            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

             STATE OF TENNESSEE v. RONALD WAYNE ASHBY

                   Direct Appeal from the Circuit Court for Lincoln County
                      No. S9800101 William Charles Lee, Trial Judge



                    No. M1999-01247-CCA-R3-CD - Decided July 12, 2000


The defendant appeals his aggravated burglary conviction. He asserts that insufficient evidence
supported the jury verdict, that the trial court improperly admitted evidence of another crime, and
that his sentence is excessive. We conclude that sufficient evidence supported the verdict and that
the “other crime” evidence was properly admitted. We affirm the sentence.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

WILLIAMS, J., delivered the opinion of the court, in which WADE, P.J., and SMITH, J., joined.

Larry Wallace, Assistant Public Defender, Fayetteville, Tennessee, for the appellant, Ronald Wayne
Ashby, at trial. Robert Massey, Pulaski, Tennessee, for the appellant, Ronald Wayne Ashby, at
sentencing and motion for new trial.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General,
William Michael McCown, District Attorney General, Ann L. Filer, Assistant District Attorney, for
the appellee, State of Tennessee.

                                             OPINION

                                            Introduction

         The defendant, Ronald Wayne Ashby, was tried by jury in the Lincoln County Circuit Court
and convicted as charged of aggravated burglary. At trial, the trial court admitted evidence regarding
a crime allegedly committed by the defendant while on bond for the instant offense. After the jury
verdict, the trial court sentenced the defendant as a Range I standard offender to four years and three
months. That court imposed split confinement, with nine months to be served in the Lincoln County
Jail, followed by five years of probation.1 From this conviction and sentencing, the defendant now


       1
         A trial court may impose probation equaling the statutory minimum for the class of the
offense. See Tenn. Code Ann. § 40-35-303(c), Sentencing Comm’n Comments; State v. Kristina
Schindler, No. 03C01-9610-CR-00376 (Tenn. Crim. App. filed Sept. 9, 1997, at Knoxville), aff’d
appeals.

                                                Facts

        From the jury verdict of guilty, we review the facts in a light most favorable to the state. On
or about June 22, 1998, at approximately 10:30 a.m., Reverend Don Russell, the victim, was in Park
City Baptist Church and saw a truck in the driveway of his residence across the street. Investigating,
the victim entered his home and intercepted the defendant leaving the area of the master
bedroom/bathroom. The defendant asked the victim if he was a “Mr. Gulley,” with whom the
defendant claimed an agreement to repair bathroom sheet rock in the Gulley residence. According
to the defendant, Gulley was to leave his residence unlocked for entry. The victim informed the
defendant he was in the wrong house and that Mr. Gulley lived approximately two-tenths of a mile
down the road. Satisfied with this explanation, the victim returned to the church. However, a
subsequent investigation resulted in the arrest of the defendant charging him with aggravated
burglary. The investigation revealed, as well as the evidence at trial, that no such agreement or
arrangement existed between Gulley and the defendant.

        By the trial date, the defendant had been indicted for a burglary in Alabama, allegedly
committed under similar circumstances while on bond from the instant case. The trial court
conducted a pre-trial hearing and held that evidence of this crime would be admissible for cross
examination purposes regarding identity and absence of mistake. At trial, the trial court admitted
the evidence after concluding that the defendant had “opened the door,” during cross examination
of the victim and of an investigating officer, by implying that the defendant entered the victim’s
residence for legitimate purposes and without intent to commit theft.

        After the jury verdict of guilty, the trial court conducted a sentencing hearing that included
testimony from the victim, the defendant, and the defendant’s wife. The defendant was sentenced
to four years and three months split confinement: seven months incarceration followed by five years
of probation.

                                      Sufficiency of Evidence

        The defendant was convicted of aggravated burglary: Entry of a residence with neither
express nor constructive permission with the intent to commit, in this case, a theft. See Tenn. Code
Ann. §§ 39-14-401, -402, -403. As noted, the defendant has asserted that evidence regarding his
committing a similar crime was improperly admitted at trial. Although the defendant’s argument
is without merit, the remaining evidence nevertheless sufficiently supports conviction. We address
sufficiency of evidence questions under our well-established standard of review.

        When an accused challenges the sufficiency of the evidence, this Court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the findings


and modified on other grounds, State v. Schindler, 986 S.W.2d 209 (Tenn. 1999).

