           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE           FILED
                           MARCH 1997 SESSION
                                                           May 30, 1997

                                                       Cecil W. Crowson
STATE OF TENNESSEE,                  )
                                                      Appellate Court Clerk
                                     )    C.C.A. NO. 01C01-9605-CC-00187
      Appellee,                      )
                                     )    WILLIAMSON COUNTY
                                     )
v.                                   )    HON. HENRY DENMARK BELL,
                                     )    JUDGE
TYREE P. AUSTIN,                     )
                                     )    (Aggravated Burglary and Theft
      Appellant.                     )     Under $500)


FOR THE APPELLANT:                        FOR THE APPELLEE:


JOHN H. HENDERSON                         JOHN KNOX WALKUP
Public Defender                           Attorney General & Reporter
P.O. Box 68
Franklin, Tennessee 37065-0068            RUTH THOMPSON
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, Tennessee 37243-0493

                                          JOSEPH D. BAUGH
                                          District Attorney General

                                          MARK L. PURYEAR, III
                                          Assistant District Attorney
                                          P.O. Box 937
                                          Franklin, Tennessee 37065-0937




OPINION FILED: ________________



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION


       The defendant, Tyree P. Austin, appeals as of right from a jury verdict

convicting him of aggravated burglary, a Class C felony, and theft of property under

$500, a Class A misdemeanor. As a Range I standard offender, he was sentenced

to five (5) years and fined $5,000 for aggravated burglary. For theft of property

under $500, Austin received eleven months and twenty-nine days to run concurrently

with the burglary sentence. Austin presents three issues for our review: 1) whether

the evidence is sufficient to sustain the convictions; 2) whether the trial judge erred in

failing to submit “every word” of the charge to the jury in written form; and 3) whether

the imposed sentence is excessive. Finding no error, the judgment of the trial court

is affirmed.



                                        FACTS



       At 1:00 p.m. on October 11, 1994, Rachel P. Carter left her home in

Williamson County to attend a funeral. At approximately 3:30 p.m., Carter returned

home and noticed that the rear door had been forced open. Carter subsequently

discovered that a television set and a microwave oven had been taken from her

home. Because the television was fairly new, Carter was able to give the officers the

serial number for it.

       Deborah Henderson, a pawnbroker and custodian of the records for Cash

America Pawn Shop, subsequently identified a pawn ticket with Austin’s signature

and detailed information describing Austin as the individual who pawned a television

with the matching serial number. The pawn ticket indicated the transaction took

place at 2:52 p.m. on the date of the burglary.

       At trial, Austin admitted to pawning the television, but stated that he did not

know it was stolen. He testified that another individual, Tommy Arendale,

telephoned him at 9:00 a.m. on October 11, 1994, and told him that he had


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something he might want. Austin stated a Steve Jones took him to meet Arendale

where Austin bought the television for $20. He also testified he did not know the

whereabouts of either Arendale or Jones.



                          SUFFICIENCY OF THE EVIDENCE



       Austin argues the evidence is insufficient to sustain the convictions of

aggravated burglary and theft of property valued under $500. Specifically, Austin

contends that there was no proof that he (1) entered the Carter residence, or (2)

exercised control over the television in Williamson County. Tenn. Code Ann. §§ 39-

14-403; 39-14-103.

       When an accused challenges the sufficiency of the convicting evidence, our

standard of review is whether, after reviewing the evidence in a light most favorable

to the prosecution, any 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). Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App. 1987). Nor may this court reweigh or re-evaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is

entitled to the strongest legitimate view of the evidence and all inferences therefrom.

Id. at 835. Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the trier

of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       At trial, Ms. Carter testified that she did not leave her home until 1:00 p.m. to

attend a funeral. At approximately 3:30 p.m., she returned home to find the rear

door had been forced open. She later discovered her television and microwave had

been taken. A pawn ticket from Cash America indicated that Carter’s television had


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been pawned by Austin at 2:52 p.m. on the same day of the burglary.

       Austin denied stealing the television or having any knowledge that it was

stolen, but admits pawning it. He testified that he was responding to a 9:00 a.m.

phone call from a Tommy Arendale. He maintained that on the morning of the

burglary, Arendale telephoned him about “something he might want.” He did not

know what time he met with Arendale or his present whereabouts. There was also

proof indicating that Austin resided only a few miles away from the Carter residence.

       According to Austin’s testimony the burglary would have to have occurred on

the morning of or prior to October 11, 1994. Ms. Carter testified that she did not

leave her home, nor were the items missing until at least 1:00 p.m. on that same day.

