            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON           FILED
                        JANUARY SESSION, 2000
                                                     March 8, 2000

STATE OF TENNESSEE,              *             Cecil Crowson, Jr.
                                 *           Appellate Court Clerk
                                       No. W1999-01448-CCA-R3-CD
      Appellee,                  *
                                 *     SHELBY COUNTY
vs.                              *
                                 *     Hon. Chris Craft, Judge
DAVID REMUS,                     *
                                 *     (Burglary)
      Appellant.                 *


For the Appellant:               For the Appellee:

C. Anne Tipton                   Paul G. Summers
140 N. Third Street              Attorney General and Reporter
Memphis, TN 38103
                                 Tara B. Hinkle
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 William L. Gibbons
                                 District Attorney General

                                 Jennifer Nichols
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Avenue
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                       OPINION



       The appellant, David Remus, appeals the jury verdict of the Shelby County

Criminal Court finding him guilty of burglary of a building, a Class D felony.. The trial

court imposed a sentence of three years and three months in the county workhouse.

On appeal, the appellant challenges (1) the sufficiency of the evidence; (2) the jury’s

viewing of the appellant while “shackled;” and (3) the trial court’s application of an

enhancement factor in determining the appellant’s sentence.



       Following review, we affirm.




                                   BACKGROUND



       Shortly before midnight on April 26, 1998, a burglar alarm was activated at

the business address of Sossaman, Bateman and Associates, an advertising

agency located at 400 Union Avenue in Memphis. Within minutes, police officers,

Reed and McGowan, were at the scene. Upon arriving, they discovered that a

window at the business address was broken. The officers then observed two males

running from the back of the building toward a security wrought iron fence which

surrounded the building. As one of the males was climbing down the fence, he was

apprehended by Officer McGowan. This person was identified as the appellant.

The other male was more successful in his flight from the scene but was ultimately

apprehended by Officer Reed. Returning to the scene, the officers found,

underneath the broken window, a planter turned upside down to assist entrance into

the building. Broken glass and dirt were found inside the building and the place was

described as a “mess.”




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        At trial, Officer McGowan positively identified the appellant as the person he

apprehended and arrested as he climbed down the fence. Both officers testified

that other than the appellant and the co-defendant, no other person was in the area

from the time of the alarm call until the appellant’s arrest which occurred

approximately ten minutes later. Sossaman, one of the business owners, confirmed

that the business was closed and that the appellant did not have permission to enter

the building.



                             I. SUFFICIENCY OF THE EVIDENCE

        The appellant challenges the sufficiency of the convicting evidence. His

argument is two-fold: first, he contends that Officer McGowan presented

inconsistent testimony raising a question of the reasonable doubt of his guilt; and

second, there was no proof which placed the appellant inside the building, a

requisite element of the offense.



        The appellant’s reliance upon his former argument is misplaced. The

relevant question upon a sufficiency review of a criminal conviction, be it at the

appellate or trial level, 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, 99 S.Ct. 2781, 2789 (1979). 1 See also Tenn. R. App. P. 13(e); Tenn. R.

Crim. P. 29(a). Jackson v. Virginia addresses two important aspects of a sufficiency

review; (1) the manner of review of the convicting evidence and (2) the standard of

review for legal sufficiency. The scope of our examination of the evidence is not

equivalent to that of the jury’s. In a challenge to the sufficiency of the evidence, this

court does not retry the defendant. We emphasize that our examination in a



        1
          The Due Process Clause of the Fourteenth Amendment protects a defendant in a
criminal case against conviction “except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged .” Jac kso n v. Vir ginia , 443 U.S. at 315,
99 S.Ct. at 2789. Rule 13(e) of the Tenn. R. App. P. is consistent with and compelled by the
holding in Jac kso n v. Vir ginia .

