        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2015

            STATE OF TENNESSEE v. CASEY DEWAYNE MOON

                Appeal from the Criminal Court for Davidson County
                    No. 2013-A-467    Cheryl Blackburn, Judge


                 No. M2014-00886-CCA-R3-CD – Filed April 28, 2015



A Davidson County jury convicted appellant, Casey Dewayne Moon, of aggravated
burglary, a Class C felony, and theft of property valued under $500, a Class A
misdemeanor. The trial court sentenced him to four years for the aggravated burglary
conviction and a concurrent sentence of eleven months, twenty-nine days for the
misdemeanor theft conviction. The trial court ordered him to serve the first six months in
confinement with the remainder to be supervised in community corrections. On appeal,
appellant argues that the trial court erred by allowing the State to introduce evidence of a
prior theft conviction; that the evidence was insufficient to support his convictions; and
that the trial court erred in its sentencing. Following our review, we affirm the judgments
of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and CAMILLE R. MCMULLEN, JJ., joined.

Dawn Deaner, District Public Defender; and Emma Rae Tennant (on appeal), Kristin
Neff (at trial), and Patrick Hakes (at trial), Assistant District Public Defenders, Nashville,
Tennessee, for the appellant, Casey Dewayne Moon.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Bret Thomas
Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

                                    OPINION
                                     I. Facts
     On August 25, 2012, the sons and husband of Robin Hull, who had died in the
summer of 2012, were cleaning out her apartment in the Wedgewood Towers building.
After taking a break, the Hull brothers returned to their mother‟s apartment to find a man
with a cart of items taken from Mrs. Hull‟s apartment waiting on an elevator. They
confronted the man, and he returned the items to the apartment. One of the brothers
identified appellant in a photographic lineup as the man they had observed, and the
Davidson County grand jury subsequently indicted appellant for aggravated burglary and
theft of property valued at more than $500 but less than $1000.

        At appellant‟s trial, Cameron Russell Hull, the son of Robin Hull, testified that on
August 25, 2012, he, his brother, and his father were cleaning out Mrs. Hull‟s apartment.
They placed some items in the hallway for other residents to claim if they wanted the
items. They took a break to eat, and when Cameron1 and his brother returned, they saw a
man wearing a blue shirt with a shopping cart waiting for an elevator. He said that he
had never seen the man before that exact moment. Cameron testified that his mother‟s
television, steamer, and suitcase were in the shopping cart. From the witness stand, he
identified appellant as the man he saw with the shopping cart and his mother‟s
possessions. Cameron said that his brother confronted appellant, who responded that he
had been directed to take Mrs. Hull‟s electronics to the second floor. When asked
whether appellant told the brothers that he worked for the apartment or for maintenance,
Cameron replied, “I believe in that capacity he did.” Cameron said that when his brother
told appellant that they had until Monday to clean out Mrs. Hull‟s apartment, appellant
took the shopping cart back to Mrs. Hull‟s door and opened the door with a key that was
on a wooden dowel. Cameron testified that he was positive that they had locked the door
before they left for lunch. After appellant left, Cameron and his brother first called their
father and then, on their father‟s instruction, called 9-1-1. Cameron testified that the
television was worth at least $400 and that the steamer was worth between $20 and $40.
He said that the suitcase had a set of flatware inside and that he did not know the value of
the suitcase or the flatware. Cameron further testified that an HDMI cable worth $20 and
a DVD player worth at least $50 were also in the cart, as well as bars of soap, two bags of
potato chips, and a knife set. He estimated that the knife set was worth $20. Cameron
recalled that the television had been on its stand inside the apartment when they left for
lunch and that the knives had been packed inside a box. He said that a second television
had been moved from its customary location to the floor. Cameron testified that he was
the executor of his mother‟s estate and that he had not given anyone permission to enter
the apartment. He said that he met with the police ten to fourteen days after August 25 to
look at a photograph array. He testified that he identified appellant from the array as the
person whom he saw with his mother‟s property.

