        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs May 25, 2010

         STATE OF TENNESSEE v. MICHAEL JERMAINE HARRIS

                 Appeal from the Criminal Court for Hamilton County
                          No. 258567   Don W. Poole, Judge




                 No. E2009-01383-CCA-R3-CD - Filed August 10, 2010


A Hamilton County jury convicted the defendant, Michael Jermaine Harris, of one count of
aggravated arson. The trial court sentenced him to 19 years’ incarceration to be served at 100
percent as a violent offender. The defendant appeals his conviction and argues that the
evidence was insufficient to support his conviction, that the trial court erred in failing to give
a proper jury instruction regarding eyewitness identification, and that the trial court erred in
enhancing his sentence on the basis of factors not determined by the jury. Discerning no
error, we affirm the judgment of the Hamilton County Criminal Court.

             Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Jonathan Turner, Chattanooga, Tennessee (on appeal); and Ardena Garth, District Public
Defender (at trial), for the appellee, Michael Jermaine Harris.

Robert E. Cooper, Jr., Attorney General and Reporter, Matthew Bryant Haskell, Assistant
Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

              On December 24, 2005, a home at 2104 East Thirteenth Street in Chattanooga
was set on fire while people remained inside the structure. On April 26, 2006, a Hamilton
County grand jury indicted the defendant for the aggravated arson of the residence. After a
trial on February 24, 2009, the jury convicted the defendant as charged. The trial court held
a sentencing hearing and sentenced the defendant to 19 years’ incarceration at 100 percent
service. The defendant filed a timely motion for new trial and notice of appeal.

              At trial, Danny Westfield testified that in December 2005, he lived at 2104 East
Thirteenth Street in Chattanooga. He explained that the home was a duplex and that he lived
on one side, Apartment A, with his girlfriend, Tina Watkins; her brother, Fred Bowen; and
his grandson, Demetrius Buchanan. He said that Gail Lee lived in the other side of the
duplex, Apartment B. Mr. Westfield stated that he had lived in the duplex for 11 years.

               Mr. Westfield testified that on December 24, 2005, he was visiting Ms. Lee’s
side of the duplex and that “a house full” of people were present to celebrate Christmas. He
said that his son, Danny,1 arrived at the duplex near dusk and that the defendant arrived
shortly thereafter. Mr. Westfield testified that he knew the defendant “from the
neighborhood.” He said that Danny and the defendant began fighting shortly after arriving
at Ms. Lee’s apartment.

                Mr. Westfield testified that “the fight started on the inside and [they] took it
on the outside.” He said that he did not know why the men were fighting. He estimated that
the fighting lasted for approximately five minutes. He testified that he owned a pit bulldog
that bit the defendant during the scuffle. Mr. Westfield testified that he attempted to stop the
fight and that he “ended up shooting [the defendant].” He thought he shot the defendant in
either the hip or leg with his .32 revolver. He testified that the fighting then stopped and that
the defendant left.

              Mr. Westfield and his son also fled from the residence after the fight. He said
that he did not contact the police about the incident. Mr. Westfield pleaded guilty to one
count of reckless endangerment for his shooting the defendant.

              Mr. Westfield testified that he returned to his home on December 27, 2005, and
observed that his side of the duplex had been burned. He testified that he never gave the
defendant permission to burn the home.

               Ms. Lee testified that she lived in Apartment B at the duplex on East Thirteenth
Street. She testified that in December 2005, she had lived there for approximately three
years. She said that on Christmas Eve she was in her kitchen making chicken and dressing
and that her grandson and daughter were in her living room. She said that Mr. Westfield and
Mr. Bowen were also present. Ms. Lee testified that she heard “a lot of motion up front,”
that she witnessed the defendant and Danny fighting, and that the two turned over her coffee



        1
       Although it is the policy of this court to refer to people by their surnames, in this case we distinguish
Mr. Westfield from his son by referring to his son by his first name, Danny.
                                                      -2-
table. She said that the two also knocked over her unlit kerosene heater and spilled kerosene
on the floor. She testified that she knew the defendant and that she did not invite him to her
home that evening.