                                                 -2-
by the trier of fact of guilt beyond a reasonable doubt.” See Tenn. R. App. P. 13(e). This Court
neither reweighs nor reevaluates the evidence, see State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978), nor substitutes its inferences for those drawn by the trier of fact from circumstantial evidence,
see Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). To the contrary, this Court is required to
afford the party prevailing at trial the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences that may be drawn from the evidence. See
State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

        Questions concerning the credibility of the witnesses, the weight and value to be given the
evidence, and all factual issues raised by the evidence are resolved by the trier of facts, not this
Court. Id. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court
stated, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.”

        The evidence established that the defendant opened a door and entered the Russell residence.
Therefore, the crux of our inquiry addresses the intent behind that entry: Did sufficient proof support
the jury’s finding that, beyond a reasonable doubt, the defendant entered the Russell house to
commit theft, especially when the defendant possessed no property from that house? While such
possession may constitute direct proof of intent, its absence does not preclude a burglary conviction.
“In fact, intent can rarely be shown by direct proof and must, necessarily, be shown by circumstantial
evidence.” Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973). In Hall, the defendant was
apprehended in a residence but possessed none of the owner’s property, and he asserted that
insufficient evidence supported the conclusion that he entered the residence with the requisite intent.
Id. at 495-96. The Tennessee Supreme Court rejected that assertion and upheld the conviction,
recognizing:
        [a] general proposition that where one is apprehended . . . gain[ing] illegal entry into
        a residence . . . in which there is property which is the subject of larceny, a jury
        would be warranted in inferring, in the absence of an acceptable excuse, that the
        entry was made . . . with the intent to commit larceny.
Id. at 496. Therefore, “the intent to steal may be inferred from the breaking and entering of a
building which contains things of value or from the attempt to do so.” Id.; see also State v. William
Paul Bogus, No. 02C01-9506-CC-00169 (Tenn. Crim. App. filed Jan. 22, 1998, at Jackson)(applied
the Hall holding under the present aggravated burglary statute).

         The evidence supported any rational trier of fact’s concluding that the elements of the
charged offense were proven beyond a reasonable doubt. Russell testified that he left his house with
one door unlocked but closed. Entry through that closed door satisfied the “breaking and entering”
element. See Ivey v. State, 598 S.W.2d 806 (Tenn. Crim. App. 1979). The testimony established
that the defendant did not have permission to enter the Russell residence and that no one acquiesced
to that entry. Finally, Russell entered the house and met the defendant exiting the master bedroom.

       The defendant’s excuse for his presence in the residence collapsed on subsequent inquiry.
Michael Ray Gulley testified that although the defendant approached him two or three months before
the burglary regarding work, he neither scheduled work with the defendant nor agreed to leave his

                                                  -3-
residence unlocked for him. The defendant’s discussion with Gulley did not even involve sheetrock
in a bathroom but rather a stairway. The houses are separated by approximately .2 of a mile, with
separate driveways. The residences are of contrasting styles and structures: the Russell family’s
brick one-story ranch style residence versus Gulley’s grey vinyl siding two-story Cape Cod-style
structure. Further, the defendant had worked at Gulley’s residence in 1992 and had spoken face-to-
face with Gulley two or three months prior to the burglary. These facts adequately supported the
jury’s rejection of the defendant’s proffered “acceptable excuse.” This issue is without merit.

                             Evidence of Other Crimes or Bad Acts

        As previously discussed, sufficient evidence supported the verdict, even absent the 404(b)
evidence. That evidence addressed intent, however, and would support the verdict against the
defendant. The trial court admitted the challenged 404(b) evidence after concluding that the
defendant implied that he was in the Russell house by mistake, believing that he was in a residence
to perform repair work.

        We review admission of 404(b) evidence by an abuse of discretion standard if “there has
been substantial compliance with the procedural requirements of the Rule.” See State v. DuBose,
953 S.W.2d 649, 652 (Tenn. 1997). Generally, evidence of other bad acts or crimes by a defendant
is prohibited because such evidence could confuse the jury or unduly prejudice the defendant. See
Tenn. R. Evid. 404(b); State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999). Such evidence is
admissible, however, to prove an issue, other than conduct in conformance with a character trait, that
is relevant and contested at trial. See Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980). For
example, such evidence may be admissible when it logically tends to “rebut a claim or mistake or
assertion of accident as a defense.” See State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996). The
Rule establishes the following procedure for proper admission:
        (1) The court upon request must hold a hearing outside the jury’s presence;
        (2) The court must determine that a material issue exists other than conduct
            conforming with a character trait and must upon request state on the record the
            material issue, the ruling, and the reasons for admitting the evidence; and
        (3) The court must exclude the evidence if its probative value is outweighed by the
            danger of unfair prejudice.
Tenn. R. Evid. 404(b)(1)-(3). Additionally, the trial court must find by “clear and convincing”
evidence that the defendant committed the other crime. See Tenn. R. Evid. 404, Advisory Comm’n
Comment; State v. Parton, 694 S.W.2d 299 (Tenn. 1985).

