        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 14, 2010

            STATE OF TENNESSEE v. JAMES ALTON WALTON

                Direct Appeal from the Circuit Court for Dyer County
                        No. 08-CR-352      Lee Moore, Judge




                 No. W2009-02100-CCA-R3-CD - Filed May 23, 2011


A jury convicted the defendant, James Alton Walton, of aggravated burglary, a Class C
felony, and theft of property $500 or less, a Class A misdemeanor. The trial court sentenced
him to an effective ten-year sentence. On appeal, the defendant argues that the evidence was
insufficient to sustain his convictions and that the trial court erred in sentencing the
defendant. After reviewing the record, the parties’ briefs, and applicable law, we affirm the
judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY
T HOMAS, J R., JJ., joined.

James E. Lanier, District Public Defender; Patrick McGill (on appeal and at trial) and Christy
Cooper (at trial), Assistant Public Defenders, for the appellant, James Alton Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Renee Creasy and Karen Burns,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                        Background

       A Dyer County grand jury indicted the defendant, James Alton Walton, for one count
of aggravated burglary, a Class C felony, and theft of property more than $1,000, a Class D
felony. The trial court held a jury trial on July 23-24, 2009, and the parties presented the
following evidence.

                                          State’s Proof
        Michael Shawn Gilbreth testified that he lived in Dyersburg, which was in Dyer
County, Tennessee. Gilbreth identified the defendant and said that he knew him because he
was the son of his next door neighbor, James Walton, Sr. He said that the defendant was not
his neighbor at the time of the trial, but he had lived in the rental property on the other side
of his trailer home from the Fall of 2007 through the Spring of 2009. Gilbreth stated that he
met the defendant “shortly after [he] bought the home when [the defendant] came to [his]
front door and asked [him] if [he] wanted to buy a woman’s ring[,] and [he] told [the
defendant that he] did not want to buy a woman’s ring from him . . . .”

        Gilbreth recalled that on June 29, 2008, he and his then girlfriend, Melissa Bedwell,
left his home to go to church around 10:15 a.m. He stated that he locked his bedroom, back,
and front doors with a shackle and hasp latch, which was his “routine.” Gilbreth said that
he began this routine because he had “been the victim of repeated, unresolved burglaries.”
He initially locked only his exterior doors, but he began to lock his interior bedroom door
after someone burglarized his home during April 2008.

       Gilbreth said that on June 29, he

       walked out the back door, locked the door, walked back around, locked the
       door from the inside with the deadbolt as well, locked the bedroom door,
       secured . . . what [he called his] valuables in that bedroom and exited out the
       front door and locked that door along with [Bedwell] and [they] departed for
       church that morning.

They went directly home after church and arrived there a little before noon.

       Gilbreth stated that when he entered his home he noticed that his home was “way too
quiet.” The temperature outside was in the mid 90’s, but his air conditioner was not running.
He said that he did not hear the compressors for his deep freezer or refrigerator because they
were not running either. He assumed that his power was off, which was common, and not
having power did not immediately disturb him.

        Gilbreth began walking toward his bedroom, which was in the back of the home, and
heard a noise outside his back door. He was unable to exit the back door because he had
locked it from the outside that morning, so he exited from the front door and walked around
his trailer to the backyard. When Gilbreth exited the front door and walked to the backyard,

                                              -2-
Bedwell was still in the front driveway. He believed she was sitting in his truck smoking a
cigarette. When he got to the backyard, he saw the defendant walking along the “fence line.”
He said that the defendant used a board that was at the fence as a ladder and climbed the
fence. When the defendant got to the top, Gilbreth yelled his name, and the defendant
“turned around and looked at [him] as he fell over the fence.” He said that the defendant was
wearing a “dark colored jersey glove as he was climbing the fence . . . .”

        Gilbreth walked over to the defendant’s property and saw the defendant standing on
the back porch. Gilbreth asked the defendant why he was in his backyard and jumped the
fence, and the defendant told him that he was looking for his puppy. According to Gilbreth,
the defendant told him that he “better get out of his yard before he called the law on [him],
but [Gilbreth] was telling [the defendant] that he did not need . . . to be jumping [his] fence,
let alone, to be in [his] [backyard] at all.” By that time, Bedwell had joined the men in the
backyard, and she asked the defendant what was on his porch. Gilbreth looked down and
saw the defendant “fiddling with a rug with his foot.”