Regardless, it is undisputed that Austin pawned the television less than two hours

after it had been stolen. Possession of recently stolen goods may give rise to an

inference that the possessor had stolen them. State v. Tuttle, 914 S.W.2d 926, 932

(Tenn. Crim. App. 1995). It is also sufficient evidence to sustain a burglary

conviction. Id. Based upon this and the other evidence, the jury accredited the

testimony of the victim, Ms. Carter, discredited that of Austin, and returned guilty

verdicts on both charges. There was sufficient evidence to sustain the convictions of

aggravated burglary and theft of property under $500. This issue is without merit.



                                 JURY INSTRUCTIONS



       Austin argues that the trial judge erred in failing to submit “every word” of his

charge to the jury in written form. He contends the trial court erred by giving a

supplemental oral jury charge relating to venue.

       After all of the testimony has been presented and the argument of counsel

concluded, it is the trial judge’s duty to instruct the jury. Furthermore, in a felony

case every word of the judge’s instructions shall be reduced to writing before being

given to the jury. Tenn. R. Crim. P. 30(c); State v. Gorman, 628 S.W.2d 739 (Tenn.

1982). However, a failure to present written instructions is subject to harmless error


                                             4
analysis. See Gorman, 628 S.W.2d at 740.

       The record in this case was supplied in video-cassette and technical record

form. There were over twenty (20) pages of jury instructuctions that were submitted

to the jury. The trial judge gave the following oral comments in addition to a standard

venue instruction:

              And if the preponderance of the evidence proves that
              the crime was committed in two or more counties, then
              he can be prosecuted in any one of those counties, but
              not more than one.


Defense counsel timely objected to the supplemental instruction indicating that the

oral instruction was inconsistent with the defense theory of the case and further

stating that he thought that the instruction “had to be in writing.” Most of the defense

proof throughout trial was directed at showing that Austin did not exercise control

over the stolen property in Williamson County. The trial judge declined to reduce the

instruction to writing noting that it only applied to the misdemeanor theft charge.

       The trial court was technically correct in finding that this oral instruction only

applied to the misdemeanor and was not required to be in writing. See Tenn. R.

Crim. P. 30 (c). However, the practice of giving oral instructions applicable to

misdemeanor charges and written instructions applicable to felony charges, in the

same case, is discouraged and could be confusing to a jury. In this case the jury

obviously concluded the defendant committed the burglary and taking of the property

in Williamson County. Therefore, the trial judge’s limited oral comments to the jury

were not prejudicial to Austin. The error was harmless. This issue is without merit.




                               LENGTH OF SENTENCE



       Austin next argues that his sentence is excessive. Specifically, he contends

that the trial court erred in sentencing him to five years for aggravated burglary, and

that a four year sentence is more appropriate.


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       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. Tenn. Code Ann. § 40-

35-401(d)(1990). 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

considered the 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).

       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. Tenn. Code Ann. § 40-35-210 (c)(1990); 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. Tenn.

Code Ann. § 40-35-210(d)(1990). 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. Tenn. Code Ann. § 40-35-

210(e)(1990). The sentence may then be reduced within the range by any weight

assigned to the mitigating factors. Id.

       As a Range I standard offender convicted of a Class C felony, Austin could

receive a sentence between three and six years. Austin had a prior conviction for

first degree burglary for which his parole had been revoked. There was also proof

indicating that Austin had several misdemeanor convictions, including one for theft.

The trial court, accordingly, enhanced Austin’s sentence based on his previous

history of criminal convictions and criminal behavior and unwillingness to comply with

the conditions of a sentence involving release into the community. Tenn. Code Ann.

§ 40-35-114(1), (8)(1990).

       In addition, the trial court found two mitigating factors: 1) that the defendant

had a favorable work history; and 2) that the conduct did not cause or threaten


                                            6
serious bodily injury. In light of Austin’s criminal history, the court had discretion to

give these mitigating factors little weight. See State v. Santiago, 914 S.W.2d 116,

126 (Tenn. Crim. App. 1995). The record supports the five-year sentence imposed

by the trial court. This issue is without merit.

       The judgment of the trial court is AFFIRMED.




                                           _____________________________
                                           JOE G. RILEY, JUDGE




CONCUR:




_________________________________
JOSEPH M. TIPTON, JUDGE




_________________________________
THOMAS T. WOODALL, JUDGE




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