             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1998 SESSION
                                                    FILED
                                                     March 29, 1999

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE                )
                                  )     NO. 02C01-9709-CC-00371
      Appellee,                   )
                                  )     HARDIN COUNTY
v.                                )
                                  )     Hon. C. Creed McGinley
TIMOTHY ALAN HOPPER               )
                                  )     (Burglary & D.U.I.)
      Appellant.                  )
                                  )




For the Appellant:                      For the Appellee:

Ron Harmon                              John Knox Walkup
PO Box 968                              Attorney General & Reporter
Savannah, TN. 38372
(at trial)                              Peter M. Coughlan
                                        425 Fifth Avenue North
Richard W. DeBerry                      2nd Floor, Cordell Hull Building
Assistant Public Defender               Nashville, TN. 37243
PO Box 663
Camden, TN. 38320                       G. Robert Radford
(on appeal)                             District Attorney General

                                        John W. Overton, Jr.
                                        Assistant District Attorney General
                                        PO Box 484
                                        Savannah, TN. 38372




OPINION FILED:_______________________

AFFIRMED

WILLIAM M. BARKER, SPECIAL JUDGE
                                                    OPINION

         The appellant, Timothy Alan Hopper, appeals as of right from his convictions in

the Hardin County Circuit Court of burglary and driving under the influence. Following

a jury trial, the appellant was sentenced as a Range II multiple offender to serve six

(6) years for the burglary conviction and eleven (11) months and twenty nine (29) days

for D.U.I. The sentences were ordered to run concurrently, with the sentence for

D.U.I. suspended to thirty (30) days.

         On appeal, the appellant challenges the sufficiency of the convicting evidence

and the nature and length of his sentences. We find no reversible error and affirm the

judgment of the trial court.

         On July 6, 1996, Chief Mike Vaughn of the Crump City Police Department

received a telephone call reporting a burglary at Davis Brother’s Block Company.

Chief Vaughn went to the scene and discovered tire tracks which he opined were left

by a car with a temporary spare tire on one wheel. He also noticed two sets of foot

prints leading from the building entrance to where the tire tracks ended.1 Bill Davis,

the owner of the Block Company, told the police that he had seen the appellant driving

a car with a temporary spare tire a few days earlier.2

         On the same night of the burglary, Investigator Mike Fielder and Deputy Sheriff

Mark Mitchell of the Hardin County Sheriff’s Department were notified about a possible

D.U.I. in progress. A pedestrian reported to the officers that he had observed a

person driving recklessly and throwing a beer bottle out of his car. The officers

investigated the report and found appellant’s car parked on the side of a public street

in Hardin County. 3 The car matched the description given by the pedestrian and the

appellant admitted to the officers that he had been driving the car. Deputy Mitchell


         1
        One set o f foo t prints was distin guis hab le bec aus e it wa s m ade by ten nis sh oes with a footb all
emblem in the arch of each shoe.

         2
             The appe llant w as a f orm er em ployee at the block com pan y.

         3
         Two other m en were in the car with the appellant. One of the passenge rs was Danny Ho pper,
who wa s charg ed in the bu rglary with the a ppellant.

                                                          2
smelled alcohol on appellant’s breath and administered two field sobriety tests, the

horizontal gaze nystagmus test and the fingertip-to-nose test. The appellant failed

both tests and was placed under arrest for D.U.I. Approximately one-half-hour later,

appellant’s blood/alcohol level tested 0.10 percent on the intoximeter machine.

        During the field tests, Investigator Fielder examined appellant’s car and

discovered a temporary spare tire on the car and three pairs of tennis shoes inside the

car. Later tests revealed that the spare tire matched the prints found at the burglary

scene. Also, one pair of tennis shoes, owned by the appellant, matched the

distinguishable football prints found at the scene.

        The appellant testified in his own defense that he went with one Danny Hopper

to the Davis Brother’s Block Company because he owed him a favor. 4 Appellant

testified that he initially stayed in the car while Danny climbed over a security fence

and broke into the company building. Appellant stated that after waiting in the car for

approximately thirty minutes, he entered the fenced area to help Danny load and carry

numerous items5 out to the car. According to appellant’s testimony, he did not enter

the company building, but merely entered the fenced area and helped Danny push a

wheelbarrow to and from the car. As to the charge of D.U.I., the appellant testified

that he had only consumed one and one half beers when he was questioned by

Deputy Mitchell.

        The appellant made a written statement to the police that provided further

details of the burglary. The statement was introduced into evidence as follows:

        It was on Friday night around two week (sic) ago. Me and Danny Hopper
        when (sic) to Davis Bros. Block Co. in Crump, TN. And we when (sic) in
        my car and I pull (sic) in a garden of (sic) field beside the fence. And I
        stayed in the car while Danny went over the fence and broke in. And he
        got more items than he could carry. And he, Danny, came back out to
        the car and got me. And I went in with him. And he got a wheelbarrow
        and carry (sic) it over to the office were we loaded up some oil and tool


        4
            The re cord is un clear wh ether D anny Ho pper is a re lative or m ere friend of the app ellant.

        5
         Items stolen from the block company included various tools, cases of oil, and a torch. The
appellant testified that he and Danny stole the items to sell them for drugs.