        Gilbreth testified that he followed Bedwell as she walked toward the defendant. She
pulled back the rug, and they saw “her laptop inside its case, [Gilbreth’s] laptop[,] and cedar
lock box that [Gilbreth’s] uncle had made for [him] . . . .” Gilbreth said that he could
recognize his laptop because it had a Tennessee Titans helmet sticker on the front. He said
that the defendant denied that he had taken the items, and the defendant told Gilbreth that he
“wasn’t [going to] pin this on him; that there was this tall guy that [Gilbreth] needed to go
after right now and that he was just getting the things for . . . safekeeping.”

          Gilbreth testified that he did not believe the defendant. Bedwell called the authorities
while Gilbreth stayed with the defendant. Gilbreth followed the defendant when he took the
items to his front door. According to Gilbreth, the defendant was “being hostile and
threatening toward [him,] but [Gilbreth] told him [that he] was not [going to] let those items
out of [his] sight . . . .” He stated that the defendant opened his front door, and the puppy,
for which the defendant claimed he had been looking, came outside and went back inside the
defendant’s home. He further stated that the defendant got a black trash bag from inside his
home, placed the computers and the lock box in the bag, and began walking toward his
parents’ home. Gilbreth followed the defendant into the defendant’s parents’ backyard. He
said the defendant knocked on his parents’ back door and “became extremely threatening at
that point.” Gilbreth testified that the defendant told him that “if [he] didn’t get out of there
. . . his daddy’s 380 would make [him].”

       The defendant’s parents did not open the door, and by this time, Bedwell had reached
the gate to the defendant’s parents’ yard. Bedwell did not enter the backyard, but she was
within speaking distance and tried to convince the defendant to return her and Gilbreth’s

                                               -3-
items. Gilbreth said that the defendant eventually gave him the bag and left. Gilbreth
brought the bag to his yard and left it there. He said that he did not open the bag until the
authorities arrived. He and the defendant did not have any further contact that day.

       Gilbreth went to the back of his home and

       saw the hinges to [his] door laying on the deck, saw the screwdriver with the
       small diameter that would fit inside the hinge, noticed the hammer in the
       second bedroom that [he] knew wasn’t [his], saw the lock off the bedroom
       door that was broken off inside there, saw the electric box outside that was
       open and switched turned off.

Gilbreth identified the hammer that he found in his bedroom and said that he had never seen
the hammer before June 29, 2008. Gilbreth stated that his parents were the only other people
who had keys to his lock. He said that he had never given the defendant permission to enter
his home or to take anything from his home.

        When the authorities arrived, Gilbreth went through the trash bag that the defendant
had given him. Gilbreth said that he recovered his laptop and cedar lock box from the bag.
Before he retrieved his laptop from the bag, Gilbreth had last seen it when he placed it under
his bed a few hours before. He said that when he purchased the laptop it cost $700. Gilbreth
described his cedar lock box as a “roughly ten to eleven inch[] square, [that had] a hinged lid
and also [had] a shackle and hasp and small lock . . . .” He said that the box did not contain
any valuables. He had last seen the box before church when he placed it on a shelf under his
television in his bedroom. He stated that the box was homemade and had sentimental value.
He estimated that the materials used to make the box cost $20. Besides the laptop and cedar
lock box, Gilbreth noticed that his Swiss Army watch with a leather band was missing, which
cost $50 new. He last saw the watch on his night stand before he went to church.

       On cross-examination, Gilbreth testified that characterizing his relations with the
defendant as enemies would not be fair. He denied pulling a gun on the defendant’s parents
and going to court for doing so. He later testified that he did go to court for allegedly pulling
a gun on the defendant’s parents, but he said that the court dismissed the case. He said that
he and the defendant’s parents had disputes regarding the boundary lines to their properties.
He stated that the defendant’s parents did not want him to mow the grass on the “two feet
marked along their fence line. They wanted to come into [his] backyard and mow it.”

       Gilbreth did not recall arguing with the defendant. However, he remembered an
incident when the defendant asked him if he had told a neighbor that he and the defendant
“were into it.” Gilbreth stated that before this burglary, he had called the police to his home

                                               -4-
about three or four times regarding burglaries. A couple of days after the June 29 incident
with the defendant, Gilbreth asked the defendant’s mother why she was upset with him.
Gilbreth did not understand why the defendant’s parents were angry with him because “[he
was] the victim here.”

       On redirect examination, Gilbreth testified that the case regarding him pulling a gun
on the defendant’s parents occurred after the incident with the defendant. He said that he
believed that the animosity had grown on their part, but he tried “not to be that kind of
person.” He also said that he just wanted to live in his home without anyone stealing from
him or throwing trash in his yard. Gilbreth stated that he was anxious and nervous during
the incident with the defendant. He explained that he had repeatedly been burglarized, but
he had never witnessed someone burglarizing his home.