                 Ms. Lee testified that the fight moved outside and that Danny ran into his
father’s apartment on the other side of the duplex. Ms. Lee then observed the defendant use
his foot to try to break the windshield of Mr. Westfield’s vehicle. She said that the defendant
then tried to enter Apartment A but that Mr. Westfield pushed him back. She then saw a dog
run outside and chase the defendant. Ms. Lee stated that she then ran into the house to call
9-1-1 and that she heard three gunshots. Ms. Lee said when she ran back outside a group of
unidentified males had taken the defendant and “then went on up the street.” She said that
Mr. Westfied and Danny remained in the front yard. Ms. Lee said that the police arrived and
that she spoke with them.

             She testified that, after the police departed, the defendant and a group of males
returned. She said that the defendant told her to “set [her] stuff out” because he was going
to burn down the house. Ms. Lee told the defendant to go to the hospital because of his
gunshot wound, but the defendant was “just cussing” about how Mr. Westfield had shot him.

               Ms. Lee said that the defendant then returned with a larger group of men and
that he knocked on Apartment A’s door, but nobody answered. Ms. Lee was inside her
apartment when she heard the group of men talk about “shooting up” the house, and she
again went outside. While outside, she saw Ms. Watkins open her door. The defendant
exclaimed that Mr. Westfield had shot him three times and then showed her the wound on
his leg. After the defendant left, Ms. Lee discussed with Ms. Watkins whether the defendant
would actually burn the house. They decided he would not do such a thing and entered their
respective apartments.

              Ms. Lee said the defendant again came to the home. She said, “So him and
some boys were going up the street and he stopped a car and he asked him to take him to the
Conoco to get some kerosene, not kerosene, gasoline, because he fixing to burn the house
down.” She testified that the defendant returned 10 to 15 minutes later with a clear “milk jug
or something” with something “pinkish” inside it. She testified that she ran to Apartment A
to tell Ms. Watkins to call the police.

               Ms. Lee testified that she told the defendant, “I know you ain’t fixing to do
what I think you’re fixing to do.” She said that the defendant replied, “Well, I told you to
set your stuff out.” She then heard the defendant shout, “My sister dead, my sister dead, I
don’t care nothing about nothing no more.” She said that the defendant picked up the jug and
“dashed it on the side real quick” of Apartment A. She again said, “I know you ain’t fixing

                                              -3-
to set this house on fire,” and the defendant responded, “Yes, I am too.” She testified that
he then threw a cigarette lighter to ignite a fire at Apartment A and that “the whole door
looked like it just blowed off.” Ms. Lee stated that Ms. Watkins and Mr. Bowen were both
in the home when the defendant ignited the fire. She said that the defendant then ran into an
alley.

                She testified that, when she saw police officers, she ran to them and told them
to call the fire department. She saw Ms. Watkins exit her home “hollering and screaming
and stuff.” Ms. Lee testified that she also gave a statement to fire department personnel that
evening. Ms. Lee said that as a result of the fire, she had to stay with relatives for three
weeks; however, she said that nothing in her home was damaged and that she eventually
returned to living there.

              On cross-examination, Ms. Lee stated that the defendant had worn an orange
jumpsuit on the night of the burning and that he had worn it all day. She also said that she
spoke to the police prior to the arson and estimated that the burning occurred at 11:00 or
11:30 p.m.

              Ms. Watkins testified that she lived in Apartment A with her brother, Mr.
Bowen; her boyfriend, Mr. Westfield; and Mr. Westfield’s grandson, Mr. Buchanon. She
explained that her brother, Mr. Bowen, had only one leg and walked by use of a wooden leg.

               Ms. Watkins testified that she was sleeping on December 24, 2005, and was
unaware of any altercation next door in Apartment B. She stated that she was asleep in the
living room when she awoke to her neighbor’s telling her to call the police because
somebody threatened to burn down her house. She testified that she was on the telephone
with the police when the fire started. She said that the front door “blew up” and that she then
ran to the back of the apartment, collected her dog, and called for her brother, who was in the
back room. She said that she and her brother left through the back door.

