        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 3, 2014

                 STATE OF TENNESSEE v. ROBERT ECHOLS

                  Appeal from the Criminal Court for Shelby County
                     No. 11-00459 James C. Beasley, Jr., Judge




              No. W2013-02044-CCA-R3-CD - Filed November 26, 2014


A Shelby County jury convicted the Defendant, Robert Echols, of aggravated robbery,
aggravated burglary, and theft of property valued over $1,000. The trial court merged the
theft of property conviction and the aggravated robbery conviction, and it ordered the
Defendant to serve an effective sentence of twenty years in the Tennessee Department of
Correction. On appeal, the Defendant contends that: (1) the admission of the victim’s
preliminary hearing testimony violated his constitutional right to confront and cross-examine
witnesses against him; (2) the trial court erred when it admitted into evidence an unsigned
statement of the Defendant; (3) the evidence is insufficient to sustain his convictions; and (4)
the trial court erred when it sentenced him. After a thorough review of the record and
relevant authorities, we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT L. H OLLOWAY, J R., JJ., joined.

Brent A. Heilig, Memphis, Tennessee (on appeal) and Charles Waldman, Memphis,
Tennessee (at trial) for the appellant, Robert Echols.

Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           I. Facts
                                           A. Trial
        This case arises from a robbery that occurred at the home of the victim, Daniel Porter.
In relation to this robbery, the Defendant was indicted for aggravated robbery, aggravated
burglary, and theft of property valued over $1,000. At the Defendant’s trial on these charges,
the following evidence was presented: Officer Derek Pittman, with the Memphis Police
Department, testified that he responded to a home invasion robbery call on September 11,
2010, at a home on Kendale Street. At the time he received the call, he was not far from that
location. Officer Pittman said that, when he arrived at the home, he knocked on the door,
and it took “a while” for someone to come to the door. When the door did open, the officer
saw the victim, who was not wearing a shirt and appeared “very shaken up.” The victim had
trouble telling the officer what had occurred.

        After speaking with the victim in an attempt to discern what had occurred, Officer
Pittman learned that the victim was in the back of his house walking through the kitchen
when “someone” approached him with a knife and put it to his neck. The victim said the
robber had “tied him up” and covered him with a blanket. The officer saw several welts
around the victim’s wrists and a string around his neck. Officer Pittman recalled that the
victim said that a camera, a laptop, and a car were taken during the invasion. After learning
that a car had been stolen, Officer Pittman put out a broadcast to other officers in the area
asking them to look for the vehicle, which he described by appearance and license tag
number.

       Officer Pittman testified that the rooms in the victim’s home appeared “ransacked.”
The officer found the blanket that the victim said he was covered with, and he described it
as white with flowers. When he walked outside the home, Officer Pittman saw the driver’s
side mirror of the stolen vehicle still lying in the driveway. He assumed that the missing
vehicle would be missing the driver’s side mirror.

       Officer Pittman spoke with one of the victim’s neighbors. One neighbor told him that
she observed a vehicle backing out of the driveway and then sped eastbound on Kendall
Street at a “high rate of speed.”

       After leaving the home, Officer Pittman searched around the home for the robbery
suspect and also for the knife, which the victim had described as a “steak knife.” He found
neither.

        During cross-examination, Officer Pittman testified that he never saw the Defendant
on the night of the robbery or on any other night. He said that the call about the robbery
came at around 9:00 or 10:00 that evening. He said that his “partner” officer, who drove in
a different patrol car, also responded to the victim’s residence. Officer Pittman said he did

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not observe signs of forced entry at the front of the home. The officer said the victim told
him that the entire robbery lasted between thirty and forty-five minutes. Officer Pittman said
he only spoke with one of the victim’s neighbors, and she told him that she knew that it was
not the victim driving his car away rapidly because the victim was “elderly.”

       Officer Pittman said that he did not call an ambulance for the victim because the
victim said that he was okay. The officer did call the crime scene investigators who arrived
and processed the scene.

