         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 8, 2008

                    STATE OF TENNESSEE v. MARIO LESTER

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 05-08740    W. Mark Ward, Judge



                  No. W2007-01447-CCA-R3-CD - Filed September 25, 2008


The defendant, Mario Lester, was convicted of one count of burglary of a building (Class D felony)
and was sentenced to twelve years as a career offender. On appeal, he argues that the evidence was
insufficient to support the conviction and that the trial court erred in denying community corrections.
After careful review, we affirm the judgment from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE , and
J. C. MCLIN , JJ., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Mario Lester.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                                Facts

         During the trial, testimony was elicited that the defendant was involved in a robbery of
Memphis Cash and Carry, a wholesale supply store in Shelby County. The manager of the store
testified that he was notified around 4:30 a.m. on June 17, 2005, that the store alarm had been
activated. He said that he lived almost an hour away and waited for a follow-up phone call to hear
what had happened. The alarm company called him approximately thirty minutes later to inform him
that the interior motion detector indicated activity inside the store. The store manager then left for
the store.

        The manager testified that he received a phone call while he was en route to the store and was
told that several people had been seen running from the store. When he arrived, he found that his
office had been ransacked, a small safe had been pried open, and a larger safe had been moved from
his office to the loading dock door. He noted that a small amount of money was missing and
observed that the burglars had entered through the skylight. He also testified that a protective gate
in front of the loading door had been cut and that the lock securing the door had been cut. He said
that he did not know the defendant and did not give him permission to enter the store.

         An officer with the Memphis Police Department testified that he was dispatched to the store
on the morning of the incident. He said that he checked the doors and did not see anything wrong.
He said he received another alarm call one-half hour later and was directed to return to the store.
The officer testified that when he returned to the store, he observed a gold Ford pick-up truck in the
parking lot and three “male blacks” standing on the loading dock next to the gate that had been
forced open. He identified the defendant as one of the individuals on the loading dock. The officer
testified that he specifically remembered the defendant because he “looked dead at me, looked at me
with a surprised type of look, and then quickly ran. . . .”

        Next, a second officer from the Memphis Police Department testified that he also responded
to the dispatch regarding the alarm at the Memphis Cash and Carry. He said that he met the other
officer at the scene and, following the first call, they found nothing amiss but, when he responded
to the second call, he observed three individuals jump over a fence. He was familiar with the area
and said he believed he knew where they were going after jumping the fence. He then observed the
three suspects running down the railroad tracks. He ran after them and saw them jump onto a slow-
moving train. He caught up with the train and told the suspects to get off the train. They complied
but scattered in three directions. He caught the suspect that was closest to him and identified the
defendant as that individual. He said that the defendant jumped off the train with the two other
suspects when he ordered them to get off the train.

        Next, a co-defendant testified that he and the defendant were part of a group that planned to
rob the Memphis Cash and Carry store. He testified that they planned the burglary the day before
and studied the layout of the store in preparation of their burglary. He indicated that it was his
responsibility to get into the skylight and that the defendant served as the lookout. He said that they
brought a ladder to the roof and initially parked the truck next door so they would not raise any
suspicion if the police were alerted. The co-defendants knew the police would be called when they
entered through the skylight, and they patiently waited for the police to leave before they proceeded
with their plan. He said that a second alarm was triggered when they had problems opening the
loading dock door. The co-defendant said that the defendant moved the truck over to the dock to
speed up their escape. When the police arrived, the co-defendants were cutting through the bars of
the security gate on the door.

       The defendant was convicted, as charged, of burglary of a building. Following a sentencing
hearing, the defendant was sentenced to serve twelve years as a career offender.

