             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                       FILED
                                  AT KNOXVILLE                      August 20, 1999

                                                                   Cecil Crowson, Jr.
                                JUNE 1999 SESSION                 Appellate C ourt
                                                                      Clerk




STATE OF TENNESSEE,                   )
                                      )    C.C.A. NO. 03C01-9811-CR-00383
             Appellee,                )
                                      )    HAWKINS COUNTY
VS.                                   )
                                      )    HON. JAMES E. BECKNER,
JERRY K. CRAWFORD,                    )    JUDGE
                                      )
             Appellant.               )    (Burglary of an Auto & Theft of
                                           Property Valued Under $500.00)



FOR THE APPELLANT:                         FOR THE APPELLEE:


GREG EICHELMAN                             PAUL G. SUMMERS
District Public Defender                   Attorney General & Reporter

R. RUSSELL MATTOCKS                        CLINTON J. MORGAN
Asst. Public Defender                      Asst. Attorney General
1609 College Park Dr., Box 11              Cordell Hull Bldg., 2nd Fl.
Morristown, TN 37813-1618                  425 Fifth Ave., North
                                           Nashville, TN 37243-0493

                                           C. BERKELEY BELL
             .                             District Attorney General

                                           DOUG GODBEE
                                           Asst. District Attorney General
                                           Hawkins County Courthouse
                                           Main St.
                                           Rogersville, TN 37857




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was found guilty by a jury of burglary of an automobile and

theft of property valued at five hundred dollars ($500.00) or less.          The trial court

sentenced the defendant as a Range I standard offender to a term of one year and three

months for burglary and a term of eleven months and twenty-nine days for theft. These

sentences were to run concurrently and were to be served in confinement. The

defendant’s subsequent motion for a new trial was denied by the trial court. The

defendant now appeals and contends that the evidence is insufficient to support his

convictions and that his sentence is excessive. After a review of the record and

applicable law, we find no merit to the defendant’s contentions and thus affirm the

judgment of the court below.



              The evidence at trial established that in the early morning hours of April 9,

1998, the passenger side window of the victim’s car was broken and her purse, which

was inside the car, was stolen. According to the victim, Karen Stokes, she heard a

“crash” outside, but “thought it was lightening [sic].” She subsequently realized that her

car had been burglarized. When she later heard a witness describing the suspect to the

police, she thought the description matched that of the defendant, her husband’s cousin,

and gave the police the defendant’s name.



              A neighbor of the victim, Tina Alley, also testified at trial. According to Ms.

Alley, she “heard glass breaking” and ran to the window. She saw a man wearing jeans

and white t-shirt running to a red, four-door Cavalier. Ms. Alley further testified that there

was enough light “shining down where I could see who it was.” Although Ms. Alley

admitted that she did not immediately recognize the man, she testified that she later

realized the man she had seen was the defendant, a relative. After this realization, Ms.

Alley gave the defendant’s name to the police.          Ms. Alley also made an in-court

                                              2
identification of the defendant.



              Also testifying at trial was Kimberly Reed, a woman visiting Ms. Alley when

the crime occurred. Ms. Reed testified that she heard glass breaking, went outside, and

saw a man running toward a red, four-door Cavalier. Ms. Reed testified that she yelled

“hey” and the man turned around. Ms. Reed testified that she was able to see the man’s

face. She then identified the defendant as the man she saw running from the scene.



              After receiving a description of the suspect, his clothing, and the

defendant’s name, the police went to the defendant’s residence.            Officer Robert

Schmutzler of the Kingsport Police Department testified that when he arrived at the

defendant’s residence, he felt the hood of the defendant’s red Cavalier parked outside.

According to Officer Schmutzler, the hood of the Cavalier was still warm. In addition, he

noticed small pieces of glass in the driver’s seat of the Cavalier. Officer Schmutzler then

knocked on the door of the defendant’s residence and the defendant answered. Officer

Schmutzler subsequently found a wet white t-shirt on the top of a clothes pile in the

defendant’s bedroom.       According to Officer Schmutzler, the t-shirt matched the

description given by witnesses on the scene. Officer Schmutzler took the t-shirt back to

the scene of the crime where Ms. Alley positively identified it as the shirt worn by the

suspect. Ms. Alley also made an in-court identification of the t-shirt.



              The evidence further established that the pieces of glass found in the

defendant’s Cavalier, pieces of glass from the passenger window of the victim’s car, and

the defendant’s t-shirt were all sent to the TBI crime laboratory. Randall Nelson, a

forensic scientist in the TBI crime laboratory, testified at trial. According to Mr. Nelson,

the glass found in the driver’s seat of the defendant’s Cavalier was “consistent” with the

glass from the passenger side window of the victim’s car. However, the glass fragments

that were subsequently found on the defendant’s t-shirt were not “consistent” with the

                                             3
glass from the passenger side window of the victim’s car.



