         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 14, 2002

         STATE OF TENNESSEE v. CHARLES BERRY BOURNE, JR.

                 Direct Appeal from the Circuit Court for Montgomery County
                          No. 40000008     Michael R. Jones, Judge



                     No. M2001-00196-CCA-R3-CD - Filed October 7, 2002


Defendant appeals his conviction by a jury for the offense of arson and the resulting five-year
sentence. The issues presented for our review are: (1) whether the evidence was sufficient to
support the verdict; (2) whether the trial court erred in allowing an investigator to testify as an expert
in arson investigation; (3) whether the trial court erred in not dismissing the indictment based upon
the state's failure to provide proper discovery; and (4) whether the trial court erred in applying a
sentencing enhancement factor. We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA MCGEE
OGLE , JJ., joined.

Carrie W. Kersh, Clarksville, Tennessee (at trial); Roger Eric Nell, District Public Defender; and
Collier W. Goodlett, Assistant District Public Defender (on appeal), for the appellant, Charles Berry
Bourne, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                               OPINION

         We summarize the evidence in a light most favorable to the state. The defendant did not
testify at trial.

         William Johnson and his wife were residing in a large tobacco barn on his property with
plans to convert the barn into a residence. They were actually residing in a truck camper and travel
trailer located inside the barn. When Johnson returned from work on September 17, 1999, at
approximately 11:00 p.m., the barn had been burned and reduced to ashes. No one had permission
to burn the barn, and the barn was uninsured. Johnson knew the defendant, who lived next door only
200 yards from the barn.

        Ryan Springer resided in the residence just north of Johnson's barn. At approximately 7:00
or 8:00 p.m. on September 17th, Springer saw the defendant in the defendant's blue Chevrolet
Suburban on the Johnson property. The defendant left but returned in fifteen minutes and parked
on the north side of the barn. Springer observed the defendant get out of his vehicle, walk around
to the west side of the barn where he stayed two or three minutes, return to his vehicle, and drive
away. As the defendant was driving away, Springer immediately noticed flames coming from the
barn. Springer called 911.

        Deputy Sheriff Randy Bruso was dispatched to the scene. Upon his arrival, he observed the
defendant in his blue Chevrolet Suburban doing "large donuts" in the field behind the barn. When
the officer was finally able to get the defendant to stop, the defendant stated, "Just go ahead and
shoot me and put me out of my misery." Deputy Bruso took the defendant into custody.

        Arson Investigator Brian Prentice investigated the fire. He opined that the fire started on the
west side of the barn.


                             SUFFICIENCY OF THE EVIDENCE

        Defendant challenges the sufficiency of the evidence. Where sufficiency of the evidence is
challenged, the relevant question for an 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. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Abrams, 935
S.W.2d 399, 401 (Tenn. 1996). 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, 547 (Tenn.
1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

       Although the evidence of defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However, for this
to occur, the circumstantial evidence must be consistent with guilt of the accused, inconsistent with
innocence, and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900.

       Arson is committed by one who knowingly damages any structure by means of a fire without
the consent of all persons who have a possessory, proprietary or security interest therein. Tenn. Code
Ann. § 39-14-301(a)(1). Viewing the evidence in a light most favorable to the state, the evidence
was more than sufficient to support the arson conviction. Immediately prior to the fire, the defendant
was seen exiting his truck beside the barn and walking around to its west side. Immediately after


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the defendant returned to his vehicle, flames were observed. Defendant's vehicle was positively
identified, and the defendant was taken into custody in that vehicle in a field near the barn. This
issue is without merit.


                                      EXPERT TESTIMONY

        Defendant contends Investigator Brian Prentice was not qualified to testify as an expert in
the investigation of fires. We respectfully disagree.

