         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE         FILED
                      JANUARY 1997 SESSION
                                                  April 3, 1997

                                              Cecil W. Crowson
                                             Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )    No. 01C01-9604-CC-00160
      Appellee,                )
                               )    DICKSON COUNTY
VS.                            )
                               )    Hon. Robert E. Burch, Judge
BILLY JOE BAGGETT,             )
                               )    (Aggravated Burglary)
      Appellant.               )



FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID D. WOLFE                      CHARLES W. BURSON
304 East College                    Attorney General and Reporter
Dickson, TN 37055
                                    EUGENE J. HONEA
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    DAN MITCHUM ALSOBROOKS
                                    District Attorney General

                                    JAMES W. KIRBY
                                    Assistant District Attorney General
                                    105 Sycamore Street
                                    Ashland City, TN 37015



OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The appellant, Billy Joe Baggett, was convicted by a jury of aggravated

burglary.   The trial court sentenced him to fifteen (15) years as a Range III,

Persistent Offender. On appeal, he presents ten (10) issues for our review:

       (1) whether the evidence was sufficient to support a finding of guilt
       beyond a reasonable doubt for aggravated burglary; (2) whether the
       trial court erred in allowing the state to introduce tape recordings of
       four (4) telephone conversations between Baggett and a state
       informant; (3) whether the trial court erred in allowing the state to
       introduce a prybar into evidence; (4) whether the trial court erred in
       allowing the state to use prior convictions for impeachment purposes;
       (5) whether the trial court erred in allowing the state to present
       evidence of Baggett’s escape from jail; (6) whether the trial court
       erred in not granting a mistrial following a state witness’ prejudicial
       remarks; (7) whether the trial court erred in allowing evidence of
       Baggett’s preferential treatment while in jail; (8) whether the charge
       to the jury as to reasonable doubt was unconstitutional; (9) whether
       the trial court erred in sentencing Baggett; and (10) whether the delay
       in hearing the motion for new trial violated his right to a speedy
       appeal.

We affirm the judgment of the trial court.



                                      FACTS



       The proof at trial showed that Detective Mark Coulon was contacted by Darryl

Dooley, who was incarcerated at the Cheatham County Jail, with some information

regarding Billy Joe Baggett. He informed Detective Coulon that Baggett was trying

to set up a burglary and was asking for Dooley’s help. Detective Coulon then

contacted TBI Special Agent Mike Breedlove with this information.

       With the consent of Tom Grogan, Special Agent Breedlove planned a

burglary of the Grogan residence. Breedlove arranged for Dooley to contact

Baggett with information on how and when the burglary would take place. Dooley

agreed to allow the TBI to tape record telephone conversations between himself

and Baggett.

       During these conversations, Dooley and Baggett discussed the details of the

upcoming burglary. Dooley gave Baggett the address of the Grogan residence and

told Baggett when Grogan would be out of town and what to look for when he got

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inside the house.

       Law enforcement officers monitored the Grogan residence. Baggett and a

co-defendant were spotted entering the garage of the Grogan residence and were

arrested inside the garage by the officers. Baggett was wearing latex surgical

gloves and was carrying a pair of pliers, a small flashlight and a pocket knife.

Another flashlight was found in the area where Baggett was apprehended.

Although the officers did not search the garage for any “burglary tools” at that time,

Grogan later found a prybar underneath a desk in the garage and turned it over to

the officers.

       After a jury trial, Baggett was found guilty of aggravated burglary. He was

sentenced to the maximum of fifteen (15) years as a Range III, Persistent Offender.



                        SUFFICIENCY OF THE EVIDENCE



       Baggett claims that the evidence is insufficient to support a guilty verdict

beyond a reasonable doubt. He testified at trial that the reason for his being in the

Grogan household was to collect money Grogan owed to Dooley because Dooley

owed Baggett money for marijuana. Therefore, he contends that this negates the

state’s proof that he had the intent to commit theft when he entered the residence,

a requisite element of burglary. See T.C.A. § 39-14-402(a)(1).

       Great weight is given to the result reached by the jury in a criminal trial. A

jury verdict accredits the state's witnesses and resolves all conflicts in favor of the

state. State v. Williams, 657 S.W.2d 405 (Tenn. 1983). On appeal, the state is

entitled to the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832

(Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence

which the appellant enjoyed at trial and raises a presumption of guilt on appeal.

State v. Grace, 493 S.W.2d 474 (Tenn. 1973). The appellant has the burden of

overcoming this presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an



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appellate court 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 or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307 (1979); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985); T.R.A.P. 13(e).

