         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 1, 2005

                     STATE OF TENNESSEE v. KEITH SALTER

                  Direct Appeal from the Criminal Court for Shelby County
                        Nos. 01-04363, 01-04364 Chris Craft, Judge



                      No. W2004-01255-CCA-R3-CD - Filed June 7, 2005


Defendant, Keith Salter, was indicted in case No. 01-04363 on two counts of theft of property over
$1,000 but less than $10,000, a Class D felony, and one count of felony evading arrest, a Class D
felony. Defendant was indicted in case No. 01-04364 on two counts of theft of property over
$10,000 but less than $60,000, a Class C felony. Following a jury trial, Defendant was found guilty
in case No. 01-04363 of one count of theft of property over $1,000 and one count of felony evading
arrest, and not guilty on the other felony theft charge. Defendant was found guilty of both counts
of felony theft in case No. 01-04364. The trial court merged Defendant’s conviction of felony theft
in count two of case No. 01-04364 with his felony theft conviction in count one. Defendant was
sentenced as a career offender to twelve years for the felony theft conviction and twelve years for
the felony evading arrest conviction in case No. 01-04363. Defendant was sentenced as a persistent
offender to fifteen years for the theft conviction in case No. 01-04364. The trial court ordered
Defendant’s sentences in case No. 01-04363 to be served concurrently with each other but
consecutively to his felony theft sentence in case No. 01-04364 for an effective sentence of twenty-
seven years. On appeal, Defendant argues (1) that the State failed to prove that the value of the truck
supporting his theft conviction in case No. 01-04363 was over $10,000; (2) that the evidence was
insufficient to establish his identity as the perpetrator of the offenses; and (3) that the length of his
sentences is excessive. After a thorough review of the record, we affirm the judgments of the trial
court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and J.C. MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender; and Tony N. Brayton, Assistant Public Defender,
Memphis, Tennessee (on appeal) and William Gary Ball, Memphis, Tennessee (at trial) for the
appellant, Keith Salter.
Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

        Officer James Peterson with the Shelby County Sheriff’s Department testified that on
February 1, 2000, he checked the registration number of a white van with the name “Aerofoam”
written on the side of the vehicle. He discovered that the van had been reported stolen, and he had
the van towed. On February 7, 2000, at about 5:30 a.m., Officer Peterson spotted another white van
with the “Aerofoam” logo traveling on Getwell Road in Shelby County. Officer Peterson followed
the van for awhile because he knew that the business was not open at that time of the morning. He
activated his emergency equipment at the intersection of Getwell Road and Holmes Road, but the
driver of the van refused to stop.

        Officer Peterson described the ensuing chase. The van’s driver, who was later identified as
Defendant, ran a red light at the intersection of Getwell Road and Holmes Road and again at the
intersection of Getwell Road and Shelby Drive. The van nearly turned over as it exited onto
Winchester Road, but Defendant was able to keep the vehicle under control. At one point, the
vehicle turned onto a side road, hit some dirt, and was momentarily airborne. Defendant drove
through a field until he reached the main road again, and entered Interstate 55 on the wrong side of
the interstate. Defendant cut across the lanes of traffic on the interstate and exited on Shelby Drive.
He drove eastbound on Shelby Drive through a residential area and turned west on Holmes Road.
At one point, Defendant drove off of the road again and through a field. Defendant turned into the
parking lot at Fairley High School. At this point, Officer Peterson dropped out of the chase.

        Officer Peterson said that Defendant was the only person in the vehicle, although it was too
dark to identify him while he was driving. Officer Peterson said that there were other cars on the
road when Defendant ran the red lights and several cars on the interstate ramps. Officer Peterson
spoke with employees at Tech Aerofoam Products, Inc., who verified that a white van was missing
from the company’s parking lot. The business was located about one and a half miles from the spot
where Officer Peterson first saw the white van that was driven by Defendant.

       Officer Peterson said that Defendant told him and other police officers that he was driving
the van for someone else in exchange for twenty dollars and a rock of crack cocaine. Officer
Peterson said that Defendant did not give a written statement.