      Scott Forrest Hull II testified that on August 25, 2012, he was helping his brother
and father clean out his mother‟s apartment. He said that when he and his brother

1
  Because two witnesses bear the same surname, we will refer to them by their first names for the sake of
clarity. We mean no disrespect by this practice.
                                                 -2-
returned from lunch, they saw a man at the elevator on their mother‟s floor. He had a
shopping cart with items they recognized from their mother‟s apartment, including a
forty-two-inch television. Scott asked the man where he had gotten the television, and
the man replied that he was “moving stuff out of the apartment.” Scott said that he
specified that it was “Robin Hull‟s apartment.” Scott testified that the man identified
himself as a maintenance worker and claimed that “he was tasked by the property to
move stuff out of Robin Hull‟s apartment.” He did not give the Hull brothers the name of
the person who had given him this task. Scott testified that the man was wearing a navy
blue shirt and khakis. He believed that the shirt said “First Properties.” Scott said that
the man opened the door to Mrs. Hull‟s apartment with a key that “was on a rod of some
sort.” The man pushed the cart through the apartment door, and Scott told him not to
come back because they did not need any help. Scott testified that they called the police
five to ten minutes after the man left. He further testified that because he lived out of
town, he had not had the opportunity to see a photograph array nor had he been able to
attend appellant‟s preliminary hearing. Scott agreed that he had an opportunity to see
appellant earlier in the trial process and while he was on the witness stand. He testified
that appellant was “the person [he] saw from the elevator.” Scott said that he had not
seen appellant on any prior visits to his mother‟s apartment nor in the building on August
25. Scott testified that the flatware that appellant had taken was worth $100 to $200 and
that the Blu-ray player was worth $100. He further testified that while he could not recall
whether the person with the cart said anything about changing the locks on Ms. Hull‟s
apartment, he had sent an e-mail on August 28 about the events of August 25, and in that
e-mail, he had written that “the suspect does mention that he did change the locks on
Robin Hull‟s room, Room 402, and pushes the cart inside after opening the door with a
key.”

        John Reynolds, a dispatcher for the Metro Emergency Communications Center,
testified that the center‟s records showed that Cameron Hull called 9-1-1 at 5:44 p.m. on
August 25, 2012.

        Trish Greer testified that she was the district manager for First Cumberland
Properties in Middle Tennessee. She oversaw twenty-three to twenty-eight apartment
complexes at any given time, one of which was Wedgewood Towers, a Section Eight
high-rise with 120 units where Mrs. Hull lived. Ms. Greer said that when a tenant passed
away, if the tenant was the only leaseholder, then the landlord had to change the locks on
the apartment immediately. When the probate court appointed someone to have access to
the apartment, the landlord would give that person keys. No one from the management
company would be allowed access to the apartment except for emergencies. Ms. Greer
testified that the families of tenants typically had fourteen days to remove property from a
deceased tenant‟s apartment. Ms. Greer testified that Paula Evans was the property
manager at Wedgewood Towers. Regarding maintenance of the building, Ms. Greer
testified that a corporate-level maintenance crew led by Ernest Harrell was responsible
                                            -3-
for maintenance of Wedgewood Towers on August 25, 2012. She said that appellant
worked for Mr. Harrell. Ms. Greer said that she communicated with neither Mr. Harrell
or appellant about a maintenance issue at Wedgewood Towers on August 25. After the
incident, she requested and received a written statement from appellant on August 28,
which she read to the jury:

              I received a call from Paula on Saturday, August 25th, for an AC call
      for Apartment 811 at 3:00 p.m. I left and went to Wedgewood, arrived at
      around 3:45 p.m., parked on [the] third floor next to the dumpster. When I
      got out of my truck, I noticed Eddie for Unit 814 going through the
      dumpster. I asked Eddie what he was doing. He said he was getting stuff
      out that was being thrown away from Ms. Robin‟s apartment. I told him he
      could not be going through the dumpster. He told me that everyone else
      had been getting stuff out. I went in on the third floor, went up to the unit,
      811, found the unit had a grounded compressor, called Paula and Ernie to
      see if there was a vacant available to swap out a unit with if they didn‟t
      have one. This was at 4:25 p.m. Went down to the second floor, got an AC
      unit and the AC cart, went to 811. As I was going up in the elevator, the
      son of Robin Hull got on the elevator with me. I went to 811, swapped out
      the AC unit, left 811, went to the second floor, returned the AC unit and the
      AC cart, exited out of the second floor door and placed keys back under a
      rock outside of the second floor door, went around the building to my truck
      still parked next to the dumpster, and left at around 5:00 p.m. Went home
      and took a shower and was called at 6:20 by Paula while me and my
      girlfriend were out at supper.

       Paula Evans, the property manager for Wedgewood Towers, testified that she
received a call on August 25 from Apartment 811 that the tenant‟s air conditioner was not
working. She called appellant about the problem because Mr. Harrell was on vacation
out of town. Ms. Evans recalled that appellant asked her to call Mr. Harrell anyway,
which she did. Later that day, at 5:55 p.m., she received a message from Scott Hull, Sr.
Because of that message, she called appellant. She first asked appellant whether he had
taken care of the maintenance issue in Apartment 811 and then asked whether appellant
had been wearing khakis and “a blue shirt with white writing of FCP property on it.”
Appellant responded that he had worked on Apartment 811‟s air conditioner and that he
had been wearing khaki shorts and a shirt with the property company‟s name on it. He
did not tell her what color shirt he had been wearing. Ms. Evans testified that no one else
who did maintenance work at Wedgewood Towers was of the same age, race, and build
as appellant.

       On cross-examination, Ms. Evans acknowledged that appellant answered her
telephone call and did not seem nervous while he answered her questions. She testified
                                            -4-
that at the time of the incident in question, there were two skeleton or master keys for the
building, one of which she had. The second master key was on a copper dowel that was
hidden outside for the maintenance staff to use. Ms. Evans agreed that her telephone
number for work was xxx-1540.

       On re-direct examination, Ms. Evans testified that appellant performed the
mandatory replacement of the lock on Ms. Hull‟s apartment. On recross-examination,
she said that she asked appellant to change the locks the day she was notified that Ms.
Hull had passed away. Ms. Evans testified that there was not a work order for changing
the locks.

       Ernest Harrell testified that on August 25, 2012, he was out of town but was still
taking maintenance calls for First Cumberland Properties, with the plan to dispatch
appellant to do repairs as necessary. He said that he received a call from Ms. Evans that
day about an air conditioner at Wedgewood Towers. He called appellant to take care of
the problem.

       On cross-examination, Mr. Harrell testified that he remembered appellant‟s telling
him that Ms. Evans had called appellant to ask whether he had been in an apartment
because “somebody took something out of an apartment.” Mr. Harrell agreed that he and
appellant were friends. He said that he “might have” gone to Wedgewood Towers to
retrieve the hidden key after this incident. Mr. Harrell testified that appellant continued
to work for him for approximately two weeks after the incident, until management
ordered that he be fired. Mr. Harrell agreed that his telephone number was xxx-5813.

       Metro Nashville Police Detective Michael Butler testified that he prepared a
photograph array that included appellant‟s picture and that he showed the array to
Cameron Hull on September 4, 2012. Appellant‟s photograph was in position number
four in the array. Detective Butler testified that Cameron “immediately went to number
four, circled it, initialled it, and said that was the person he saw with a buggy that
contained his mother‟s property.” Detective Butler said that he would have also shown
the array to Scott if Scott had not lived out of town.