         The mere fact that Baggett’s testimony provided the jury with another reason

as to why he was in the Grogan residence does not make the evidence insufficient.

Obviously, the jury did not believe his testimony. The weight and credibility of the

witnesses' testimony are matters entrusted exclusively to the jury as the triers of

fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); Byrge v. State, 575 S.W.2d

292 (Tenn. Crim. App. 1978). Therefore, because we find that otherwise the record

clearly supports a verdict of guilty beyond a reasonable doubt, this issue is without

merit.



                        ADMISSION OF TAPE RECORDINGS



         Baggett next contends that the trial court erred in admitting into evidence four

(4) tape recorded conversations between Dooley and himself. He claims that there

were as many as fourteen (14) conversations that were not taped. Therefore, he

maintains that because all of the conversations between Baggett and Dooley could

not be introduced, none should have been presented to the jury because of the

danger of misleading or confusing the jury pursuant to Rule 403 of the Tennessee

Rules of Evidence.

         The determination whether or not evidence is admissible is left to the sound

discretion of the trial court. State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App.

1994); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). This Court

will not disturb that finding absent a showing of abuse of discretion. Id. We find

that the trial judge did not abuse his discretion.

         The taped conversations were relevant to the burglary charge. Evidence is

relevant if it “has a tendency to make the existence of any fact that is of

consequence to the action more probable or less probable than it would be without



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the evidence.” State v. Harris, 839 S.W.2d 54, 71 (Tenn. 1992), T.R.E. 401. There

is no constitutional violation to tape record a conversation before the defendant is

charged. State v. Branam, 855 S.W.2d 563, 568 (Tenn. 1993). Additionally, there

was no unfair prejudice to Baggett as he testified to what was discussed during the

other conversations. As there is no showing of abuse of discretion, the tapes were

properly admitted.

      Baggett further contends that the tapes should have been excluded because

of some discussions regarding Baggett supplying Dooley with marijuana while

Dooley was incarcerated in the Cheatham County Jail. As a general rule, evidence

of other crimes or bad acts would not be admissible. State v. Parton, 694 S.W.2d

299 (Tenn. 1985); T.R.E. 404(b). However, under the circumstances of the case,

any error was, at best, harmless because Baggett testified that Dooley owed him

money for supplying Dooley with marijuana. Accordingly, this issue has no merit.



                            ADMISSION OF PRYBAR



      Baggett’s next argument concerns the admission of a prybar which was

found by Grogan while he was cleaning his garage about thirty days after the

incident. Grogan found the prybar underneath a desk which was within a foot or so

from where Baggett’s accomplice was standing at the time of his arrest. As the

prybar was not his, Grogan turned it over to the police. Because it had a rough

exterior, the police did not test the prybar for fingerprints.    The prybar was

subsequently introduced into evidence as a “burglary tool.” Baggett claims that

because of the lapse of time and the lack of any fingerprint testing, the prybar

should have been excluded as it was highly prejudicial.

       The mere fact that evidence is prejudicial to the defendant does not make it

inadmissible as a matter of law. State v. Dulsworth, 781 S.W.2d 277, 287 (Tenn.

Crim. App. 1989). The prybar was relevant as it showed the intent of Baggett on the

night of the incident. See State v. Harris, 839 S.W.2d at 71. The jury could

reasonably infer that the prybar was used in the burglary. This is more a question



                                         5
of the weight of the evidence rather than its admissibility. The trial judge properly

admitted the prybar into evidence.



                     ADMISSION OF PRIOR CONVICTIONS



       Baggett’s next contention is that the trial court improperly allowed the state

to use his prior convictions of receiving and concealing stolen goods for

impeachment purposes. Because of the similarity between the prior convictions and

the charge of burglary, he claims that the prejudice outweighed any probative value

for truthfulness.

       Upon learning that Baggett intended to testify at trial, the trial court conducted

a hearing on the issue of admitting his prior convictions. After determining that the

probative value on credibility outweighed any unfair prejudice to Baggett, the trial

court ruled that the state could use the prior convictions for receiving and concealing

stolen property for impeachment. As a result, defense counsel asked Baggett about

these prior convictions on direct examination.

