         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 3, 2006

                  STATE OF TENNESSEE v. MARCELLUS HURT

                      Appeal from the Circuit Court for Madison County
                           No. 05-129     Donald H. Allen, Judge


                  No. W2006-00191-CCA-R3-CD - Filed December 21, 2006


The Appellant, Marcellus Hurt, was convicted by a Madison County jury of three counts of
misdemeanor theft, two counts of burglary of a vehicle, one count of felony vandalism over $500,
one count of possession of burglary tools, and one count of misdemeanor evading arrest. As a result
of these convictions, Hurt received an effective sentence of six years, eleven months, and twenty-
nine days in confinement. On appeal, Hurt raises two issues for our review: (1) whether the evidence
is sufficient to support his convictions for burglary of a vehicle and possession of burglary tools; and
(2) whether his sentence is excessive. Following review of the record, we affirm the convictions and
sentences as imposed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, for the Appellant, Marcellus Hurt.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

        On December 3, 2004, the Appellant and Dennis Garland, both of whom lived in Memphis,
drove to the Hollywood Cinema in Jackson in Garland’s Mercury Grand Marquis. While Garland
waited in the car, the Appellant used a sparkplug to break the driver’s side windows of vehicles
belonging to Stephanie Jones and Josh Webb, two Union university students who were inside the
theater watching a movie. The Appellant removed a portable compact disc player from Jones’
Plymouth Voyager and caused approximately $900 worth of damage to the vehicle’s side paneling.
After burglarizing Webb’s Ford Explorer, the Appellant removed an Alpine stereo compact disc
player, as well as a wallet and a set of keys belonging to Brittany Palmer, who had accompanied
Webb to the theater.

        Officer Trull of the Jackson Police Department, who was in the vicinity, was approached by
a citizen and informed of the auto burglaries. After initially inspecting the first burglarized vehicle,
Officer Trull noticed an individual, later identified as Garland, sitting in a nearby Mercury Marquis
with no lights on. As Trull approached the vehicle to ask Garland if he had observed anything with
regard to the burglaries, he saw the Appellant walking towards the Marquis and enter the car. Trull
continued toward the car and asked Garland to stop. Garland hesitated for a brief moment but then
accelerated and quickly drove out of the theater parking lot. At this point, Trull dispatched a “Be
On Lookout” or BOLO for the Mercury Marquis and its two occupants.

        Shortly thereafter, Officer Stines observed a car matching Trull’s description of the car,
which had run off the road at Vann Drive and Emporium, a short distance from the theater. As
Stines approached the vehicle and activated his blue lights, he observed Garland standing outside
the driver’s side of the vehicle and the Appellant fleeing the scene on foot. Stines then proceeded
to issue a second BOLO for the Appellant. Garland was taken into custody. Inside Garland’s car,
officers found compact disc players, which Jones and Webb later identified as their property.
Additionally, several tools, including screwdrivers and wirecutters, were found in the trunk of the
Marquis.

        Officer Headen was on Emporium Drive when he heard the second BOLO broadcast and
almost immediately saw a subject, later determined to be the Appellant, matching the description
walking near Sam’s Club. When the Appellant saw Officer Headen, he began to run. However, he
eventually stopped and was apprehended. Upon performing a cursory pat down search of the
Appellant, Headen recovered from the Appellant’s right rear pocket, Brittany Palmer’s driver’s
license, as well as her key chain and ATM card.

         On February 28, 2005, a Madison County grand jury returned an eight-count indictment
against the Appellant and Garland jointly charging them with three counts of theft of property less
than $500, two counts of burglary of a vehicle, one count of vandalism resulting in damage over
$500, one count of possession of burglary tools, and felony evading arrest. Garland pled guilty prior
to trial and testified for the State at the Appellant’s trial. After a jury trial, the Appellant was
subsequently convicted on all counts as charged, with the exception of the felony charge of evading
arrest, which was reduced to misdemeanor evading arrest.

        Following a sentencing hearing, the Appellant was sentenced as follows: (1) two years for
each of the two counts of burglary of a vehicle; (2) eleven months and twenty-nine days for each of
the three counts of theft of property under $500; (3) two years for felony vandalism; (4) eleven
months and twenty-nine days for possession of burglary tools; and (5) eleven months and twenty-
nine days for evading arrest. The Appellant’s three sentences stemming from his felony convictions
were ordered to be served consecutively, and all of the Appellant’s misdemeanor sentences, with the
exception of his sentence for evading arrest, were ordered to be served concurrently with each other


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and concurrently with the effective six-year felony sentence. Additionally, the Appellant’s eleven-
month and twenty-nine days sentence for evading arrest was ordered to be served consecutively to
his six-year felony sentence, resulting in an effective sentence of six years, eleven months, and
twenty-nine days. Following the denial of the Appellant’s motion for new trial, the Appellant filed
the instant timely appeal.

