        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 23, 2010

       STATE OF TENNESSEE v. ALPHANZA DALE PITTS, ALIAS
        ALFONZO DELL PITTS, ALIAS ALPHONSA DALE PITTS,
                    ALIAS ALFONZO WOODS

                 Appeal from the Criminal Court for Hamilton County
                      No. 266697     Barry A. Steelman, Judge


              No. E2009-00974-CCA-R3-CD - Filed September 17, 2010


The Defendant, Alphanza Dale Pitts, was convicted by a Hamilton County Criminal Court
jury of aggravated burglary, a Class C felony, and theft of property over $1000, a Class D
felony. See T.C.A. §§ 39-14-403; -103 (2006). The trial court sentenced the Defendant as
a persistent offender to fifteen years for the aggravated burglary conviction and as a career
offender to twelve years for the theft conviction, to be served concurrently. On appeal, the
Defendant contends (1) that the evidence was insufficient to support his convictions, (2) that
the prosecutor made improper comments during opening and closing arguments, and (3) that
the trial court erred in sentencing him to the maximum term of fifteen years for aggravated
burglary. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Donna R. Miller (on appeal) and Brian L. O’Shaughnessy (at trial), Chattanooga, Tennessee,
for the appellant, Alphanza Dale Pitts, alias Alfonzo Dell Pitts, alias Alphonsa Dale Pitts,
alias Alfonzo Woods.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William H. Cox, III, District Attorney General; and C. Matthew Rogers, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                     BACKGROUND

        The Defendant and two co-defendants, Jeremy Bloodsaw and William Hammond,
were indicted for aggravated burglary and theft of property valued at $1000 or more for their
participation in the burglary of Paul Hart’s unoccupied residence in Chattanooga. At the
Defendant’s trial, Eugene Penn testified that he lived on Union Avenue in the Highland Park
neighborhood. He said that on the evening of October 4, 2007, he was sitting on his front
porch and had “nodded off” when he heard a loud noise which he described as “clink, clink,
like a pair of dollies.” He immediately put on his eyeglasses and saw the Defendant in front
of the home of his neighbor, Paul Hart. Penn said that his house faced the side of Hart’s
house on the corner of Greenwood Avenue and Union Avenue. He saw the Defendant
pushing a dolly with a television down Greenwood Avenue toward Bailey Avenue. Penn
observed the Defendant cross Bailey Avenue and then ran over to Hart’s porch to look for
the “for sale” sign in order to obtain Hart’s telephone number. He took the sign, returned to
his front porch, and called Hart to inform him that someone had been inside his house.

       Mr. Penn testified that while he was talking to Hart, he saw a car come down Union
Avenue and park behind Hart’s house. He said the Defendant and two other men got out of
the car and went inside Hart’s house “like they owned that house, they cut the lights on . . .
and started helping themselves.” He said he could see all three men through the windows.
He said that the police arrived as the Defendant came out the front door and that the
Defendant told the officer that he lived nearby and heard a noise. Penn said that when he,
and the police went to Hart’s house, he noticed that a window in the front door had been
knocked out.

       Mr. Penn testified that he saw the Defendant in the neighborhood previously and
spoke to him. He said that the Defendant’s brother lived in the neighborhood and that the
Defendant sometimes stayed with his brother. On cross-examination, Penn acknowledged
that when he saw the Defendant pushing the dolly down the street he saw the Defendant from
the back but did not see his face.

       Felicia Dillard, Eugene Penn’s daughter, testified that she was at her parents’ house
when her father came inside and told her mother to call the police because someone was
breaking into Hart’s house. Dillard said that she and her parents went to their door and saw
three men walking up the hill in front of her parents’ house and going into the victim’s house.
The lights in the victim’s house came on, and because there were no curtains on the
windows, she could see the three men walking through the house. She saw the men place

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“stuff” in the trunk and in the front of the car that was parked in the driveway behind the
victim’s house. She said that when the police arrived, the Defendant came out the front door
and tried to explain why he was in the house, saying that he heard a commotion and was “just
trying to see what was going on.” She said that the other two men ran, with one going into
the bushes and the other hiding under the car. She said that the Defendant “kept walking up
on” the police officer, causing the officer to draw his gun. She said that by this time, the
Defendant stood directly under the street light on the corner. She acknowledged that the
Defendant did not carry anything when he came out of the house. She identified the
Defendant in the courtroom as one of the men she saw in the victim’s house that night.

