          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON             FILED
                           JANUARY 1999 SESSION        January 22, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 02C01-9808-CC-00257
      Appellee,                     )
                                    )    WEAKLEY COUNTY
VS.                                 )
                                    )    HON. WILLIAM B. ACREE, JR.,
ANTHONY E. BRASFIELD,               )    JUDGE
                                    )
      Appellant.                    )    (Aggravated Burglary, Escape and
                                     )   Criminal Trespass)




FOR THE APPELLANT:                       FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.                  PAUL G. SUMMERS
113 North Court Square                   Attorney General and Reporter
P.O. Box 26
Waverly, TN 37185-0026                   ELIZABETH T. RYAN
(On Appeal)                              Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
JOSEPH P. ATNIP                          425 Fifth Avenue North
District Public Defender                 Nashville, TN 37243-0493
111 Main Street
P.O. Box 734                             THOMAS A. THOMAS
Dresden, TN 38225                        District Attorney General
(At Trial)
                                         JAMES D. KENDALL
                                         Assistant District Attorney General
                                         121 West Main Street
                                         Dresden, TN 38225-0218




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION

       A Weakley County jury convicted defendant of aggravated burglary, a Class

C felony; criminal trespass, a Class C misdemeanor; and escape, a Class E felony.

The trial court sentenced defendant as a Range III persistent offender on the

aggravated burglary and escape convictions, for which he received consecutive

sentences of fourteen years and six years, respectively. For criminal trespass he

received a concurrent thirty-day sentence. In this appeal as of right, defendant

raises two issues:

              (1) whether the evidence was sufficient to convict
              defendant of aggravated burglary; and

              (2) whether the effective twenty-year sentence is
              excessive.

This Court concludes the evidence was sufficient, and the sentences were proper.

The judgments and sentences imposed by the trial court are AFFIRMED.



                                       FACTS

       On August 1, 1997, Christie Sanders heard a noise from the enclosed back

porch area of her home and went to investigate. When she turned on the light, she

saw a black male inside the room. When he ran out, Sanders saw him get into a

“small, red, boxy-type car. . .with backup lights in the middle” that was parked at the

apartments next door.      The car was identified as belonging to defendant.

       Defendant had recently been released from the penitentiary, so as part of the

investigation, Captain David Moore questioned defendant about his whereabouts

that evening. Defendant denied any involvement in the incident.

       On November 29, 1997, around 4:45 a.m., Officer Doug Hollingsworth

spotted defendant’s red car at the apartments next door to Christie Sanders’

residence. As a result, Officer Stacy Bostwick was sent to patrol the neighborhood.

While on patrol, Bostwick heard a noise coming from Dr. Victor Depta’s house. He

shined his flashlight and saw the defendant jump off Depta’s back porch. Bostwick

arrested defendant for trespass and advised him of his Miranda rights.

       At approximately 6:00 a.m., Christie Sanders called the police to report that



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the red car involved in the incident at her home in August was again parked at the

apartments next door. The police advised her that someone was already in

custody.

       At the police station, defendant asked to speak with Captain David Moore

who had questioned him in August regarding the incident at Christie Sanders’ home.

When Moore got to the station, he again advised defendant of his rights. Defendant

signed a rights waiver and gave Captain Moore a statement in which he admitted

to the trespass on Depta’s property and the earlier aggravated burglary of Sanders’

home. The statement also explained that defendant’s reason for prowling was to

find money.

       While being booked into the Weakley County jail for trespass and aggravated

burglary, defendant asked to place a phone call. Jailer, Eric Gordon, removed

defendant’s handcuffs to allow him to do so. While making the call, defendant

threw down the phone and ran out of the Sheriff’s office. Several officers pursued

defendant on foot; he was captured about ten minutes later.



                        SUFFICIENCY OF THE EVIDENCE

       Defendant avers the evidence was insufficient to support a finding of guilt

on the aggravated burglary charge. To support this claim he points only to his own

trial testimony.