         A witness qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise, provided the scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact
in issue. Tenn. R. Evid. 702. An expert may base an opinion upon facts or data imparted to or
perceived by the expert prior to or at the hearing; the facts or data need not be admissible if they are
the type of facts or data reasonably relied upon by experts. Tenn. R. Evid. 703. If the underlying
facts or data lack trustworthiness, the court shall disallow expert testimony based upon them. Id.
Evidence and expert testimony regarding scientific theory must be both relevant and reliable before
it may be admitted. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The
trial court has broad discretion in resolving questions concerning the qualifications, admissibility,
relevance, and competency of expert testimony. State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002).
An appellate court should not overturn a trial court's decision in admitting or excluding a proposed
expert's testimony unless it finds the trial court abused its discretion. State v. Ballard, 855 S.W.2d
557, 562 (Tenn. 1993).

         Investigator Prentice testified that he had been with the sheriff's department for
approximately twenty years and had attended three separate courses relating to the investigation of
arson. He had investigated from fifty to eighty fires and had testified as an expert in general sessions
court on several occasions. The trial court did not abuse its discretion in allowing the investigator
to testify as an expert in the investigation of fires.

        Defendant further contends his testimony was irrelevant because his testimony that the fire
started on the west side of the barn was of no consequence. We disagree; this testimony was
corroborative of the testimony of Ryan Springer, who testified the defendant went to the west side
of the barn where flames were observed immediately thereafter.

        Defendant finally contends the data upon which the expert relied was untrustworthy. On the
contrary, the investigator testified that he utilized a nail by sticking it into various pieces of wood
to ascertain the point of origin. He further considered Springer's statement that he saw the defendant
on the west side of the barn just prior to the fire. We conclude the facts and data relied upon by the
expert were trustworthy. This issue is without merit.




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                                   DISCOVERY VIOLATION

        Defendant contends the trial court should have dismissed the indictment after the state failed
to comply with an agreed order for discovery, which required the state to provide exculpatory
information. Defendant has not cited to the record; therefore, this issue is waived. See Tenn. Ct.
Crim. App. R 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). Furthermore,
we find no indication in the record that the state possessed any exculpatory information. This issue
is without merit.


                                          SENTENCING

        Defendant's final contention is that the trial court erred in applying sentencing enhancement
factor (6), the amount of damage to property sustained by the victim was particularly great. See
Tenn. Code Ann. § 40-35-114(6). Again, we disagree.

        At the sentencing hearing, the trial court relied upon enhancement factor (1), prior history
of criminal convictions. See Tenn. Code Ann. § 40-35-114(1). Defendant had twenty prior
misdemeanor convictions; this enhancement factor was clearly applicable. In addition, the trial court
applied enhancement factor (6), the amount of damage to property was particularly great. See Tenn.
Code Ann. § 40-35-114(6). The trial court also mitigated the sentence based upon the defendant's
physical disability. See Tenn. Code Ann. § 40-35-113(13). The defendant only challenges the trial
court's application of enhancement factor (6).

        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). 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).

        If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors
do exist, a trial court should 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); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

       We conclude the trial court did not err in its application of enhancement factor (6). The
presentence report contained a comprehensive listing of the items destroyed by the fire. The total
estimated loss was over $101,000 and included not only the barn, but also a travel trailer, truck
camper, pets, and various antiques of unknown value. The amount of damages sustained by an arson


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victim is not an element of the offense and may be considered as an enhancement factor. The victim
lost not only a barn, but a place of residence which included all of his and his wife's personal
belongings. It cannot be argued that the damages were not particularly great.

        We further note that defendant was on probation when some of his prior misdemeanor
offenses were committed. The trial court could have applied enhancement factor (8), defendant has
a previous history of unwillingness to comply with the conditions of a sentence involving release in
the community. See Tenn. Code Ann. § 40-35-114(8). The fact that the defendant was on
misdemeanor probation, as opposed to felony probation, does not bar the application of this
enhancement factor.

        The range of punishment for arson, a Class C felony, is three to six years as a standard
offender. See Tenn. Code Ann. § 40-35-112(a)(3). The five-year sentence as determined by the trial
court is certainly justified by the record.


                                         CONCLUSION

       After conducting a review of the record, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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