        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JUNE SESSION, 1997           November 20, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,           )   C.C.A. NO. 01C01-9608-CC-00342
                              )
     Appellee,                )
                              )   BEDFORD COUNTY
                              )
V.                            )
                              )   HON. CHARLES LEE, JUDGE
TIMOTHY MARK REDD,            )
                              )
     Appe llant.              )   (ATTEMPTED BURGLARY)



FOR THE APPELLANT:                FOR THE APPELLEE:

A. JACK SON DEAR ING, III         JOHN KNOX WALKUP
117 So uth Main Street            Attorney General & Reporter
Suite 101
Shelbyville, TN 37160             PETE R M. C OUG HLAN
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  WILLIAM MICHAEL McCOWN
                                  District Attorney General

                                  ROBERT G. CRIGLER
                                  Assistant District Attorney General
                                  One Public Square, Suite 300
                                  Shelbyville, TN 37160




OPINION FILED ________________________

AFFIRMED IN PART AND MODIFIED IN PART

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Defendant, Timothy M ark Redd , appeals as o f right following a jury

trial in the C ircuit Court of Bedford County. He was convicted of attempted

burglary, assault, resisting arrest, and possession of burglary tools. He argues

on appea l (1) that the e vidence was insu fficient to support the conviction for

assau lt, (2) that the trial court erred by not merging the conviction for possession

of burglary tools with the conviction for attempted b urglary, (3) that the trial court

erred by not merging the conviction for resisting arrest with the conviction for

assau lt, (4) that the trial court erred by ordering consecutive sentencing, and (5)

that the trial court erred by ordering a sentence of split confinement for the

conviction of attempted burglary. We affirm the convictions and sentences, but

modify the manner of service.



       Following a sentencing hearing, the trial court entered judgments

senten cing De fendan t in the followin g man ner:


Count 1, attem pted burglary             1 year, 9 mon ths, T.D .O.C., to be served
                                         in Community Corrections , with 365 days
                                         incarceration in Bedford County Jail, day
                                         for day

Coun t 2, assau lt                       11 m onths , 29 da ys, Be dford C ounty Jail

Coun t 3, resisting a rrest              4 mo nths, B edford Coun ty Jail

Coun t 4, posse ssion of
burgla ry tools                          9 mo nths, B edford Coun ty Jail


       The judgments also ordered that the sentence in Count 1 (attempted

burglary) is to be served concurrently with the sentence in Count 4 (possession



                                          -2-
of burglary tools), and that these sentences are to be consecutive to sentences

imposed in Marsh all Coun ty cases. T he sen tence im posed for Coun t 2 (assau lt)

was ordered to be served conc urrently with the se ntence impos ed in Co unt 3

(resisting arrest). Howeve r, the trial court ordered the sentences in Count 2 and

Count 3 to be served consecutively to the sentences imposed in Count 1 and

Count 4.    The rec ord reflects that at the time Defendant was sentenced in the

cases involved in this appeal, he was serving a senten ce for Ma rshall Co unty

conviction s which in volved 9 m onths inc arceratio n.



      In esse nce, in the ca ses p resen tly before this court, the trial judge ordered

Defen dant to serve a sentence of 1 year, 9 months on Community Corrections,

which included 365 days of incarceration in the Bedford County Jail, to be

followed by a sentence of incarceration in the Bedford County Jail for 11 months,

29 days with a minimum service of 75% of this sentence prior to release. A literal

reading of the sen tence w ould involve the Defe ndant serving 36 5 days in jail,

followed by 9 months release in the Community Corrections program, and then

followed by service of at least 75% of an 11 month, 29 day sentence of

incarc eration in the B edford Coun ty Jail.



                           S UFFICIENCY OF THE EVIDENCE



      The only conviction for which Defendant challenges the sufficiency of the

evidence is the conviction for assault.        He concedes that the evidence was

sufficient to convict him o f the remaining three charge s of attempted burglary,

resisting arrest, and p ossession of burglary tools. Defendant argues that at no




                                         -3-
time during his arrest did he com mit any o vert act, othe r than an idle threat, to

place an yone in im minen t fear of bod ily injury.



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.

307, 319 (19 79). On ap peal, the S tate is entitled to the strongest legitimate view

of the evide nce an d all inferen ces there from. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn . 1978).     B ecaus e a verdic t of guilt removes the presumption of

innocence and re places it with a presumption of guilt, the accused has the

burde n in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W .2d 474, 476 (1973).



       Questions concerning the credibility of witnesses, the weigh t and valu e to

be given the evidence, as well as a ll factual issues raised b y the evidence, a re

resolved by the trier of fact, n ot this cou rt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor m ay this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge acc redits th e State ’s witne sses and re solves all

conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.