              Ms. Watkins said that the fire department quickly extinguished the fire but that
everything in the home was ruined. She testified that she knew the defendant and that she
never gave him permission to burn the house.

               Christian Lorenzen of the Chattanooga Police Department testified that he was
patrolling the area when he observed a home on fire at approximately 10:00 or 10:30 p.m.
He drove toward the fire and observed an individual throwing some sort of liquid on the fire
that increased its intensity. He watched the fire “rolling up the house.” Officer Lorenzen
exited his vehicle and chased the individual; however, the man ran out of sight. He identified
the individual as the defendant. Officer Lorenzen testified that he then attended to the

                                              -4-
burning home and that after ascertaining that Ms. Watkins and Mr. Bowen were outside the
duplex, he focused on controlling the crowd that had formed around the duplex.

              Officer Lorenzen testified that he received a call from Park Ridge Hospital that
a man had arrived who had a gunshot wound and smelled of kerosene. Based upon what he
had learned during his interviews at the scene, he went to the hospital. He identified the man
at the hospital as the defendant, the same man he had chased earlier that evening. He
estimated that he visited the hospital at approximately 12:00 a.m.

                On cross-examination, Officer Lorenzen described the man that he observed
at the fire as a black male with short dreadlocks, dark colored jeans, and a sweatshirt. He
could not recall the color of the sweatshirt. He said that he identified the suspect at the
hospital by the color of his jeans, his hair, and the smell of a flammable liquid that he
believed was kerosene. He testified that the hospital treated a gunshot wound in the victim’s
thigh. He said that the defendant had a weapon on him at the hospital.

              Officer Lorenzen maintained that he did not question the defendant at the
hospital; however, he testified that he asked the defendant, “Why’d you run from me?” and
that the defendant responded, “Oh man.”

              Lieutenant Henry McElvain of the Chattanooga Fire Department testified that
he investigated the December 24, 2005 fire. He testified that the incident was reported to the
fire department at 10:38 p.m. He arrived at the scene and noted that Apartment A of the
duplex had been damaged. He first interviewed Ms. Lee, who told him that the defendant
had been in a fight at the residence earlier and that he had set the fire.

               Lieutenant McElvain testified that most of the fire damage was in the front
doorway of Apartment A. He described a “V pattern” going up and out the building. He said
that the fire burned the front door and spread to the interior of the home, blackening the
ceiling. He determined that the origin of the fire was the front porch area.

             Lieutenant McElvain collected debris samples for later examination by the
Tennessee Bureau of Investigation (“TBI”). He testified that another member of the fire
department went to the hospital and collected clothing from the defendant for later
examination by the TBI.

              Randall Kirk Nelson of the TBI crime laboratory in Nashville testified that he
performed an analysis of the debris and clothing collected by the Chattanooga Fire
Department. The trial court accepted Agent Nelson as an expert in micro analysis. Agent
Nelson’s testing of the debris from Apartment A indicated the presence of an evaporated

                                             -5-
gasoline product. He also examined the defendant’s shoes and clothing, which indicated the
presence of an evaporated heavy petroleum distillate. He said such distillates include
kerosene, diesel fuel, and some charcoal starters.

               Agent Nelson admitted that the incendiary agent found from the debris was
wholly different than that found on the defendant’s clothing. He further testified that nothing
indicated that a mixture of a gasoline product and a heavy petroleum distillate was used.

               The State rested, and the defense presented Lela McFarrin, the director of
medical records at Park Ridge Medical Center. She explained that she gathered records and
processed them for the hospital. She received a request to locate the medical records of the
defendant, Michael Harris, for a December 24 or 25, 2005 visit. She testified that she
initially could not find the defendant’s hospital records but that, upon learning additional
information about his visit, she identified records for “Michael Blunt.” She also noted that
the date of birth and social security number written for “Michael Blunt” matched that of the
defendant. She also explained that the registration form originally stated “Michael Harris”
but “Harris” had been crossed through and “Blunt” written instead.

