        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                            Assigned on Briefs May 3, 2016

                 STATE OF TENNESSEE v. DAVID LEO PIPES

                  Appeal from the Circuit Court for Hardin County
                      No. 9986     C. Creed McGinley, Judge


                 No. W2015-02073-CCA-R3-CD - Filed July 21, 2016



The defendant, David Leo Pipes, was indicted for theft of property valued over $1000 but
less than $10,000. After trial, a jury found the defendant guilty. The trial court
subsequently held a sentencing hearing and imposed a six year sentence with a thirty-five
percent release classification to be served as a Range II, multiple offender. After the
denial of his motion for a new trial, the defendant filed this timely appeal. On appeal, the
defendant argues there was insufficient evidence to support his conviction, and the trial
court imposed an excessive sentence. Following our review, we affirm the judgment of
the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
CAMILLE R. MCMULLEN JJ, joined.

Frankie K. Stanfill, Camden, Tennessee, for the Appellant, David Leo Pipes.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Matthew Stowe, District Attorney General; and Joshua C. Turnbow,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                            Facts and Procedural Background

        This appeal stems from the theft of a diamond ring. The defendant was charged
with one count of theft of property over $1000 but less than $10,000, a Class D felony.
Following trial, a jury found the defendant guilty. Based on two prior felony convictions,
the trial court sentenced the defendant as a Range II, multiple offender, to six years with a
thirty-five percent release classification.

       At trial, James Stephen Graves, a patrol officer with the Crump Police
Department, testified as the first witness. Officer Graves testified that on or about June
25, 2014,1 he received a call from the victim, Cheryl Hight, reporting a missing diamond
ring. The defendant, David Leo Pipes, had been in her home earlier that day installing
blinds. The diamond ring was in a jewelry dish in Ms. Hight‟s master bathroom, one of
the rooms where the defendant was working.

       Officer Graves testified that as part of his investigation, he took pictures of the
jewelry dish and went to the jewelry store where the ring was purchased and is cleaned
annually to obtain a picture of the ring and get an appraisal. The jeweler appraised the
ring at $2500. The police officer also took the defendant‟s statement. When questioned,
the defendant admitted to working in Ms. Hight‟s master bathroom but denied taking the
ring.

       Officer Graves next canvased local pawn shops and obtained video footage. He
spoke with Justin Lane at Bradley‟s Pawn and Gun in Savannah, Tennessee, who was
working in the shop the day Ms. Hight reported the ring missing. Video footage obtained
from the pawn shop showed the defendant entering Bradley‟s Pawn and Gun. Officer
Graves verified that the defendant attempted to pawn several rings, including a diamond
ring. He was unable to do so, because he did not have valid identification.

       Officer Graves testified that he next called the defendant and left a voicemail
asking him to bring the ring to the station and meet with the district attorney to discuss
the charges. Officer Graves subsequently received a call asking that he return to Ms.
Hight‟s residence. When he arrived at the scene, Officer Graves found a ring taped to the
door, and Ms. Hight confirmed the ring belonged to her. Officer Graves then took the
ring back to Mr. Lane at the pawn shop to determine whether it was one of the rings the
defendant tried to pawn.

       The victim, Cheryl Hight, testified next. According to Ms. Hight, on June 24,
2014, the defendant came to her home to install blinds in the dining room, living room,
bathroom, and bedrooms. Ms. Hight identified the defendant, who was present in the
courtroom, as the individual who installed her blinds. After the defendant left her home,
Ms. Hight noticed her ring was missing. The night before, Ms. Hight removed the ring
and placed it in a dish in her bathroom. Ms. Hight had last seen the ring in the dish the
        1
          The subsequent evidence presented at trial indicates the ring was taken and reported missing on
June 24, 2014.

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morning the defendant came to install the blinds. Other than the defendant, Ms. Hight and
her husband were the only ones home that morning. Ms. Graves got the ring back two or
three days later when Officer Graves returned the ring to her.

       Justin Lane, an employee of Bradley Pawn and Gun, then testified that on the
morning of June 24, 2014, the defendant came into the pawn shop and tried to pawn a
ring. Mr. Lane recognized the defendant because he had been in the pawn shop on other
occasions. Mr. Lane could not remember whether the defendant tried to pawn one ring or
several rings. Mr. Lane testified that he provided Officer Graves with surveillance video
from the store. The video showed Mr. Lane returning the defendant‟s license to him and
pointing out that the date had expired. Officer Graves later returned to the store with a
ring that Mr. Lane identified as the ring the defendant attempted to pawn.

