         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    August 9, 2005 Session

              STATE OF TENNESSEE v. MICHAEL DEAN BAUGH

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 15535 Lee Russell, Judge



                   No. M2004-02796-CCA-R3-CD - Filed October 13, 2005


The appellant, Michael Dean Baugh, was convicted by a Bedford County jury of burglary and theft
of property under $500. He was sentenced as a multiple offender to seven (7) years, six (6) months
for the burglary conviction and eleven (11) months, twenty-nine (29) days for the theft conviction.
The trial court ordered the sentences to be served consecutively. After the denial of a motion for new
trial, this appeal ensued. On appeal, the appellant argues that the evidence was insufficient to
convict him of the charges against him and that his sentence is excessive. For the following reasons,
we affirm the judgment of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which, DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
Michael Dean Baugh.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;Mike
McCown, District Attorney General; and Michael D. Randles and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

         William C. Haynes, a resident of Shelbyville, Tennessee, owned a rental house located at 103
Hopson Avenue in Shelbyville. In March of 2004, Mr. Haynes was renovating the house to prepare
it for rental. Mr. Haynes was doing most of the work by himself, though he had one (1) helper who
had worked with him for approximately ten (10) years. Mr. Haynes owned most of his own tools,
including an air compressor and a yellow work light on a stand. He kept the tools inside the
residence while he was doing the renovations. Mr Haynes was approached by the appellant at the
rental house around March 11, 2004. The appellant showed up at the rental house, spent some time
looking around, and asked if Mr. Haynes had any work for him. Mr. Haynes offered to employ the
appellant at a different job site where the appellant would be required to fill in a ditch with soil. The
appellant turned down the job after Mr. Haynes took the appellant to the job site. The appellant
claimed that he did not want the job because the dirt was too heavy. Mr. Haynes dropped the
appellant off at his apartment and returned to the rental house to complete his work for the day. A
few days later, on March 13, 2004, Mr. Haynes arrived at the rental house to find that his air
compressor and work light were missing from inside the house. Mr. Haynes immediately notified
the Shelbyville Police Department.

       On the night of March 14, the Shelbyville Police Department received a 911 telephone call
from Cynthia Rankins, the appellant’s girlfriend. The appellant lived with Ms. Rankins at the time.
The police arrived at Ms. Rankin and the appellant’s residence and discovered the air compressor
and work light. Ms. Rankins informed the police that the items were brought into the house on
Friday night, and that the appellant told her that he had bought the items from someone.

         The appellant was arrested in connection with the stolen items. After being read his Miranda
rights, the appellant told the police three (3) different stories detailing how he came to be in
possession of the stolen items. At first, the appellant claimed that he received the items from a
friend, then the appellant told the police he purchased the items from a man named “John.” Finally,
the appellant claimed that he got the items from a man he did not even know. In one version of the
story, the appellant claimed that he purchased the items for twenty ($20) dollars.

        The appellant was indicted by the Bedford County Grand Jury for burglary and theft of
property under $500. Following a jury trial, the appellant was convicted of both burglary and theft.
The trial court sentenced the appellant to seven (7) years, six (6) months for the burglary conviction
as a multiple offender and eleven (11) months and twenty-nine (29) days for the theft of property
conviction. The trial court ordered the sentences to be served consecutively.

         Subsequently, the appellant filed a motion for new trial which was denied. The appellant
filed a timely notice of appeal. On appeal, the appellant challenges the sufficiency of the evidence
and his sentence.

                                     Sufficiency of the Evidence

        The appellant first contends that the weight of the evidence was against the verdict and that
the circumstantial evidence did not exclude every other reasonable hypothesis. The State counters
that the record demonstrates that the evidence was legally sufficient to convict the appellant of both
burglary and theft.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);


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State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

        Further, a conviction may be based entirely on circumstantial evidence when 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. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan,
698 S.W.2d 63, 67 (Tenn. 1985)). If the trier of fact can determine from the proof that all other
reasonable theories except that of guilt are excluded, the evidence is sufficient.

         In the case herein, the appellant was convicted of burglary and theft of property under $500.
Burglary occurs when a person, “without the effective consent of the property owner: (1) enters a
building other than a habitation not open to the public with the intent to commit a felony, theft or
assault; . . . [or] (3) enters a building and commits or attempts to commit a felony, theft or assault
. . . . Tenn. Code Ann. § 39-14-402. In order to convict the appellant of burglary, the State is not
required to offer a witness who actually saw the appellant break and enter the burglarized premises.
Ramsey v. State, 571 S.W.2d 822, 824 (Tenn. 1978). Further, unsatisfactorily explained possession
of recently stolen property may be sufficient in and of itself to sustain a burglary conviction. See
State v. Jones, 901 S.W.2d 393 (Tenn. 1995) (determining that evidence was sufficient to convict
the defendant of burglary where the defendant was found in possession of a VCR wrapped in a white
garbage bag shortly after homeowner discovered both the bag and the VCR missing from his
condominium where a patio door had been broken and the defendant’s roommate informed police
that the defendant did not own the VCR).

