         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 24, 2006

              STATE OF TENNESSEE V. BILLY ALFRED MATHES

               Appeal as of Right from the Criminal Court for Greene County
                      No. 05-CR-396 James Edward Beckner, Judge



                     No. E2006-00414-CCA-R3-CD - Filed March 15, 2007


The Defendant, Billy Alfred Mathes, was convicted by a Greene County jury of burglary. On appeal,
he alleges there was insufficient evidence for any rational jury to convict him of that crime and that
his sentence of six years was excessive. Finding no error exists, we affirm the judgment of the trial
court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and JOHN EVERETT WILLIAMS, J., joined.

D. Clifton Barnes, Morristown, Tennessee, for the Appellant, Billy Alfred Mathes.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; Cecil Mills, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

       The following evidence was presented at trial:

        Officer Tim Hartman testified he was patrolling his designated area of Greeneville on
September 11, 2005, when he received a call stating an alarm had gone off at the Greeneville Middle
School. He was close by and responded in a minute or less. He circled the school until he found an
open window through which he shined his spotlight. Officer Hartman examined the open window
and a nearby door, which he found to be locked. He waited for backup to arrive until he heard noises
and saw the Defendant exiting the open window. There was a short chase on foot, and the Defendant
was ordered to the ground and handcuffed. A number of photographs were admitted into evidence
including ones of the open window, a pill bottle laying in the middle of a hall, a screwdriver, and a
filing cabinet that appeared to have been broken open. While the Defendant was being handcuffed,
he stated he could not pay for the damage to the school, but he knew the principal. The Defendant
also stated he had been left at the school by someone else, and he was only looking for food because
he was hungry. Officer Hartman searched the Defendant for weapons and found a stick of
antiperspirant in his pocket. The Defendant told the officer he got it from inside the school.

        On cross-examination, Officer Hartman testified he was only one-quarter of a mile or less
from the school when he received the call from dispatch. It was only a matter of minutes after
Officer Hartman arrived that he saw the Defendant exit the school, the Defendant was chased down,
and the backup arrived. The Defendant appeared to have entered at least one room and the corridor
off the classroom. The pill bottle which was found apparently belonged to a teacher, and filing
cabinets were opened, but Officer Hartman did not actually see the Defendant open the cabinets or
do anything with the pill bottle.

        John Anderson testified that he was the head of maintenance at the Greeneville Middle
School. He stated he received a call from the alarm company, and he told them he would meet the
police at the school in five minutes. When he arrived, he found the Defendant handcuffed sitting
on the ground. He saw the open window and let the officers inside to search the school. Anderson
stated he looked through the school and determined some of the rooms had been entered into by
someone because a teacher’s desk was moved and drawers were opened. On cross-examination,
Anderson admitted he did not see the Defendant do anything as he was not at the school at the time
of the break-in.

        Linda Stroud, the principal of Greeneville Middle School, testified the Defendant was not
an employee or student of Greeneville Middle School, and he was not given permission to enter the
school. The school had to have a filing cabinet replaced and the louvers on the windows repaired
as a result of the break-in.

        The Defendant testified that the night before the morning in question, he was with Darrell
Williams and was “on drugs.” Williams was in his thirties, and the Defendant did not know if he
had any connection to the Greeneville Middle School. The Defendant stated they were there
together, and he was the “watch.” When he saw a car approach the middle school, he went around
the building to tell Williams. He went to the window described by Officer Hartman, and was in the
parking lot before he was told to stop. The Defendant stated Officer Hartman could not have seen
him exit the window because he did not go through that window. The Defendant testified he did not
enter the school or open any drawers. The Defendant testified the antiperspirant was in his pocket
because Williams gave it to him as a joke. He explained they were sweating because they were high
on cocaine, and they had just walked to the middle school. Although he told Officer Hartman he had
entered the school because he was hungry, that was a lie.

       On cross-examination, the Defendant stated he had been at the school for about fifteen
minutes before he was caught. He knew the antiperspirant was not his, but he was high on cocaine.
The Defendant did not know what happened to Williams after the Defendant was caught. The
Defendant maintained he never was inside the building, but he assisted Williams.


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        Officer David Thacker testified in rebuttal that the Defendant told him he had entered the
school looking for something to eat.

        On this evidence, the jury found the Defendant guilty of burglary. The State filed a notice
to seek enhanced punishment for the Defendant as a Range II multiple offender. The trial court
accepted the $5000 fine recommended by the jury and stated the range for burglary was four to eight
years. The court determined the Defendant should not be given probation based on his history of two
violations of probation while he was a juvenile, a number of probation violations as an adult, and
an escape from custody as an adult, for which he was convicted.

         In addressing the sentence, the trial court noted that in 1996, the Defendant was convicted
for theft of $500 or less as an adult, which is a Class A misdemeanor. Then, slightly over a year
later, he committed a criminal trespass, a Class C misdemeanor. In 1998, the Defendant was again
convicted of theft of less than $500. In 1999, the Defendant pled guilty to aggravated burglary and
criminal trespass, a Class C felony and a Class A misdemeanor, respectively. In 2001, an order of
protection was entered against the Defendant. Following that, the Defendant was convicted of
burglary and theft of between $1000 and $10,000, both Class D felonies. Finally, in 2005, the
Defendant was again convicted of criminal trespass, a Class C misdemeanor.1 The trial court
determined the criminal history and convictions, and the fact that the Defendant failed to comply
with previous conditions involving release into the community would support enhancing the
Defendant’s sentence to the maximum in the range, eight years.