       Randy Livingston testified as the next witness. Mr. Livingston owns Livingston
Jewelry and sold Paul Hight, the victim‟s husband, the ring at issue. According to Mr.
Livingston, Ms. Hight brought the ring into his shop about twice a year for cleaning. He
also prepared an appraisal of the ring at the request of Officer Graves, valuing it at $2500.

       At the conclusion of Mr. Livingston‟s testimony, the State rested. After moving
for acquittal, which the trial court denied, the defendant rested without presenting proof.
The jury subsequently found the defendant guilty of theft of property valued at $1000 or
more but less than $10,000.

        At a subsequent sentencing hearing, the presentence report and certified copies of
two prior felony convictions were entered into evidence. The parties did not present any
additional proof. Based upon the information contained in the defendant‟s presentence
report, the defendant argued he should be sentenced as a Range I offender and was
eligible for alternative sentencing. After noting that the State filed a notice to seek
enhanced punishment and considering the defendant‟s prior felony theft and drug
convictions, the trial court ruled:

       [This] Court cannot use those felonies as further enhancement, but there is
       evidence of other previous convictions. Primarily driving with a suspended
       license. There‟s a theft in ‟96. There‟s any number of other things that
       constitute a criminal conviction in addition to those necessary to establish
       the range. The Court feels the appropriate sentence would be six years as a
       [thirty-five] percent release classification, Range 2.

       In considering his record, particularly the prior felony offenses, the Court
       finds that he is not eligible for alternative sentencing. I [followed] the
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       statutory criteria. I think that necessary prior efforts to rehabilitate him have
       not been successful, and the Court feels that it‟s appropriate that he be
       denied alternative sentencing. So he‟ll be remanded to custody for service
       of sentence.

        This appeal followed. On appeal, the defendant argues the evidence was
insufficient to justify a rational trier of fact from finding guilt beyond a reasonable doubt.
The defendant further argues the trial court imposed an excessive sentence. The State
argues the evidence was sufficient to sustain the defendant‟s conviction for theft, and the
trial court properly sentenced the defendant. We agree with the State and affirm the
judgment of the trial court.

                                          Analysis
       I.     Sufficiency of Evidence
        The defendant first challenges the sufficiency of evidence, arguing the facts do not
prove the identity of the stolen ring or that he was ever in possession of it. When the
sufficiency of the evidence is challenged, the relevant question of the reviewing 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 beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App.
P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be
set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190–92 (Tenn. 1992);
State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme
court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
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Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);
Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses'
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,
335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
Moreover, the jury determines the weight to be given to circumstantial evidence and the
inferences to be drawn from this evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence are questions primarily for the jury.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
This court, when considering the sufficiency of the evidence, shall not reweigh the
evidence or substitute its inferences for those drawn by the trier of fact. Id.

       “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.” Tenn. Code Ann. § 39-14-103(a). “Owner” is “a person,
other than the defendant, who has possession of or any interest ... in property ... and
without whose consent the defendant has no authority to exert control over the property.”
Tenn. Code Ann. § 39–11–106(a)(26) (Supp. 2011). “Possession may be actual or
constructive.” State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw,
37 S.W.3d 900, 903 (Tenn. 2001)). Actual possession “refers to physical control over an
item.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). On the other hand, constructive
possession is established when a person has “„the power and intention at a given time to
exercise dominion and control over [an object] either directly or through others.‟” Shaw,
37 S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App.
1997)).

       In support of his argument that the evidence was insufficient to support his
conviction of theft, the defendant points to the following evidence: when questioned by
Officer Graves, the defendant denied he took the diamond ring; Mr. Lane, the pawn shop
worker, could not remember whether the defendant had one or more rings in his
possession when he entered the shop on June 24, 2014; and the surveillance video played
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by the State did not reveal the items in the defendant‟s possession when he entered the
pawn shop on June 24, 2014. The defendant argues that due to these deficiencies, the
State did not prove the identity of the ring stolen from Ms. Hight and failed to prove the
ring was ever in the defendant‟s possession. We respectfully disagree.

       The evidence at trial showed that Ms. Hight left her diamond ring in her master
bathroom the evening of June 23, 2014. The ring was still in the master bathroom prior to
the defendant‟s arrival at Ms. Hight‟s home the morning of June 24, 2014. The defendant
worked in Ms. Hight‟s master bathroom that morning, and after he left, the diamond ring
was missing. In addition to the defendant, only Ms. Hight and her husband were home at
the time. The evidence revealed that later the same day, the defendant attempted to sell
one or more rings in a local pawn shop but was unable to do so because his driver‟s
license had expired. Then, after Officer Graves questioned the defendant about the
missing ring and asked that he return to the station with the ring to discuss the charges
that would be brought against him, the ring reappeared at Ms. Hight‟s home, taped to her
door. Ms. Hight identified the ring taped to her door as the same ring she reported
missing from her home the morning the defendant installed blinds. Mr. Lane
subsequently identified the ring found taped to Ms. Hight‟s door as one of the rings the
defendant attempted to pawn on June 24, 2014. When viewed in the light most favorable
to the State, we find this evidence sufficient for a rational jury to find beyond a
reasonable doubt that, with an intent to deprive her of the property, the defendant
knowingly exercised control over Ms. Hight‟s diamond ring without her consent. We
affirm the defendant‟s conviction of theft of property over $1000 but less than $10,000.
The defendant is not entitled to relief on this issue.