       On recross-examination, Gilbreth testified that he had a gun the day that the
defendant’s parents accused him of pulling a gun on them. He said that he had it to his side,
but did not pull it out on the defendant’s parents or anyone else. Gilbreth stated that he “was
scared half to death” because the defendant walked in front of his home repeatedly and was
being verbally abusive. Gilbreth said that he feared for his life.

        Melissa Bedwell testified that she used to date Gilbreth. She accompanied him to
church the morning of June 29, 2008. She had spent the previous night at Gilbreth’s home,
and they left for church around 10:00 a.m. that morning. Bedwell said that when they left
for church, she left some of her items in a duffel bag on the bed in Gilbreth’s spare bedroom.
Gilbreth put her laptop under the bed in his room with his laptop so that he could lock them
in the room. Bedwell said that she saw the locked bedroom door.

        Bedwell said that she and Gilbreth went straight to his home after church. When they
arrived, Gilbreth exited his truck and began to unlock the door to his home while she smoked
outside. She said that shortly after Gilbreth unlocked the door, he ran to the back of his
home. She asked him what was wrong, but he did not answer her. When he came back to
the front of the home, he told her that the defendant had jumped the fence. Bedwell went to
the back of Gilbreth’s home while Gilbreth went to the defendant’s home. While in
Gilbreth’s backyard, Bedwell observed the defendant bending over and picking up her
laptop, which was in a black bag, and Gilbreth’s laptop. She said that after the defendant
picked up the laptop he walked toward his porch. While the defendant was walking toward
his porch, Bedwell was “hollering for [Gilbreth] to let him know that [the defendant] had
[their] laptops.” Bedwell removed her high heel shoes and ran around Gilbreth’s house
toward Gilbreth, who was in the defendant’s backyard. When she reached the defendant’s
backyard, Bedwell removed her jacket, gave it to Gilbreth, and told him that the defendant
had their laptops. She saw that the laptops were on the porch and approached the defendant

                                              -5-
to retrieve them after she saw him pull a rug over them. She stopped approaching the
defendant, however, when he became “a little hostile” toward her. Bedwell then retrieved
her cell phone from Gilbreth’s truck and used it to call the police.

        While she was still on the phone with the police dispatcher, Bedwell went to the front
of the defendant’s trailer home where the defendant and Gilbreth were standing. She noticed
that the defendant had a black bag and told Gilbreth that their belongings were in the bag.
The defendant began walking toward his parents’ home, and she and Gilbreth followed him
to keep an eye on their belongings. The defendant and Gilbreth went into the defendant’s
parents’ fenced-in backyard, but Bedwell stayed on the other side of the fence. She was no
longer on the phone with the police dispatcher, and she and Gilbreth tried to convince the
defendant to return their belongings. She said that the defendant said that “it was too late,
[she] had already called, [and] that he was going to get charged with it anyways.” The
defendant eventually gave them the bag, and they took it to Gilbreth’s home and left it on the
ground until the police arrived.

       Bedwell stated that the defendant took a HP laptop from her that day. She had last
seen the laptop in the living room by the couch, but she said that Gilbreth later placed it
under his bed. She estimated that the value of the laptop was $900. The last time she saw
the laptop was when they retrieved the bag from the defendant. Bedwell also stated that the
defendant took a diamond ring from her. She saw the ring before church in her duffel bag
that was in the defendant’s spare bedroom. She said the value of the ring, which was never
recovered, was about $200. She also claimed the defendant took her gold and diamond
tennis bracelet, which was also in the duffel bag. She last saw the bracelet Saturday evening.
She never recovered the bracelet, which she valued at $60. She denied giving the defendant
permission to take her laptop, ring, or bracelet.

        Bedwell had gotten herself ready for church in Gilbreth’s spare bedroom and said that
she did not notice any tools laying out in the bedroom that morning. When she later went in
the bedroom, she saw a hammer on the dresser. She identified the hammer for the court and
said that it did not belong to her and that she had never seen it before that day. Bedwell
identified the defendant and said that she had seen him before the June 29 incident. She
stated, however, that she did not have a relationship with the defendant or his parents before
the incident.

       On cross-examination, Bedwell testified that before June 29, she had stayed at
Gilbreth’s home a total of two to three weeks. She said that she had met the defendant’s
parents and seen them on their property before June 29 but did not have any “dealings” with
them. Besides the jewelry, Bedwell also had clothes, shoes, and a pair of costume jewelry
earrings in her duffel bag.