       Rule 609(b)(3) of the Tennessee Rules of Evidence provides that in order to

impeach a witness who is the defendant in a criminal prosecution with prior criminal

convictions, the court must determine that the “conduct’s probative value on

credibility outweighs its unfair prejudicial effect on the substantive issues.” In

making the determination as to whether the probative value outweighs the prejudice

to the defendant, the trial court should (a) assess the similarity between the crime

on trial and the crime underlying the impeaching conviction and (b) analyze the

relevance the impeaching conviction has to the issue of credibility. State v. Farmer,

841 S.W.2d 837, 839 (Tenn. Crim. App. 1992).

       Although the convictions for receiving and concealing stolen goods are

somewhat similar to the burglary charge, the prior convictions are probative of

dishonesty.   This Court has previously held that it is not error to admit prior

convictions that involve dishonesty, even though the prior convictions and the

pending charge are relatively similar. State v. Wright, 836 S.W.2d 130 (Tenn. Crim.



                                           6
App. 1992).

       We find that it was proper to admit the prior convictions. The convictions for

receiving and concealing stolen goods are relevant to Baggett’s credibility. The trial

judge balanced the probative value against any prejudice to the defendant. Two

larceny convictions were excluded because the trial court believed that the prejudice

outweighed any probative value as to credibility. The trial court properly allowed

evidence of Baggett’s prior convictions for receiving and concealing stolen goods.



                           ADMISSION OF JAIL ESCAPE



       Baggett next argues that evidence that he escaped from jail while awaiting

trial should have been excluded because it happened six (6) months after his arrest.

Evidence that an accused has escaped from custody is admissible for the purpose

of “establishing the accused’s guilt, consciousness of guilt, or knowledge of guilt.”

State v. Burton, 751 S.W.2d 440, 450 (Tenn. Crim. App. 1988). Contrary to

Baggett’s position, the length of time between the commission of the offense and

the escape is irrelevant. Craig v. State, 455 S.W.2d 190 (Tenn. Crim. App. 1970).

This issue has no merit.



                                     MISTRIAL



       Baggett contends that a mistrial should have been declared based on a

statement that he was well known to law enforcement. Specifically, Baggett

claims that it was error for the trial court to allow the following exchange on the

prosecution’s direct examination of TBI Special Agent Breedlove:

              Q:     “Why, Agent Breedlove, was Mr. Baggett, to use
                     the term that’s been used before, I think, ‘targeted’
                     in this particular offense? Why did you set your
                     sights on Billy Joe Baggett?”.

              A:     “Well, Mr. Baggett is well-known in the law enforcement--”.

At this point, defense counsel objected and the trial judge promptly sustained the

objection. The trial judge further instructed the jury to disregard the statement.

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         The decision whether to grant a mistrial is within the discretion of the trial

judge, whose action will not be disturbed on appeal unless there was an abuse

of that discretion. State v. Millbrooks, 819 S.W.2d 441 (Tenn. Crim. App. 1991).

Objections interposed by defense counsel were sustained, and the trial judge

gave a curative instruction to the jury. It is presumed that the jury followed the

trial judge’s instructions not to consider inadmissible evidence. Id. This issue is

without merit.



                            PREFERENTIAL TREATMENT



         Baggett next argues that evidence of alleged preferential treatment in the

Cheatham County Jail should have been excluded because it was irrelevant and

highly prejudicial. Determinations as to the relevance and probative value of

evidence are within the sound discretion of the trial court. State v. Leath, 744

S.W.2d 591,593 (Tenn. Crim. App. 1987); Gray v. State, 235 S.W.2d 20 (Tenn.

1950).

         Baggett called a jailor at the Cheatham County Jail as a witness to

introduce certain jail log records. On cross examination, the state was allowed,

over objection, to question the jailer about alleged preferential treatment that

Baggett received while incarcerated. The trial judge conducted a jury out hearing

to determine the relevance of the questioning. The state argued and the trial

court agreed that the testimony concerning preferential treatment was probative

as to the credibility of the jailor. The trial judge further limited the prosecution’s

questions to those only concerning treatment from that particular jailor. The

record in this case supports the trial court findings; therefore, this issue is without

merit.



                                    JURY CHARGE



         Baggett next argues that the trial court’s reasonable doubt instruction was



                                            8
unconstitutional. He contends jurors could find guilt based on a degree of proof

below that required by the Due Process Clause.

       The trial court gave the following instructions to the jury:

              The State has the burden of proving the guilt of each
              defendant beyond a reasonable doubt, and this burden
              never shifts but remains on the State throughout the
              trial of the case. The defendant is not required to prove
              his innocence.

              Reasonable doubt is that doubt engendered by an
              investigation of all the proof in the case and an inability
              after such investigation to let the mind rest easily as to
              the certainty of guilt. Reasonable doubt does not mean
              a capricious, possible, or imaginary doubt.

              Absolute certainty of guilt is not demanded by law to
              convict of any criminal charge, but moral certainty is
              required, and this certainty is required as to every pro-
              position of proof requisite to constitute the offense.