        The court then examined mitigating factors and determined that the sentence should be
mitigated based on the fact that the Defendant’s actions “neither caused nor threatened serious bodily
injury.” Additionally, the court determined that the Defendant had a history of drug abuse and found
that to be a mitigating factor. As a result, the trial court sentenced the Defendant to six years as a
Range II multiple offender with a thirty-five percent release eligibility date, and a five-thousand
dollar fine.

                                                     II. Analysis

        The Defendant asserts that there was insufficient evidence for the jury to convict him of
burglary, that he should receive probation, and that his sentence is excessive. The State responds
that these allegations of error are without merit.

                                          A. Sufficiency of the Evidence

        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


1
    During this colloquy, the judge also noted, but did not consider, numerous charges which were retired or dismissed.



                                                           -3-
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 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 burglary. One can be convicted of burglary
when that person, “without the effective consent of the property owner . . . [e]nters a building other
than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft
or assault . . . [or] enters a building and commits or attempts to commit a felony, theft or assault.”
Tenn. Code Ann. § 39-14-402(a)(1), (3) (2006).

         Testimony showed the Defendant was spotted by Officer Hartman exiting the Greeneville
Middle School through a window. The Defendant ran until he was detained by Officer Hartman.
He told Officer Hartman that he entered the school because he was hungry. He also told the officer
that a stick of antiperspirant found in his pocket was taken from the school. Additional testimony
explained the Defendant did not have permission to enter the building, and there was at least one


                                                  -4-
filing cabinet which had been searched. This evidence is sufficient for a jury to find the Defendant
entered a structure without permission and intended to or did commit a theft while inside.
Additionally, because this entry took place at 4:16 a.m., and an alarm sounded, the jury could have
reasonably determined that the school was closed at the time of the entry. This allegation of error
is without merit.

                                            B. Sentencing

        When a defendant challenges the length, range or manner of service of a sentence, it is the
duty of this Court to 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.” Tenn. Code Ann. §
40-35-401(d) (2006). As the Sentencing Commission Comments to this section note, the burden is
now on the appealing party to show that the sentencing is improper. Tenn. Code Ann. § 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 and proper weight to the factors and principles that are relevant to sentencing under
the 1989 Sentencing Act, Tenn. Code Ann. § 40-35-103 (2006), we may not disturb the sentence
even if a different result were preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing a
defendant or to the determinations made by the trial court which are predicated upon uncontroverted
facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305,
311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994).

         We first address the Defendant’s request for probation. Tennessee Code Annotated section
40-35-102(5) (2003) states that persons who “possess[] 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 incarceration.” The presentence report shows the
following convictions as an adult, in addition to those used to qualify the Defendant as a Range II
offender: criminal trespass, assault, false imprisonment, theft under $500, another criminal trespass,
and another theft under $500. Additionally, past failed efforts at rehabilitation, as shown by the
presentence report, include: three violations of probation, absconding from aftercare, and an escape
from DYD custody. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996) (allowing
juvenile violations of probation to be considered). These convictions, along with the inability to
properly complete previous efforts at alternative sentencing fully support a denial of a request for
probation pursuant to the above mentioned standard. See Tenn. Code Ann. § 40-35-102(5). We
conclude the Defendant has not met his burden for us to hold that the trial court erred in this matter.


        As to the sentence itself, the Defendant believes his six-year sentence was excessive for, as
the jury found, breaking into a school to look for food and stealing a stick of antiperspirant. Burglary
other than in a habitation is a Class D felony. Tenn. Code Ann. § 39-14-402(a)(1), (c) (2006). The
range for a burglary in this case is four to eight years, with the presumptive sentence being the



                                                  -5-
minimum in the range.2 Tenn. Code Ann. §§ 40-35-112(b)(4), -210(c)(1) (2006). That presumptive
sentence of four years may be increased based on enhancement factors enumerated in the statues and
then reduced based on any mitigating factors the court finds. Tenn. Code Ann. § 40-35-210(c)(2)
(2006). Here, the trial court explicitly found the Defendant’s sentence should be enhanced to the
maximum in the range, eight years, based on two enhancement factors. First, the court found the
Defendant had an extensive criminal history and record, as stated above in the facts, and the
Defendant failed to comply with previous conditions involving release into the community. See
Tenn. Code Ann. § 40-35-114(1), (8) (2006). Although the trial court stated that the Defendant had
a number of charges which were retired or dismissed, we cannot conclude the trial court improperly
gave these items any weight. The trial court made sufficient findings of fact and stated these
findings in the record. Thus, we may not adjust the sentence, even if we were to believe six years
is excessive for this fact situation. See Ross, 49 S.W.3d at 847.

        However, even if the trial court did give weight to these dismissed or retired charges, it was
harmless due to the otherwise substantial criminal history and failure to comply with previous
alternative sentences. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Again, the Defendant’s
criminal history includes a conviction for criminal trespass, violation of probation, order of
protection, assault, false imprisonment, driving upon a suspended license, theft under $500, another
criminal trespass, another theft under $500, absconding from aftercare, and an escape from DYD
custody. The Defendant has not met his burden of establishing the trial court erred. Therefore, the
Defendant is not entitled to relief on this issue.

                                                III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the judgment of the
trial court.


                                                                ___________________________________
                                                                    ROBERT W. WEDEMEYER, JUDGE




2
 The Defendant has not challenged the determination that he was a Range II multiple offender. See Tenn. Code Ann.
§ 40-35-106(a) (2006). For Range II, this Defendant must have had at least two, but not more than four, felony
convictions in the Class C, D, or E. Id. The Defendant’s presentence report shows convictions for burglary, theft over
$1000, and aggravated burglary. These convictions suffice to make the Defendant a Range II offender. See Tenn. Code
Ann. §§ 39-14-103, -104, -105, -402, -403 (2006).

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