              The defendant now contends that the evidence is insufficient to support his

conviction. Specifically, the defendant points to apparent inconsistencies and faults in

the testimony of Ms. Alley, Ms. Reed, and Officer Schmutzler and alleged faults in the

physical evidence linking the defendant to this crime. The defendant further contends

that the evidence with which he was convicted was purely circumstantial in nature and

therefore insufficient to support his convictions.



              A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).



              It is a well established principle of law in this state that circumstantial

evidence alone may be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d

718, 721 (Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial

evidence “must be not only consistent with the guilt of the accused but it must also be

inconsistent with his innocence and must exclude every other reasonable theory or

hypothesis except that of guilt.” State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In

addition, “it must establish such a certainty of guilt of the accused as to convince the

mind beyond a reasonable doubt that [the defendant] is the one who committed the

crime.” Tharpe, 726 S.W.2d at 896. Moral certainty as to each element of the offense

is required, but absolute certainty is not. Tharpe, 726 S.W.2d at 896. While following

these guidelines, this Court must remember that the jury decides the weight to be given

                                               4
to circumstantial evidence and that “[t]he 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); State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v.

State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).



              In the case at bar, two eyewitnesses identified the defendant as the man

fleeing the scene of the crime. The eyewitnesses also described the man’s vehicle as

a red Chevy Cavalier, the same type of car driven by the defendant. In addition, the

glass found in the driver’s seat of the defendant’s Cavalier was consistent with the glass

from the broken window of the victim’s vehicle. One witness identified the t-shirt found

by police at the defendant’s residence as the same shirt worn by the man fleeing the

scene of the crime. After a review of the record, we find the evidence sufficient for a

rational trier of fact to find the defendant guilty beyond a reasonable doubt. Furthermore,

although the defendant points to apparent inconsistencies in the testimony of several trial

witnesses in support of his claim of insufficient evidence, we note that questions

concerning the credibility of witnesses as well as factual issues raised by the evidence

are resolved by the trier of fact, not this Court. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). As such, this contention is without merit.



              The defendant next contends that his sentence of one year and three

months for the burglary of an auto is excessive. The defendant argues that the trial court

erred in applying enhancement factors (1), that the defendant has a previous history of

criminal convictions or criminal behavior, and (8), that the defendant has a previous

history of unwillingness to comply with the conditions of a sentence involving release into

the community. T.C.A. § 40-35-114(1), (8). The defendant further contends that the trial

court erred in denying him some form of alternative sentencing.




                                            5
              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-

401(d) Sentencing Commission Comments. This presumption, however, “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. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). We find the presumption applicable in this case.



              In conducting a review of the defendant’s sentence, this Court must

consider the evidence received at the trial and the sentencing hearing, the presentence

report, the principles of sentencing and arguments as to sentencing alternatives, the

nature and character of the offense, applicable mitigating and enhancement factors, any

statement the defendant wishes to make in his own behalf about sentencing, and the

potential for rehabilitation or treatment. See T.C.A. § 40-35-103, -210; State v. Holland,

860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



              The defendant’s conviction for burglary of an auto is a Class E felony.

T.C.A. § 39-14-402. As a Range I standard offender convicted of a Class E felony, the

defendant’s sentencing range was one to two years. T.C.A. § 40-35-112(a)(5). The

Sentencing Reform Act of 1989 provides that in the absence of enhancing and mitigating

factors, the minimum sentence within the range is the presumptive sentence for Class

B, C, D, and E felonies. T.C.A. § 40-35-210(c). If there are enhancing and mitigating

factors, the court must start at the minimum sentence in the range and enhance the

sentence as appropriate for the enhancement factors and then reduce the sentence

within the range as appropriate for the mitigating factors. If there are no mitigating

factors, the court may set the sentence above the minimum in that range but still within

the range. The weight to be given to each factor is left to the discretion of the trial judge.

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

                                              6
              The defendant argues that the trial court improperly applied enhancement

factor (1), that the defendant has a previous criminal history. T.C.A. § 40-35-114(1). The

presentence report indicates that the defendant has previously been convicted on two

counts of reckless driving, two counts of speeding, and one count of driving without a

license. As this is a history of criminal behavior and convictions, we find no error in the

trial court’s application of this factor. See State v. Troy L. Noles, No. 01C01-9710-CR-

00470, Macon County (Tenn. Crim. App. filed October 19, 1998, at Nashville); State v.