                                             -6-
       Bedwell said that when she was in Gilbreth’s backyard, she was about “two to four
hundred yards” from the fence between Gilbreth’s and the defendant’s property. She saw the
defendant pick up their laptops through the cracks in the approximately six feet tall wooden
fence. She said her laptop bag was distinguishable because “[t]he little thing that’s on the
front of the laptop bag [was] . . . missing and it doesn’t have it on there and the bag that he
picked up also did not have it on there.” She stated that when she tried to retrieve the bags,
the defendant was hollering and saying that he did not have anything.

       Bedwell said that when she called the police, she told them that “someone had
broke[n] in, had [their] things, [and] they needed to send a police officer.” The dispatcher
advised her that the police were on their way and told her to call back if she had further
trouble. Bedwell stated that she was on the phone with the police “a good while” before they
disconnected their call. Bedwell was on the defendant’s property the entire time she was
speaking with the police dispatcher, and she saw the defendant with a black garbage bag in
his hand. She could not hear what the defendant and Gilbreth were saying while she was
talking to the dispatcher.

       When Bedwell finished her conversation with the dispatcher, Gilbreth told her that
the defendant, who was walking down the street, had their property in the black garbage bag.
She followed the defendant and Gilbreth to the defendant’s parents’ yard. She said that the
defendant was standing on his parents’ back steps and knocking on their door. Gilbreth was
standing inside the defendant’s parents’ metal gate, and Bedwell was standing on the outside.
She said that when the defendant said that he was not going to give them the bag because
they would charge him anyway, she told him that they would consider dropping the charges
and not having the police arrest him. The defendant surrendered the bag to them, and they
placed it beside Gilbreth’s steps. Bedwell stated that she never saw anyone put anything in
the bag and did not see what was in the bag until they had retrieved it from the defendant.

        On redirect examination, Bedwell testified that she did not see anyone else in the
defendant’s yard while she was looking through the fence or while she was in the defendant’s
backyard confronting him. She further testified that she did not see any other person come
out of the defendant’s home or yard while she was at the truck getting her cell phone or while
she was following the defendant and Gilbreth down the street.

        Deputy Rick Gregory, with the Dyer County Sheriff’s Department, testified that he
responded to Bedwell’s call. He recalled that Gilbreth and Bedwell were in the yard close
to the driveway and their vehicle. He asked them what the problem was, and they told him
what had happened. The officers went inside Gilbreth’s home to make sure no one was



                                              -7-
inside. After he checked Gilbreth’s home, Deputy Gregory went back outside and took
Bedwell and Gilbreth’s statements.

        Deputy Gregory identified the defendant and said that after he got the victims’
statements, he went to the defendant’s home. He stated that he knocked on the door for
about five minutes before the defendant came to the door. He said that the defendant was
on his cell phone when he answered the door. The defendant came outside, sat, and
continued to talk on his cell phone. After the defendant got off his cell phone, he
immediately told Deputy Gregory that “he had just seen a white, skinny dude run out of the
back of [Gilbreth’s] house.” He said the defendant told him that the man “threw something
in the back of [his] yard and then he ran into the woods behind Mr. Gilbreth’s house.”
During his investigation, Deputy Gregory looked at Gilbreth’s yard. He described it as
“fairly clean . . . and clear.” He stated that the backyard did not open to anything, such as
another backyard. He further stated that Gilbreth had a “hill” in his yard that one could not
climb without the assistance of a rope or other type of climbing equipment.

       Deputy Gregory testified that when the defendant finished telling him what had
happened, he looked at the defendant’s clothing and noticed he was wearing the same thing
that Gilbreth and Bedwell had told him that the suspect whom they had seen climbing the
fence was wearing. Based on the defendant’s, Gilbreth’s, and Bedwell’s statements, Deputy
Gregory took the defendant into custody. Deputy Gregory and the other officers on the scene
searched the area for additional evidence after officers transported the defendant away from
the property.

       While searching the defendant’s property, Deputy Gregory saw an area rug hanging
over the defendant’s back deck. At the time, the rug did not have any significance to Deputy
Gregory. He also found a single “brown jersey glove” on the back deck. At Gilbreth’s
home, Deputy Gregory noticed that the back door “was not your standard mobile home type
door. It looked like it had been replaced by a residential type door. . . . Most mobile home
doors are pin and hinge type doors. [Gilbreth’s] had three hinges.” He stated that the hinges
were outside Gilbreth’s home, and he found a small screwdriver and two hinge pins on the
deck. He further stated that the screwdriver was four inches and could “knock a pin out.”

