        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST SESSION, 1997                FILED
                                                        March 5, 1998
STATE OF TENNESSEE,         )   C.C.A. NO. 02C01-9704-CC-00146
                            )                         Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
      Appellee,             )
                            )
                            )   BENTON COUNTY
VS.                         )
                            )   HON. JULIAN P. GUINN
LOREN JOE PIERCE,           )   JUDGE
                            )
      Appe llant.           )   (Direct Appeal-Aggravated Arson)



FOR THE APPELLANT:              FOR THE APPELLEE:

TERRY J. LEONARD                JOHN KNOX WALKUP
9 North Co urt Square           Attorney General and Reporter
P. O. Box 957
Camden, TN 38320                ELIZABETH T. RYAN
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                ROBERT RADFORD
                                District Attorney General

                                TODD A. ROSE
                                Assistant District Attorney
                                P. O. Box 94
                                Paris, TN 38242


OPINION FILED ________________________


CONVICTION AFFIRMED; REMANDED FOR RE-SENTENCING

JERRY L. SMITH, JUDGE
                                      OPINION


       Appellant Loren Joe Pierce was convicted on June 5, 1996 by a jury in the

Benton County Circuit Court of one count of aggravated arson, a Class A felon y.

As a Range I standard offender, Appellant received a sentence of fifteen years

with the Tennessee Depa rtmen t of Co rrection .         The tr ial cou rt orde red this

sentence to run consecutively to Appellant's prior sentence for aggravated

kidnapping. Appellant presents two issues for our consideration on this direct

appe al: (1) whether the eviden ce wa s sufficie nt to su stain A ppella nt's conviction

for aggravated arson; and (2) whether the trial court erred in failing to act as

thirteen th juror a nd gra nt App ellant a new tria l.



       After a review of the reco rd, we affirm the judg ment of the trial court, but

remand for a new sentencing hearing.



                            I. FACTUAL BACKGROUND

       The proof shows that on July 15, 1995, Appellant started a fire on the

second floor of the Benton County Jail by throwing a burning piece of pape r onto

a pile of garbage in the hallway outside the cell. At the time of this offense,

Appellant was incarcerated as a pre-trial detainee on the aggravated kidnapping.



       At trial, Leland Randolph Stoutt and Stanley Malin, Appellant's fellow

inmates, testified that Appellant became angry with the jailer because there was

no toilet pape r. Mr. Stou tt testified that A ppellant s tated, "W ell, I'll show him, it




                                            -2-
will be a fire in a minute." According to Mr. Malin's testimony, Appellant said,

"Get rea dy, I'm fixing to set this plac e afire."



          Stacey Tharpe, another inmate, testified that around mealtime, Appellant

walked through the jail and said, "Everybody eat because when you get through

it's going to be a fire." A couple of minutes later, Mr. Tharpe saw Appellant light

a piece of paper with a match and toss the paper onto a pile of garbage in the

hallway of the ja il.1             The garbage consisted primarily of Styrofoam which

immediately began to burn.



          Depu ty Lucas Kennon testified that upon being informed that there was a

fire on the seco nd floo r of the ja il, he gra bbed a fire extin guish er and imm ediate ly

extinguished the blaze.                 Deputy Kennon stated that the smoke was almost

unbearable and described it as being strong, white, and thick.



          Sher iff Bobby Shann on testified that on the date of the incident,

appro ximate ly forty inmates resided in the jail and that seven to eight employees

were inside the building.



          Depu ty Morris Rogers testified that he and other deputies escorted all the

inmates on the seco nd floo r outdo ors for th eir safety. Johnny Hayes, an arson

investigator with the Tennessee Fire Marshall's Office, arrived at the jail after the

fire had been extinguished. The debris had been removed by the time that Mr.

Hayes arrived.            H owev er, he n oticed smo ke on the ce iling an d walls and

scorch ed and peeling p aint.

  1
      Mr. Th arpe exp lained that the m atches were given to the inm ates by the jail.

                                                          -3-
                     II. SUFFICIENCY OF THE EVIDENCE

      Appe llant's first contention on this dire ct app eal is th at the e videnc e is

insufficient to sustain his conviction for aggravated arson. We disagree.



      This Court is obliged to review challenges to the sufficiency of the

convicting evidence according to certain well-settled principles. A verdict o f guilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). A lthough an accu sed is orig inally cloake d with a pre sump tion of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof rests w ith Appellant to demonstrate the insufficiency of the

convicting evidenc e. Id. On ap peal, "th e [S]ta te is en titled to the strongest

legitimate view of the evidence as well as all reasonable and legitimate

inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571

S.W.2d 832, 83 5 (Ten n. 1978 )).      Wh ere the s ufficiency o f the evid ence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W.2d

                                          -4-
776, 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal

actions wheth er by th e trial co urt or jur y shall be set aside if the evid ence is

insufficient to support the findings by the trier of fact of guilt beyon d a rea sona ble

doubt." See also Matthews, 805 S.W.2d 776, 780.



         Tenn . Code Ann. § 3 9-13-30 3 provide s in part:

         (a) A person commits arson who knowingly damages any personal
         property, land, or other property, except buildings or structures
         covered under § 39-14-301, by means of a fire or explosion:
                (1) Without the consent of all persons who have a pos sessory
                or proprietary interest therein;
                (2) With intent to destroy or damage any such property for
                any unlawful purpose.