                                                   3
sufficiency review is not to revisit inconsistent, contradicting, implausible or non

credible proof, as these issues are resolved solely by the jury. Rather, we look to

the record to determine whether there was substantive probative evidence to

support the verdict. The second inquiry, the question of legal sufficiency, then

follows: whether the record contains evidence from which the jury could have found

the essential elements of the crime beyond a reasonable doubt. Every reasonable

hypothesis of innocence need not be dispelled; it is only necessary that there exists

proof which supports the elements of the crime. Again, we emphasize our inquiry is

not upon the weight of the evidence or its inconsistency but, rather, whether there is

proof of the crime beyond a reasonable doubt.



       In view of the controlling principles of Jackson v. Virginia and Rule13(e),

Tenn. R. App. P., we find it unnecessary to address the appellant’s argument that

Officer McGowan’s testimony was inconsistent, thus raising a reasonable doubt as

to his guilt. We examine the record for evidence of guilt most favorable to the State.

The undisputed proof at trial established the commission of a burglary, i.e., the

unlawful entry into a building with the intent to commit theft. Tenn. Code Ann. § 39-

14-402(d)(1). The proof established the appellant was observed within minutes of

the burglary, running from the building, and was apprehended on the premises while

attempting to flee over a fence. The circumstantial proof relating to the unlawful

entry and the intent to commit a theft pointed unerringly to the appellant as to

exclude any other explanation except for the appellant’s guilt. See State v. Tharpe,

726 S.W .2d 896, 900 (Tenn. 1987). Thus, we conclude that a jury could have

rationally inferred from these facts proof of the elements of burglary and the

appellant’s guilt of that offense.



                            II. DUE PROCESS VIOLATION

       During the trial testimony of Officer McGowan, the court adjourned to permit

the jury to view the crime scene located at the offices of Sossaman, Bateman and


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Associates at 400 Union Avenue. The appellant and his co-defendant, who were in

custody during the trial, were transported to the scene in an unmarked police

vehicle. The two remained inside the vehicle during the entire period of the jury’s

view. Although “shackled,” their shackles were covered by a blanket or coat.



       The appellant argues that his due process rights to a fair trial were violated

because his confinement in the vehicle and the use of “shackles” produced a

“negative, unpredictable impact” upon the jury citing Estelle v. Williams, 425 U.S.

501, 96 S.Ct. 1691 (1976). It is well-established that the accused should not

ordinarily be forced to wear shackles in the presence of the jury. State v. Bradfield,

973 S.W.2d 937, 945 (Tenn. Crim. App. 1997) (citation omitted); see also Estelle v.

Williams, 425 U.S. at 504, 96 S.Ct. at 1692-93 (holding violation of due process to

compel defendant to wear prison attire in front of jury because attire may affect fact-

finding process). However, if the challenged practice is not inherently prejudicial

and the defendant fails to demonstrate actual prejudice, his argument is meritless.

Holbrook v. Flyn, 475 U.S. 560, 572, 106 S.Ct. 1340,1347-48 (1986); Carroll v.

State, 532 S.W.2d 934, 936 (Tenn. Crim. App. 1975).



       The record in this case reflects a conscientious and determined effort by the

trial court to protect the appellant’s presumption of innocence before the jury and his

rights to a fair trial. Prior to the jury’s view of the crime scene, the trial court

conducted a hearing which resulted in the following instructions:

              I don’t want to have to surround them by strong deputies. I
       wouldn’t want any of them to break and run and cause a mistrial.
              And so we have to have them in a place since they’re in custody, they
       have to be in custody without looking like it. . . .
              But I think they need to be seated in some kind of vehicle. . . .
              [W]hat we’ll need to do is . . . to have a coat or something or a
       blanket or something so the jury does not see any handcuffs or
       anything, and we’ll put them in the squad car with the windows down in
       the front. . .
       ...



       One [police car] where there’s no handle on the inside of the back

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         doors. . . . The key is we want to have them sitting in the car, and we
         don’t want the jury to think they’re in custody . . . and we’re trying to
         keep them shackled . . .