       Tennessee Bureau of Investigation Special Agent Michael Frizzell testified as an
expert in the use of cellular telephone records in law enforcement investigations. He said
that he had analyzed records for the number xxx-6927, which the parties had agreed
belonged to appellant, for the time period of August 24 to August 26, 2012. Focusing on
the time period of 3:25 p.m. to 6:25 p.m. on August 25, Agent Frizzell testified that
appellant‟s cellular telephone made data connections to the network at 4:14, 5:14, and
6:14. In each of these connections, the telephone connected to two cellular towers. At
4:14 and 5:14, the telephone connected to the same two towers both times. At 6:14, the
telephone connected to one of the same towers as the previous times but also to a new
                                            -5-
tower. Agent Frizzell testified that this change indicated that the telephone had moved to
a different location. He said that his analysis also took into account the voice
conversations between 4:14 and 5:14 that were using a cellular tower close to
Wedgewood Towers. He further testified that a 6:07 p.m. text that connected to a tower
9.1 miles away from Wedgewood Towers also showed that the telephone had changed
locations.

        The State rested its case-in-chief following Agent Frizzell‟s testimony.
Subsequently, appellant called John Terry, an investigator with the District Public
Defender‟s office, to testify on his behalf. Mr. Terry testified that according to the
telephone records, at 3:53 p.m. on August 25, telephone number xxx-6927 (previously
identified as appellant‟s number) sent a text message to xxx-5813 (previously identified
as Mr. Harrell‟s number). At 4:22 p.m., xxx-6927 (appellant) called xxx-5813 (Mr.
Harrell). At 4:25 p.m., xxx-6927 called xxx-5813 (Mr. Harrell) and xxx-1540
(previously identified as Ms. Evans‟ number). At 4:26 p.m., xxx-6927 (appellant) called
xxx-1540 (Ms. Evans). At 4:41 p.m., xxx-5813 (Mr. Harrell) called xxx-6927
(appellant). At 6:07 p.m., xxx-5813 (Mr. Harrell) sent a text message to xxx-6927
(appellant). At 6:10 p.m., xxx-6927 (appellant) sent a text message to xxx-5813 (Mr.
Harrell). At 6:19 p.m., xxx-1540 (Ms. Evans) called xxx-6927 (appellant). At 6:25, xxx-
6927 (appellant) called xxx-5813 (Mr. Harrell).

       Appellant testified on his own behalf and said that he had worked for First
Cumberland Property for two to two and a half years prior to the incident in question. He
agreed that in 2011, he had received a citation for misdemeanor theft and had pleaded
guilty. Appellant testified that he and his supervisor, Mr. Harrell, kept the master key to
Wedgewood Towers on a two-foot long copper rod that they kept hidden outside the
building so that either of them could access it as needed. Appellant said that on August
25, a Saturday, Paula Evans called him around 1:30 p.m. He arrived at the property at
approximately 4:00 p.m. He said that he first went to the eighth floor using the elevator,
then went to the maintenance shop on the second floor. He put an AC unit on a cart,
returned to the eighth floor, swapped out the AC units, and returned to the second floor.
Appellant stated that while he was at the property, he called his supervisor both before
and after completing the task and also called the property manager. Appellant testified
that when he first arrived at the property, he saw a resident going through the dumpster.
He further testified that he saw the Hull brothers on the elevator. He said that he did not
know the Hull brothers‟ first names but recognized them from having seen them at the
property before that day. Appellant stated that he had not had any previous interaction
with them. Appellant testified that he did not go into Robin Hull‟s apartment on August
25 nor did he remove anything from her apartment. He said that when he left the
property, he went home, showered, and went to a restaurant with his girlfriend. Appellant
stated that Paula Evans called him at 6:10 or 6:15 p.m. and asked him whether he had
fixed the AC unit and whether he remembered what shirt he had been wearing. He said
                                            -6-
that he had to ask his girlfriend about the color of the shirt that he had worn to work.
Appellant testified that Ms. Evans also asked him whether he had been in Robin Hull‟s
apartment or on the fourth floor and that he told her he had not. Appellant said that four
days later, he was asked to submit a written statement about his activities on August 25
and that two or three weeks later, he was suspended from work. Appellant testified that
the maintenance crew always had either paper work orders or had to document work
orders through e-mail. He said that he could not recall being asked to change the locks
on Robin Hull‟s apartment and that if he had been asked, then there would have been a
work order.

