5

Having reviewed the applicable enhancement and mitigating factors, we

conclude that the trial court did not err in sentencing the Defendant to the mid-

range sentence of eight years imprisonment. Although the trial judge incorre ctly

applied the “lea der in th e com miss ion of th e offen se” en hanc eme nt facto r, he did

not apply the appropriate “previous history of unwilling ness to c omply w ith

release into the community” enhancement factor. Because we find no other

sente ncing errors, we be lieve tha t the trial c ourt’s s enten ce of e ight yea rs is

adeq uately supported by the re cord. T hus, th e Def enda nt’s fifth is sue is without

merit.

For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s issues on appeal lack merit. We therefore affirm the ju dgme nt of the

trial court.

5
We point out that we are not considering whether the Defendant was on parole from those
Pennsylvania burglary convictions (numbers 601 Criminal 1990(A-2) and 1928 Criminal 1989) at the
time of the offense involved in the case sub judice, as is alleged in the presentence report. Rather we
are considering the fact, established by the certified copies of the Pennsylvania convictions introduced
at the sentencing hearing, that the Defendant committed those two Pennsylvania burglaries while he
was on some form of release into the community from prior convictions.

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 ____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
JOSEPH M. TIPTON, JUDGE

___________________________________
JERRY SCOTT, SPECIAL JUDGE

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