        Officer Louis T. Hall, Jr. caught up with Officer Peterson at the intersection of Holmes Road
and Hudgins Road and assumed the lead position in the chase. He said that Defendant drove behind
Fairley High School, struck a wire fence around a transformer, and turned onto Shelby Drive.
Defendant then turned around and drove back to the high school. He tried to drive between two of


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the school’s buildings, but the top of the van became wedged against an overhead crosswalk. Officer
Hall said that he saw Defendant running from the van and began to chase him. After thirty or forty
feet, Officer Hall slowed down, and another police officer eventually tackled Defendant about fifty
or sixty feet from the van and handcuffed him.

        Officer Hall said that there were approximately 180 boxes of electrical equipment in the back
of the van. The name “Cutler-Hammer, Inc.” was written on the boxes. Officer Hall contacted
representatives of the company who said that the items were not supposed to be transported in any
vehicle other than those belonging to Cutler-Hammer, Inc.

        On cross-examination, Officer Hall said that he could not see the driver’s facial features
during the chase, but he did notice that the driver was wearing a dark colored jacket. Officer Hall
said that he did not actually see Defendant get out of the van. He said, however, that he saw a figure
exiting the van, and then saw Defendant running about ten feet in front of the van. Officer Hall said
that there was no one else on the school’s property when Defendant was apprehended. Officer Hall
confirmed that Defendant told the police officers he was driving the van in exchange for twenty
dollars and a rock of crack cocaine. Officer Hall said that he did not know whether the van or its
cargo was tested for fingerprints.

        Travis Hendricks, the general manager of Tech Aerofoam Products, Inc., said that the
company was a wholesale supplier of cabinet supplies and counter tops. Mr. Hendricks identified
the vehicle driven by Defendant as the company’s van, and he said that the van was stolen on
February 1, 2000 and again on February 7, 2000. Mr. Hendricks said that the cost of the repairs from
the damage to the van on February 7, 2000 was in excess of $9,000, and the insurance company did
not “total” the vehicle. Mr. Hendricks said that the vehicle was a 1995 GMC van. The company’s
name and logo were printed on the sides of the van in fourteen inch letters. Mr. Hendricks confirmed
that the company’s business hours were between 7:30 a.m. and 4:30 p.m.

        On cross-examination, Mr. Hendricks said that the van was not damaged the first time it was
stolen. Mr. Hendricks conceded that the value of the van could possibly be under $10,000.

         Steve Sprecher, the site manager of Cuttler-Hammer, Inc.’s facility in Memphis, said that the
facility was a distribution center for the company’s electrical products. He estimated that the value
of the company’s products that were discovered in the van was approximately $5,000. The items
had been loaded on a company truck during the night of February 6, 2000, and were destined for
shipment to Lincoln, Illinois. Mr. Sprecher confirmed that Defendant was not an employee of the
company and did not have permission to take the company’s products.

II. Sufficiency of the Evidence

       Defendant does not challenge his conviction for felony evading arrest. Defendant argues,
however, that the evidence was insufficient to support the jury’s finding that he was the driver of the
van belonging to Tech Aerofoam Products, Inc. Defendant contends that no one identified him as


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the driver while the vehicle was in motion, and no one saw him actually exit the vehicle at Fairley
High School. In addition, the State did not offer any physical evidence that he was in the vehicle
prior to the wreck.

        When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, 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). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        The State must prove beyond a reasonable doubt that the accused is the person who
committed the crime. See State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). Identity of the
accused may be proven through circumstantial evidence alone where the facts “‘are so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the
defendant alone.’” State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002)(quoting State v. Smith, 868
S.W.2d 561, 569 (Tenn. 1993)). The determination of whether all reasonable theories are excluded
by the circumstantial evidence presented is primarily a question of fact for the jury. State v. Tharpe,
726 S.W.2d 896, 900 (Tenn. 1987).

         Officer Peterson testified that the driver was the only person in the van. Officer Hall
admitted that he did not see Defendant exit the vehicle. He testified, however, that no one else was
present at the site of the wreck. He saw a figure get out of the van, and then spotted Defendant
running about ten feet in front of the van. Officer Hall pursued Defendant until Defendant was
tackled by another police officer about fifty or sixty feet from the vehicle. Defendant admitted to
both officers that he was the driver, and said that he was driving the van for money and drugs.
Viewing the evidence in a light most favorable to the State, a reasonable trier of fact could conclude
beyond a reasonable doubt that Defendant was the driver of the stolen van. Defendant is not entitled
to relief on this issue.