        Detective Jerry McElroy of the Chattanooga Police Department testified that he was
called to the crime scene by Officers Pinkard and Zirk, who had detained three suspects. He
said that a pane of plexiglass was knocked out near the door handle of the house and that the
porch light and several street lights around the house were on. He saw a Crown Victoria
parked behind the house. Inside the house, papers were strewn about in the living room. The
victim told him that a thirty-nine-inch Magnavox television was missing from the
entertainment center. Detective McElroy said that he obtained a description of the stolen
property and that the value of the property exceeded $1000. He said that the police recovered
some of the items, including the thirty-nine-inch Magnavox television, a nineteen-inch
Emerson television, a computer printer, a vacuum cleaner, sheets, and one or two sets of
kitchen knives. Items not recovered included two ceiling fans. He said that the police
recovered the televisions and a dolly from an apartment on Duncan Avenue, which was “two
short city blocks” from the victim’s house. He said that the police found several of the stolen
items, including a knife set, sheets, a vacuum cleaner, and a computer printer, inside the
Crown Victoria. Detective McElroy said that several large windows were on the Union
Avenue side of the victim’s residence and that only the living room window was covered
with a blind.

       Detective McElroy said that the fingerprints lifted from the driver’s side rear door of
the Crown Victoria matched those of the co-defendant, Jeremy Bloodsaw, and that those
prints were the only positive match from the sets he lifted at the scene. He said that the co-
defendant, William Hammond, owned the Crown Victoria. He said that when he went to the
apartment on Duncan Avenue where he recovered the televisions, “Dewayne,” who was
“supposed to be Mr. Jeremy Bloodsaw’s brother,” came to the door and told him that the
Defendant brought the televisions to the apartment.

        Officer Ronald Zirk of the Chattanooga Police Department testified that he responded
to a call about “several people breaking into a house” around 9:00 p.m. on October 4, 2007,
at the intersection of Union and Greenwood. When he arrived on the scene, he spotted the
Defendant, who “froze . . . for just a second,” coming out of the victim’s house. Officer Zirk

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said that the Defendant started walking toward him and that he detained the Defendant. He
acknowledged that the Defendant was not carrying any stolen items and did not have a
weapon. He said that he also saw Hammond run behind the victim’s house.

        The victim, Paul Hart, testified that at the time of the burglary, his house located at
607 South Greenwood Avenue was for sale and had been vacant for two or three months.
He said that when he arrived that night, the police were already there and that he noticed one
of the plexiglass pieces in his front door was broken. He said that two ceiling fans, vacuum
cleaners, two televisions, a printer, two sets of kitchen knives, comforters, sheets, and a dolly
were missing and that the value of the missing property was over $1000. He described one
of the televisions as a thirty-five-inch set that had been removed from the entertainment
center. He said the police recovered the dolly and the thirty-five-inch television, which was
damaged and “no longer workable.” He said he moved back into the house about two weeks
after the burglary and was currently living there.

         The Defendant did not present any evidence. He was convicted upon the foregoing
proof.

                                         ANALYSIS

                         I. SUFFICIENCY OF THE EVIDENCE

        The Defendant contends that the evidence was insufficient to support his convictions
because he was never seen in the victim’s house, did not possess any of the stolen property,
and his fingerprints were not recovered from the scene. Additionally, he argues that the
value of the stolen items was less than $1000 and that his theft conviction should be “reduced
to theft over $500.00 at best.” The State responds that the evidence was sufficient to support
the Defendant’s convictions. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
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). This means that we may not reweigh
the evidence, but we must presume 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). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

         “Aggravated burglary is burglary of a habitation . . . .” T.C.A. § 39-14-403(a). As

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relevant to this appeal, burglary is committed when a person enters a building without the
owner’s consent and with the intent to commit a theft. Id. § 39-14-402(a). “A person
commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” Id. § 39-14-103.

        The proof at trial established that the Defendant and his two co-defendants entered the
victim’s home by breaking a plexiglass piece from the front door and that they took several
items of the victim’s property without his consent. Eugene Penn testified that he saw the
Defendant pushing a dolly containing a television set near the victim’s house and then
witnessed the Defendant and two other men return in a vehicle and go inside the victim’s
house “like they owned that house, they cut the lights on . . . and started helping themselves.”
Felicia Dillard testified that the Defendant was one of the men she saw inside the victim’s
house the night of the burglary. Officer Ronald Zirk testified that the Defendant came out
of the victim’s house when Zirk arrived. Items belonging to the victim were found in the car
that the Defendant and his co-defendants drove to the victim’s house. The victim testified
that the value of the stolen property exceeded $1000. We conclude that the evidence was
sufficient to sustain the Defendant’s convictions.