        In the instant case, the trial court held a pre-trial hearing regarding the Alabama incident.
That court determined the evidence potentially relevant for purposes of cross examination on the
issues of identity or absence of mistake.

       During trial, the defendant’s counsel asked Russell if the defendant had given him a business
card. Counsel asked both Russell and the investigating officer if the defendant had any of the
Russell family’s possessions. On the state’s request, the trial court conducted a jury-out hearing,
determined that the defendant had “opened the door” regarding the issue of intent, and admitted

                                                 -4-
testimony of the alleged Alabama offense.2

        Regarding the Alabama charge, James Moore testified that on August 21, 1998, he
intercepted the defendant leaving his father’s residence. He said that the defendant asked him if he
was “Smith” and stated that he, the defendant, must be at the wrong address because he was
scheduled to do repair work at a Smith residence in that area. Moore also said he believed that the
defendant had searched the house and prepared to take certain items before Moore’s arrival: Moore
found open drawers and unplugged electrical devices.

         John Wall, an investigator with the local sheriff’s office, testified that the defendant stated
that he initially approached that residence to do repair work for a Mr. Smith. Entering the residence
and finding no one home, he took a bottle of pain pills and was met and held by Moore. The
defendant was charged under Alabama law with third degree burglary.

        Although a balancing of probative value versus unfair prejudice apparently did not occur at
the jury-out hearing conducted during the trial, the trial court did address this balance at the pre-trial
hearing. We conclude that the trial court sufficiently followed the required procedure. See DuBose,
953 S.W.2d at 652-53; State v. Electroplating, Inc., 990 S.W.2d 212, 223 (Tenn. Crim. App. 1998).
Further, we do not find that the trial court abused its discretion by concluding that the defendant
contested intent at trial. Once the issue of intent was raised, the evidence of the subsequent incident
in Alabama became especially important: “little direct proof of intent increase[d] the probative value
of the testimony, rather than decrease[d] it.” Electroplating, Inc., 990 S.W.2d at 224. While an
indictment on a pending charge does not necessarily constitute clear and convincing evidence, the
uncontroverted testimony at trial sufficiently met the required standard. See id. at 223. We conclude
that the trial court did not abuse its discretion in admitting the evidence. Further, any error in the
admission did not “more probably than not affect[] the judgment or . . . result in prejudice to the
judicial process,” Tenn. R. App. P. 36(b), or “affirmatively appear to have affected the result of the
trial on the merits,” Tenn. R. Crim. App. 52(a). This issue is without merit.

                                              Sentencing

        At the sentencing hearing, the trial court found two mitigating factors applicable: “the
defendant’s criminal conduct neither caused nor threatened serious bodily injury,” Tenn. Code Ann.
§ 40-35-113(1); and the defendant had a drug problem. Regarding the latter factor, the record does
not establish whether the trial court applied it as strong provocation for commission of a criminal
offense, see Tenn. Code Ann. § 40-35-113(2), or under the “catch-all” provision, see Tenn. Code
Ann. § 40-35-113(13). That court then determined that the defendant previously exhibited criminal




        2
          Although the pre-trial hearing addressed admission of the evidence for impeachment
purposes, the testimony under these circumstances constituted substantive evidence. See Laird v.
State, 565 S.W.2d 38, 40 (Tenn. Crim. App. 1978).

                                                   -5-
behavior, see Tenn. Code Ann. § 40-35-114(1), and “used a special skill3 in a manner that
significantly facilitated the commission or the fulfillment of the offense,” see Tenn. Code Ann. § 40-
35-114(15). Assigning little weight to the mitigating factors and, under the circumstances of the
similar crime committed while on bond, substantial weight to enhancement factor (1), the trial court
raised the presumptive three-year minimum sentence for a Class C standard offender to four years
and seven months and then lowered that sentence to four years and three months. The first nine
months were to be served in a Lincoln County jail, with the subsequent five years on probation. The
defendant argues that this sentence is in error because:
        (1) He is statutorily presumed eligible, and should receive, alternative sentencing;
           and
        (2) confinement exceeding that already served is inappropriate.