       On cross-examination, appellant testified that he would not have changed the locks
on an apartment without a work order. He agreed that his recollection of events would
have been “fresh” on August 28, the day that he submitted a written statement. He
further agreed that his statement said that he arrived at the property at 3:45 p.m.
Appellant acknowledged that the resident who had been going through the dumpster told
him that some of Robin Hull‟s possessions had been thrown away. Appellant said that he
made a mistake in his statement when he wrote “the son of Robin Hull” rather than
“sons.” He said that the cart on which he had transported the air conditioning unit was
three feet by four feet and agreed that he, the cart, and both Hull brothers were in an
elevator together. Appellant testified that he left Wedgewood Towers at 5:00 p.m. and
had not seen any other First Cumberland Properties employees while he had been there.

       Marcie Davis testified that she was appellant‟s fiancée and that on August 25,
2012, she and appellant had lived in a house in Antioch, Tennessee. She said that she
remembered appellant‟s receiving a call to do an air conditioning repair job that day. She
recalled that when he returned, he took a shower before they went to eat at a restaurant
nearby. While they were at the restaurant, appellant received a telephone call from Paula
Evans. Ms. Davis testified that appellant‟s demeanor had been “normal” before the
telephone call but that after the call, he was “a little upset.”

      Following the close of proof and deliberations, the jury convicted appellant of
aggravated burglary, a Class C felony, and the lesser-included offense of theft of property
valued at less than $500, a Class A misdemeanor.

       Subsequently, the trial court held a sentencing hearing. The State submitted
appellant‟s presentence report, an addendum to the presentence report, and his negative
drug screen results as exhibits. The State also called David Shearon to testify. Mr.
Shearon testified that he had known appellant for approximately twelve years and that he
had hired him to be an apartment manager for one of his properties after appellant was
fired from First Cumberland Properties. Mr. Shearon explained that he had believed
appellant when appellant claimed he was innocent. However, Mr. Shearon later
terminated appellant because (1) appellant refused to participate in an inspection of the
                                            -7-
property; (2) a tenant who was behind on his rent told Mr. Shearon that he had paid the
rent in cash to appellant and had receipts signed by appellant as proof; and (3) Mr.
Shearon found a person living in the building for whom he had no records, and the person
reported that he had paid appellant some money. Mr. Shearon testified that appellant
claimed he had provided receipts for the tenant to help the tenant find another apartment
and that the situation with the person living in the building without paperwork had yet to
be resolved satisfactorily. Mr. Shearon said that before these issues arose, he had told
appellant that he would be a character witness for him but that appellant had refused his
help in that regard. Mr. Shearon stated that he felt betrayed by appellant.

       The trial court found that appellant had a history of criminal conduct in addition to
that necessary to set his range and, based on the fact that appellant was on probation for
misdemeanor theft when he committed the instant offense, that appellant committed the
offense while on probation. See Tenn. Code Ann. § 40-35-114(1), (13)(A). The trial
court further found as a mitigating factor that appellant‟s conduct did not cause or
threaten serious bodily injury. Id. § 40-35-113(1). The trial court then set appellant‟s
sentence at four years for the aggravated burglary conviction and eleven months, twenty-
nine days for the theft conviction. The trial court determined that some incarceration was
appropriate in this case and ordered that appellant serve six months of his sentence in
confinement with the remaining time supervised by community corrections.

       Appellant filed a timely motion for new trial, which the trial court denied after a
hearing. Thereafter, he properly filed a notice of appeal.

                                       II. Analysis

                                       A. Rule 609

       Appellant argues that the trial court erred by allowing the State to impeach his
credibility by admitting evidence of his prior theft conviction, which was substantially
similar to the offense for which he was being tried. The State responds that the trial court
followed the appropriate procedure and analysis and therefore did not abuse its discretion
in admitting evidence of the prior theft conviction.