                        II. PROSECUTORIAL MISCONDUCT

       The Defendant contends that the prosecutor made several improper comments during
opening and closing arguments and claims that no curative instructions were given. The
State responds that the Defendant waived consideration of this issue by failing to request a
curative instruction or to raise a contemporaneous objection at trial. We note that in his
motion for new trial, the Defendant raised an issue regarding improper comments during the
opening statement but not during the closing arguments.

        During opening argument, the State referred to Eugene Penn as “a hero in this case”
and referred to the victim as feeling violated “because a man’s home is his castle, and [the
Defendant] violated that castle.” The State also referred to Officer Zirk as being “put in a
line of fire” when he arrived on the scene to find the Defendant still at the scene.

        First, we will consider the Defendant’s claims of an improper opening statement.
Prosecutorial misconduct does not constitute reversible error unless the outcome was affected
to the defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the following
considerations for determining if the prosecutor’s conduct could have improperly prejudiced
the defendant and affected the verdict:



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       1. The conduct complained of viewed in context and in light of the facts and
       circumstances of the case.

       2. The curative measures undertaken by the court and the prosecution.

       3. The intent of the prosecutor in making the improper statement.

       4. The cumulative effect of the improper conduct and any other errors in the
       record.

       5. The relative strength or weakness of the case.

See State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in
determining if the misconduct resulted in reversible error).

        The Defendant claims that the State improperly said in the opening statement that
Eugene Penn was a “hero”; that “a man’s home is his castle, and [the Defendant] violated
that castle”; and that Officer Zirk was “put in a line of fire” when he arrived at the scene and
the Defendant was present. Before applying the test set out in Judge, we note that the
Defendant does not explain why these statements were improper but rather rests upon his
claim that “given the close nature of the proof,” the State tried to “buttress poor proof by
incensing the jury.” We cannot conclude that any of these are incendiary statements.
Applying the test provided in Judge, we conclude that the Defendant’s claims of
prosecutorial misconduct during the opening statement are without merit. Even assuming
that the statements were improper, they were mild; the Defendant failed to object; and the
case against the Defendant was strong.

        The Defendant’s complaints as to the closing argument are that the State told the jury,
“[T]he dolly in question, the dolly that was being pushed down Greenwood Avenue on
October the 4th, 2007, about 9 p.m., if you listen, you can hear it. I can still hear it today.
Eugene Penn can still hear it today. . . .” The Defendant also complains about the State’s
reference to Eugene Penn, Felicia Dillard, Officer Zirk, and Detective McElroy as
“superheroes.” Because the claim as to the closing argument is raised for the first time on
appeal, the issue is waived. See T.R.A.P. 3(e). The Defendant is not entitled to relief unless
the issue rises to the level of plain error. See T.R.A.P. 36(a); Tenn. R. Crim. P. 52(b); State
v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). In this regard, we conclude that plain error does
not exist. We disagree with the Defendant’s claims that the statements were improper. Thus,
consideration of this issue is not necessary to do substantial justice; and the Defendant is not
entitled to plain error relief.



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                                    III. SENTENCING

       The Defendant contends that the trial court erred in sentencing him to the maximum
term of fifteen years for aggravated burglary by failing to apply certain mitigating factors in
determining the length of his sentence. The State responds that the trial court considered the
mitigating factors and determined that none applied.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. § 40-35-401(d) (2006 & Supp. 2008). This
presumption of correctness is conditioned upon the affirmative showing that the trial court
considered the relevant facts, circumstances, and sentencing principles. State v. Carter, 254
S.W.3d 335, 344-45 (2008); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the
Sentencing Commission Comments to section 40-35-401(d) note, the burden is on the
appealing party to show that the sentence is improper.

        However, “the presumption of correctness which accompanies the trial court’s action
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.
In this respect, for the purpose of meaningful appellate review,

              the trial court must place on the record its reasons for arriving at
              the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e).

        Also, in conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical
information as to sentencing practices for similar offenses in Tennessee, (7) any statement
that the Defendant made on his or her own behalf, and (8) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss,
727 S.W.2d 229 (Tenn. 1986).

       In imposing a sentence within the appropriate range of punishment for a defendant:



                                              -7-
              [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). The weighing of the various mitigating and enhancement factors is
“left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345.

       As a persistent offender convicted of a Class C felony, the sentencing range for the
Defendant was ten to fifteen years. T.C.A. § 40-35-112(c)(3). In sentencing the Defendant
to the maximum term, the trial court determined:

                     The Court is to consider any mitigating or enhancement
              factors. Here the Court does find, with regard to the
              enhancement factors, . . . [T.C.A. §] 40-35-114,“that the
              defendant has a previous history of criminal convictions or
              criminal behavior in addition to those necessary to establish the
              range.”