                                               Analysis

        On appeal, the Appellant raises two issues for our review. First, he asserts that the evidence
is insufficient to support his convictions for burglary of a vehicle and possession of burglary tools.
Second, he asserts that the effective sentence imposed is excessive, specifically challenging the
consecutive nature of his sentence for evading arrest.

I. Sufficiency of the Evidence

        The Appellant asserts on appeal that the evidence is insufficient to support his convictions
for burglary of a vehicle and possession of burglary tools.

         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], 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); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        “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.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990). However, as in the case of direct evidence, the weight to be given
circumstantial evidence and “the inferences to be drawn from such evidence, and the extent to which
the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily
for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

       a. Burglary of a Vehicle



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        The Appellant was convicted of two counts of burglary of a vehicle. Tennessee Code
Annotated section 39-14-402(a)(4) (2003) states, in relevant part, that: “[a] person commits burglary
who, without the effective consent of the property owner: . . . (4) [e]nters any . . . passenger car . .
. with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft
or assault.” The Appellant’s entire argument with regard to this issue is as follows:

               The evidence was insufficient for the jury to convict Appellant of either count
       of Vehicle Burglary. No person other than Dennis Garland claimed to see Appellant
       break into the victims’ vehicles. Garland received a probationary sentence with the
       possibility of the convictions being expunged upon completing this sentence. This
       resulted in testimony that was simply not credible; correspondingly, the jury should
       have assigned no credibility to Garland’s testimony that Appellant was the only
       individual who committed these acts.

        This argument is misplaced. The scope of our examination of the evidence is not equivalent
to that of the jury’s. In a challenge to the sufficiency of the evidence, this court does not retry the
defendant. We emphasize that our examination in a sufficiency review is not to revisit inconsistent,
contradicting, implausible or non-credible proof, as these issues are resolved solely by the jury. See
Pappas, 754 S.W.2d at 623. The jury in this case heard Garland’s testimony, including his
involvement in the crimes and the plea-bargained sentence he received. It was the jury’s prerogative
to weigh Garland’s credibility and determine the weight which the testimony should be given. Based
upon their findings of guilt, the jury obviously accredited Garland’s testimony regarding the
Appellant’s involvement in the crimes. This court will not reweigh or reevaluate the evidence
presented. Cabbage, 571 S.W.2d at 835.

         Clearly, the evidence presented in this case was more than sufficient to support the burglary
convictions. It is undisputed that vehicles belonging to Stephanie Jones and Josh Webb were
burglarized while they were at the Hollywood theater and that items were taken from their vehicles.
The Appellant, along with Garland, was seen in the area immediately following the discovery of the
burglaries, and the two fled the scene, despite a request from police to stop. The Appellant again
fled upon the arrival of the police following the wreck of Garland’s vehicle. He attempted to flee
a third time when approached by police near Sam’s Club. Additionally, the Appellant was found to
be in possession of items belonging to Brittany Palmer which were taken from Josh Webb’s vehicle.
Moreover, the stolen compact disc players were found in Garland’s car. This evidence, in addition
to Garland’s testimony at trial that the Appellant broke into the vehicles and removed the compact
disc players, is clearly sufficient to support the convictions for burglary of a vehicle.

       b. Possession of Burglary Tools

       Tennessee Code Annotated section 39-14-701 (2003) provides that “[a] person who
possesses any tool, machine or implement with intent to use the same, or allow the same to be used,
to commit any burglary, commits a Class A misdemeanor.” Relying upon State v. Michael Wayne
Belcher, No. 2001-00515-CCA-R3-CV (Tenn. Crim. App. at Knoxville, Apr. 22, 2002), the


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Appellant asserts that the evidence presented was not sufficient to support his conviction. In
Belcher, this court held that a possession of burglary tools conviction could not be upheld when the
evidence established that the tools, a hammer and screwdriver, were located in the defendant’s car
during the actual burglary of a house. Id.

       The Appellant’s argument is as follows:

               In the instant case, the only person who claimed to witness Appellant commit
       a crime was Dennis Garland. Garland testified that Appellant carried a flashlight and
       a fragment of a spark plug with him when he committed the vehicle burglaries. The
       indictment charges Appellant with possession of “screwdrivers, wirecutters, and
       other tools.” The indictment does not allege what these other tools are, and
       Investigator Gregory testified concerning “screwdrivers” and “wirecutters” that could
       have been used as burglary tools. In Garland’s testimony, he stated that Appellant
       used the spark plug fragment to break into the cars, not any screwdrivers or
       wirecutters. In addition, law enforcement found neither screwdrivers nor wirecutters
       on Appellant’s person. Therefore, Appellant’s conviction for Possession of Burglary
       Tools should be dismissed.

