        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 19, 2010

          STATE OF TENNESSEE v. ANTHONY EUGENE YOUNG

            Direct Appeal from the Criminal Court for Davidson County
                   No. 2007-D-3214     Cheryl Blackburn, Judge




              No. M2009-00674-CCA-R3-CD - Filed September 17, 2010


A Davidson County jury convicted the Defendant of one count of burglary, and the trial court
sentenced him to twelve years as a career offender. On appeal, the Defendant argues: (1) the
trial court erred when it admitted testimony about items in the Defendant’s possession when
he was arrested; (2) the record contains insufficient evidence to support his conviction; and
(3) the trial court erred when it denied his request for Community Corrections. After a
thorough review of the record and applicable law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J.,delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.

Emma Rae Tennent (on appeal), Nashville, Tennessee; J. Michael Engle (at trial), Nashville,
Tennessee, for the Appellant, Anthony Eugene Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Matthew Bryant Haskell, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; Jeff Burks, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                        OPINION
                                         I. Facts

      This case arises from the Defendant burglarizing the Federal Public Defender’s Office
in Nashville, Tennessee. At the time of the Defendant’s arrest, he was found in possession


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of deli meat, which police later determined was stolen from a local restaurant. Based on
these events, a Davidson County grand jury indicted the Defendant for two counts of
burglary, one count for the burglary of the Federal Public Defender’s Office and the other
count for the burglary of the local restaurant. The two counts were severed, and the
Defendant first proceeded to trial on the charge of burglary of the Federal Public Defender’s
Office. Before the trial on this charge, the trial court ruled that the State’s witnesses should
refrain from mentioning that the deli meat found in the Defendant’s possession at the time
of his arrest was returned to its owner.

       The following evidence was presented at the Defendant’s trial: Henry Martin, the
Federal Public Defender for the Middle District of Tennessee, testified that the Federal
Public Defender’s Office, which had regular office hours from 8:30 a.m. to 5:30 p.m., was
located at 810 Broadway, in Nashville, and occupied one and a half floors of the building.
On August 15, 2007, no one other than office staff had permission to enter the office before
8:00 a.m.

        Michael Beem, an assistant computer systems administrator for the Federal Public
Defender’s Office, testified that he generally arrived at work between 7:00 a.m. and 7:15 a.m.
and that he worked in the office that housed computer equipment. Beem testified that he had
not given anyone permission to enter the office on the morning of August 15. A little before
8:00 a.m. on August 15, Beem recalled that he heard metal creaking, “like when you put
together a metal rack and you slide it across the floor.” Beem’s office was next door to the
storage unit, so he exited his office to see whether someone needed help. After exiting his
office, Beem saw the Defendant, who was wearing a white shirt with a red horizontal stripe
and black pants, walk through the office back door, which was always locked, and into the
office area. Beem said the Defendant was looking down at an old postage meter that was on
the floor and had a large screwdriver in his left hand and a black bag with white stitching in
his right hand. When Beem spoke to the Defendant, the Defendant looked up and fled out
the backdoor. Beem followed the Defendant, who fled down a ramp at the back of the
building and away from the building toward Eighth Avenue. Beem, unable to catch the
Defendant, contacted the police and described the event and the Defendant to the police.
When police officers arrived, they discovered that the metal frame of the back door had been
bent and damaged.

        Beem testified that approximately forty-five minutes after he saw the intruder flee the
building, police transported him to a location three blocks away where they had detained an
individual matching his description of the intruder. Beem positively identified the Defendant
as the individual who had broken into the Federal Public Defender’s Office that morning.
Beem said that the Defendant was wearing the same shirt and hat but that his pants appeared
to be different. The Defendant was carrying the same bag, but the screwdriver was not as

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long or big as Beem remembered.

        Two Metropolitan Nashville police officers, Steve Haines and Buddy Mitchell,
responded to the Federal Public Defender’s Office after the burglary in this case. The
officers took the initial report and a detailed description from Beem. Sergeant Mitchell
testified at trial that he then left to survey the surrounding area for the Defendant. Officer
Haines remained at the scene and noted pry marks on the rear door and door jam.
Approximately three blocks from the Public Defender’s Office, Sergeant Mitchell observed
the Defendant, who matched Beem’s description and appeared “nervous.” Officer Haines
transported Beem to the area where the Defendant had been detained, and Beem positively
identified the Defendant. The officers found two cloth bags in the Defendant’s possession,
one of which contained six large packages of deli meat and a screwdriver. At trial, Officer
Mitchell testified that he returned the deli meat to its owner. The Defendant objected to this
testimony and the trial court sustained the objection. The trial court offered to issue a
curative instruction and the Defendant rejected this offer.