       We review a trial court‟s ruling on the admissibility of prior convictions for
impeachment purposes for abuse of discretion. State v. Lankford, 298 S.W.3d 176, 180
(Tenn. Crim. App. 2008); State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). Rule 609
of the Tennessee Rules of Evidence governs the use of prior convictions for impeachment
evidence. The rule states, in part:

       (a)(3) If the witness to be impeached is the accused in a criminal
       prosecution, the State must give the accused reasonable written notice of
                                            -8-
       the impeaching conviction before trial, and the court upon request must
       determine that the conviction‟s probative value on credibility outweighs its
       unfair prejudicial effect on the substantive issues. The court may rule on
       the admissibility of such proof prior to the trial but in any event shall rule
       prior to the testimony of the accused. If the court makes a final
       determination that such proof is admissible for impeachment purposes, the
       accused need not actually testify at the trial to later challenge the propriety
       of the determination.

As applicable in this case, Rule 609 permits, under certain conditions, introduction of an
accused‟s misdemeanor conviction for impeachment purposes if the offense involved
dishonesty. Tenn. R. Evid. 609(a)(2). The trial court must make a determination of
whether the probative value of prior conviction outweighs its prejudicial effect. Id.
609(a)(3). In doing so, the court “should assess the similarity between the crime on trial
and the crime underlying the impeaching conviction. As a general rule, „the unfairly
prejudicial effect of an impeaching conviction on the substantive issues greatly increases
if the impeaching conviction is substantially similar to the crime for which the defendant
is being tried.‟” N. Cohen, S. Sheppeard, & D. Paine, Tennessee Law of Evidence §
609.10(c) (6th ed. 2011). Our supreme court has stated that

       when an impeaching conviction is substantially similar to the crime for
       which the defendant is being tried, there is a danger that jurors will
       erroneously utilize the impeaching conviction as propensity evidence of
       guilt and conclude that since the defendant committed a similar offense, he
       or she is probably guilty of the offense charged. Accordingly, the unfairly
       prejudicial effect of an impeaching conviction on the substantive issues
       greatly increases if the impeaching conviction is substantially similar to the
       crime for which the defendant is being tried. Therefore, trial courts should
       carefully balance the probative value of the impeaching conviction on
       credibility against its unfairly prejudicial effect on substantive issues.

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999) (internal citations omitted).

      In this case, the State properly notified appellant of its intent to use his 2011
misdemeanor theft conviction as impeachment evidence in this case. The trial court held
a hearing on the matter prior to trial, and both parties presented brief arguments.
Appellant contended that the prior theft conviction should not be introduced because he
was being tried for theft. The State responded that the prior conviction should be
admitted because of its high probative value regarding credibility. The trial court ruled as
follows:


                                             -9-
       Well, 609 is clear about the procedure that needs to be followed about
       impeachment of evidence, conviction of the crime. That is, before trial
       hold a jury-out hearing, which is what we‟re doing right now, and then I
       have to determine whether the probative value on credibility outweighs its
       unfair prejudicial effect on substantive issues. Looking at the conviction, it
       is a theft. It is clearly within the ten[-]year time frame. It‟s in 2011. And it
       is the most probative on the issue of credibility of any crime that you can
       have. That is, it‟s a crime of dishonesty. He is charged with a theft. He‟s
       also charged with aggravated burglary but with theft. That‟s pretty - - well,
       if Mr. Moon is going to testify, his credibility is going to be very much at
       issue. So I‟m going to allow the State to do that should he testify just
       because it‟s so probative of the issue of credibility. A different crime
       maybe not so much, but that one is. So that would be my ruling on that.

       While the trial court was not as explicit in its ruling as it could have been, the
court‟s ruling nonetheless substantially followed the procedural requirements of Rule 609
and the applicable case law. There was no need to further analyze the substantial
similarity between the prior conviction and the instant offense of theft because they were
the same, and the trial court‟s comment that the aggravated burglary was based on theft
sufficed to show that the court considered it similar to theft. Furthermore, the trial
court‟s emphasizing that theft “is the most probative on the issue of credibility of any
crime” and that appellant‟s credibility would “be very much at issue” if he testified,
coupled with its acknowledgement that it must balance the probative value against the
unfair prejudicial effect, was in effect a determination that the probative value
outweighed the unfair prejudicial effect. Thus, the trial court‟s ruling is entitled to
deference. Lankford, 298 S.W.3d at 182.