(citations omitted). Though not entirely clear, we presume the Appellant is arguing that the
conviction cannot stand because there was no evidence presented that he actually used the
screwdrivers and wirecutters in the burglaries or that they were ever in his possession at all, similar
to the facts in Belcher. However, we believe that the facts of Belcher are distinguishable from this
case. In Belcher, the proof was uncontraverted that the tools were not used in the commission of the
crime. This is not the situation in the case before us, however. It is true that Garland testified that
he only saw the Appellant carrying a flashlight and a spark plug when he left the car. However,
evidence was presented that screwdrivers and wirecutters were in the trunk of the car and that the
Appellant had access to the trunk of the car during the burglaries, as at least one of the stolen
compact disc players was found in the trunk. Additionally, as noted by the State, evidence was
presented that one of the vehicle’s dashboard panels had been removed in order to access the
compact disc player, and Officer Gregory testified that auto burglars often pry away the panel in front
of the stereo with a screwdriver before disconnecting the stereo with wirecutters. Gregory also gave
testimony that spark plugs are commonly used to break car windows in order to gain access into the
vehicle.

        The indictment in this case charged the Appellant with possession of “screwdrivers,
wirecutters, and other tools” with the intent to use the same to commit vehicle burglary. There was
direct proof, in the form of Garland’s testimony, that the Appellant had in his possession a flashlight
and utilized a spark plug to break into the vehicles. Moreover, we conclude, from the totality of facts
introduced at trial, that the jury could have reasonably inferred that the Appellant possessed the
screwdrivers and wirecutters “with intent to use the same, or allow the same to be used to commit
[a] burglary.” Viewing the evidence in the light most favorable to the State, we conclude the
evidence is sufficient to support the conviction.


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II. Excessive Sentence

        Lastly, the Appellant asserts that his effective sentence of six years, eleven months, and
twenty-nine days is excessive. His only challenge to the sentence, however, is that the consecutive
nature of the evading arrest sentence of eleven months and twenty-nine days is excessive. He asserts
that “[a]dding an extra eleven months and twenty-nine days to Appellant’s six-year TDOC sentence
was unduly harsh, considering that Appellant only has one prior felony conviction, while admittedly
having nearly twenty misdemeanor convictions.” Accordingly, the Appellant requests that this court
modify his sentence by ordering that his evading arrest sentence run concurrently with his felony
sentences for an effective sentence of six years.

       When an accused challenges the length, range, or the manner of service of a sentence, this
court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” Ashby, 823 S.W.2d at 169. Furthermore, we emphasize that facts relevant to
sentencing must be established by a preponderance of the evidence and not beyond a reasonable
doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945 S.W.2d 93,
96 (Tenn. 1997)). The party challenging a sentence bears the burden of establishing that the sentence
is erroneous. T.C.A.§ 40-35-401(d), Sentencing Commission Comments.

         A trial court may impose consecutive sentencing upon a determination that one or more of
the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This section permits
the trial court to impose consecutive sentences if the court finds, among other criteria, that “[t]he
defendant is an offender whose record of criminal activity is extensive[.]” T.C.A. § 40-35-115(b)(2)
(2003). The length of the sentence, when consecutive in nature, must be “justly deserved in relation
to the seriousness of the offense” and “no greater than that deserved” under the circumstances.
T.C.A. § 40-35-102(1), –103(2). Additionally, whether sentences are to be served concurrently or
consecutively is a matter addressed to the sound discretion of the trial court. State v. Hastings, 25
S.W.3d 178, 181 (Tenn. Crim. App. 1999).

       In imposing consecutive sentencing in this case, the trial court specifically found that the
Appellant was an offender whose record of criminal activity was extensive. The court stated:

       . . . basically since he was 18 year[s] of age up until now, he’s 31 years of age, he has
       basically committed new offenses each and ever[y] year: Assaults, thefts, and
       vandalisms and just all sorts of various criminal activity each and ever[y] year. He’s
       been given probation at least once and was not able to follow the rules of probation.
       He’s continued to go out and commit new offenses.

       Our review of the record supports the trial court’s finding of an extensive criminal history.
The presentence reports reveals seventeen prior convictions, including nine assaults, two driving on


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a revoked or suspended license, evading arrest, vandalism, aggravated criminal trespass, disorderly
conduct, theft, and a controlled substance violation. The report further establishes that the Appellant
was found guilty of violating a protection order, obstructing a highway or passageway, and violating
probation. The Appellant disputes none of these convictions or violations.

        Indeed, as noted, the Appellant does not contest the trial court’s imposition of partial
consecutive sentences as a whole. Rather, he only argues that it was error and “unduly harsh” to
order that his conviction for evading arrest be served consecutively because most of his prior
convictions are misdemeanors. This argument is misplaced. Clearly, the Appellant has an extensive
criminal history spanning his entire adult life. Finding no sentencing error, we conclude that this
issue is without merit.

                                          CONCLUSION

       Based upon the foregoing, the judgment of the Madison County Circuit Court is affirmed.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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