Jerome D. Upman, No. 03C01-9402-CR-00052, Hamblen County (Tenn. Crim. App. filed

August 2, 1994, at Knoxville); see also State v. Jerry Lynn Walde, No. 03C01-9603-CC-

00109, Sevier County (Tenn. Crim. App. filed December 23, 1997, at Knoxville).



              The defendant next challenges the trial court’s application of enhancement

factor (8), that the defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community. T.C.A. § 40-35-114(8). The

trial court based the application of this factor on the presentence report which indicates

that the defendant was convicted of reckless driving and placed on six months of

probation. While on probation, the defendant was convicted of speeding. This could be

considered as some history of an unwillingness to comply with conditions of a sentence

involving release in the community. See State v. Michael Adams, No. 289, Hamblen

County (Tenn. Crim. App. filed August 7, 1989, at Knoxville)(holding enhancement factor

(8) applicable where the defendant was convicted of driving on a revoked license while

on probation); State v. Randal A. Thies, No. 02C01-9708-CC-00299, Tipton County

(Tenn. Crim. App. filed April 24, 1998, at Jackson)(holding enhancement factor (8)

applicable where the defendant was convicted of speeding while on probation for DUI

and had previously been convicted of DUI while on probation for a separate DUI).



              The trial court found one applicable mitigating factor, that the defendant’s

criminal conduct did not cause or threaten serious bodily injury. T.C.A. § 40-35-113. The

                                            7
record also indicates that the trial court considered the fact that the victim requested

leniency for the defendant.     The trial court subsequently enhanced the minimum

sentence of one year for a Class E felony to a sentence of one year and three months.

In light of the applicable enhancement and mitigating factors, we find no error in the trial

court’s sentence.



              The defendant next contends that the trial court erred in denying him an

alternative sentence. T.C.A. § 40-35-103 sets out sentencing considerations which are

guidelines for determining whether or not a defendant should be incarcerated. These

include the need “to protect society by restraining a defendant who has a long history of

criminal conduct,” the need “to avoid depreciating the seriousness of the offense,” the

determination that “confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses,” or the determination that “measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1).



              Additionally, the legislature established certain sentencing principles which

include:

              (5) In recognition that state prison capacities and the funds
              to build and maintain them are limited, convicted felons
              committing the most severe offenses, possessing criminal
              histories evincing a clear disregard for the laws and morals
              of society, and evincing failure of past efforts at rehabilitation
              shall be given first priority regarding sentencing involving incar-
              ceration; and

              (6) A defendant who does not fall within the parameters of
              subdivision (5) and is an especially mitigated or standard
              offender convicted of a Class C, D or E felony is presumed to
              be a favorable candidate for alternative sentencing options in
              the absence of evidence to the contrary.

T.C.A. § 40-35-102.



              After reviewing the statutes set out above, it is obvious that the intent of the

                                             8
legislature is to encourage alternatives to incarceration in cases where defendants are

sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               The defendant in the case at bar is presumed to be a favorable candidate

for alternative sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-

102(6). However, militating against alternative sentencing are circumstances indicating

that measures less restrictive than confinement have recently been applied

unsuccessfully to the defendant, that confinement is necessary either to protect society

from a defendant with a long history of criminal conduct or to avoid depreciating the

seriousness of the offense, or that the defendant lacks the potential for rehabilitation.

See T.C.A. § 40-35-103(1), (5); Ashby, 823 S.W.2d at 169.



               In denying alternative sentencing in the present case, the trial court relied

on a number of factors. The trial court first noted the defendant’s prior criminal record.

The trial court further noted the defendant’s “prior offense while on probation” indicating

that measures less restrictive than confinement have recently been applied to the

defendant without success. T.C.A. § 40-35-103(1)(C). The trial court mentioned the

need for deterrence. The trial court also noted the defendant’s history of alcohol abuse

indicated in the presentence report. This history is relevant to establish the defendant’s

potential or lack of potential for rehabilitation. T.C.A. § 40-35-103(5). The trial court also

pointed to the fact that the defendant had never admitted his guilt in this case and instead

“lied to the jury about it.” The fact that the defendant has taken no responsibility for his

criminal activity and was untruthful suggests a lack of potential for rehabilitation. T.C.A.

§ 40-35-103(5).




                                              9
              Thus, we conclude that the factors cited above are sufficient to overcome

the presumption of eligibility for alternative sentencing. The defendant has failed to carry

his burden of demonstrating that the evidence preponderates against the trial court’s

findings. The defendant has also failed to carry his burden of demonstrating that his

sentence was improper. This issue is therefore without merit.



              Accordingly, we affirm the defendant’s conviction and sentence.




                                                  _________________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge




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