                                                          3
       (sic) and a torch. We carry (sic) the items to Danny Hopper’s at Ray
       Harmon’s Trailer Court. And I never say these items again. And Danny
       Hopper was going to sell the items and did. And I got $20.


       The appellant first contends that the evidence was insufficient to support his

convictions of burglary and D.U.I. He argues that the evidence fails to prove that he

entered the company building during the theft or that he was intoxicated while driving

his car.

       This issue is without merit.

       When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in a light most favorable to the prosecution to determine

whether “any rational trier of fact could have found the essential elements of the

crimes beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). W e do not reweigh or re-evaluate the evidence and are

required to afford the State the strongest legitimate view of the proof contained in the

record, as well as all reasonable and legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1979).

       The appellant argues that the evidence was insufficient to prove that he

entered the building at the block company or that he otherwise committed an act

constituting burglary. We disagree.

       Tennessee Code Annotated section 39-14-402 (a) provides that “[a] person

commits burglary who, without the effective consent of the property owner: (1) Enters

a building other than a habitation (or any portion thereof) not open to the public, with

intent to commit a felony, theft, or assault; or (3) Enters a building and commits or

attempts to commit a felony, theft or assault.” The act of “entering” is defined as an

intrusion of any part of the body, or an intrusion of any object in physical contact with

the body or any object controlled by remote control, electronic or otherwise. Tenn.

Code Ann. § 39-14-402(b) (1), (2) (Supp. 1995).




                                            4
        In this case, there is no dispute that the appellant entered the fenced area

surrounding the block company, without the owner’s consent, and unlawfully removed

property from the location. The appellant argues, however, that he did not commit

burglary because he allegedly never entered the company building.

        We note that the evidence is close as to whether the appellant actually entered

the building during the theft. At trial, the appellant testified that he only entered the

fenced area to help Danny Hopper with the stolen items. In his written statement,

however, he stated that he “went in with [Danny]” after Danny asked him for

assistance. Moreover, footprints made by appellant’s tennis shoes led from the

parked vehicle up to the building’s entrance.

        Reviewing that evidence in a light most favorable to the State, we conclude that

the jury could have found beyond a reasonable doubt that the appellant entered the

building to assist in the theft of property. The jury evaluated the evidence at trial,

including appellant’s testimony in his own defense, and was entitled to accredit or

discredit appellant’s testimony in light of his demeanor as a witness and other

evidence submitted by the State. The jury could have reasonably inferred from the

evidence that the appellant stepped into the building when he helped Danny Hopper

carry the stolen items to his car.6

        The appellant also argues that there was insufficient evidence to convict him of

D.U.I. because he only admitted to drinking one and a half beers. We disagree in light

of the objective evidence introduced against the appellant at trial. Deputy Mitchell

testified that the appellant smelled of alcohol and that appellant failed two field

sobriety tests. Moreover, there is no question that appellant had been driving his car

only moments before the field sobriety tests and that his blood/alcohol level was 0.10

percent. We, therefore, affirm the jury’s finding of D.U.I.

        6
          The State contends that the burglary conviction should also be sustained on a theory of criminal
respon sibility. Tenn. C ode An n. § 39-1 1-402 (S upp. 199 5). The trial court instru cted the ju ry, in part,
that the appellant would be guilty of burglary if the jury found beyond a reasonable doubt that appellant
was criminally responsible for the actions of Danny Hopper. The appellant does not challenge the
charge or poss ible finding of crimina l respons ibility. We ne ed not ad dress th at issue in th is appea l.

                                                      5
      The appellant next contends that the trial court improperly sentenced him to six

(6) years in the Department of Corrections. He argues that the six (6) year sentence

was excessive and that he was entitled to some form of alternative sentencing.

      This issue is without merit.

       When a defendant challenges the length or nature of his sentence, we must

conduct a de novo review of the record. Tenn. Code Ann. § 40-35-401(d) (Supp.

1995). The sentence imposed by the trial court is accompanied by a presumption of

correctness and the appealing party has the burden of showing that the sentence is

improper. Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). That

presumption, however, is conditioned upon an affirmative showing in the record that

the trial court considered the principles of sentencing and all relevant facts and

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

      The appellant’s contention in this case concerns the sentence he received for

burglary, a Class D felony. The presumptive sentence for a Class D felony, if there

are no enhancement or mitigating factors, is the minimum sentence within the

statutory range. Tenn. Code Ann. § 40-35-210(c) (Supp. 1995). W here one or more

enhancement factors apply, without the existence of any mitigating factors, the trial

court may sentence the defendant above the presumptive sentence in the statutory

range, but still within the range. Tenn. Code Ann. § 40-35-210(d). If both

enhancement and mitigating factors apply, the trial court must start at the minimum

sentence in the statutory range, enhance the sentence within the range as appropriate

for the enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e).

