         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                     Assigned on Briefs December 2, 2003 at Jackson

                    STATE OF TENNESSEE v. BOBBY R. DYER

                    Appeal from the Circuit Court for Williamson County
                           No. I-302-085    Carol Solomon, Judge



                      No. M2002-03140-CCA-R3-CD - Filed May 14, 2004


Bobby R. Dyer appeals from his Williamson County Circuit Court convictions of aggravated
burglary and theft of property valued at $1,000 to $9,999. He claims that his theft conviction is not
supported by sufficient evidence and that he was improperly sentenced. Because we are unconvinced
of reversible error, we affirm.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Eugene Honea, Franklin, Tennessee, for the Appellant, Bobby R. Dyer.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Lee Dyer, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

               On occasions prior to the offenses that are the subject of the defendant’s convictions
on appeal, the victim, Johnny Kelly, employed the defendant as a laborer. The defendant assisted
the victim in renovating and improving various properties that the victim owned, including the
victim’s own residence.

                 On September 10, 2001, while in Davidson County, the victim discovered a saw
missing from his truck. He contacted a pawn shop where he had originally purchased the saw to see
about obtaining a replacement saw, and he learned that the defendant had pawned the victim’s saw
earlier in the day. After discovering that his saw had been stolen, the victim likewise discovered that
several other tools had been taken from his home in Williamson County, as well.
                After first contacting the defendant and asking him to return the tools, the victim
reported the theft to the authorities. Ultimately, it was discovered that the defendant had taken
several items identical to the ones the victim reported stolen to three Davidson County pawn shops
on the morning of September 10. Two detectives went to the defendant’s home to arrest him, and
they found the defendant hiding in the shower. After his arrest, the defendant at first denied any
knowledge of the stolen tools. However, he later admitted that he had pawned the tools but claimed
he had not taken them. He claimed he had sent a man named James Williams to the victim’s home
to take the tools so that he could pawn them.

               At trial, the victim identified the recovered tools as his. He testified about his
purchase price and the value of the tools at the time they were taken.

              To counter the state’s proof, the defendant testified on his own behalf. He denied
having made the prior inculpatory statement and testified that all of the tools he pawned except the
saw were his own. He claimed that James Williams had given him the saw in lieu of cash because
Williams owed the defendant money for car repairs that the defendant had completed for Williams.

               After receiving the proof, the jury found the defendant guilty of aggravated burglary
and theft of property valued at $1,000 to $9,999. At the subsequent sentencing hearing, the trial
court sentenced the defendant to a maximum, Range I sentence of six years for aggravated burglary
and a mid-range, Range I sentence of three years for theft. The court imposed the sentences to run
concurrently to each other but consecutively to a prior offense.

                                                   I

                The defendant’s first complaint is that the evidence is not sufficient to sustain his
conviction of theft of property valued at $1,000 to $9,999 because the state failed to establish the fair
market value of the property stolen. The defendant makes no challenge to the other elements of the
theft crime or to his conviction of aggravated burglary.

                When an accused challenges the sufficiency of the convicting evidence, this court
must review the record to determine if the evidence adduced at trial is sufficient “to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule
is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.
Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000).

                In determining the sufficiency of the convicting evidence, this court does 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 circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this
court is required to afford the state the strongest legitimate view of the evidence contained in the



                                                  -2-
record as well as all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                 Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact, not this court. Id. at 835. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), our supreme
court said, “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.”

                 Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating why
the evidence is insufficient to support the verdicts returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the sufficiency
of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a
rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Id.

                “Value” of stolen property, as contemplated by the Criminal Code and pertinent in
this case, is

        (i)     The fair market value of the property or service at the time and place of the
                offense; or
        (ii)    If the fair market value of the property or service cannot be ascertained, the
                cost of replacing the property within a reasonable time after the offense[.]

Tenn. Code Ann. § 39-11-106(a)(36)(A)(i)-(ii) (2003).

                 We are unpersuaded by the defendant’s argument that the state did not offer sufficient
proof of the value of the stolen property. The victim described the stolen items in his testimony, and
he stated both the prices of the items if purchased new and the prices of items in like, used condition
as the stolen items. The total amount of the prices of comparable used items is in excess of $1,000.
Moreover, the victim testified that his insurance company had paid him $800 for the stolen items,
which was the valuation of them less his $500 deductible, thereby yielding an insurance valuation
for the stolen property of $1,300.

                The defendant contends, without a precise explanation of his logic, that this proof did
not address the question of fair market value. We, however, believe that the victim’s testimony
about the prices of comparable used property squarely addresses the question of fair market value.
Tennessee Rule of Evidence 701(b) permits the owner of personal property to testify about the value
of that property. Tenn. R. Evid. 701(b). For each stolen item, the victim in this case testified about
the value of an item in like, used condition. The property in question consisted of hand tools, a
fungible commodity. The testimony about the value of like, used items was evidence of the fair
market value of the stolen items.



                                                  -3-
                                                  II

                The defendant also challenges the sentence imposed. He claims that the court failed
to consider the sentencing principles and failed to announce its findings in imposing enhanced and
consecutive sentences. The lower court imposed Range I incarcerative sentences of six years for
aggravated burglary and three years for theft, and it ordered that the sentences be served concurrently
to each other and consecutively to a previously imposed sentence in another case.