               On cross-examination, Ms. McFarrin stated that she did not know who filled
out the registration form, so she was unaware of who crossed through the defendant’s last
name. She also acknowledged several inconsistencies in the hospital records. She noted that
the time of 10:30 p.m. was hand-written as the arrival time; however, other records indicated
an arrival time of 11:20 p.m., a “triage time” of 11:20 p.m., and an “admission time” of 11:41
p.m. Ms. McFarrin admitted that the reported admission times were inconsistent and that
human error could occur in the record-making process.

              Paula Burgess, a registered nurse, testified that she was working at Park Ridge
Medical Center’s emergency room on December 24, 2005. She testified that she treated the
defendant’s gunshot wound on that evening, but she said that she mainly recalled the
treatment through her records. She recalled that the defendant arrived via private vehicle,
and she testified that generally when a patient arrived with a gunshot wound, he was
immediately treated. She testified that the person who arrived at the hospital with the
defendant likely filled out the registration form reflecting “Michael Blunt.”

                 Ms. Burgess addressed the medical forms noting the treatment received by the
defendant. She testified that she had crossed out the time of 11:20 p.m. and replaced it with
10:30 p.m. written in her handwriting. She testified that when several nurses treat one
patient, it is common for inconsistent and inaccurate times to be reported. She acknowledged
that the “Time to TX Room” entry originally said 10:30 p.m. in her handwriting but that
someone had crossed it out and written 11:30 p.m. Ms. Burgess testified that her records

                                              -6-
reflected that she started intravenous therapy on the defendant at 10:38 p.m. and that
laboratory assistants arrived to draw blood at 10:40 p.m. She testified that she had written
that the police were notified of the gunshot injury at 10:50 p.m.

               Ms. Burgess explained that she had “a habit of writing on napkins and
transferring that” to the hospital records. She said that she developed this habit because, in
an emergency treatment situation, she did not have time to make official documentation
while tending to the patient. She testified that, after she entered her “scrap” notes into the
official records, she disposed of the loose notes.

               On cross-examination, Ms. Burgess again acknowledged that the triage time
and arrival time stated 11:20 p.m. and that, because of the type of wound, these times would
be identical because treatment would start immediately upon arrival. She explained that the
computer program used for entering medical records automatically entered the time. She said
that, because she generally makes her records after the treatment, the automatically-displayed
time is generally much later than the actual procedures and that she has to change it. Ms.
Burgess also testified that she heard the defendant say “they poured gasoline all over me.”

                Chris Gaynor testified that he maintained recordings and records for the 9-1-1
center and the computer aided dispatch system (“CAD”). He explained that the CAD entries
recorded the calls to and from the police involving reported incidents. He testified that on
December 24, 2005, the police were contacted regarding Mr. Westfield’s shooting the
defendant at 9:28 p.m. and that they were contacted regarding the arson at 10:37 p.m. The
CAD entries reported that someone with an orange shirt threw something in the house and
set it on fire. He said the records reflected a police officer was on foot at the scene at 10:40
p.m. The CAD entries noted that the defendant was at Parkridge Hospital at 11:21 p.m., that
he was identified at 11:22 p.m., and that an officer observed the defendant at the hospital at
11:58 p.m. On cross-examination, Mr. Gaynor stated that the call from the hospital about the
reported gunshot occurred at 10:55 p.m.

             Based on the evidence as summarized above, the jury convicted the defendant
of aggravated arson.

               At the sentencing hearing, several witnesses testified that the defendant was
a good person and that they did not believe that he set the fire. The defendant gave an
allocution in which he explained that the hospital records showing his presence in the
emergency room at 10:30 p.m. proved that he could not have possibly started the fire at 10:37
p.m. The State argued that the defendant had prior convictions in excess of those required
for his range, that the arson affected multiple victims, that the defendant had no hesitation
in committing a crime that risked human life, and that he had been unsuccessful in

                                              -7-
community-based sentencing in the past. The State also noted that the defendant was on
probation when he committed the instant offense.