        Our granting a presumption of correctness to the trial court’s sentencing determinations is
conditioned on the record affirmatively showing that the trial court considered the sentencing
principles and the relevant facts and circumstances. See Tenn. Code Ann. § 40-35-401(d); State v.
Poole, 945 S.W.2d 93 (Tenn. 1997); State v. Ashby, 823 S.W.2d 166 (Tenn. 1991).

        After reviewing case law regarding the “special skill” enhancement factor, we do not concur
with its application in the instant case. Without determining whether the defendant’s vocation
constituted a “special skill” as contemplated by the statute, we conclude that a stronger relationship
between a skill and commission of a crime should predicate application of that factor.4 The plain
language of the statute requires a “significant relationship” between the application of the skill and
the facilitation of the crime. The enhancement factor may be properly applied when a respiratory
therapy technician uses his position in the medical field and relationship to medical professionals
and pharmacists to fraudulently obtain codeine and hydrocodone from pharmacies. See State v.
Cummings, 868 S.W.2d 661 (Tenn. Crim. App. 1992). The factor is also appropriate when an office
manager and bookkeeper uses her position with an employer to embezzle funds and to cover the
crime with false bookkeeping entries. See State v. Lesa Mae Malone, No. 01C01-9706-CC-00234
(Tenn. Crim. App. filed July 30, 1998, at Nashville); State v. Barbara D. Frank, No. 03C01-9209-
CR-00303 (Tenn. Crim. App. filed Dec. 22, 1993, at Knoxville). In contrast, when the owner of an
industrial business discharges chemicals and waste in contravention of Tennessee environmental
laws, the defendant’s mere possession of “specialized knowledge regarding the manufacture of
chemicals” does not indicate exercise of a “skill so specialized as to facilitate the commission of acts
of environmental vandalism.” State v. Phillip Drew Cantwell, No. 01C01-9701-CC-00035 (Tenn.
Crim. App. filed Nov. 16, 1998, at Nashville).

      In the instant case, the correlation between defendant’s criminal activity and his vocation was
minimal: Ostensibly, his vocation involves his driving in communities without the immediate


       3
           That skill was the defendant’s trade as a home contractor.
       4
         This factor may also be applied when a defendant violates a trust. See Tenn. Code Ann.
§ 40-35-114(15).

                                                  -6-
supervision of an employer and with an excuse should he be discovered in a residence. Such
relationship does not merit application of the factor. The record indicates no further correlation
between the skill and the crime. Nothing establishes that the defendant “cased” residences while
working in them, and nothing indicates that he used his construction skills or tools to aid in entry.
Amy Renfroe, a witness who testified at the sentencing hearing, said that the defendant rattled their
doorknob and looked under the mat for a key, actions that do not involve any special skill.

         However, we find no reversible error in the trial court’s sentencing. A Class C standard
offender, presumed a favorable candidate for probation, must prove such probation is in “the best
interest of both the public and the defendant.” See Tenn. Code Ann. §§ 40-35-102, -303(b); State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. 1995); State v. Fletcher, 805 S.W.2d 785, 787 (Tenn.
Crim. App. 1991). The trial court must determine that incarceration in a given case is appropriate.
First, the evidence at the hearing indicated that the defendant had committed another similar crime,
under circumstances congruent with those of the instant crime, while on bond. Thus, a measure less
restrictive than confinement had been recently, and unsuccessfully, applied to him. See Tenn. Code
Ann. § 40-35-103(1)(C). Although pending charges are not proper bases for applying Tennessee
Code Annotated § 40-35-114(1), see State v. Buckmeir, 902 S.W.2d 418, 424 (Tenn. Crim. App.
1995), a trial court may apply that factor if the underlying criminal behavior is established by a
preponderance of the evidence, see State v. Carico, 968 S.W.2d 280 (Tenn. 1998). The witnesses’s
testimony, credited by the trial court, established that preponderance. Before invoking his right
against self-incrimination at the hearing, the defendant did admit coming from the Alabama
residence with pills. That defendant also admitted to engaging in illicit narcotics transactions and
abuse.

        The trial court further determined that the defendant was not being truthful with the court and
was not taking responsibility for his actions, circumstances indicative of lowered potential for
rehabilitation. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Dowdy,
894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).5 This issue is without merit.

                                             Conclusion

       The judgment and sentence from the trial court is affirmed.




       5
         The defendant admitted at the sentencing hearing that he was found with a bottle of pills
from the Alabama residence in his possession but then exercised his privilege against self-
incrimination. Our accord with the trial court’s finding lack of truthfulness and responsibility does
not encompass the defendant’s reticence on that issue.

                                                 -7-