                We begin with a review of the relevant law. In making a felony sentencing
determination, the trial court, at the conclusion of the sentencing hearing, determines the range of
sentence and then determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the
presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4)
the nature and characteristics of the criminal conduct involved, (5) evidence and information offered
by the parties on the enhancement and mitigating factors, (6) any statements the defendant wishes
to make in the defendant’s behalf about sentencing, and (7) the potential for rehabilitation or
treatment. See Tenn. Code Ann. § 40-35-210(a), (b) (2003), § 40-35-103(5) (2003); State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                A defendant who “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.” Tenn. Code Ann. § 40-35-102(6) (2003). However, a
defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear
disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not
enjoy the presumption. See id. § 40-35-102(5), (6) (2003); State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). A sentence involving confinement is appropriate when

       (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 especially 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.

Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2003).

               Furthermore, the defendant’s potential for rehabilitation or lack thereof should be
examined when determining whether an alternative sentence is appropriate. Id. § 40-35-103(5)
(2003). Sentencing issues are to be determined by the facts and circumstances presented in each
case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).




                                                 -4-
                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (2003).
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.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). Likewise, the trial court has an affirmative duty to state on the
record, either orally or in writing, which enhancement and mitigating factors it found and its findings
of fact. Tenn. Code Ann. §§ 40-35-209(c), 40-35-210(f) (2003); State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998); State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999). In the present
case, the record reflects that the lower court considered the statutory principles and facts of the case;
however, it failed to apply a relevant mitigating factor, so our review of its length-of-sentence
determinations is de novo unaccompanied by the presumption of correctness.

                The lower court enhanced the defendant’s sentences based upon findings that the
defendant had a very lengthy criminal history and committed the offenses while on felony probation.
See Tenn. Code Ann. § 40-35-114(2), (14)(C) (2003). On appeal, the defendant aptly concedes the
applicability of these enhancement factors.

               The defendant contests, however, the lower court’s treatment of his proffered
mitigating factor that his offenses neither caused nor threatened serious bodily injury. See id. § 40-
35-113(1) (2003). When addressing the defendant’s argument for application of this factor, the
lower court commented, “The mitigating factor, of course, is that there was no bodily injury. But
the charge itself, that doesn’t really apply to aggravated burglary.” The evidence in this case
supports the existence of this factor to both the aggravated burglary and theft convictions, and the
lower court should have applied it in mitigation. Cf. State v. Clarence Weaver, No. E1999-02005-
CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Knoxville, Aug. 21, 2000).

                 That said, however, we are unprepared to hold that the lower court erred in imposing
six and three year sentences for the defendant’s convictions. The defendant, a Range I offender,
faced a sentence of three to six years for aggravated burglary, a Class C felony. See Tenn. Code
Ann. §§ 40-35-110, 40-35-112(a)(3) (2003). He faced a two to four year sentence for the Class D
felony offense of theft of property valued at $1,000 to $9,999. See id. §§ 40-35-110, 40-35-
112(a)(4). The defendant justly deserves to have his sentences substantially enhanced given his
extensive history of criminal convictions, which spans nearly all of the 39-year-old defendant’s adult
life. In a similar vein, his sentences are subject to significant enhancement because he was serving
a probationary sentence at the time he committed the present offenses. In contrast, the fact that he
did not cause or threaten serious bodily injury in committing these crimes is entitled to no more than
de minimus weight. Given the comparative weight of the enhancement and mitigating factors, the
defendant justly deserves sentences of six years for aggravated burglary and three years for theft.
Cf. State v. Roy Ray Wallace, No. E2000-00046-CCA-R3-CD, slip op. at 7-8 (Tenn. Crim. App.,
Knoxville, Dec. 6, 2000) (defendant’s burglary and theft sentences greatly enhanced by defendant’s
prior criminal record and bail status at time of offenses and only minimally mitigated because
defendant’s conduct did not cause or threaten serious bodily injury).


                                                  -5-
              Accordingly, we move on to the question whether the defendant’s sentences should
have been imposed consecutively to a prior sentence he was serving for a Davidson County offense.
Consecutive sentencing may be imposed in the discretion of the trial court upon a determination that
one or more of the following criteria exist:

               (1)     The defendant is a professional criminal who has knowingly devoted
                       himself to criminal acts as a major source of livelihood;
               (2)     The defendant is an offender whose record of criminal activity is
                       extensive;
               (3)     The defendant is a dangerous mentally abnormal person so declared
                       by a competent psychiatrist who concludes as a result of an
                       investigation prior to sentencing that the defendant’s criminal conduct
                       has been characterized by a pattern of repetitive or compulsive
                       behavior with heedless indifference to consequences;
               (4)     The defendant is a dangerous offender whose behavior indicates little
                       or no regard for human life, and no hesitation about committing a
                       crime in which the risk to human life is high;
               (5)     The defendant is convicted of two (2) or more statutory offenses
                       involving sexual abuse of a minor with consideration of the
                       aggravating circumstances arising from the relationship between the
                       defendant and victim or victims, the time span of defendant’s
                       undetected sexual activity, the nature and scope of the sexual acts and
                       the extent of the residual, physical and mental damage to the victim
                       or victims;
               (6)     The defendant is sentenced for an offense committed while on
                       probation; or
               (7)     The defendant is sentenced for criminal contempt.

       Tenn. Code Ann. § 40-35-115(b) (2003).

                       In the present case, the defendant is eligible for consecutive sentencing based
       upon his extensive criminal history and his commission of the offenses while on probation.
       See id. § 40-35-115(b)(2), (6) (2003). Although the lower court did not explicitly announce
       that it found these two statutory factors applied, the court did comment in some detail on
       both the defendant’s criminal history and his probationary status in making its sentencing
       pronouncement. The record supports the existence of these factors, and considered with the
       facts and circumstances of the case, the factors amply support an order of consecutive
       sentencing.

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




                                                     -6-
___________________________________
JAMES CURWOOD WITT, JR., JUDGE




    -7-