        Deputy Gregory stated that Gilbreth told him about the lack of power in his home.
When he investigated, Deputy Gregory saw that the utility panel was open and the main
breaker was off. He said that it was hot inside Gilbreth’s home. Deputy Gregory saw the
lock, which was missing some parts of the hasp, on Gilbreth’s bedroom door. He said that
the lock “looked like somebody struck it with something and pretty much destroyed it.” He
identified the hammer, which he recovered from a desk in Gilbreth’s spare bedroom, and the
state entered it into evidence. Deputy Gregory said that when “CID” arrived at the scene,

                                             -8-
they went through the black bag. He recalled that the bag contained two laptops, one of
which was in a laptop bag, and a small wooden box. Deputy Gregory searched the area
around where the defendant had jumped over the fence and the defendant’s home in an
attempt to find other items that they did not recover from the bag. Deputy Gregory did not
recover the remaining items.

       On cross-examination, Deputy Gregory testified that at approximately 12:08 p.m. he
received the call to investigate the incident. He further testified that he did not work in the
Dyer County Jail and could not say whether their intake sheet, which listed the defendant’s
time of arrest as 12:08 p.m., was incorrect. He stated that 12:08 may have been the time that
Deputy Goff, who was at the scene of the incident, transported the defendant. Deputy
Gregory said that he did not see Deputy Goff speak to Gilbreth. He also said that he did not
hear Gilbreth mention that the defendant had scratched his arms while climbing the fence,
nor did he see any scratches on the defendant. Deputy Gregory recalled that Lori Walton,
the defendant’s wife, cooperated with him and allowed him to search the defendant’s home.
Deputy Gregory did not take fingerprint or DNA evidence. He stated that the only evidence
he collected was the hammer, and he released the computers and the lock box back to their
owners.

       On redirect examination, Deputy Gregory testified that he was not certified to take
fingerprints and officers do not take them in every case. He said that he helped in making
assessments whether officers needed to take fingerprint or DNA evidence, and he did not
think that this case warranted fingerprinting or DNA testing.

                                    Defendant’s Proof
       Bicki McCollum, the records clerk at the Dyer County Sheriff’s department, identified
the Dyer County Sheriff’s Department Intake Sheet for the defendant, and the defense
entered it into evidence. McCollum testified that the intake sheet listed the defendant’s time
of arrest as 12:08 p.m. She also identified the complaint card for the call to the police
department and the incident report for this case.

       On cross-examination, McCollum testified that as records clerk she entered
information about the call into the computer, read and coded each report, and retrieved
reports for people who wanted one. She stated that she did not create the reports, and she
“merely” managed them. She further stated that she did not dictate the intake and arrest
times for the report and relied on the officers for the information. She had no personal
knowledge of the arrest times and did not know whether the times were exact because she
was never on the scene of the incidents.




                                              -9-
       The defendant’s father, James Walton Sr., recalled when authorities arrested the
defendant. He stated that he had just had both of his knees replaced and was bedridden. He
said that his wife was at church so the defendant was at his home the morning of June 29
helping him. He said that the defendant left shortly after 12:00 p.m. He did not see the
defendant again that day and did not hear anyone knock on his door.

        On cross-examination, James1 testified that he was taking Hydrocodone every six
hours for the pain associated with his surgery. He had been taking Hydrocodone for a while
and said that the pills did not make him sleepy, and he was “very alert.” He said that the
defendant’s helping him was convenient because the defendant lived down the street. He
said that he loved the defendant, but he was not going to lie for him. James said that he had
never been convicted of a felony or convicted for a “worthless check,” but he did serve time
in jail when he was sixteen years old.

        Lori Walton, the defendant’s wife, testified that she and the defendant had been
together for eight and a half years and married for almost one year. She lived with the
defendant on Walton Road on June 29, 2008. She said that a disturbance woke her that
morning. She thought that the defendant just had the television too loud and got up to “fuss
at him.” Lori said that the defendant and Gilbreth were in the kitchen “having words.”
According to Lori, the defendant “was telling [Gilbreth] to get the heck out of the house.”
Lori was wearing her nightgown and went to change into clothes. She said that before the
disturbance the defendant had been at his parents’ home helping his father. She further said
that the defendant did not leave their home after Gilbreth left, and the police arrived shortly
after. Lori stated that she did not see the defendant with any items that did not belong to
them nor did she see him with a black bag.