               As mitigating factors, the trial court considered that the defendant’s sister was
murdered, that her murder affected his personal life, and that a conflict preceded the arson.
As enhancement, the court noted that although the defendant had no prior felony convictions,
he had seven prior “fairly serious” misdemeanor convictions. The trial court gave slight
weight to the crime’s having multiple victims. It noted that the defendant had failed to
comply with the conditions of probation at least four times, including in the current case.
The trial court ordered the defendant to serve 19 years’ incarceration.

                                       Issues on Appeal

              The defendant presents three issues on appeal. First, he challenges the
sufficiency of the evidence. Second, he avers that the trial court erred by failing to give
proper jury instructions on eyewitness identification. Lastly, he challenges the trial court’s
enhancement of his sentence based on factors not found by a jury.

                                I. Sufficiency of the Evidence

              The defendant challenges the sufficiency of the convicting evidence, arguing
that “the evidence clearly could not exclude the hypothesis of mistaken identity where
defendant was at the emergency room . . . at 10:30 p.m. . . . when the fire was observed by
Officer Lorenzen being set at 10:37 p.m.” The defendant does not challenge proof of the
statutory elements of aggravated arson, but rather, he argues the evidence does not establish
his identity as the arsonist. The defendant argues that his conviction was based on
circumstantial evidence and that the evidence must be “so strong and cogent as to exclude
every other reasonable hypothesis except that the defendant is guilty.” See State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971) (stating that before an accused may be convicted of a
criminal offense based upon circumstantial evidence alone, the facts and circumstances
“must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt
of the defendant”). The State argues that “ample direct evidence” supported the jury’s
verdict. We agree with the State.

              A convicted criminal defendant who challenges the sufficiency of the evidence
on appeal bears the burden of demonstrating why the evidence is insufficient to support the
verdict because a guilty verdict destroys the presumption of innocence and replaces it with
a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This court must reject a defendant’s challenge to the sufficiency of the

                                              -8-
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

               On appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable and legitimate inferences which may be drawn therefrom. See Carruthers,
35 S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Issues of the
credibility of witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact, and this court will not re-weigh or
re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. This
court may not substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

                Although a criminal offense may be established exclusively by circumstantial
evidence, Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v. Winters, 137 S.W.3d 641,
654 (Tenn. Crim. App. 2003), we disagree with the defendant’s argument that only
circumstantial evidence supported his conviction. Ms. Lee, who had known the defendant,
testified that the defendant was shot during a fight at her home and that he later returned and
announced his intentions to burn down Mr. Westfield’s side of the duplex. The defendant
told Ms. Lee to remove her possessions from the home, and he stopped a vehicle to take him
to a gas station. She said that she observed him throw liquid onto the home and set it on fire.
“[T]he question of identification of a defendant as the person who committed the offense is
a question for the jury, and a victim’s identification alone is sufficient to support a
conviction.” State v. Toomes, 191 S.W.3d 122, 130 (Tenn. Crim. App. 2005) (citing State
v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)). Further, Officer Lorenzen
watched the defendant throw a liquid on the home that increased the flames, and then the
officer pursued the defendant, later identifying him at the hospital.

               The jury obviously credited this evidence over the medical records provided
at trial. The records were inconsistent, and the jury was within its purview in discrediting
the time entries representing that the defendant arrived at the hospital before the arson.
Viewing the evidence in a light most favorable to the State, we must affirm the guilty verdict
for aggravated arson.

