        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned On Briefs September 14, 2011

            STATE OF TENNESSEE v. WESLEY TRENT REAVES

                      Appeal from the Circuit Court for Wayne County
                            No. 14905 Stella Hargrove, Judge



                    No. M2011-00073-CCA-R3-CD - Filed July 12, 2012


A Wayne County jury convicted Appellant, Wesley Trent Reaves, of theft of property worth
more than $1,000 but less than $10,000. The trial court sentenced Appellant to eight years
as a Range II, multiple offender. On appeal, Appellant argues that the evidence was
insufficient to support his conviction because the State’s witnesses were mistaken or lied
during their testimony at trial and that the trial court erred in imposing an eight-year sentence
because it failed to apply a mitigating factor. We conclude that the evidence was sufficient
to support the conviction and that the trier of fact is the sole arbiter of the credibility of the
witnesses. We also determine that although the trial court erred in failing to apply the
mitigating factor in question, Appellant’s criminal history more than supports the imposition
of an eight-year sentence. Therefore, we affirm the judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and N ORMA M CG EE O GLE, JJ., joined.

R.H. Stovall, Jr., Assistant Public Defender, Pulaski, Tennessee, for the appellant, Wesley
Trent Reaves.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Mike Bottoms, District Attorney General, and Doug Dicus, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       On May 3, 2010, William Rogers and his son-in law, Adam Hollis, were riding a four-
wheeler around their area to see the flood damage. While riding around, they saw
Appellant’s truck on land belonging to James Melson, the victim. The truck was empty when
they saw it. About an hour later, they saw Appellant’s truck driving away from Mr. Melton’s
property. The truck was loaded with property Mr. Rogers recognized from Mr. Melton’s
barn including two eighteen wheeler truck fenders.

       Jack Beckham is also one of the victim’s neighbors. He saw Appellant driving near
the victim’s property. Mr. Beckham saw that Appellant had aluminum fenders for an
eighteen wheeler. Mr. Beckham recognized the fenders as having been in the victim’s barn.

        Mr. Rogers called the victim to inform him that he saw Appellant taking the victim’s
property. The victim called the police and met them at his barn. When the victim arrived,
he noticed that he was missing full fenders for an eighteen wheeler, a disc, a grater blade,
steel posts for a chain link fence, and some sheet metal. Mr. Rogers estimated the total value
of the property taken at around $1,300.

       At the trial, Appellant agreed that he was on the victim’s property on the day in
question. Appellant stated that he was hauling scrap for someone else and his truck was full
with that scrap. Appellant denied that he had taken anything from the victim.

       Based on the evidence above a Wayne Court jury convicted Appellant of theft of
perperty valued over $1,000 but less than $10,000. At the conclusion of a sentencing
hearing, the trial court sentenced Appellant to an eight-year sentence as a Range II, multiple
offender.

                                        ANALYSIS

                                Sufficiency of the Evidence

       On appeal, Appellant argues that the evidence was insufficient because “the [S]tate’s
witnesses were mistaken or lying when they testified they observed him hauling bright
polished fenders away from the victim’s barn.”




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       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction
is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        Appellant argues that the witnesses were mistaken or lied at trial. As stated above,
it is up to the jury to determine the credibility of the witnesses at trial. See Pruett, 788
S.W.2d at 561. There were witnesses presented by both the State and the defense. The jury
clearly found the State’s witnesses to be more credible. We do not find the evidence
insufficient based upon this argument.

        According to the law in Tennessee, theft occurs when, “[a] person . . . with intent to
deprive the owner of property, . . . knowingly obtains or exercises control over the property
without the owner’s effective consent.” T.C.A. § 39-14-103. “Theft of property . . . is: . .
. [a] Class D felony if the value of the property or services obtained is one thousand dollars
($1,000) or more but less than ten thousand dollars ($10,000) . . . .” T.C.A. § 39-14-105(3).

      When the evidence is taken in a light most favorable to the State, it shows that
Appellant was seen by at least three witnesses with property the witnesses recognized as
previously being in the victim’s barn. The victim testified that he did not give consent to

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Appellant to take the property and that to replace the eighteen-wheeler fenders alone would
cost him $1,000. He also valued the remaining property at $300. Therefore, the evidence
is sufficient to support a conviction of theft of property over $1,000 but less than $10,000.

       This issue is without merit.

                                         Sentencing

       Appellant also argues that the trial court erred in sentencing him by not applying
mitigating factor (1), that the defendant’s conduct neither caused nor threatened serious
bodily injury. The State argues that the trial court did not err.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

        In making its sentencing determination, a trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses,
(7) any statements the defendant wishes to make in the defendant's behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the
sentence within the appropriate sentencing range for the defendant:




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       [T]he court shall consider, but is not bound by, the following advisory
       sentencing guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.


T.C.A. § 40-35-210(c). However, the weight given by the trial court to the mitigating and
enhancement factors are left to the trial court’s discretion and are not a basis for reversal by
an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An appellate court
is . . . bound by a trial court’s decision as to the length of the sentence imposed so long as it
is imposed in a manner consistent with the purposes and principles set out in sections -102
and -103 of the Sentencing Act.” Id. at 346.

       “The amended statute no longer imposes a presumptive sentence.” Carter, 254
S.W.3d at 343. As a result of the amendments to the Sentencing Act, our appellate review
of the weighing of the enhancement and mitigating factors was deleted when the factors
became advisory, as opposed to binding, upon the trial court's sentencing decision. Id. at
344. Under current sentencing law, the trial court is nonetheless required to “consider” an
advisory sentencing guideline that is relevant to the sentencing determination, including the
application of enhancing and mitigating factors. Id. The trial court’s weighing of various
mitigating and enhancement factors is now left to the trial court’s sound discretion. Id.

       To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that “the trial court appl[ied] inappropriate mitigating
and/or enhancement factors or otherwise fail[ed] to follow the Sentencing Act, the
presumption of correctness fails” and our review is de novo. Carter, 254 S.W.3d at 345.

      In the case at hand, the trial court found that one enhancement factor applied, that the
defendant has a previous history of criminal convictions or criminal behavior in addition to

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those necessary to establish the appropriate range. See T.C.A. § 40-35-114(1). The trial
court specifically stated that it found no mitigating factors. As stated above, Appellant
argues that the trial court should have applied mitigating factor (1), that the defendant’s
conduct neither caused nor threatened serious bodily injury. The mitigating factor was raised
by Appellant at the sentencing hearing, and the trial court did not set out why this factor did
not apply. Because the trial court did not address why this mitigating factor did not apply,
our review of Appellant’s sentence is de novo.

       After reviewing the record on appeal, including the presentence report, we conclude
that even with the application of the mitigating factor in question, the eight-year sentence
imposed by the trial court was appropriate.

        As the trial court stated, Appellant has been a thief for at least eleven years from the
ages of 20 to 31. His first conviction as an adult was at the age of 21. He had six prior
felonies. Five of the felonies occurred in Tennessee, and one occurred in Alabama. Five of
his prior felonies are thefts or burglaries. Appellant also has a conviction for misdemeanor
theft. He also has many misdemeanor convictions for driving under the influence, sale or
possession of drugs, and multiple hunting regulation violations. In addition, Appellant has
a violation of probation. Appellant’s criminal history demonstrates a clear disregard for the
law. We conclude that enhancement factor (1) more than amply supports the eight-year
sentence regardless of the application of mitigating factor (1).

       Therefore, we affirm the imposition of the eight-year sentence.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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