       Theft of property is committed when a 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 the property.” Tenn. Code Ann. § 39-14-103.

        We determine that the evidence herein was sufficient to support the appellant’s convictions.
The testimony established that the appellant visited Mr. Haynes’s rental property to inquire about
a job around the time of the burglary. The air compressor and light stand were kept inside the
residence that the appellant visited. In other words, in order to gain possession of the light stand and
air compressor, the appellant would have had to break into the residence. The appellant was found


                                                  -3-
in possession of the stolen air compressor and light stand a few days later. When asked to explain
how he came into possession of the items, the appellant presented three (3) conflicting stories. The
evidence, as presented, points the finger of guilt unerringly at the appellant. The jury could have
properly inferred that the appellant was guilty of both burglary and theft of property. This issue is
without merit.

                                             Sentencing

       Next, the appellant complains the he should have been granted an alternative sentence and
that the trial court erred by running the sentences for the burglary and theft convictions
consecutively. The only argument the appellant advances is that the sentences “should have been
run concurrently to each other since the Burglary and Theft were out of a common scheme, design,
and criminal episode.” The State responds that the trial court correctly sentenced the appellant.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5) & -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        Turning more specifically to the facts of this case, the defendant was convicted of burglary
and theft of property. Since burglary is a Class D felony, the range of punishment is not less than
two (2) nor more than twelve (12) years. Tenn. Code Ann. § 40-35-111. Undisputably, this
defendant was a Range II offender; thus, the range of punishment for the appellant was not less than
four (4) nor more than eight (8) years. The trial court should consider, but is not bound by, the
advisory sentencing guidelines, which suggest that “the minimum sentence within the range of
punishment is the sentence which should be imposed because the general assembly set the minimum
length of sentence for each felony class to reflect the relative seriousness of each criminal offense
in the felony classifications.” Tenn. Code Ann. § 40-35-210(c)(1).

        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight
for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it



                                                 -4-
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.

        In regards to alternative sentencing Tennessee Code Annotated section 40-35-102(5) provides
as follows:

       In recognition that state prison capacities and the funds to build and maintain them
       are limited, convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of society, and
       evincing failure of past efforts at rehabilitation shall be given first priority regarding
       sentencing involving incarceration.

A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less is an offender for whom incarceration
would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim.
App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The appellant herein was convicted of
burglary, a Class D felony. Thus, as a Range II, multiple offender, the appellant was not presumed
eligible for alternative sentincing. See Tenn. Code Ann. § 40-35-102(b). Even if a defendant is
presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated
section 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if :

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;
       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated section 40-35-103(5), which states, in
pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of a defendant
should be considered in determining the sentence alternative or length of a term to be imposed.”
Tenn. Code Ann. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).
The trial court may consider a defendant’s untruthfulness and lack of candor as they relate to the
potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); see
also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463
(Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy,
894 S.W.2d at 305-06.



                                                  -5-
        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted of more
than one (1) offense, the trial court shall order the sentence to run either consecutively or
concurrently. The trial court may order the sentences to run consecutively if the trial court finds by
a preponderance of the evidence that certain criteria enumerated in Tennessee Code Annotated
section 40-35-115(b) are present. Two (2) of the provisions allowing consecutive sentencing provide
that consecutive sentencing is warranted if: “(2) The defendant is an offender whose record of
criminal activity is extensive;” or “(6) the defendant is sentenced for an offense committed while on
probation.” Tenn. Code Ann. § 40-35-115(b)(2) & (6). Further, “consecutive sentences cannot be
imposed unless the terms reasonably relate to the severity of the offenses committed and are
necessary in order to protect the public from further serious criminal conduct by the defendant.” State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.1995). The decision to impose concurrent or consecutive
sentences, however, is a matter entrusted to the sound discretion of the trial court. State v. Blouvet,
965 S.W.2d 489, 495 (Tenn. Crim. App. 1997).

         In the case herein the trial court determined:

         Alright, we took the precaution at this jury trial of offering to submit all proposed
         enhancing factors to the jury.1 The defendant, . . . , asked that the issue of the past
         criminal record not be submitted to the jury. And for that reason we did not do that.
         It does not appear under Blakely that is a matter for the judge to decide anyway,
         although I was prepared, as a precaution, to submit it to the jury.