        Officer Pittman said that the victim told him that, as he walked from the laundry room
to the kitchen, he was approached by the robber from behind. The robber put the knife to his
neck at that point. Officer Pittman said he did not notice the odor of alcohol on the victim,
and he was unaware whether the victim was on his way to take a shower. The officer said
the victim told him that he was tied up and sitting in a chair but not that he was tied to the
chair. The officer also recalled that the victim told him that, at one point during the robbery,
he and the robber held hands and prayed.

        Officer Pittman did not recall the victim’s description of the robber, other than that
the victim told him that the robber was African-American and six feet tall. Reviewing his
report, Officer Pitman recalled that the victim also said the robber had “a loud voice,” was
“dirty,” had “straight teeth and . . . was very angry.” The victim said that he did not know
the robber and had never seen him before. The victim told Officer Pittman that he had a
sheet over his head during the invasion.

       During redirect examination, Officer Pittman testified that the victim indicated that
the robber was wearing a pair of blue jeans but no shirt.

       Christopher Sanders, an officer with the Memphis Police Department, testified that
he responded to process the crime scene. Officer Sanders took pictures and tagged evidence.
He identified those pictures for the jury. Officer Sanders identified a multi-colored blanket
or sheet that he retrieved as evidence because he was informed that the victim was restrained
with that blanket. The officer said that he did not recover a knife at the crime scene. During
cross-examination, Officer Sanders testified that he reported to the victim’s address at 11:26
p.m. He said that he did not attempt to take fingerprints from the crime scene. He said that
he would have only taken fingerprints if he had been instructed to so do. He said that no one
instructed him to dust for fingerprints around any of the windows.

        Earlice Charles testified that he knew the victim from their involvement together in
the community. Mr. Charles recalled that the victim had previously been a priest. A month
after the robbery, the victim began acting “differently” and that the victim had died in

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January. During cross-examination, Mr. Charles testified that the victim used eye glasses to
drive, presumably because he had difficulty seeing at a distance.

       Kirby May, with the Shelby County District Attorney’s Office, testified that he was
present at the Defendant’s preliminary hearing. He said that the victim was also present, as
well as Sergeant Pruitt, and a judge. The Defendant, who was represented by counsel, also
attended the hearing. A recording of the victim’s testimony from the preliminary hearing was
played for the jury.

       During the preliminary hearing, the victim testified that he was seventy-nine years old
and had retired from a State job, where he worked as the Director of Human Rights. He said
he was also a retired Roman Catholic priest. On September 11, 2010, the victim was living
at 1583 Kendall Avenue. He said that he was “robbed” on that date. He recalled that he was
preparing to take a shower and was naked. He went to get a drink of water when a man
grabbed him and told him to get on his knees. The man told him to crawl to his bedroom.
The victim said that the man, who was unarmed, made him sit down in a chair and put a sheet
over the victim’s head. The victim said he only saw the robber briefly but said he was an
African-American man who was close to six feet tall. The victim recalled that the man did
not have on a shirt and was wearing “blue-ish” jeans.

        The victim testified at the hearing that, after the man put the sheet over the victim’s
head, the man started going through the victim’s belongings. The man took two wallets, two
cell phones, a digital Sony camera that cost $700, and some other items. The victim said he
saw the man take these items because he raised the sheet up. The victim said that the man
“eventually” found a steak knife in the victim’s bedroom and threatened to kill the victim if
he raised the sheet again. The victim explained that he kept the knife in his bedroom for use
as a letter opener.

       The victim said that the man took the items out of the bedroom and then forced the
victim to go to the front room. Still holding the weapon, the man told the victim to lie down
and keep quiet. While the victim lay on his back on the floor, the man carried out items and
put them into the victim’s car. The man then drove the victim’s car away from the home,
leaving the victim inside. The victim noted that the man tore off the side view mirror as he
was leaving.

       The victim said that he called 911 and spoke with police when they arrived. He
provided them with a description of the man and the items that he believed the man had
stolen. The victim identified the Defendant in the courtroom as the man who had robbed him
that day.



                                              4
       The victim said that he did not give the Defendant permission to come into his home,
and he did not give him permission to take any of these items.

       During cross-examination, the victim said that he wore glasses but that he was not
wearing his glasses at the time of this robbery. He was unsure what his vision was without
his glasses. The victim said that he first knew something was amiss that evening when he
noticed that his front door was open because he did not regularly leave his front door open.
The victim said he was under the sheet for approximately ten minutes. He recalled feeling
“so scared” and said he was “praying constantly out loud.”