        Alternatively, Defendant argues that the evidence is insufficient to support the jury’s finding
that the value of the van belonging to Tech Aerofoam Products, Inc., was over $10,000. Defendant
contends, therefore, that his Class C theft conviction in case no. 01-04364 should be reduced to a
Class D felony.


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        A person commits theft if the person knowingly obtains or exercises control over the property
of another without the owner’s effective consent and with the intent to deprive the owner of his or
her property. Tenn. Code Ann. § 39-14-103. Theft of property is a Class D felony if the value of
the stolen property is between $1,000 and $10,000, and a Class C felony if the value of the stolen
property is between $10,000 and $60,000. “Value” is defined as “(i) The fair market value of the
property or service at the time and place of the offense; or (ii) if the fair market value of the property
cannot be ascertained, the cost of replacing the property within a reasonable time after the offense[.]”
Tenn. Code Ann. §§ 39-11-106(a)(36)(A)(i) and (ii). The determination of fair market value is a jury
question based on the evidence presented at trial. State v. Hamm, 611 S.W.2d 826, 828-829 (Tenn.
1981).

        Mr. Hendricks testified, “I would have to say [the approximately value of the van] was over
$10,000.” He testified that the repairs to the van after Defendant’s wreck cost more than $9,000.
He also testified, without objection, that he based his opinion of the value upon the fact that the
insurance company did not “total” the vehicle as a result of the damage it sustained. Mr. Hendricks
said that the van was a 1995 model. At the time of the offenses, then, the van was approximately
five years old. Mr. Hendricks said that the van resembled a U-Haul truck with a cab in front and a
box in the back that was seven feet high and fourteen feet long. The vehicle was repaired and
returned to the company.

        Defendant points out that Mr. Hendricks stated in cross-examination that the value of the van
might possibly be less than $10,000. Any conflicts, however, are presumed to have been resolved
by the jury in favor of the State. Sheffield, 676 S.W.2d at 547. Given the information presented, the
evidence was sufficient for the jury to determine that the value of the property taken was more than
$10,000 but less than $60,000. Defendant is not entitled to relief on this issue.

III. Sentencing Issues

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Id. § 40-35-401(d). This presumption is “conditioned upon the 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). “If the trial court applies
inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of
correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

        The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the



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defendant’s potential for rehabilitation or treatment. Id. §§ 40-35-102, -103, and -210; State v. Smith,
735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        A persistent offender is sentenced within the applicable Range III, or between ten and fifteen
years for a Class C felony. Id. §§ 40-35-108(c) and 40-35-112(c)(3). In calculating the sentence for
a Class C felony conviction, the presumptive sentence is the minimum of the range, or ten years if
there are no enhancement or mitigating factors. Id. § 40-35-210(c). If there are enhancement but
no mitigating factors, the trial court may set the sentence above the minimum of the range, but still
within the range. Id. § 40-35-201(d). If both enhancing and mitigating factors are present, the trial
court must start at the minimum of the range, enhance the sentence within the range as appropriate
for the enhancing factors, and then reduce the sentence as appropriate for the mitigating factors. Id.
§ 40-35-210(e). If there are mitigating but no enhancement factors present, then the trial court may
set the sentence either at the minimum of the sentencing range, or below the midpoint.

         At the sentencing hearing, Demetria Copperidge, the principal court clerk for the Shelby
County Criminal Court, testified. Ms. Copperidge said that one of her duties is to maintain the
court’s records. Ms. Copperidge stated that according to the trial court’s records Defendant was
convicted of nine Class E felonies, four Class D felonies and three Class C felonies between 1989
and 1996. Seven of the Class E felonies occurred on the same day, and the trial court considered
these offenses as one offense for purposes of determining Defendant’s sentencing range. See Tenn.
Code Ann. §§ 40-35-107(b)(4) and 40-35-108(b)(4). Based on Defendant’s prior criminal record,
the trial court sentenced Defendant as a persistent offender on his Class C felony theft conviction
in case No. 01-04364, and as a career offender for his Class D felony theft and felony evading arrest
convictions in case No. 01-04363. See id. §§ 40-35-107(a)(1) and 40-35-108(a)(3).

        The mandatory sentence for a career offender is the maximum sentence within the applicable
Range III, or twelve years for a Class D felony. Id. §§ 40-35-108(c) and 40-35-112(c)(4). The trial
court accordingly sentenced Defendant as a career offender to twelve years for each of his Class D
felony convictions, and Defendant does not challenge the length of these sentences.