                   ....

                  The jury also found two enhancing factors. They found Number 9, under 40-
         35-114, a previous history of unwillingness to comply with the conditions of release.
         And the jury found that there was a violation of a private trust. My conclusion is that
         the - although the jury arrived at the conclusion about the private trust, respectfully
         to the State, I don’t believe that I am convinced and could not allow that enhancing
         factor to be found in this particular case. There is considerable ambiguity in my mind
         at least in the meaning of that particular enhancing factor, and I don’t find that one
         to be present.




         1
           The trial of the case herein occurred when the law in Tennessee was still unsettled as to the effect that Blakely
v. W ashington, 542 U.S. 296 (2004), had on the application of enhancement and mitigating factors by the trial court.
In a rather unique and unconventional manner, the trial court herein conducted a separate hearing after the appellant was
convicted and allowed the jury to hear evidence and determine whether several of the enhancement factors argued by
the State should be applied. The jury determined that the two (2) enhancement factors presented by the State applied.
The trial court used the enhancement factors as determined by the jury in addition to the appellant’s previous criminal
history to enhance the appellant’s sentence. The appellant does not challenge the application of the enhancement factors
or the method by which their existence was determined. However, we feel it necessary for clarity to mention the
sequence of events as they occurred at trial.

                                                            -6-
        Beginning where we need to begin, we first need to establish the range. I
don’t think there’s any question that this, as far as a simple burglary is concerned,
that this gentlemen is a Range II offender. . . .

        Therefore I find beyond a reasonable doubt that there are two prior
convictions that can be used as enhancing factors in this case. Under 40-35-114, they
are the aggravated burglary, . . . . Also the robbery conviction out of Rutherford
County . . . . So I find that there are those two convictions, beyond a reasonable
doubt, to be used to enhance the defendant in this particular case.

       I enhance him - we begin with the presumption in favor of the minimum,
which is the four years, and I enhance him up to seven years and six months on that.
...

       I don’t find that there are any mitigating factors. I don’t think that there was
any evidence presented to suggest that there are any mitigating factors.

         I want to put on the record, that should it be the finding of the appellate courts
that it was appropriate to have a bifurcated hearing like we had, I find beyond a
reasonable doubt and the jury found beyond a reasonable doubt that there was a
previous history of unwillingness to comply with the conditions of release. That was
proved at trial. That was also - it’s clearly set out and established beyond a
reasonable doubt in the presentence report. However, I am not going to, because of
my reading of Blakely, I am not going to enhance him that last six months. But I
would like for it to be clear on the record that if the appellate court believes that the
jury’s finding of that enhancing factor is appropriate, then I certainly would enhance
him that final six months, up to eight years.

        ....

        The next issue to be decided is whether consecutive or concurrent sentencing,
there is a presumption in favor of concurrent sentencing under 40-35-115(d) unless
one of the seven factors is present. It does appear to me that the second factor is
present. He certainly has an extensive criminal record, and also it appears to me that
factor number 6 is present, he committed these crimes while on probation, and
therefore I am going to impose consecutive sentencing.

        The next question is whether he would receive alternative sentencing. He is
neither a mitigated nor a standard offender, so he does not have the presumption in
favor of probation. I find that he is an altogether inappropriate candidate for any kind
of alternative sentencing because of his extensive record, criminal record, both of
convictions and of a failure to meet the terms of his parole and probation. And for
that reason he will not receive alternative sentencing.


                                           -7-
        As stated previously, we review sentencing issues with the presumption that the
determinations made by the trial court are correct so long as the trial court followed sentencing
procedures. Tenn. Code Ann. § 40-35-401(d). While the appellant does not challenge the length
of his sentences, he complains that he was not granted alternative sentencing and that the trial court
ordered the sentences to be served consecutively. Again, the appellant, as a multiple offender, was
not presumed to be a candidate for an alternative sentence. Further, the record established that the
appellant had been previously placed on both probation and parole and had unsuccessfully complied
with the conditions of those alternative sentences. In fact, the record indicated that the appellant had
received at least one (1) probation violation, had absconded from probation and had absconded from
parole. Moreover, the record more than established that the appellant had an extensive criminal
history such that consecutive sentencing was appropriate. According to the presentence report, the
appellant had one (1) conviction for criminal trespass, sixteen (16) convictions for public
intoxication, two (2) convictions for theft, four (4) convictions for vandalism, two (2) convictions
for burglary, and convictions for aggravated burglary, robbery, assault, resisting arrest, making false
reports and possession of dangerous drugs. The record does not preponderate against the
determination of the trial court. This issue is without merit.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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