            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998

                                                             FILED
STATE OF TENNESSEE,         )                                 April 13, 1998
                            )    No. 02C01-9709-CC-00372
      Appellee              )                           Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
                            )    HARDIN COUNTY
vs.                         )
                            )    Hon. C. Creed McGinley, Judge
SCOTTY WAYNE WHITE,         )
                            )    (Burglary)
      Appellant             )



For the Appellant:               For the Appellee:

Richard W. DeBerry               John Knox Walkup
Asst. Public Defender            Attorney General and Reporter
P. O. Box 663
Camden, TN 38320                 Marvin E. Clements, Jr.
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 G. Robert Radford
                                 District Attorney General

                                 John Overton
                                 Asst. District Attorney General
                                 601 Main St., Hardin Co. Courthouse
                                 Savannah, TN 38372




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                      OPINION



       The appellant, Scotty W ayne White, appeals as of right his conviction for

burglary, a class D felony. Following his conviction by a jury, the Hardin County Circuit

Court sentenced the appellant as a range II, multiple offender to seven years

incarceration in the Tennessee Department of Correction. On appeal, the appellant

first contends that the evidence was insufficient as a matter of law to convict him of

burglary. In his second issue, the appellant contends that the appellant’s sentence of

seven years is excessive based upon the court’s improper weighing of the mitigating

factor applied.



       After review, we affirm.



                                      Background

       At approximately 10:00 p.m. on the evening of July 19, 1996, as he was leaving

his residence, Officer Mike Moncher of the Savannah Police Department heard the

sound of a burglar alarm. He followed the sound of the alarm to the K & M Market

where he discovered that the business’s plate glass window had been broken. He

called for a back-up unit. While waiting for the unit to arrive, Officer Moncher observed

a trail of blood which he followed to the north end of the building and finally to a grassy

area. When he reached this point, he stopped and waited at the market for the other

officers to arrive. Captain Donald Derr was the first officer to arrive at the K & M

Market. While en route, he saw a man walking down a nearby street. After Captain

Derr arrived on the scene, he and Officer Moncher entered the building. Inside, they

found broken glass, blood on the ground, and a four foot long piece of lumber with

glass embedded in it. The officers secured the evidence, which included blood

samples, and took photographs of the crime scene and its surrounding area. The

officers then left instructions with the emergency room at the local hospital to inform

them if anyone arrived in need of treatment for a bleeding wound. Around 11:30 p.m.,


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they were notified that a man with a severe laceration to his knee was being treated at

the local emergency room. Captain Derr and Officer Moncher, as well as another

uniformed officer, proceeded to the emergency room and spoke with the appellant. In

addition to the knee injury, the officers observed a cut on his forehead, small scrapes

or cuts around his left eye, and another cut on his right ankle. The appellant told

Captain Derr that his knee injury occurred when he fell on a metal post or pipe in his

backyard. Captain Derr then reminded Officer Moncher of the person he had observed

walking down the street when he was en route to the K & M Market. The officers

returned to the street, found a blood trail, and followed the trail “pretty much drop by

drop” until the trail ended “on the front porch of Scotty White’s residence.” Next, the

officers returned to the intersection and followed the trail of blood backwards to the

same grassy field where Officer Moncher had first tracked the blood when he followed

the trail from the north end of the K & M Market. The officers then went to the

appellant’s home and, when no one answered the front door, they proceeded around

to the back door of the house. While in the backyard, Captain Derr shined his flashlight

throughout the yard and saw no metal post. Moreover, the officers found no blood in

the backyard. The officers asked the appellant to give a blood sample and the

appellant refused. The officers then obtained a search warrant ordering the appellant

to provide a blood sample, which he refused. Due to hospital policy which did not allow

hospital employees to take blood without the consent of the donor, the officers were

unable to obtain a blood sample from the appellant.



       Mike McCullough, a Hardin County ambulance driver, testified that he examined

the appellant at the appellant’s residence on the night of July 19, 1996, at

approximately 10:57 p.m. He stated that the appellant informed him that he had cut

himself on a piece of tin in his backyard. McCullough went to the backyard in order to

determine the cause of the appellant’s injury and saw nothing in the backyard that

would have injured him. Despite McCullough’s urging, the appellant refused to go to

the hospital for treatment.


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       The appellant’s mother testified that she drove to the appellant’s home on the

night of July 19, 1996, around 10 p.m., when her daughter-in-law called to inform her

that the appellant had been injured. While there, she stated that she observed blood

in the appellant’s backyard. The appellant’s wife, Renee White, testified that she

convinced the appellant to go to the emergency room. She further admitted that she

gave police officers two different versions of the cause of the appellant’s knee injury.

Ms. White first informed the police that her husband had been injured in a fight. Later

she changed her story and advised the police that her husband injured his knee when

he tripped over a wire in their backyard while “fixing a dog pen.” She explained that his

head injuries occurred earlier that summer when “[h]e busted his head swimming,

diving off in shallow water.”