                                              Analysis



                                                 -2-
        On appeal, the defendant argues that the evidence was insufficient to support his conviction
and that the trial court erred in denying a community corrections sentence. When a defendant
questions the sufficiency of the evidence on appeal, the standard of review 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, 99 S. Ct. 2781, 2789 (1979). This court does not reweigh the evidence presented at trial;
instead, on appeal there is a presumption that the jury has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
regarding the credibility of witnesses, conflicts in testimony, and the weight and value to be given
to the evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict removes the presumption of innocence and replaces it with a presumption of guilt,
and, on appeal, the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         Tennessee Code Annotated section 39-14-402 states that “[a] person commits burglary who,
without the effective consent of the property owner, enters a building and commits or attempts to
commit a felony, theft, or assault, in the building. Tenn. Code Ann. §§ 39-14-402(a)(1), (2). During
trial, testimony was elicited that the defendant joined others in breaking into a Memphis business
with the intention to steal the safe. The police observed the defendant standing on the loading dock.
As the officers approached, the defendant fled the scene until he was apprehended by a police officer.
The co-defendant testified that the defendant was the lookout during the burglary and that he drove
the getaway truck to the loading dock for the purpose of loading the safe on it. A review of the
record reflects that the evidence was sufficient to support the defendant’s conviction.

        Next, the defendant argues that the trial court abused its discretion and erred in denying an
alternative sentence of community corrections. The defendant testified at the sentencing hearing that
he was employed full-time as a laborer. He said that he drove a wrecker prior to his incarceration
and that he was eligible to be rehired by his employer if granted an alternative sentence. He
apologized to the court for his actions and asked for a sentence of community corrections.

        The defendant acknowledged that he had a prior record of convictions including driving
offenses, theft convictions, and a weapons offense. The presentence report showed that the
defendant was not convicted of any crime between 1993 and 2000. He had seven felony convictions
for various grades of theft including a 2001 conviction resulting in a six-year sentence.

        The trial court sentenced the defendant to twelve years as a career offender, the automatic
sentence for a Class D felony. See T.C.A. § 40-35-108(c), -112(c)(3). The record shows that the
trial court was unsure if the defendant was eligible for community corrections and looked at the act
to determine whether the defendant was a proper candidate for community corrections. The court
proceeded on the basis that the defendant met the minimum eligibility criteria for community
corrections but ultimately concluded that the defendant was ineligible.



                                                  -3-
         The trial court specifically found two criteria that favored the defendant: (1) incarceration
was not necessary to avoid depreciating the seriousness of the offense; and (2) measures less
restrictive than confinement had not been recently applied unsuccessfully. The trial court noted that
the defendant did have a failure of probation in 1993 but that it was not recent enough to count
against the defendant. The trial court was most concerned about the defendant’s “history of repeated
lawless behavior” and found that confinement was necessary to protect society. The court was
concerned that the defendant had thirteen prior convictions, including six felonies. The defendant
had seven felony convictions but two of the felonies were committed on the same day. The trial
court ultimately denied the defendant an alternative sentence because of his prior criminal record.

        In reviewing the imposition of a sentence, we are required to conduct a de novo review on
the record of the issues raised on appeal with a presumption that the determinations made by the trial
court were correct. T.C.A. § 40-35-401(d). The burden is on the defendant to demonstrate that the
sentence imposed is improper or that the findings of the trial court are not supported in the whole
record. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991), Sentencing Commission Comments to
T.C.A. § 40-35-401(d). Tennessee Code Annotated section 40-35-103(1) requires the courts to apply
the following principles when weighing community corrections against incarceration:
        (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 the confinement is particularly suited to provide an effective deterrence to
                others likely to commit similar offenses; and
        (C)     Measures less restrictive than confinement have frequently or recently been
                applied unsuccessfully to the defendant . . .

        The State argues that the trial court found both factors (A) and (C) applicable. Our review
of the record reflects that the trial court denied community corrections on the basis of factor (A).
The trial court specifically stated during the sentencing hearing that, though there was a prior
violation of probation, it was neither recent nor frequent.

        The defendant bears the burden of demonstrating that the sentence was improper. In support
of his petition, he argues that he can be employed if granted an alternative sentence, that he has a
GED, and that he has two children to support. The State argues that these factors should not weigh
in the defendant’s favor because they did not prevent him from committing the underlying offense.
After review, we conclude that the trial court did not abuse its discretion in sentencing the defendant
to confinement. He has an extensive criminal history that supports the trial court’s sentencing
decision. The trial court was required to sentence the defendant as a career offender to twelve years.
The defendant has not demonstrated that the trial court abused its discretion in ordering him to serve
the sentence in confinement.

                                             Conclusion




                                                 -4-
         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.




                                                     ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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