       On Septe mbe r 7, 199 5, W illard Ba ker, ow ner an d ma nage r of Sh elbyville

Supe rmarke t, was workin g alone in the back of the store after it had closed for

the day. He heard a noise that sounded like it was on the roof, and it got louder

                                           -4-
as he followed it outside. He walked to the overhang and could hear the noise

directly over his head. After a few seconds, h e walked ba ck inside the store and

called the police. The police arrived abou t one m inute la ter at ap proxim ately 9:40

p.m. Baker saw two or three cars arrive at the front parking lot and two cars

arrive in back. He pointed towards the roof where he heard the noise.



       Officer James Wilkerson of the Shelb yville Police Department arrived at the

Shelbyville Supermarket after hearing from the police dispatcher that someone

was attemp ting to gain entry to the store. He pulled in tow ard the b ack of the

building and was the first police officer to arrive. When he shined his spotlight

onto the roof, he saw the Defendant running across the roof towards him.

W ilkerson stopped his car and ran to the building. Defendant jumped from the

roof area onto some coolers, and then jumped down to a loading dock where

Wilkerson was standing. The men stood within arms reach when Wilkerson

ordered Defendant to drop the black bag he was carrying and drop to the ground.




       W hile holding the bag with his left hand, Defendant stuck his right hand in

the bag and partially pulled out something. Wilkerson could only see part of the

sma ll, black object. Defendant said something to th e effec t that “we would all

die.” Wilkerson presumed that Defendant “had a bom b the w ay he s aid we would

all die.” Wilk erson stated that at th e time he wa s in fear of immine nt bodily injury

and had drawn his weapon. While Wilkerson repeatedly ordered Defendant to

drop the bag and get on the ground, Defendant refused to comply and continued

to threate n W ilkerson.




                                          -5-
        At about that time, Officers Marsh, McKee, and Arrington arrived on the

scene. Marsh was first, and he testified that after he arrived he was running

around the building when he heard Wilkerson asking for help. He saw that the

subject had a bag with his hand stuck in the bag and heard him say that “he

would take all of us out.” McKe e, who drove up as backup behind the store, first

saw the Defendant standing between Marsh and Wilkerson, edging towards the

open field.    McKee got out of the car and cut in between Defendant and

Wilkerson. When McKee approa ched Defe ndan t, Defe ndan t turned and to ld

McKee that “I will take us all.” At that time, McKee took Defendant’s hand out of

the bag and pu shed it as ide, then th rew the b ag.



        Defendant began to flee on foo t, but was caught by Arrington. Arrington

had arrived at the s tore with Mars h in the front parking lot. He had gone to the

northwest corner of the building until he heard an officer behind the store request

assistance. He ran to the rear of the store and sa w Defe ndant flee ing. Arrington

grabbed Defendant and the two fell to the groun d in a struggle. All the officers

at the scene assisted Arrington as Defendant resisted arrest by first swinging his

arms and then putting his arms underneath his body where they could not put

handc uffs on him. After the Defendant was placed in the patrol car, Wilkerson

found the bag Defendant had been holding. H e chec ked to se e if a weapon was

inside. Wilkerson found various burglary tools inside the bag and identified these

at trial.



        Officer Wilkerso n drove De fendant to the p olice station where Chris

Szaroletta, a police investigator, was called in to take a statement from the

Defen dant. Szaro letta tes tified tha t Defe ndan t, after w aiving his rights, volunta rily

                                             -6-
made a statement admitting his attempted entry into the store, that he removed

some screw s from pane ls on th e store ’s roof, a nd tha t the bu rglary to ols

belonged to him. T his statem ent was ad mitted into evidence. No proof was

offered by the defense.



      Under Tennessee Code Annotated section 39-13-101(a)(2), a person

comm its assault if he intentionally or knowingly causes another to reasonably fear

imminent bodily injury. During his testimony, Officer Wilkerson stated that the

Defe ndan t’s actions of pulling a small, black unidentifiable object out of his bag

and threatening that “we will all die” caused him to reasonably fear imminent

bodily injury. In fact, Wilkerson was sufficiently concerned for his safety to draw

his weapon as an attempt at some form of self-defense. The State proved

beyond a reasonable doubt that Defendant pulled an unidentifiable object out of

his bag and threatened Officer Wilkerson, and that Wilkerson reasonably feared

imminent bodily injury. See State v. Wilson, 924 S.W .2d 648, 650 (Tenn. 199 6).



      In additio n to the Defe ndan t’s act a nd W ilkerso n’s fear, the assau lt statute

requires proof of crim inal intent, or m ens rea . That criminal intent requires that

Defendant acted either intentio nally or knowingly. De fendant argu es that his overt

acts were only “idle threats” which do not give rise to intent under the meaning

of the statute. It is not necessary that intent be found solely from direct evidence

as a crim e ma y be es tablish ed by c ircum stantia l evidence alone.         State v.

Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). The law provides that mens

rea, even the maliciou s intent to kill, ca n be infe rred from circumstances of

conduct giving rise to the crime . See State v. Smith, 751 S.W.2d 851, 855 (Tenn.

Crim. A pp. 198 8).

                                          -7-
      The Defendant’s indictment charged that the Defendant “intentionally or

know ingly did cause Officer James E. Wilk erson . . . to reas onab le fear imminent

bodily injury.” A person acts intentionally “with respect to the nature of the

conduct when it is the person’s conscious or objective desire to engage in the

conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).                Th ere is

sufficient circumstantial evidence for the jury in this case to have concluded

beyond a reasonable doubt that Defendant acted with the required mens rea

when he threa tened Officer W ilkerso n. Upo n app ellate re view, th e State is

entitled to the strongest view of the evidence and the inference that Defendant

was aware that the threat w ould cause Wilkerson to fear imminen t bodily injury,

which satisfies the me ns rea re quirem ent of “kno wingly.” This issu e has n o merit.



                             M ERGER O F C ONVICTIONS



      Defendant argues the trial cou rt erred in failing to merge count four,

possession of burglary tools, with count one, attempted burglary. He alleges that

“but for the b urglar y tools in his possession, the Defendant could not be convicted

of attempted b urglary.” Defendant also claim s that as th e crime s of assa ult,

count tw o, and re sisting arre st, coun t three, b oth co ntain the statutory element

of fear, the se two crime s sho uld merge . See Tenn. Code Ann. §§ 39-13-101 and

39-16-602.



      The resolution of this issue requires a weighing of the following four

factors: “(1) a Blockburger analysis o f the statuto ry offense s; (2) an analysis,

guided by the principles of Duchac, of the evide nce us ed to prove the offenses;

(3) a consideration of whether there were multiple victims or discrete acts; and

                                          -8-
(4) a compa rison of the purpo ses of the resp ective statutes.” State v. Denton,

938 S.W .2d 373 , 381 (T enn. 19 96); see Blockburger v. U.S., 284 U.S. 299

(1932); Duch ac v. State , 505 S.W .2d 237 (Tenn. 1973). In Blockburger, the

United States Supr eme Cour t held th at in su stainin g mu ltiple convictions from a

single set of circumstances where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one is whether each provision requir es

proof of an add itional fact wh ich the oth er does not. Blockburger v. U.S., 284

U.S. at 304. The Tennessee Supreme Court has held that “if the same evidence

is not requ ired, then th e fact that both charges relate to, and grow out of, one

transaction, does not make a single offense where two are defined by the

statutes.” Duchac, 505 S.W .2d at 239 (citations om itted).



       Tennessee Code Annota ted section 39-14-701 defines the offense of

possession of burglary tools as p ossession of “any tool, machine or implement

with intent to use the sam e, or allow the same to be used, to commit any

burglary. . . .” The offe nse of burglary is defined by statute as when a person,

“without the effective consent of the property owner, enters a building other than

a habitation (or any po rtion thereo f) not ope n to the pu blic, with inten t to com mit

a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)(1). “A person

comm its criminal attempt who, acting with the kind of culpability otherwise

required for the offense . . . acts with intent to complete a course of action or

cause a result that would constitute the offense . . . and the conduct constitutes

a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-

12-101 (a)(3).




                                           -9-
      The statutory provisions of attem pted burglary an d possess ion of burglary

tools require proof of at least one different element in each offense; the same

evidence is not required to prove both offenses; the offenses involved concerned

two discrete acts by the Defendant; and the offenses protect different interests.

The trial court corr ectly noted that a person cou ld comm it an attempted burglary

without the po sses sion o f burgla ry tools, and th at not o nly did Defendant possess

a screwdriver with which he was attempting to enter the building, he possessed

numerous other burglary tools which were introduced into e vidence. Sim ilarly,

the Defendant’s possession of burglary tools did not infer that he “entered ” a

building for the purpose of comm itting a burglary, only that the Defendant had the

intent to commit a burglary. In Duchac, a similar conviction was upheld involving

the offenses of third degree burglary and possession of burglarious instruments.

Id. at 240. The mere fact that both offenses grew out of a single criminal episode

does n ot mak e them a single ca se in this ins tance. Id.