       Moreover, the trial court did not abuse its discretion in its ruling. This court has
previously held that the offense of theft is a crime involving dishonesty and is therefore
highly probative of credibility. Id. at 181 n.1 (citing State v. Baker, 956 S.W.2d 8, 15
(Tenn. Crim. App. 1997)). In addition, “[t]he fact that a prior conviction involves the
same or similar crime for which the defendant is being tried does not automatically
require its exclusion.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007).
Because appellant provided an entirely different version of events than other witnesses in
this case, his credibility was a central issue, but it was not the only issue. The trial court
also gave a limiting instruction to the jury that they were only to consider the prior
conviction for purposes of assessing appellant‟s credibility. Therefore, we conclude that
appellant is without relief as to this issue.




                                             -10-
                              B. Sufficiency of the Evidence

       Appellant next argues that the evidence was insufficient to support his convictions
for aggravated burglary and misdemeanor theft of property. He contends that the State
did not prove his identity as the perpetrator. The State responds that not only did two
witnesses identify appellant as the perpetrator but other evidence existed to show by
process of elimination that appellant was the perpetrator. We agree with the State.

       The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

      To sustain a conviction for aggravated burglary, the State must prove beyond a
reasonable doubt that appellant committed the burglary of a habitation. Tenn. Code Ann.
§ 39-14-403(a). “A person commits burglary who, without the effective consent of the
                                            -11-
property owner . . . [e]nters a building other than a habitation (or any portion thereof) not
open to the public, with intent to commit a felony, theft or assault.” Id. § 39-14-
402(a)(1). Burglary can be proven through direct or circumstantial evidence. See State v.
Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). Aggravated burglary is a Class C
felony. Tenn. Code Ann. § 39-14-403(b).

       To support a conviction for theft of property, the State must prove that appellant,
“with intent to deprive the owner of property, . . . knowingly obtain[ed] or exercise[ed]
control over the property without the owner‟s effective consent.” Tenn. Code Ann. § 39-
14-103(a). Theft of property valued at $500 or less is a Class A misdemeanor. Id. § 39-
14-105(a)(1).

       Identity is an essential element of any crime. State v. Thompson, 519 S.W.2d 789,
793 (Tenn. 1975). The State may prove identity through direct or circumstantial
evidence. Id. It is well-established that the issue of the perpetrator‟s identity is a
question of fact for the jury. See State v. Vaughn, 29 S.W.2d 33, 40 (Tenn. Crim. App.
1998); State v. Phillips, 728 S.W.2d 21, 25 (Tenn. Crim. App. 1986).

        Viewed in the light most favorable to the State, the evidence presented at trial
showed that the perpetrator entered the locked apartment of the deceased Robin Hull and
placed several of her possessions in a cart that he then wheeled to the elevator. Both
Cameron Hull and Scott Hull II identified appellant as the person who had a cart-load of
their mother‟s possessions. As this court has previously stated, “[t]he credible testimony
of one identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made.”
State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). In this case, Cameron
Hull identified appellant in a photograph array after the incident and again at trial. Scott
Hull II also identified appellant at trial. The Hull brothers testified about the value of the
property. Cameron Hull, as the executor of Robin Hull‟s estate, testified that appellant
did not have his permission to be in the apartment. The perpetrator seen by the Hull
brothers was wearing a shirt that identified him as an employee of the apartment
management company, and the perpetrator also told the brothers that he was a
maintenance employee. According to the witnesses, no other maintenance employee fit
appellant‟s description. Furthermore, appellant was at Wedgewood Towers on the day in
question. Appellant testified to this fact himself, and his cellular telephone records
confirmed that he was in the area. Appellant had access to the apartment considering he
had a master key, and the perpetrator also had a key to the apartment. Despite appellant‟s
contention that he had left the apartment complex around 5:00 p.m. and thus could not
have been the perpetrator, his cellular telephone records suggest that he could have left at
a later time because the first indication that he had left Wedgewood Towers was at 6:07
p.m., when he sent a text message that was routed through cellular towers farther away
from the apartment building. Appellant, identified as the perpetrator by both Scott Hull
                                             -12-
and Cameron Hull, entered Robin Hull‟s apartment without the consent of the executor of
Mrs. Hull‟s estate and obtained her property without consent. Thus, the evidence was
sufficient for the jury to find appellant guilty of aggravated burglary and theft of property
valued at less than $500.