       Based upon these facts, the jury convicted the Defendant of burglary. Subsequently,
a sentencing hearing was held where the following evidence was presented: The State offered
into evidence eight certified copies of the Defendant’s prior felony convictions, which
established the Defendant as a career offender, and a presentence report.

       The Defendant testified that he wanted the trial court to sentence him to Community
Corrections and proposed two alternatives for the trial to consider if it ordered a sentence of
Community Corrections. First, he could enter a residential program called The Academy,
or, second,he could live with and care for his mother who suffered from a chronic illness.
The Defendant stated that he was aware of and felt he could comply with the requirements
of Community Corrections. As part of his community-based sentence, the Defendant
requested that Narcotics Anonymous and Alcoholics Anonymous be part of his treatment
because he had benefitted from those programs while incarcerated. The Defendant testified
that he successfully graduated from the Lifelines program during his incarceration. The
Defendant acknowledged that he did not have a driver’s license but said his daughter could
provide him transportation, or he could ride the bus from his mother’s apartment, which was
near a bus stop.

       The Defendant testified about recent events in his life that triggered his drug use. The
Defendant’s stepson died, the Defendant’s father died, and the Defendant was diagnosed
with HIV. The Defendant testified that, although he had experienced difficulties, he had
experienced “quite a few miracles” as well, such as a supportive family, support through the
Alcoholics Anonymous program, spiritual growth, and an awareness of his addiction through
participation in Drug Court.

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      On cross-examination, the Defendant agreed that he had attended Lifelines twice
because he did not graduate the first time. He also acknowledged that he had been
terminated from Drug Court twice previously.

       James Wheeler, assistant program director at The Academy, testified that the program
was a two-year, very structured residential program with the resident’s days scheduled from
6:00 a.m. to 11:00 p.m, seven days a week. Residents were expected to work six days a week
within the program, and the program provided all of the residents’ necessities. The residents
worked in The Academy’s landscaping business, moving company, or construction crew.

       Wheeler testified that the program would accept a resident who was on Community
Corrections but that they could not transport the resident to Community Corrections classes
in Bordeaux. Wheeler said that The Academy did not focus treatment on substance abuse
or addiction, as it viewed addiction as a symptom rather than the main problem. The
program goal is to address a resident’s decision-making process through discipline and rules.
Wheeler testified that the Defendant was a suitable candidate for The Academy and would
be accepted as a resident should the trial court agree to the Defendant’s participation in the
program as part of his sentence. Wheeler said that, at that time, one of the program’s
residents was serving a sentence of Community Corrections but that resident was not
required to attend the classes in Bordeaux.

         At the conclusion of the hearing, the trial court denied the Defendant’s request for
Community Corrections and sentenced him to twelve years in the Department of Correction.
It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       On appeal, the Defendant argues: (1) the trial court erred when it admitted testimony
about items in the Defendant’s possession when he was arrested ; (2) the record contains
insufficient evidence to support his conviction; and (3) the trial court erred when it denied
his request for Community Corrections.

                                 A. Admission of Evidence

        The Defendant contends that the trial court erroneously allowed testimony regarding
the return of deli meats in his possession to the owner. The State responds that the trial court
acted properly in sustaining the Defendant’s objection to the testimony and offering to issue
a curative instruction.

       When the Defendant was apprehended for the burglary of the Federal Public

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Defender’s Office, he was carrying a bag that contained six large packages of frozen deli
meat. After determining these rolls of meat had been stolen from a nearby restaurant, police
returned the meat to the restaurant. The Defendant moved to exclude evidence of his
possession of the deli meat from the jury, pursuant to Tennessee Rule of Evidence 404(b) and
the trial court limited any trial testimony about the deli meat to testimony that the Defendant
was in possession of it. This ruling precluded the officers from testifying that the meat was
stolen or later returned by the officers to the owner. During the trial, the Defendant objected
to testimony from a State witness, who testified that the witness had returned the meat to the
owner. The trial court sustained the objection and offered to issue a curative instruction, but
the Defendant rejected this remedy, explaining that such an instruction would draw attention
to the comment. The Defendant argues that the trial court erred in allowing this testimony.