      Coun ts two and three warrant the same analysis as abo ve. A person

comm its assault who “inten tionally o r know ingly ca uses anoth er to rea sona bly

fear immin ent bod ily injury.” Ten n. Cod e Ann. § 39-13-101(a)(2). A person who

intentio nally prevents or obstructs “anyone known to the person to be a law

enforcement officer, or anyone acting in a law enforcement officer’s presence and

at such officer’s direction, from effecting a[n] . . . arrest . . . of any person,

including the defenda nt, by using force ag ainst the law enforc ement officer o r

another” commits the offense of resisting arrest. Tenn. Code Ann. § 39-16-

602(a). These offenses also are s eparate and distinct offenses which require

proof of different statutory eleme nts and evidenc e, involve se parate d iscrete ac ts

by the Defe ndant and have multiple victims (all of the arresting officers versus

                                         -10-
Officer Wilkerson), and protect differing interests. See Blockburger, 284 U.S. at

304. Th is issue is w ithout me rit.



                                       S ENTENCING



       When an accused challenges the length, range or the manner of service

of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence

with a presum ption that the determ inations mad e by the trial court are correct.

Tenn. Code A nn. § 40-35-4 01(d). This pre sump tion is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d

166, 16 9 (Ten n. 1991 ).



       In cond ucting a de n ovo re view of a sentence, this cou rt must cons ider:

(a) the evid ence , if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

the defendant made on his ow n beha lf; and (g) the potential or lack of potential

for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210;

see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial c ourt’s finding s of fac t are ad equa tely supported by the record, then

                                          -11-
we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



                               CONSECUTIVE SENTENCING




       Defendant argues the trial court erred by ordering his sentences to be

served consecutively. Upon review of the record, it is evident that the trial court

imposed consecutive sentences based upon the fact that Defendant committed

these offenses while he was on probation for offenses he committed in another

county.    Tennessee Code Annotated section 40-3 5-115(b )(6) states that a

defendant convicted of more than one (1) criminal offense can be ordered by the

court to serve consecutive sentences if the defendant is sentenced for an offense

committed while on probation.



       Furthermore, the trial cour t found tha t an extended sentence was

necessa ry to restrain the Defendant from committing other offenses, thereby

protecting the pub lic from D efenda nt’s further c riminal co nduct. See State v.

Wilkerson, 905 S .W .2d 93 3, 939 (Ten n. 199 5). Th e trial co urt also noted that this

offense was se rious in tha t it “could hav e led to the injury of the [p olice] officers .”

Due to the severity of Defendant’s acts, the consecutive sentence imposed

reason ably relates to his crim es. Id. at 939. T his issue has no merit.



                               ALTERNATIVE SENTENCING




       Defendant argues that the trial court erred by ordering him to serve his 1

year, 9 month sentence for attempted burglary in Commun ity Corrections as a

                                           -12-
form of alternative senten cing. Defendant claims that he did not request such a

form of sentencing, and, therefore, has not met his burden of proof of entitlement

to alternative sentencing. Defendant was sentenced to serve a split sen tence in

Com munity Corrections o f 365 days, day fo r day, on his felony sentence of one

year and nine months, but was not granted alternative sentencing on the

misdemeanor senten ce of eleve n mon ths and twenty-nin e days, to be served at

the rate of seven ty-five percent (75% ).



       Trial courts have the authority to place a defend ant into “C omm unity

Corrections program [s] whethe r there is a written application or n ot.” State v.

Estep, 854 S.W.2d 124, 127 (Tenn. Crim. App. 1992). However, Tennessee

Code Annotated section 40-36-106(a)(7) explicitly provides that “[P]ersons who

are sentenced to incarceration or on escape at the time of consideration will not

be eligible [fo r Com munity C orrection s].”



       At the time of the sen tencing h earing, D efenda nt was se ntence d to

incarceration on the Marshall County convictions. In addition, Defendant was

sentenced to incarceration for the m isdemea nor assau lt in this case in Bedford

County.    Therefore, the Defendant was not eligible to be sen tenced to

Com munity C orrection s.



       Nevertheless, it is apparent from the record that the trial court felt that

alternative senten cing of sp lit confinem ent was the most appropriate sentence for

Defendant in this case. We agree. Therefore, even though Defendant is not

statuto rially eligible to be placed into the Community Corrections program, we

affirm the length of the sentences and the order of consecutive sentencing as set

                                         -13-
forth by the tr ial cou rt, but m odify the judgm ents to reflect th at De fenda nt is

sentenced to serve the conviction for attempted b urglary in the Be dford C ounty

Jail, with a split confinement involving incarcerat ion for 1 year, followed by

probation for 9 months. This sentence is to follow and thus be served

conse cutively to and after the se ntence of 11 months, 29 days in the Be dford

Coun ty Jail for the con viction of as sault in Co unt 2. See Tenn. Code Ann. § 40-

35-306 . The jud gmen ts, as mo dified, are h ereby affirm ed.




                                         -14-
                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
WILLIAM M. BARKER, Judge




                             -15-