        Lori spoke with a couple of the police officers who arrived at the scene and allowed
them to search her home. She said that the officers were looking for a ring and a watch so
she showed them where she and the defendant kept their jewelry. She said that she was
sitting on her front porch and an investigator asked her whether the hammer the officers had
found looked familiar. She told the investigator that she did not recognize the stickers on the
hammer’s handle. Lori showed the investigators the drawer in which she and the defendant
kept their hammer, but the hammer was not in the drawer. She said that the investigator told
her that the defendant used the hammer to break into Gilbreth’s home. She did not remember
at the time of the defendant’s arrest, but Lori later remembered that the defendant was
building shelves in their computer room. Lori said that, to her knowledge, the officers did
not retrieve any items from her and the defendant’s home.


         1
           Several witnesses have the last name W alton. W e will refer to them by their first names to avoid confusion
and do not intend any disrespect.

                                                         -10-
       Lori did not know Bedwell and did not speak with Bedwell or Gilbreth during the
incident. She also did not speak with the defendant much before the police arrested him.
She recalled, though, that the defendant said that he “was being accused of breaking into this
man’s house,” but she did not know anything about the incident. According to Lori, the
defendant and Gilbreth had problems and did not get along.

       On cross-examination, Lori said that she married the defendant on July 18, 2008. She
said that she was crying while she spoke with the investigators because the police had
arrested her husband. She denied she was crying because she thought he had broken into
Gilbreth’s home. She also denied that she told the officers that the hammer appeared to look
like the defendant’s hammer. She said that she did not want to see the defendant get in
trouble for the burglary of Gilbreth’s home because she loved him.

       Nancy Walton, the defendant’s mother, testified that she was at church the day that
authorities arrested the defendant for burglarizing Gilbreth’s home. The day after the
defendant’s arrest, she encountered Gilbreth while working in her front yard. She said that
Gilbreth called her name, and when she looked to the side, she saw Gilbreth approaching her.
She said that he came into her yard and asked if she was okay. She asked him why he was
speaking to her. She said they then had the following exchange:

       [I] said, “Why do you care if I’m okay?” I said, “How do you think I feel?
       My son was just arrested.” And he said, “Well, he robbed my house.” I said,
       “How do you know he robbed [your] house? He was with his father.” And he
       said, “Well, when we came home, my girlfriend and I went in the house [and]
       we noticed that . . . the house was messy, you know, like someone had been in
       there so we started looking around.” He said then his girlfriend finally said,
       “Well, I’m gonna [sic] call the police anyway.” He said he started down the
       hall and he noticed his back door was messed up. So he went toward the door
       and he said he heard a sound and when he opened it he saw my son climbing
       over that nine foot privacy fence.
       ....
       And I said, “You saw my 230 pound son climbing over that fence[?]” He said,
       “Well yeah, he had a little trouble at first but finally got over,[”] and he said
       [“H]e put his arm like this, and when he did he put a big gash right here . . . in
       his arm.” Well, I told him I knew where my son was and my son didn’t do
       that. And I said, “You’re never nice to my son anyway or anybody here.” And
       he said, “Well, I don’t speak to [the defendant].”

       ....

                                             -11-
       And I said, “Well, why?” And he said, “Because I don’t like him.”

At that point, Nancy decided to end the conversation. She said that “the first thing [she] was
gonna [sic] do when [she] saw [the defendant] that Friday was to make him show [her] his
arms because [she] knew if there was a mark on his arm [she] would never be back at that
jail.” She also said that she would not have testified for him if he had a mark on his arm.
Nancy explained that she loved the defendant, but she also loved God. She said that she
visited him in jail, and he showed her his arms, which did not have scratches on them. She
told the defendant to have police officers check his body to verify that he did not have any
scratches or marks on him.

       On cross-examination, Nancy testified that she was not present when the defendant
allegedly jumped over the fence and did not have independent knowledge of how he may
have done so. She said that she loved the defendant and did not want to see anything happen
to any of her children. She stated that she did not want the jury to find the defendant guilty
because he was innocent. When asked whether she liked Gilbreth she answered, “Right now
I’m scared to death of him. I’d never really disliked him but I’m scared of him. I have to
sleep next door to him and he came at me with a gun and my window’s right there. I don’t
trust him.” Regarding Gilbreth pulling a gun on her and James, she said that she filed a
police report in which she stated that she thought the gun was a stick and James noticed it
was a gun. They pressed charges against Gilbreth for the gun incident, but the judge
dismissed the case for lack of evidence.