       After the recording was played, Assistant District Attorney May testified that the
victim had positively identified the Defendant as the man who had robbed him during the
preliminary hearing. The district attorney stated that the victim had died of natural causes.

        During cross-examination, District Attorney May testified that his aim at the
preliminary hearing was to prove that the State had probable cause to bind the case over for
trial. That was the determination made by the judge. He said that this hearing was held in
a busy courtroom with many people present.

        Officer Rex Shipley, with the Memphis Police Department, testified that he
participated in the investigation of this robbery. He said that at the beginning of his shift he
responded to the victim’s address where other officers were already present. He learned that
a car, among other things, had been stolen, and he looked for the vehicle during his shift that
evening. The following evening, Officer Shipley and his partner, who drove separate
vehicles, again attempted to find the stolen vehicle. While Officer Shipley was on patrol that
evening, a vehicle similar to the stolen vehicle approached a stop sign while Officer Shipley
was pulling out of an alley. Officer Shipley said he “tried to act oblivious” and he pulled
across the street. The vehicle went through the stop sign. Officer Shipley made a U-turn,
came back to the vehicle, attempted to match the description, and began following the
vehicle. He did not initially activate his blue lights because he wanted to first match the
vehicle license tag number with the number of the stolen vehicle.

       Officer Shipley testified that, as he was attempting to get closer to the vehicle, the
driver began accelerating away from the officer. Officer Shipley said that the driving was
“reckless,” so the officer activated his blue lights and initiated a traffic stop. The driver of
the vehicle made an abrupt turn down a dead end street, and then he “slammed his brakes on
[and] opened the door.” The driver, whom the officer identified as the Defendant, exited the
vehicle and began running away. Officer Shipley estimated that he was twenty feet from the
Defendant when he exited the vehicle. The Defendant, whom he saw for approximately three
seconds, was wearing a blue t-shirt and jeans. He thought the Defendant had longer hair that

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was in “cornrows” and pulled back. He attempted to chase the Defendant, but he lost track
of him. He provided police dispatch with a description of the Defendant.

        Officer Shipley testified that he saw a man standing outside of a house and he stopped
to speak with him. Based upon this interaction, he stopped his pursuit of the Defendant until
he could get a perimeter set up with other cars. He requested a K-9 officer to attempt to
locate the Defendant. Officer Shipley said that, at this point, he heard some dogs barking,
which he noted might have been a part of the “foot chase.” He also heard a noise that
sounded like a bin of metal cans being thrown onto the ground. Officer Shipley noted that
the noise came from outside 999 Rayner Street. After the perimeter was established and the
dog failed to make a scent, officers surrounded 999 Rayner Street. Officer Shipley noticed
that there were several bins containing metal that had been overturned. He then noted that
there was a screen from a window of the home that had been pulled off and the window was
wide open. He said, however, that because the dog had been unable to track a scent, the
officers waited.

         Officer Shipley said he consulted with his lieutenant, who had arrived at the scene.
He then knocked on the door of the home and spoke with the home owner, who refused him
consent to search the home. Officer Shipley said he then went back to the vehicle and towed
it to the police station. The vehicle’s license tag number matched the license tag number of
the stolen vehicle, and it had a sticker consistent with the sticker on description of the
victim’s vehicle. Officer Shipley said that he observed the driver of the vehicle and he
identified the Defendant as the driver of that vehicle.

       Officer Shipley described the foot chase with the man he identified as the Defendant.
He said that he caught a three-second glimpse of the Defendant before losing sight of him.
He recalled that the Defendant was “broad shoulder[ed]” and had “dreads” that had a “bead
or something at the end to keep them down.”

        Charles Cathey, an officer with the Memphis Police Department who worked in the
Crime Scene Unit, testified that he participated in this investigation. He said that he
processed the victim’s stolen car, a gray Chevrolet. He took photographs of the vehicle and
attempted to dust it for fingerprints. He said he was unable to obtain any fingerprints, noting
that there was an “oily substance” on the car. This substance prevented him from being able
to collect any fingerprints. Officer Cathey identified photographs he took of the vehicle that
showed the vehicle’s license tag and a clergy sticker on the back of the vehicle.