                                       A. Length of Sentences

         Defendant’s sole challenge on appeal to the length of his sentence for his Class C felony theft
conviction in case No. 04364 is based on the recent United States Supreme Court decision in Blakely
v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Relying on Blakely, Defendant argues that
the trial court’s failure to submit the determination of the applicability of enhancement factors to a
jury violated his Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536. Our
Supreme Court, however, has recently concluded that Tennessee’s sentencing scheme does not
violate a defendant’s right to trial by jury under Blakely. State v. Edwin Gomez and Jonathan S.
Londono, ___ S.W.3d ___, No. M2002-01209-SC-R11-CD, 2005 WL 856848, at *27 (Tenn. Apr.
15, 2005). Accordingly, Defendant’s reliance on Blakely is misplaced. Defendant is not entitled to
relief on this issue.



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                                    B. Consecutive Sentencing

       Defendant also seeks review of the trial court’s imposition of consecutive sentences under
Blakely. The trial court ordered Defendant’s sentences in case No. 01-04363 to be served
consecutively to his sentence in case No. 01-04364 based on its findings that Defendant was a
professional criminal, that he had an extensive criminal history, and that he was a dangerous
offender. Even before the Supreme Court’s opinion in Gomez, this Court has consistently held that
Blakely does not impact a trial court’s order of consecutive sentencing. See State v. Lawrence
Warren Pierce, No. M2003-01924-CCA-R3-CD, 2004 WL 2533794, at *13 (Tenn. Crim. App.,
Nashville, Nov. 9, 2004), perm. to appeal denied (Tenn. Feb. 28, 2005); State v. Michael L. Wallace,
No. E2003-01719-CCA-R3-CD, 2004 WL 2671619, at * 7 (Tenn. Crim. App., Knoxville, Nov. 23,
2004), application for perm. to appeal filed. See also State v. Gregory Robinson, 146 S.W.3d 469,
499 n.14 (Tenn. 2004)(citations omitted)(“[S]everal courts have rejected [this] contention and held
that Blakely and Apprendi do not apply to the decision to impose consecutive sentences.”)
Defendant’s reliance on Blakely is thus misplaced.

        Although Defendant does not otherwise challenge the propriety of consecutive sentencing,
we find that the evidence does not support a finding that Defendant is a professional criminal who
knowingly devoted his life to criminal acts as a major source of his livelihood for the purposes of
consecutive sentencing under Tennessee Code Annotated section 40-35-115(b)(1). The trial court
based its finding on Defendant’s employment record which showed that Defendant worked for two
restaurants for short periods of time in 1990 and 1995, and then as a laborer in his family’s
construction business between 1998 and 2002. There is no evidence in the record reflecting the
amount of money Defendant derived from his criminal offenses or that he used that income, if any,
to support himself. See State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995). Because the State
failed to prove that Defendant’s criminal acts provided a major source of his livelihood, we find
consideration of this factor was inappropriate.

       The record does support, however, the trial court’s findings that Defendant has an extensive
criminal history. See Tenn. Crim. App. § 40-35-115(b)(2). The record reflects that Defendant has
twenty prior misdemeanor and felony convictions ranging from traffic violations to robbery and drug
offenses. Moreover, the number of Defendant’s prior convictions exceeded the number of
convictions required to sentence him as a Range III offender. The record supports the trial court’s
finding that Defendant’s record of criminal activity is extensive.

       In addition, the record supports the trial court’s finding that Defendant is a dangerous
offender who’s behavior indicates little or no regard for human life. Id. § 40-35-115(b)(4). The trial
court based its determination of Defendant’s dangerous offender status on the circumstances
surrounding his theft and evading arrest offenses, and the extensiveness of his criminal background
which indicated Defendant’s unwillingness to comply with the laws of the State. The record
supports the conclusion that the aggregate sentence is necessary to protect society from Defendant’s


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conduct, and consecutive sentencing is reasonably related to the severity of the offenses. Tenn. Code
Ann. §§ 40-35-102(1) and -103(1)(A); State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995); Gray v.
State, 538 S.W.2d 391 (Tenn. 1976).

       Based upon the foregoing, we find that the imposition of consecutive sentencing is
appropriate. Defendant is not entitled to relief on this issue.

                                         CONCLUSION

       Based upon a thorough review of the record, the judgments of the trial court are affirmed.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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