         Upon returning from the crime scene excursion, the trial court noted for the

record:

         [T]he two inmates were in the car which was a Jeep Cherokee, and it
         looked like a regular car and the jury never got near them as far as I
         could tell. Nobody saw any handcuffs or shackles or anything like that.



         There is no proof in the record that establishes or even suggests that the

appellant’s confinement in the Jeep produced a “negative, unpredictable impact”

upon the jury. As such, our review of the record does not reveal any prejudice to the

defendant. See Holbrook v. Flynn, 475 U.S. at 572, 106 S.Ct. at 1347-48. See also

State v. Taylor, 771 S.W.2d 387, 396 (Tenn. 1989), cert. denied, 497 U.S. 1031,

110 S.Ct. 3291 (1990) (finding no constitutional violation where defendant was

shackled during trial when shackles were hidden from jury’s view). This issue is

without merit.



                                               III. SENTENCING

         In arriving at a sentence of three years and three months, the trial court

applied two enhancement factors: (1) “defendant has a previous history of criminal

convictions,” and (2) “defendant was a leader in the commission of an offense

involving two or more criminal actors.” See Tenn. Code Ann. § 40-35-114 (1997).

In mitigation, the trial court applied Tenn. Code Ann. § 40-35-113(1) that the

defendant’s conduct did not cause or threaten serious bodily injury. 2




         2
          W e agr ee w ith the trial co urt’s a pplica tion o f the m itigato r that t he ap pellan t’s co ndu ct did
not cause or threaten serious bodily harm. However, in this case, we note that the potential or
threat of serious bodily injury was present based upon the appellant’s encounter with the police
during his escape attempt. Accordingly, we afford this mitigating factor minimal weight upon
denovo review.

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       This court’s review of the length, range, or manner of service of a sentence is

de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d). See also State v. Bingham, 910 S.W.2d 448

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is only

applicable if the record demonstrates that the trial court properly considered relevant

sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

burden is on the appellant to show that the sentence imposed was improper. Id.;

State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401(d). The record reflects that

the trial court considered the relevant principles of sentencing; accordingly, the

presumption is afforded.



       At the sentencing hearing, the proof indicated that the appellant’s prior

criminal history was evidenced by “four pages of a rap sheet.” However, all but one

of the offenses were misdemeanors and most were related to drugs, alcohol,

disorderly conduct, criminal trespass and assault. The appellant’s felony conviction

stemmed from an indictment for burglary and his guilty plea to the lesser offense of

attempted burglary. The proof established that the thirty-seven year old appellant is

single and has a high school education. He admitted an addiction to alcohol which

contributed to his prior criminal convictions and a prior crack cocaine addiction that

ended in 1997. He related that, if released, he would reside with his mother; if she

would permit, or at the Union Mission, a shelter for the homeless.



       The appellant’s sole challenge to his sentence is the application of

enhancement factor (2), that he was the leader in the commission of the offense

involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(2). The

State concedes that the trial court erroneously applied this factor because the proof

in the record does not support its application.




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       As a Range I offender convicted of a Class D felony, the sentencing range is

two to four years. Tenn. Code Ann. § 40-35-112(a)(4). When both enhancement

and mitigating factors are present, the court begins with the minimum in the range

and enhances within the range as appropriate for the enhancement factors and

reduces the sentence appropriately for the mitigating factors. Tenn. Code Ann. §

40-35-210(c) and (e). Misapplication of an enhancement factor does not

necessarily require reduction of a sentence on appeal. The weight to be applied to

enhancing and mitigating factors is discretionary. Upon de novo review, we

conclude that enhancement factor (1) is entitled to significant weight and that the

mitigating factor is entitled to little weight. Accordingly, we find that the appellant’s

sentence of three years and three months is justified.



       The judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:




____________________________________
JOE G. RILEY, Judge



____________________________________
JOHN EVERETT W ILLIAMS, Judge




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