       Timothy Reynolds, an officer with the Memphis Police Department, testified that he
participated in this investigation. He said that he received information that an individual, the
Defendant, was a “person of interest” related to this robbery. He said that he learned the

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Defendant might be at 999 Rayner Street. On September 14, 2010, Officer Reynolds went
to the Rayner address, knocked on the door. The Defendant answered the door, and Officer
Reynolds informed the Defendant that he was there to arrest the Defendant and needed to
bring him to the police station. The Defendant, at that time, was wearing a blue shirt and
black jeans. He took a picture of the Defendant’s jeans because the Defendant had a string
like material around his pants that was tied in an unusual manner. He forwarded this picture
to the robbery office.

        Vernon Van Buren, a sergeant with the Memphis Police Department assigned to the
robbery office, testified that he participated in the investigation of this robbery. He said that
Sergeant Boyce was the initial investigator in the case but, after the Defendant was arrested
as a suspect, Sergeant Boyce asked Sergeant Van Buren to interview the Defendant.
Sergeant Van Buren said that he read the Defendant his “Advice of Rights” and then took
his statement. Sergeant Van Buren read the Defendant’s statement into evidence as follows:

              Did you participate in the robbery of Daniel Porter which occurred at
       1583 Kendall on Saturday, September 11 th , 2010 at approximately 5:50 p.m?
              Yes. I guess so. If I took his money, yeah.
              Did anyone else participate in this robbery with you? If so, name them.
              No, sir.
              Were you armed with a weapon? If so, describe it.
              No, sir.
              . . . . Were you armed with . . . any type of instrument?
              . . . [N]o, sir.
              Were you wearing any type of gloves?
              I wasn’t wearing anything.
              When you first arrived at the house, were there any lights on?
              No, sir. I thought that no one lived there because there was an old odor
       coming from the house. When I entered the house, [it] looked ransack[ed]
       with things everywhere. It looked abandoned.
              How did you enter the house?
              I went through the front door. It was open. I guess he thought he had
       locked it but it was open.
              After entering the house, where did you encounter [the victim]?
              I guess it was in the hallway.
              Is that in the rear or the front of the house?
              I started going towards the back just looking. It was near a bedroom.
              After you encountered [the victim], what happened.
              I just told him to get down on the floor. He was an old man. I wasn’t
       going to hurt him. I didn’t do anything to him. I just touched him and helped

                                               7
him down on the floor because he said his back was hurting.
        After laying [the victim] on the floor, what did you do next?
        I found a sheet to put over his head so he wouldn’t be able to continue
seeing me.
        What were you wearing that night?
        I don’t remember because I had been up about seven or eight days
without eating or drinking anything. I had just been using drugs and going
from here to there doing nothing.
        On the night of the robbery how was your hair styled.
        It was platted up.
        Why did you take your hair down?
        I took it down because it was itching. I didn’t take it down for no other
reason. I was out on the street and could have been taking it down.
        What did you do to hold your pants up?
        I had a string in them the other day.
        What did you take in this robbery?
        [I] took a camera, a video camera, wallet, $10 and this thing sort of
looked like an amp. It was in a package. It was an old fashioned video
camera. The keys to the car were on the floor. He had taken them out of his
pocket and put them on the floor.
        Upon leaving the house, how did you leave?
        I took his car which I think was an Impala. I don’t even know what
color it was.
        What did you [do] with the property that you took?
        I sold it around the neighborhood.
        Was a vehicle used during this robbery? If so, describe the vehicle.
        No. I was walking . . . looking through the garage of the empty house
next to his.
        Describe in detail the events prior to, during and after this robbery?
        I was walking though the neighborhood and came upon this empty
house next to his. I was walking past and seen the window and I smelled what
smelled like an old house, I started yelling through the window to see if
anybody was there cause it looked abandoned, like an old house. When I
didn’t get a response, I jumped over the balcony and went through the front
door. After I went in, I got to looking around and walked to the back room.
That’s when I heard him coming through the house. So I just picked up a sheet
from the floor. I was going to cover my face at first so I could get on past him.
Remember I told you the house was junky.
        Afer I picked up the sheet, I told him to lay down. Lay down. Lay
down. He told me his back was hurting and I said let me help you. He said