        The defendant, James Alton Walton, Jr., testified that he had previous convictions for
fraud, forgery, and obtaining a controlled substance by fraud. He denied that he and Gilbreth
were acquaintances and said that they “just [did] not get along.” The defendant said that he
had never gotten along with Gilbreth and that Gilbreth had altercations with his parents
before the defendant moved into his home next door to Gilbreth.

       He said that Gilbreth was cruel toward animals and that there were incidents between
Gilbreth and his dog. He also said that he and Gilbreth had verbal disputes about their
property, that Gilbreth called his landlord, and that he talked about him to their neighbors.
He admitted that he had threatened to “beat [Gilbreth] up” several times.

       The morning of June 29, 2008, the defendant was at his parents’ home with his father
and uncle. He said that he and his uncle decided to leave around 12:00 p.m. because his
mother would be home shortly. The defendant walked his uncle outside, said goodbye, and
walked to his home. The defendant had to walk past Gilbreth’s home to get to his home. He
said that as he was walking up his driveway toward the back of his home, Gilbreth was

                                             -12-
running down his driveway calling the defendant’s name and accusing the defendant of
robbing his home. He told Gilbreth to get out of his yard or he “was gonna [sic] put him out
of [his] yard.” The defendant said that he walked to the back of his home. Lori was inside
their home sleeping, and he wanted her present in case he and Gilbreth had an altercation.
He said that when he walked through his back door, Gilbreth followed him inside “in a
threatening manner.” He said that he told Gilbreth to leave his home or he would shoot him.
The defendant said that he did not have a gun, but he “was willing to say whatever it took to
get Gilbreth to leave [his] home.” He said that Gilbreth replied, “‘What are you gonna [sic]
do shoot me with my own gun? I know you’ve done [sic] robbed me four or five times.’”
The defendant told Gilbreth that he had never robbed him. The defendant’s wife came to the
door and asked what was going on, and at the point, Gilbreth left.

       The defendant testified that he did not know Bedwell personally but had seen her at
Gilbreth’s home a couple days before the incident. He said that he saw her on Gilbreth’s
porch the day of the incident. The defendant denied committing any offense on June 29 and
said that he “just want[ed] Gilbreth to leave [his] family alone.”

       On cross-examination, the defendant testified that he told the police that he saw
“‘[s]ome tall skinny guy running’” because he had seen a man who fit that description near
their homes. According to the defendant, his neighbors had seen someone in their yard
before June 29. He stated that, before the day of the incident, he and his wife had also seen
a man cutting through their yard and on the hill bank above their home. The defendant told
the police officers that his neighbors had a photograph of the man “tampering around their
house as well.”

        After hearing the evidence, the jury convicted the defendant of aggravated burglary,
a Class C felony, and theft of property $500 or less, a Class A misdemeanor. On August 25,
2009, the trial court sentenced the defendant as a persistent offender to ten years for the
aggravated burglary and eleven months and twenty-nine days for the theft of property $500
or less. The court ordered that the defendant serve the sentences in this case concurrent with
each other but consecutive to his sentences he had been serving on probation in case numbers
C05-125 and C05-219. The defendant timely appealed his convictions and sentences.

                                          Analysis

                                         Sufficiency
       The defendant argues that the evidence was insufficient to support his convictions.
Specifically, he argues that when viewing his convictions under the totality of the
circumstances, “no objective trier of fact could have convicted him.” He asserts that no
objective trier of fact could have convicted him because (1) the timeline of events that the

                                             -13-
state presented was impossible; (2) Gilbreth made false statements; (3) the police did not
recover all of the allegedly stolen items; (4) Gilbreth and Bedwell gave conflicting testimony;
and (5) the state did not use any scientific evidence to corroborate the victims’ allegations.

        Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “rational trier of fact” could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

        A defendant may be convicted on the basis of direct or circumstantial evidence or a
combination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see
also State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact,
circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726
S.W.2d 896, 899-900 (Tenn. 1987). Moreover, the state does not have the duty to exclude
every other hypothesis except that of guilt. See State v. Dorantes, 331 S.W.3d 370 (Tenn.
2011) (adopting the United States Supreme Court standard that the jury is only required to
weigh evidence, whether direct or circumstantial, against the reasonable doubt standard); see
also State v. James, 315 S.W.3d 440, 455 n. 14 (Tenn. 2010) (noting that federal courts have
rejected the notion that the government has a duty to exclude every other hypothesis save that
of the defendant’s guilt). “Circumstantial evidence in this respect is intrinsically no different
from testimonial evidence.” Holland v. United States, 348 U.S. 121, 140 (1954). Therefore,
when considering the sufficiency of evidence, we treat direct and circumstantial evidence the
same.