      Based upon appellant’s extensive criminal history, the trial court determined

that the appellant should be sentenced as a Range II multiple offender. The

sentencing range for a Class D felony at Range II is no less than four (4) years and no

more than eight (8) years. Tenn. Code Ann. § 40-35-112 (b)(4). The trial court next



                                            6
examined the record, including the presentence report, and determined that the

appellant has a record of criminal convictions in addition to those necessary to place

him in Range II. The record reflects that the appellant has three prior felony

convictions: burglary, theft of property, and felonious escape from a Community

Corrections work program. He also has several misdemeanor convictions for alcohol

and traffic related offenses. Based upon that record, the trial court enhanced

appellant’s sentence to six (6) years within the statutory range.

       The appellant does not challenge the trial court’s use of his prior criminal

history as an enhancement factor. He contends only that the trial court failed to

mitigate his sentence based upon the mitigating factor that his conduct neither caused

nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). The appellant

did not present this possible mitigator to the trial court before sentencing. However,

the trial court reviewed the record and, within the court’s sound discretion, found no

mitigating factors.

       From our de novo review of the record, we conclude that the six (6) year

sentence was both reasonable and appropriate. There is no dispute that the sentence

was properly enhanced by appellant’s criminal history. Tenn. Code Ann. § 40-35-

114(1). Even if we considered the application of the mitigating factor as urged by the

appellant, it would merit little or no weight. As mentioned above, burglary involves

entering a building, other than a habitation, with the intent to commit a felony, theft or

assault, or with the actual commission or attempt to commit one of those enumerated

offenses. Tenn. Code Ann. § 39-14-402(a). By its very nature, the offense of burglary

does not include serious bodily injury or the threat of such injury to other persons.

       We are not prepared to hold that mitigating factor (1) applies merely because

the appellant’s actions fit the elements of the convicted burglary offense. To do so

would effectively require trial courts to mitigate a defendant’s sentence any time there

is a conviction of burglary. Our General Assembly did not intend that result when it



                                             7
enacted section 40-35-113 of the Tennessee Code. The appellant’s six (6) year

sentence is affirmed.

       The appellant also contends that the trial court should have granted him a

sentencing alternative to incarceration. Although the appellant was convicted of a

Class D felony, he was sentenced as a multiple offender and, therefore, was not

presumed to be a favorable candidate for alternative sentencing. See Tenn. Code

Ann. § 40-35-102(6) (Supp. 1995). Moreover, the record reflects that the appellant

has a criminal history evincing a clear disregard for the laws and morals of society,

and that past efforts to rehabilitate him have failed. Tenn. Code Ann. § 40-35-102(5).

       The trial court reviewed the record and determined that appellant’s lack of

amenability to correction precluded the imposition of an alternative sentence. Several

factors supported that finding: (1) appellant failed to appear for his original sentencing

hearing and continued to drive after the D.U.I. conviction; (2) he was previously

convicted of felony escape after leaving a Community Corrections work program; (3)

he was previously convicted of three felonies and several misdemeanors; and (4) he

was previously caught by police after fleeing to avoid an arrest. The record shows that

measures less restrictive than confinement have been applied unsuccessfully to the

appellant. Accordingly, the trial court properly denied any sentencing alternative to

incarceration.

       Based upon the foregoing, the judgment of the trial court is affirmed with costs

taxed to the State of Tennessee.



                                          __________________________________
                                          WILLIAM M. BARKER, SPECIAL JUDGE


CONCUR:

_____________________________
DAVID G. HAYES, JUDGE

_____________________________
JOE G. RILEY, JUDGE

                                            8
               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                 APRIL 1998 SESSION




STATE OF TENNESSEE                         )
                                           )      NO. 02C01-9709-CC-00371
       Appellee,                           )
                                           )      HARDIN COUNTY
v.                                         )
                                           )      Hon. C. Creed McGinley
TIMOTHY ALAN HOPPER                        )
                                           )      (Burglary & D.U.I.)
       Appellant.                          )
                                           )      AFFIRMED
                                           )



                                       JUDGMENT

       Came the appellant, Timothy Alan Hopper, by and through counsel, and also

came the Attorney General on behalf of the State, and this case was heard on the

record on appeal from the Circuit Court of Hardin County; and in consideration

thereof, this Court is of the opinion that there is no reversible error in the judgment of

the trial court.

       In accordance with the opinion filed herein, it is, therefore, ordered and

adjudged that the judgment of the trial court is affirmed, and the case is remanded to

the Circuit Court of Hardin County for the execution of the judgment of that court and

for the collection of costs accrued below.

       It appearing that the appellant is indigent, costs of this appeal will be paid by

the State of Tennessee.



                                   William M. Barker, Special Judge
                                   David G. Hayes, Judge
                                   Joe G. Riley, Judge