       At the close of the testimony, the jury found the appellant guilty of burglary. At

the sentencing hearing on June 4, 1997, the trial court applied two enhancing factors

and one mitigating factor in determining the appellant’s sentence. The trial court then

sentenced the appellant to seven years in the Department of Correction as a range II,

multiple offender.



                                         Analysis

                            I. Sufficiency of the Evidence

       In the appellant’s first issue, he contends that the evidence is insufficient as a

matter of law to support his conviction for burglary. In essence, the appellant asserts

that the jury should have accredited the testimony of his wife and mother instead of the

evidence presented by the State; he also contends that the blood trail leading from the

site of the burglary to his house was merely circumstantial evidence. When reviewing

a trial court’s judgment, the appellate court will not disturb a verdict of guilt unless the

facts of the record and inferences which may be drawn from it are insufficient as a

matter of law for a rational trier of fact to find the defendant guilty beyond a reasonable

doubt. Tenn. R. App. P. 13(e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).


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In other words, this court will not reevaluate or reweigh the evidence brought out at trial.

It is presumed that the judge or 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); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The credibility of the

testimony of the witnesses is entrusted exclusively to the jury as the trier of facts.

Sheffield, 676 S.W.2d at 547. Since a verdict of guilt removes the presumption of a

defendant’s innocence and replaces it with a presumption of guilt, the defendant has

the burden of proof on the sufficiency of the evidence at the appellate level. Grace,

493 S.W.2d at 476.



       Furthermore, a crime may be established by circumstantial evidence alone.

State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, before an accused

may be convicted of a criminal offense based only upon circumstantial evidence, the

facts and circumstances “must be so strong and cogent as to exclude every other

reasonable hypothesis save the guilt of the defendant.” State v. Crawford, 470 S.W.2d

610, 612 (Tenn. 1971).



       In this case, the jury heard the evidence presented that the blood trail led from

the site of the burglary to the appellant’s front door. The jury also accredited the

testimony of the State’s witnesses that no blood nor metal post was evident in the

appellant’s backyard. Moreover, the jury in this case, as the exclusive judges of the

credibility of the witnesses, had the right to disregard, in large part, the testimony of the

appellant’s wife, based upon her impeachment by prior inconsistent statements. The

overwhelming evidence establishing the appellant’s guilt supports the jury’s conclusion

that he entered a building, other than a habitation, without the consent of the property

owner and with the intent to commit a felony. Tenn. Code Ann. § 39-14-402(a)(1)

(1990).   We find this issue to be without merit.




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                                       Sentencing

       Second, the appellant contends that the trial court “did not give enough weight”

to the applied mitigating factor at sentencing. The appellant contends that he should

receive a lesser sentence than that imposed by the trial court because his crimes did

not involve “personal injury,” “threat[s],” or “danger to anyone.” Review, by this court,

of the length, range, or manner of service of a sentence is de novo with a presumption

that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1990). This presumption only applies, however, if the record demonstrates that

the trial court properly considered relevant sentencing principles. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). In this case, we find that the presumption applies. In

reference to the appellant’s contention that the trial court misweighed the applicable

mitigating factor, the legislature has left the weight of the applicable factors to the

guided discretion of the trial court when “balancing the relative degrees of culpability

within the totality of the circumstances of the case involved.” See State v. Moss, 727

S.W.2d 229, 238 (Tenn. 1986). Thus, the weight afforded the mitigating factor by the

trial court does not constitute error. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim.

App. 1996).



       The appellant received a sentence of seven years imprisonment for his

conviction of burglary. The record establishes that the trial court initially found that the

appellant was a range II, multiple offender, based on four prior felony convictions, three

for burglary and one for violation of the Motor Vehicle Habitual Offender Act. Tenn.

Code Ann. § 40-35-106(a)(1)(1990). Thus, the applicable sentencing range for the

burglary conviction was four to eight years. Tenn. Code Ann. § 40-35-112(b)(4)(1990).

The court applied two enhancing factors: (1) Tenn. Code Ann. § 40-35-114(1)(1996

Supp.), that the appellant had a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range and (2) Tenn.

Code Ann. § 40-35-114(13)(C)(1996 Supp.) , that the appellant committed the burglary

while he was on probation. The court noted that the appellant had committed three


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burglaries in less than three years and had committed “a host of misdemeanors.” The

court found one mitigating factor, that the appellant’s conduct neither caused nor

threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1)(1990). The court

further stated that, because of the appellant’s prior criminal history and his failed

attempts at rehabilitation, he was not a suitable candidate for alternative sentencing.

Tenn. Code Ann. § 40-35-103(1)(C)(1990). The court then sentenced the appellant to

seven years imprisonment, one year less than the maximum sentence for a range II

offender.   We find that the trial court followed appropriate sentencing principles.

Accordingly, no sentencing error is found. This issue is without merit.



      The judgment of the trial court is affirmed




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:




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_____________________________________
WILLIAM M. BARKER, Judge



_____________________________________
JOE G. RILEY, Judge




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