                                              -14-
       The jury convicted the defendant of aggravated burglary and theft of property less
than $500. Tennessee Code Annotated defines aggravated burglary, in relevant part, as
entering a habitation without the effective consent of the owner and with the intent to commit
a felony, theft, or assault. Tenn. Code Ann. § 39-14-402(a)(1), -403(a). A habitation is
defined as “any structure . . . which is designed or adapted for the overnight accommodation
of persons[.]” Id. § 39-14-401(1)(A). “A person commits theft of property if, with intent to
deprive the owner of property, the person knowingly obtains or exercises control over the
property without the owner’s effective consent.” Id. at § 39-14-103.

        Viewed in the light most favorable to the state, the evidence showed that Gilbreth and
Bedwell saw the defendant leaving Gilbreth’s property with their laptops. When confronted
by the victims, the defendant attempted to hide the property under a rug and later placed it
in a black garbage bag. Gilbreth’s back door was unhinged, and the lock to his bedroom door
was broken. Gilbreth did not give the defendant permission to enter his home and take his
laptop and cedar lock box. Likewise, Bedwell did not give the defendant permission to take
her laptop. Gilbreth and Bedwell testified that their laptops cost $700 and $900, respectively.
The defendant’s arguments regarding the sufficiency of evidence essentially amount to an
attack on the state witnesses’ credibility. However, by convicting the defendant, the jury
obviously rejected the testimony of the defense witnesses and accredited the testimony of the
state’s witnesses. We will not re-weigh or re-evaluate the evidence. See Reid, 91 S.W.3d
at 277. Accordingly, we conclude that the evidence was sufficient to sustain the defendant’s
convictions for aggravated burglary and theft of property $500 or less.

                                          Sentencing
       Next, the defendant contends that the trial court erred when it ordered him to serve his
sentences consecutively to his probation violations in case numbers C05-125 and C05-126.
He asserts that the trial court did not consider the seven factors listed in Tennessee Code
Annotated section 40-35-115, and thus, we should reverse the trial court’s imposition of
consecutive sentencing. We disagree.

       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. Pettus, 986 S.W.2d
540, 543 (Tenn. 1999) (quoting State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997)). If the
trial court fails to comply with the statutory directives, “there is no presumption of
correctness and our review is de novo.” State v. Poole, 945 S.W.2d 93, 96 (Tenn.1997).

      The burden is upon the appealing party to show that the sentence is improper. Tenn.
Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review,

                                             -15-
we are required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the
following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing;
       (2) [t]he presentence report;
       (3) [t]he principles of sentencing and arguments as to sentencing alternatives;
       (4) [t]he nature and characteristics of the criminal conduct involved;
       (5) [e]vidence and information offered by the parties on the mitigating and
       enhancement factors in §§ 40-35-113 and 40-35-114;
       (6) [a]ny statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and
       (7) [a]ny statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

       If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles set out under sentencing law, and the trial court’s findings of fact are adequately
supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

         Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of the following statutory
criteria applies:

       (1) [t]he defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;
       (2) [t]he defendant is an offender whose record of criminal activity is
       extensive;
       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;
       (4) [t]he defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and no hesitation about committing a crime in which
       the risk to human life is high;
       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the

                                               -16-
         sexual acts and the extent of the residual, physical and mental damage to the
         victim or victims;
         (6) [t]he defendant is sentenced for an offense committed while on probation;
         or
         (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

        When ordering that the defendant serve his sentences consecutively the trial judge
advised the defendant, “because of these convictions, your probation in Case Nos. C05-125,
C05-129, C05-219, . . . is revoked. Those sentences are reinstated, and you are sentenced to
10 years in the Tennessee Department of Correction in this particular case. The sentences
will run consecutive.” While the trial court did not go into great detail regarding the
imposition of consecutive sentences, it is clear from the record that the court was sentencing
the defendant for offenses committed while he was on probation. The record reflects that on
July 12, 2005, the trial court sentenced the defendant to four years probation in case number
C05-219 and one year in the county jail followed by three years of probation in case number
C05-125. The defendant committed the underlying offenses on June 29, 2008. Because the
trial court found at least one statutory criteria to support consecutive sentencing - it sentenced
the defendant for an offense committed while on probation - the trial court’s imposition of
consecutive sentencing in the defendant’s case was justified. See Tenn. Code Ann. §
40-35-115(b)(6). The defendant is not entitled to relief on this issue.

                                          Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgments of the trial
court.


                                                     ___________________________________
                                                     J.C. McLIN, JUDGE




                                              -17-