       Taken in the context of the entire jury charge, use of the phrase “moral

certainty” in a reasonable doubt instruction is constitutional. See Nichols v.

State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266

(Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim.

App. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993).

This issue is without merit.



                               EXCESSIVE SENTENCE



       Baggett next contends that the sentence imposed by the trial court was

excessive. The trial court sentenced Baggett, a Range III, Persistent Offender,

to the maximum sentence for aggravated burglary. Baggett argues the trial court

should have given more weight to mitigating factors.

       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 with a

presumption that the determinations made by the trial court are correct. T.C.A. §

40-35-401(d). The presumption of correctness which attaches to the trial court’s

action is conditioned upon an affirmative showing in the record that the trial court



                                          9
considered appropriate sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Accordingly, the defendant has the burden of showing that the sentence is

improper. State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993).

       When conducting our de novo review, relevant factors to consider are:

(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) any statement

that the defendant made on his own behalf, and (7) the potential for rehabilitation

or treatment. T.C.A. §§ 40-35-102, -103 and -210.

       In calculating the sentence for Class B, C, D, or E felony convictions, the

presumptive sentence is the minimum within the range if there are no

enhancement or mitigating factors. T.C.A. § 40-35-210(c); State v. Smith, 926

S.W.2d 267 (Tenn. Crim. App. 1995). If there are enhancement factors but no

mitigating factors, the trial court may set the sentence above the minimum.

T.C.A. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as

a means of increasing the sentence. T.C.A § 40-35-210(e). So long as the trial

court complies with appropriate sentencing principles and its findings are

supported by the record, weight to be afforded an existing factor is in the

discretion of the trial court. See State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

       Baggett was convicted of aggravated burglary, a Class C felony. The trial

court found Baggett to be a Range III, Persistent Offender. As such, Baggett

could receive a sentence between ten and fifteen years. Based on the

presentence report, the trial court found Baggett had a prior conviction for

escape, two prior convictions for grand larceny, two convictions for passing

worthless checks, a conviction for second-degree burglary, and twenty prior

convictions for possession of stolen property. The trial court also noted that

Baggett was on probation for several offenses when he committed the burglary



                                         10
in this case.

       The trial court properly found only one mitigating factor in that Baggett’s

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

113(1). Given Baggett’s extensive criminal history, the court had the discretion

to give it little weight. See State v. Santiago, 914 S.W.2d 116 (Tenn. Crim. App.

1995). The record in this case supports the fifteen-year sentence imposed by

the trial court.



                                 SPEEDY APPEAL



       Baggett finally contends that a delay in hearing his motion for new trial

violated his Sixth Amendment right to a speedy trial. On February 16, 1994,

defense counsel for Baggett requested and the trial court ordered that a

transcript be prepared and produced for use prior to argument on the motion for

new trial. The sentencing judge had initially set the hearing on the motion for a

new trial on May 9, 1994. On September 6, 1994, defense counsel wrote a letter

to the circuit court clerk indicating that he had been contacted by the court

reporter preparing the transcript and was advised the motion for new trial was

reset for September 12, 1994, because she had not completed the transcript. By

July 17, 1995, the motion for new trial had not been heard nor had Baggett

received the trial transcript. Baggett then filed a motion to set motion for new

trial and compel production of the transcript.

       Our courts have adopted the four factor speedy trial analysis set forth in

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) . See

State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981); State v. Bishop, 493 S.W.2d

81, 83-85 (Tenn. 1973). However, the Barker factors have not, until recently,

been applied to appellate delay cases alleging violation of the Sixth Amendment

right to a speedy trial. In United States v. Smith, 94 F.3d 204, 208 (6th Cir.

1996), the Sixth Circuit transplanted the Barker factors in analyzing violations of

the right to a speedy trial, with slight modifications, as the framework for



                                         11
evaluating appellate delay cases. In doing so, the Court recognized that an

excessive delay in the appellate process may also rise to the level of a due

process violation. Id. at 207. The court must examine the conduct of the

government and the defense to determine whether a violation of defendant’s due

process right to a prompt appeal has occurred. In this process the court

balances four factors: (1) length of delay; (2) reason for delay; (3) whether

defendant asserted his right; and (4) whether defendant was prejudiced by the

delay. Id.

       We have examined these various factors relative to the delay in hearing

the motion for new trial. We find no violation, especially considering the failure of

defendant to demonstrate any prejudice.



       The judgment of the trial court is AFFIRMED.




                                                 JOE G. RILEY, JUDGE




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CONCUR:




DAVID H. WELLES, JUDGE




JERRY L. SMITH, JUDGE




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