Tenn. Code Ann. § 39-14-302 provides in pertinent part: "(a) A person comm its

aggravated arson who c omm its arso n as d efined in § 39-14-3012 or § 39-14-303:

(1) When one (1) or mo re perso ns are p resent th erein." Te nn. Co de Ann . § 39-

14-302(a)(1 ). The State is required to prove each and every element of the

charged offense. In the indictment, Appellant was charged with setting fire to

garbage for the unlawful purpose of creating a fire in the Benton County Jail at

a time when one (1 ) or mo re pers ons w ere pre sent a t the jail.



         The proof shows that Appellant set the garbage on fire; that the trash

burned and created dense, white smoke; and that approximately forty inmates

and se ven em ployees were pre sent at the time of the incident.



         Appellant complains that the proof showed Stacey Tharpe was not in a

position to see Appellant light the fire.                         However, any inconsistencies or



   2
     Tenn. C ode Ann . § 39-14 -301 de als with arson o f a structure. Ho wever, Ap pellant was no t charged w ith this
offense.

                                                         -5-
contradictions in the evid ence were r esolve d by the jury in convicting Appella nt.

Therefore, the evidence was sufficient to sustain Appellant's conviction for

aggravated arson.



             III. TRIAL COURT’S THIRTEENTH JUROR REVIEW

       Appellant contends that because the trial court expressed dissatisfaction

with the required senten ce, the co urt erre d in de nying h is mo tion for n ew trial.

We disagree.



       T ENN. R. C RIM. P. 33(f) provides, in part, "The trial court may grant a new

trial following a verdic t of guilty if it disagrees with the jury about the weight of the

evidence ." Id. This rule imposes a duty upon the trial judge to act as the

thirteenth juror in every criminal c ase. State v. Blanton, 926 S.W.2d 953, 958

(Tenn. Crim. App. 1996) (citing State v. Carter, 896 S.W.2d 119, 122 (Tenn.

1995)).   An appe llate court has no ind epende nt authority to serve as the

thirteenth juror and to assess the propriety of the jury's verd ict. State v. Burlison,

868 S.W.2d 713, 719 (Tenn. Crim . App. 1993 ). Only in those cas es where the

trial judge ov errules a motion for new trial without comm ent will this Court

presume that the trial court approved the verdict as the thirteenth ju ror. State v.

Moats , 906 S.W .2d 431 , 435 (T enn. 19 95); State v. Dankw orth, 919 S.W.2d 52,

57 (Tenn . Crim. A pp. 199 5). In Moats , the Tennessee Supreme Court reiterated

the well-settled rule that "an appellate court must grant a new trial when the

record contains statements by the trial court expressing dissatisfaction or

disagreement with the weight of the eviden ce or th e jury's verdict, or sta temen ts

indicating that the trial court misunderstood its responsibility or authority to act as

the thirteen th juror." Id. at 435-36.

                                           -6-
       In overruling Appellant's motion for new trial, the trial judge expressed his

conce rn that the s entenc e was to o stringen t:

              I thought the charge, the penalty under the facts of the case
              were unduly ha rsh. I am o f the opinio n, howe ver, that the
              evidence that was prod uced was more than sufficien t to
              support the jury's verdict. And, in fact, I can find no grounds
              as thirteenth juror to not approve that, notwithstanding the
              harshness of the pun ishme nt. I find and approve that verdict
              as the trial judge.


The trial cou rt's une quivoc al rem arks in dicate only its belief that the prescribed

sentence for the offense was too harsh. Because the record is devoid of any

statem ents wherein the trial judge express es dissa tisfaction or d isagree ment w ith

the verdict, we find no erro r in his refusal to grant Appellant's motion for new trial.

                                 IV. SENTENCING

       Although not raised by e ither party , we have noted as plain error two

problem s with resp ect to sentencing in this case. First, the trial court be gan its

sentencing procedure in the belief that Tennessee Code Annotated Section 40-

35-210(d) required the cour t to consider the minimum sentence for a Range I

offender of a Class A felony, i.e. fifteen years, as the presumptive sentence for

Appe llant. How ever, in State v. Robert Willis Chance, No. 02C01-9605-CC-

00178, opinion filed January 31, 1997; this Court held that despite the literal

language of Tennessee Code Annotated Sections 40-35-210 (c) and (d), the

presum ptive sentence for a Class A felon y is always the m id-point of the

sentence range. In this case the presumptive sentence for Appellant should be

twenty rather than fifteen years.



      Second ly, the trial court stated at the sentencing hearing that Ap pellan t’s

sentence must by law be served consecutively to the sentence for the aggravated


                                          -7-
kidnapping charge in which he was a pre-trial detainee when he committed the

arson in the present case. We are unaware of any provision of law that requires

consecu tive sentencing in a situation such as that presented in the instant case.

Indee d, this C ourt ha s note d that it is som ewha t ironic th at while the legislature

has manda ted consec utive sente nces for felon ies com mitted while the offender

is on parole, see Tenn. Code Ann. § 40-28-123(a), the General Assembly has not

mandated cumulative sentencing for offenders who commit additional felonies

while incarcera ted. See , State v. Michael Blazer, No. 03C01-9405-CR-00185,

opinion filed February 3, 1995, at Knoxville. The trial court on remand should

therefore consider whether the instant case warrants consecutive sentencing.



       According ly, the judgm ent of conviction is affirm ed.        Th e sen tence is

reversed and the case remanded for re-sentencing in accordance with this

opinion.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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