                     As was stated, the [D]efendant has 20 prior felony
              convictions. The Court relied on as many as seven of those for
              the career determination on the D felony, and five of those with
              regard to the conviction on the range 3 and the sentencing on
              range 3, so obviously there are felonies way beyond that.

                     And then [the probation officer’s] presentence
              investigation also revealed an extensive history of misdemeanor
              convictions in General Sessions Court.

                     The Court . . . does also find that at the time that this
              felony was committed, that the [D]efendant was released on


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probation. That is factor number 13. He was on . . . probation
out of General Sessions Court for a drug paraphernalia case and
a driving on suspended violation. Those both resulted in
convictions on July the 6th of 2007.

       This new offense of burglary and theft was committed on
October 4th, 2007. Normally those would seem like trivial
offenses to result in a finding of an enhancement factor, but the
Court finds that those are not so trivial based on the fact that the
[D]efendant has a complete and utter history of total, apparently
total disregard for the law, because he has so many prior
convictions, so the Court finds that those two enhancement
factors apply.

       With regard to mitigation, the presentence investigation
officer did not find any.

       There is an argument that the [D]efendant’s criminal
conduct neither caused nor threatened serious bodily injury. The
Court finds that there is some . . . credible argument that that
ought to apply, although the Court finds that in the context of
aggravated burglary, there is always the potential for serious
bodily injury to either be caused or threatened because of the
nature of going in someone else’s residence.

       So the Court, even though the Court does hear the
argument with regard to mitigating factor number 1, the Court
doesn’t give that factor any weight, and gives substantial weight
to the fact that the [D]efendant has all of these prior criminal
convictions, as well as the fact that he was on probation at the
time that he committed yet another felony offense.

....

         So the Court finds with regard to [the Defendant] that .
. . there is no room for a determination on the career felony theft
as a D felony, that is simply a 12-year sentence.

       However, on the aggravated burglary, the C felony as a
range 3 [sic], it is 10 to 15 years of possible time. The Court


                                -9-
               here is not going to have to consider any alternative sentencing
               because the sentence will be beyond ten years. Based on [the
               Defendant’s] extensive record, the Court will sentence [the
               Defendant] to the maximum on the C felony at 15 years, Range
               3, in the Tennessee Department of Correction[]; 12 years on the
               D felony, which is the only option available at 60 percent career.

       The Defendant does not challenge the enhancement factors applied by the trial court,
and the evidence supports them. However, we believe the trial court erred in its reason for
not applying the mitigating factor regarding the Defendant’s conduct not causing or
threatening serious bodily injury. See T.C.A. § 40-35-113(1). The trial court found that the
potential of serious bodily injury always exists in the crime of aggravated burglary. We
disagree with the trial court that the potential for serious bodily injury is inherent in the crime
of aggravated burglary. In the present case, the Defendant committed aggravated burglary
of an unoccupied house.           We note that in State v. James Michael Scott, No.
M2001-02000-CCA-R3-CD, Sumner County (Tenn. Crim. App. Sept. 20, 2002), this court
held that mitigating factor (1) applied to the defendant’s aggravated burglary sentence where
the proof showed that Defendant had already entered the home, and thus completed the
offense of aggravated burglary, before the assault victim arrived. In comparison, in State v.
Clarence Weaver, No. E1999-02005-CCA-R3-CD, Knox County (Tenn. Crim. App. Aug.
21, 2000), this court held that mitigating factor (1) did not apply to the defendant’s
aggravated burglary conviction even because the defendant and his sons entered a home at
which no one was home but took guns into the house and could have been interrupted during
their presence. We believe mitigating factor (1) was applicable in this case. We do not
believe, though, that the sentence should change.

        The record shows that the trial court considered the relevant facts, circumstances, and
sentencing principles. The court gave great weight to the Defendant’s very lengthy record
of convictions and the fact that, at the time of the offenses which are the basis for this appeal,
he was on probation from two misdemeanor convictions. The court found that the Defendant
had “a complete and utter history of total, apparently total disregard for the law.” We hold
that the Defendant’s continued, egregious criminal conduct and commission of these offenses
while on probation so far outweighed any slight mitigation he was due for neither causing
nor threatening serious bodily injury that the maximum sentence imposed by the trial court
was not erroneous.




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                                     CONCLUSION

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.

                                              ___________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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