                                     II. Jury Instruction

              The defendant next argues that the trial court erred in failing to provide a

                                              -9-
Telfaire instruction2 regarding identification. The defendant, however, failed to present this
proposed jury instruction at trial and did not object to the trial court’s failure to give such an
instruction. Before he will be entitled to relief, a defendant challenging the omission of an
instruction must make a special request that the instruction be given or otherwise object to
the omission. See Tenn. R. Crim. P. 30(a), (b); State v. Cravens, 764 S.W.2d 754, 757-58
(Tenn. 1989); State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986); Bolton v.
State, 591 S.W.2d 446, 448 (Tenn. Crim. App. 1979). Also, the defendant failed to include
any reference to the issue in his motion for new trial. See Tenn. R. App. P. 3(e) (stating that
“in all cases tried by a jury, no issue presented for review shall be predicated upon error in
. . . jury instructions granted or refused, . . . or other ground upon which a new trial is sought,
unless the same was specifically stated in a motion for a new trial; otherwise such issues will
be treated as waived”); State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a
defendant relinquishes the right to argue on appeal any issues that should have been
presented in a motion for new trial but were not raised in the motion); State v. Dodson, 780
S.W.2d 778, 780 (Tenn. Crim. App. 1989). Thus the instruction issue is waived.

                                            III. Sentencing

               The defendant claims that the trial court erred by enhancing the defendant’s
sentence to 19 years “on the basis of enhancement factors not determined by the jury.” When
considering a challenge to the length of a sentence this court conducts a de novo review with
a presumption that the determinations of the trial court are correct. T.C.A. § 40-35-401(d)
(2003). Our case law has long held that the presumption of correctness “‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn.
2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). The appealing party, in
this case the defendant, bears the burden of establishing impropriety in the sentence. T.C.A.
§ 40-35-401, Sentencing Comm’n Comments; see also Carter, 254 S.W.3d at 344; Ashby,
823 S.W.2d at 169. If our review of the sentence establishes that the trial court gave “due
consideration and proper weight to the factors and principles which are relevant to sentencing
under the Act, and that the trial court’s findings of fact . . . are adequately supported in the
record, then we may not disturb the sentence even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the
record fails to demonstrate the required consideration by the trial court, appellate review of
the sentence is purely de novo. Ashby, 823 S.W.2d at 169.



        2
          The defendant refers to a jury instruction involving eyewitness identification as promulgated by
United States v. Telfaire, 469 F.2d 552, 556 (D.C. Cir. 1972). Our supreme court has held that “the Telfaire
instruction . . . is not appropriate because it impermissibly comments on the evidence; thus, invading the
province of the jury.” State v. Dyle, 899 S.W.2d 607, 610 (Tenn. 1995).
                                                   -10-
               First, we note that the defendant argues that the trial court’s use of non-jury-
determined facts to enhance his sentence runs afoul of Blakely v. Washington, 542 U.S. 296
(2004), and its progeny. However, the 2005 version of the sentencing law, pursuant to which
the defendant was sentenced, complies with Sixth Amendment principles. See Cunningham
v. California, 549 U.S. 270, 294 n.18 (2007) (citing the 2005 version of Tennessee Code
Annotated section 40-35-210(c) as a statute that “permit[s] judges genuinely ‘to exercise
broad discretion . . . within a statutory range,’ which ‘everyone agrees’ encounters no Sixth
Amendment shoal’”); Carter, 254 S.W.3d at 343 (Tenn. 2008) (stating that the 2005
amendments were enacted “[i]n order to avoid the constitutional violation arising from a trial
court[’s] increasing a presumptive sentence on the basis of judicially-determined
enhancement factors”).

                Next, our review of the record shows that the trial court properly considered
our sentencing scheme in determining the defendant’s 19-year sentence. The trial court
properly considered the defendant’s extensive criminal history, see T.C.A. § 40-35-114(1),
his failure to comply with conditions of sentences involving release into the community, see
id. § 40-35-114(8), and that he was on probation when he committed the arson, see id. § 40-
35-114(13). We will not disturb the enhanced sentence ordered by the trial court.

                                         Conclusion

              The evidence sufficiently establishes the defendant’s identity as the arsonist.
The defendant has waived his argument that the trial court erred in failing to give a Telfaire
instruction. Lastly, we uphold the trial court’s ordering a 19-year sentence. The judgment
of the Hamilton County Criminal Court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -11-