       In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). A jury verdict approved by the trial judge accredits the state’s witnesses and

resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the

state is entitled to the strongest legitimate view of the evidence and all legitimate or

reasonable inferences which may be drawn therefrom. Id. This court will not

disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant

demonstrates that the facts contained in the record and the inferences which may

be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to



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find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d

1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm

the conviction if the evidence, viewed under these standards, was sufficient for any

rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,

99 S.Ct. 2781, 61 L.Ed.2d 560, 572 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994).

       Captain Moore testified that defendant admitted his presence in the utility

room of Christie Sanders’ home for the purpose of finding money. Defendant’s trial

testimony contradicted this statement. The jury disbelieved defendant’s trial

testimony. This was the jury’s prerogative. Defendant’s testimony, standing alone,

is insufficient to overcome the presumption of guilt established by the jury verdict.

       The evidence was sufficient to find defendant guilty of aggravated burglary.

This issue is without merit.



                                   SENTENCING

       The trial court sentenced defendant as a Range III persistent offender to

fourteen years for the aggravated burglary and six years for the felony escape. The

trial court ordered them to run consecutively. A thirty-day sentence for criminal

trespass was run concurrently with these sentences. Defendant does not challenge

his persistent offender status, nor the imposition of thirty days for trespass. He

does assert that the effective twenty-year sentence for the felony convictions is

excessive. Therefore, our review will focus solely on those sentences.

       This court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the

appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-

401(d) Sentencing Commission Comments.



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       To create the presumption of correctness, the trial court is required, pursuant

to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:

       (1) [t]he evidence received at the trial and the sentencing hearing; (2)
       [t]he presentence report; (3) [t]he principles of sentencing; (4) [t]he
       nature and characteristics of the criminal conduct involved; (5)
       [e]vidence and information offered by the parties on the enhancement
       and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
       statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

       If mitigating or enhancement factors exist, a trial court should start at the

minimum sentence, enhance the minimum sentence within the range for

enhancement factors and then reduce the sentence within the range for the

mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each

factor is prescribed by the statute, as the weight given to each factor is left to the

discretion of the trial court as long as the trial court complies with the purposes and

principles of the sentencing act and its findings are supported by the record. State

v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848

(Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App.

1995); see State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); Manning v. State,

883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

       The state established five prior felony and five prior misdemeanor

convictions. Furthermore, defendant had his probation or parole revoked on two

separate occasions. Thus, the trial judge determined that, of the five enhancement

factors requested by the state, only two were applicable: defendant had, one, a

previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range; and two, a previous history of

unwillingness to comply with the conditions of a sentence involving release in the

community. Tenn. Code Ann. § 40-35-114(1), (8).             The defense offered no

mitigating factors, and none were found.

       As for its determination of the length of the sentences, the trial judge followed

the applicable sentencing principles. For the aggravated burglary conviction, he

started at the presumptive ten-year sentence, increased it by four due to the

enhancement factors and set it at fourteen years. For the escape conviction, he



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began at the presumptive sentence of four years, increased it by two, and set it at

six years. Since there were no mitigating factors, these sentences were entirely

appropriate.

       Regarding the consecutive nature of the sentences, the trial judge correctly

noted that the escape statute mandates that any sentence received for an escape

conviction be run consecutively to the underlying offense. See Tenn. Code Ann. §

39-16-605(c).

       The trial judge in this case created an excellent sentencing record. Before

handing down the sentences, he reviewed the evidence on the record; enumerated

the requirements for determination of the appropriate sentencing range; and recited

the sentencing principles and considerations applicable to the case. The thorough

findings and correct application of sentencing principles by the trial judge eliminate

the need for any appellate intervention in this case.

       This issue has no merit.



                                  CONCLUSION

       Based upon the foregoing, the judgment of the trial court is AFFIRMED.




                                                ____________________________
                                                 JOE G. RILEY, JUDGE



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CONCUR:


______________________________
DAVID G. HAYES, JUDGE




______________________________
JOHN EVERETT WILLIAMS, JUDGE




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