      II.    Sentencing

       The defendant further contends the trial court imposed an excessive sentence.
According to the defendant, his prior felony convictions should have been used to
determine whether he is eligible for alternative sentencing but should not have been used
to classify him as a Range II, rather than a Range I, offender. The defendant further
argues the trial court failed to emphasize the sentencing principles and considerations.
Again, we respectfully disagree.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” See State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012).



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       In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the
specific sentence and the appropriate combination of sentencing alternatives by
considering: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on the enhancement and mitigating
factors; (6) any statistical information provided by the administrative office of the courts
regarding sentences for similar offenses; (7) any statements the defendant wishes to make
in the defendant's behalf about sentencing; and (8) the potential for rehabilitation or
treatment. Tenn. Code Ann. § 40–35–210(a), (b), –103(5); State v. Williams, 920 S.W.2d
247, 258 (Tenn. Crim. App. 1995). Enhancement factors to be considered by the trial
court include, but are not limited to, whether “[t]he defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.” Tenn. Code Ann. § 40-35-114(1).

       The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Tenn. Code Ann. § 40–35–210(e); Bise, 380 S.W.3d at 706. “Mere
inadequacy in the articulation of the reasons for imposing a particular sentence ... should
not negate the presumption [of reasonableness].” Bise, 380 S.W.3d at 705–06. The party
challenging the sentence on appeal bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40–35–401, Sentencing Comm‟n Cmts.

       The trial court may sentence a defendant as a Range II, multiple offender, when it
finds that the defendant has received “[a] minimum of two but not more than four prior
felony convictions within the conviction class, a higher class, or within the next two
lower felony classes”; or alternatively, “[o]ne (1) Class A prior felony conviction if the
defendant‟s conviction offense is a Class A or B felony.” Tenn. Code Ann. § 40–35–
106(a)(1) & (2). In order to label a defendant as a multiple offender, the trial court has to
determine beyond a reasonable doubt that the defendant has the requisite prior felonies.
Tenn. Code Ann. § 40–35–106(c).

       Following his jury trial, the defendant was convicted of theft of property over
$1000 but less than $10,000, a Class D felony. At the sentencing hearing on August 20,
2014, the trial court first considered the proper sentencing range. The trial court noted a
Class E felony drug conviction from July 31, 2000, and a Class E felony theft conviction
from December 1, 2011. Based on these prior Class E felony convictions, the trial court
properly sentenced the defendant as a Range II, multiple offender.



                                             -7-
       The trial court next commented that, in addition to the felony convictions
considered to move the defendant from a Range I, standard offender, to Range II,
multiple offender, “there is evidence of other previous convictions.” The defendant‟s
presentence report listed numerous criminal convictions in addition to the two prior Class
E felony convictions, including theft of property, public intoxication, and multiple
convictions of driving with a suspended license. The trial court then sentenced the
defendant to six years with a release eligibility of thirty-five percent, which is within the
four to eight year sentencing range for a Range II, Class D felony sentence set forth in
Tenn. Code Ann. § 40-35-112(a).

        When affording a presumption of reasonableness to the within-range sentence
imposed by the trial court, we affirm the sentence. Even in the absence of enhancement
factors, the defendant is not entitled to the minimum sentence. Rather, the trial court may
set a sentence anywhere within the applicable range so long as the sentence is consistent
with the purposes and principles of the Sentencing Act. See State v. Carter, 254 S.W.3d
335, 343 (Tenn. 2008) (there is no presumptive sentence). The principles of the
Sentencing Act include the defendant‟s “potential or lack of potential for …
rehabilitation.” Tenn. Code Ann. § 40-35-103(5). As articulated by the trial court when
ordering the sentence, prior efforts to rehabilitate the defendant failed. This is evidenced
by the defendant‟s criminal history, which in addition to the prior felonies used to
establish the appropriate range, contained at least six prior misdemeanor convictions,
including one for theft. We conclude the trial court did not abuse its discretion when
sentencing the defendant, a Range II offender, to six years with a release eligibility of
thirty-five percent.

                                        Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                                   _________________________________
                                                   J. ROSS DYER, JUDGE




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