                                      C. Sentencing

        Appellant argues that the trial court erred by imposing a sentence involving partial
confinement. He states that the trial court improperly considered Mr. Shearon‟s
testimony regarding appellant‟s possible misconduct toward him and that partial
incarceration was not the least severe measure necessary to achieve the purposes of
sentencing. The State responds that the evidence supported a period of confinement and
that the trial court did not abuse its discretion.

       In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence 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 mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Id. § 40-35-103(4).

       In this case, appellant contends that the trial court should have sentenced him to a
sentence fully suspended to probation or entirely served in community corrections. The
defendant bears “the burden of establishing suitability for probation.” Tenn. Code Ann. §
40-35-303(b). This burden includes demonstrating that probation will “„subserve the
ends of justice and the best interest of both the public and the defendant.‟” State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d
354, 357 (Tenn. Crim. App. 1997)).

       In determining whether to grant or deny full probation, additional
       considerations include the defendant‟s criminal record; social history and
       present condition of the defendant, including his or her mental and physical
       conditions where appropriate; defendant‟s amenability to correction and
       general attitude, including behavior since arrest, home environment, current
       drug usage, emotional stability, past employment, general reputation,
       marital stability, family responsibility, and the best interests of both the
       defendant and the public.
                                            -13-
State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001). Regarding community
corrections, an eligible defendant “is not necessarily entitled to be sentenced under the
Act as a matter of law or right.” State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App. 1999) (citation omitted). A trial court should base its decision regarding any
sentence involving confinement on the following considerations:

      (A)    Confinement is necessary to protect society by restraining a
             defendant who has a long history of criminal conduct;

      (B)    Confinement is necessary to avoid depreciating the seriousness of
             the offense or confinement is particularly suited to provide an
             effective deterrence to others likely to commit similar offenses; or

      (C)    Measures less restrictive than confinement have frequently or
             recently been applied unsuccessfully to the defendant.

Id. § 40-35-103(1).

       When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). This standard of review also applies to “the questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in passing
sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Bise, 380 S.W.3d at 709. This court will uphold the trial
court‟s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result.
See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §
40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       In this case, the trial court sentenced appellant to four years for the aggravated
burglary conviction, which was within the applicable three- to six-year range, and to a
concurrent sentence of eleven months, twenty-nine days for the misdemeanor theft
conviction. The trial court found that appellant had committed the instant offenses while
on probation and that he had taken money from Mr. Shearon while on bond awaiting the
sentencing hearing. Appellant contends that the trial court should not have considered
                                           -14-
Mr. Shearon‟s testimony; however, a defendant‟s “behavior since arrest” is a proper
consideration when the trial court is determining whether to grant full probation.
Blackhurst, 70 S.W.3d at 97. The trial court determined that appellant had not met his
burden of establishing suitability for full probation and therefore ordered that appellant
serve six months of his sentence in confinement with the remainder to be served in
community corrections. The trial court was within its discretion to order a sentence of
partial confinement because measures less restrictive than confinement had recently been
applied unsuccessfully to appellant. See Tenn. Code Ann. § 40-35-103(1)(C). Therefore,
appellant‟s argument is without merit.

                                    CONCLUSION

      Based on the record, the briefs of the parties, and the applicable law, we affirm the
judgments of the trial court.


                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




                                           -15-