       Rule 404(b) of the Tennessee Rules of Evidence states that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity with the character trait. It may, however, be admissible for other
purposes.” The trial court may admit the evidence for non-character purposes if four
conditions are met:

       (1) The court upon request must hold a hearing outside the jury’s presence;

       (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and the reasons for admitting the evidence;

       (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and

       (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). If a trial court “substantially complies” with these requirements, this
court will review for an abuse of discretion. State v. McCary, 119 S.W.2d 226, 244 (Tenn.
Crim. App. 2003) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). If the
evidence sought to be admitted is relevant to an issue other than the accused’s character, such
as identity, motive, common scheme, intent, or rebuttal of accident or mistake, it may be
admitted for that purpose so long as the danger of unfair prejudice does not outweigh the
probative value. Tenn. R. Evid. 404(b), Advisory Comm’n Cmts.; McCary, 119 S.W.2d at
243.

       This Court has previously stated that, in instances where a witness testifies to

                                              5
improper content, a prompt instruction to a jury directing it not to consider improper
evidence generally cures any error, State v. Tyler, 598 S.W.2d 798, 801(Tenn. Crim. App.
1980); (citing Williams v. State, 218 Tenn. 359, 403 S.W.2d 319 (1966); Armstrong v. State,
555 S.W.2d 870 (Tenn. Crim. App. 1977), cert. denied 435 U.S. 904); unless such evidence
is so far prejudicial that it was more probable that it affected the judgment than not. Tenn.
R. App. P. 36(b).

       In the case under submission, the State’s witness improperly testified that the deli
meat found in the Defendant’s possession was returned to its owner, in direct contravention
of the trial court’s order. The Defendant made a timely objection, which the trial court
sustained and then offered to provide the jury a curative instruction. The Defendant rejected
this remedy, explaining he did not want to draw more attention to the improper testimony.
As discussed above, a curative instruction generally cures any error “caused by the admission
of improper evidence.” See Tyler, 598 S.W.2d at 801. We do not fault this strategic decision
by the Defendant, but we also cannot grant him the relief he now seeks. See Tenn. R. App.
P. 36(a). Further, the Defendant failed to request a mistrial based upon the State’s witness’s
testimony. We conclude that the Defendant is not entitled to relief on this issue.

                              B. Sufficiency of the Evidence

       The Defendant contends the evidence is insufficient to sustain his burglary conviction
because there was insufficient evidence of his intent to commit theft. When an accused
challenges the sufficiency of the evidence, this Court’s standard of review is whether, after
considering 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 (1979); see Tenn. R. App. P. 13(e); State v. Goodwin, 143
S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This
rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App.1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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

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v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       In this case, the Defendant was convicted of a burglary for the break-in of the Federal
Public Defender’s Office in Nashville. The elements of burglary are as follows: (1) the
Defendant entered a building other than a habitation not open to the public; (2) the Defendant
entered the building with the intent to commit, or committed, or attempted to commit a theft;
(3) the Defendant acted without the effective consent of the Federal Public Defender or
authorized employee; and (4) the Defendant acted either intentionally, knowingly, or
recklessly. See T.C.A. § 39-14-402(a)(1), (3) (1997); T.P.I.-Crim. 14.01.

       The evidence at trial, viewed in the light most favorable to the State, proved that the
Defendant, without authority to do so, forcibly entered a locked back door of the Federal
Public Defender’s Office before public office hours, damaging the door frame through his
forcible entry. The Defendant had with him a duffle bag and screwdriver when an employee
stepped into the hallway and saw the Defendant surveying a postal meter. When the
employee addressed the Defendant, the Defendant fled the building. The Defendant was
apprehended close by looking “nervous” and still carrying the duffle bag and a screwdriver.

        The Defendant’s argument focuses on the sufficiency of the evidence to support the
second element of burglary, the intent to commit theft. The specific intent required for the
offense of burglary may be established by circumstantial evidence. See Bollin v. State, 486
S.W.2d 293, 296 (Tenn. Crim. App. 1972). This Court has maintained that “[i]n the absence
of an ‘acceptable excuse,’ a jury may reasonably and legitimately infer that by breaking and

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entering a building containing valuable property, a defendant intends to commit theft.” State
v. Ingram, 986 S.W.2d 598, 600 (Tenn. Crim. App. 1998) (quoting Hall v. State, 490 S.W.2d
495, 496 (Tenn. 1973)); State v. Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994);
State v. Avery, 818 S.W.2d 365, 367-68 (Tenn. Crim. App. 1991); State v. Burkley, 804
S.W.2d 458, 460 (Tenn. Crim. App. 1990).

       Here, the record contains evidence that the Defendant, before office hours, used a
screwdriver to enter the offices through a locked, rear door without an “acceptable
excuse.” He entered the offices, which contained valuable items. See Hall, 490 S.W .2d
at 496. We do not think it unreasonable for a jury to infer that a person with legitimate
business in the Federal Public Defender’s Office would not enter before public office
hours, through a locked rear door that they opened forcibly with a screwdriver. Thus, we
conclude that the jury could have reasonably and properly inferred from this evidence that
the Defendant intended to commit theft. The Defendant is not entitled to relief on this
issue.

                                      C. Sentencing

        The Defendant contends the trial court erred when it denied him an alternative
sentence, in the form of Community Corrections, arguing that his amenability to
rehabilitation justifies an alternative sentence and that a sentence of total confinement was
“unwarranted and unnecessary.” The State responds that the record fully supports the trial
court’s denial of alternative sentencing based upon the Defendant’s criminal history as well
as his past failures to comply with measures less restrictive than confinement.

       When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record 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) (2006); State v. Mencer, 798 S.W.2d 543, 549 (Tenn. Crim. App. 1990). As
the Sentencing Commission Comments to this section note, the burden is now on the
appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing
Comm’n Cmts. This means that if the trial court followed the statutory sentencing procedure,
made findings of facts which are adequately supported in the record, and gave due
consideration to the factors and principles relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result was preferred. T.C.A. § 40-
35-103 (2006); State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001).

       Due to the 2005 sentencing amendments, a defendant is no longer presumed to be a
favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn.
2008) (citing T.C.A. § 40-35-102(6) (2006)). Instead, a defendant not within “the parameters

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of subdivision (5) [of T.C.A. § 40-35-102], and who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary.” Id. (footnote
omitted); T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a
trial court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider”
them. T.C.A. § 40-35-102(6).

       When sentencing the defendant to confinement, a trial court should consider whether:

        (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.

T.C.A. § 40-35-103(A)-(C). In choosing among possible sentencing alternatives, the trial
court should also consider “[t]he potential or lack of potential for the rehabilitation or
treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.
Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.
Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69,
84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

        In this case, the trial court sentenced the Defendant to twelve years, and it denied the
Defendant’s request for an alternative sentence, ordering the Defendant to serve his entire
sentence in confinement. The trial court listed the statutory factors and sentencing principles
it considered that led to its denial of alternative sentencing. The trial court, noting both the
Defendant’s eight prior felony convictions and his unsuccessful attempts in Drug Court and
Lifelines, stated that it would still consider “some very strict program” under Community
Corrections, but emphasized the need for the Defendant to be supervised. The trial court
then went on to discuss each of the forms of an alternative sentence the Defendant proposed
under Community Corrections: (1) The Defendant’s mother’s home; or (2) The Academy
residential program. Based upon the Defendant’s past failures, the trial court reasoned that
sending the Defendant back into his mother’s home where he previously lived would, once
again, prove unsuccessful. As to the other option, The Academy program, the trial court

                                               9
concluded it likewise was untenable because, under it, the Defendant could not fully comply
with the requirements of Community Corrections supervision. In conclusion the trial court
stated:

       So, Mr. Young, . . . you have such a long history – we have tried so many
       times with you. I really don’t feel like I have – and I have considered the
       alternatives, and I have decided they’re not sufficient in the case to protect
       society from your behavior.

       The record does not preponderate against the trial court’s findings. The Defendant
is a career offender, and his present conviction for burglary is a Class D felony. The
Defendant’s criminal record includes twenty-three misdemeanors and eight felonies. The
Defendant testified as to his failed attempts at Drug Court and Lifelines and admitted to illicit
drug use. Further, the presentence report indicates multiple failed attempts at previous
probated sentences. Thus, the record adequately supports the trial court's findings. We
conclude that, in ordering confinement, the trial court considered the pertinent facts of this
case and the sentencing principles of Tennessee Code Annotated section 40-35-103 (A)-(C).
As such, its denial of alternative sentencing is presumptively correct. See T.C.A. §
40-35-401(d); Mencer, 798 S.W.2d at 549. The Defendant is not entitled to relief on this
issue.

                                        III. Conclusion

        Based upon the aforementioned reasoning and authorities, we affirm the judgment of
the trial court.

                                                    _____________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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