                                       8
       something to the nature as if he was hurting or about to have a heart attack and
       that’s when I laid him down. After that I just took time. We did some talking
       and asked him for some money to get some drugs. He said he didn’t have any
       money. I took the wallet from the pants that were laying on the bed and took
       the $10 from the wallet.
               Then I asked him for some more money and we were talking and he
       started praying for us and telling me that he was a pastor. I stayed for a little
       while and talked to him while looking around for things to take that I could get
       money off of. I then picked up the other stuff, (camera video, amp and keys).
       When I was getting ready to leave, I left out the door and got on in the car and
       left.
               Why did you participate in this robbery?
               I had been up eight days and I’m on crack. I was just looking for a few
       things to get a couple of dollars at the time.
               Is there anything else you would like to add to this statement?
               I’m very sorry. I’m remorseful for what I did. I just wasn’t thinking
       because I’m on these drugs and I’ve been thinking of a way that I could make
       it right, right now.

Sergeant Van Buren said he read this statement back to the Defendant, who verified its
accuracy. The Defendant then refused to sign the statement.

       During cross-examination, Sergeant Van Buren testified that he had never met the
Defendant before the interview. He said that Sergeant Pruitt asked the Defendant the
questions, and Sergeant Van Buren compiled the report. Sergeant Van Buren agreed that no
one asked the Defendant if he had been to the home before or whether he knew the victim.
He said also that the Defendant never mentioned either of these two things.

       Andre Pruitt, a sergeant with the Memphis Police Department, testified that he
participated in this investigation. He said that, after the Defendant had been arrested, he was
tasked with interviewing the Defendant. He said that he and Sergeant Van Buren reviewed
the Defendant’s rights with him and discussed whether the Defendant wished to give a
statement. Sergeant Pruitt said that, at the conclusion of the statement, the Defendant read
and verified the accuracy of his statement. When asked if he would like to add anything, the
Defendant did not mention whether he had been to the home before. Sergeant Pruitt said that
the Defendant refused to sign the statement.

        During cross-examination, Sergeant Pruitt denied that the Defendant refused to sign
the statement because it did not say that he had been to the home before. Sergeant Pruitt said
that the interview with the Defendant was neither audio or video-recorded.

                                              9
       For the defense, Korneisha Echols, the Defendant’s niece, testified that she dropped
the Defendant off several times on Kendall Avenue where the victim’s house was located.
She remembered that, one time in May, the Defendant had a bag with him. Ms. Echols
recalled that this was “after my baby’s birthday party.” She “pulled down on [the Defendant]
and asked him what he had in the bag.” The Defendant told her that he had something to sell.
Ms. Echols described the bag as a “big . . . clear plastic bag” that had some clothes in it. Ms.
Echols identified the victim’s house and said that she saw someone open the door to that
house when she dropped off the Defendant. Ms. Echols said she took the Defendant to the
same address approximately two times in June 2010. Ms. Echols said that the Defendant had
been addicted to crack cocaine for as long as she could remember.

       During cross-examination, Ms. Echols said that her aunt, the Defendant’s sister, lived
at 999 Rayner Street. Ms. Echols reiterated that, when she took the Defendant to the victim’s
house, a man opened the door and let the Defendant into the home.

      Based upon this evidence, the jury convicted the Defendant of aggravated robbery,
aggravated burglary, and theft of property valued over $1,000.

                                        B. Sentencing

        At the sentencing hearing, the State informed the trial court that the presentence report
indicated that the Defendant had six prior felony convictions. The State noted that one of
these felony offenses was a B felony, one was a C felony, two were D felonies, and two were
E felonies. Therefore, the State posited, the Defendant was a Range II offender for his
current aggravated robbery conviction, a Range III offender for his aggravated burglary
conviction, and a career offender for his theft conviction. The State argued that, pursuant to
statute, because the Defendant had a previous conviction for aggravated robbery, his sentence
for his current aggravated robbery conviction must be served at 100%. The State asked that
the trial court apply two enhancement factors: (1) that the Defendant had a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish his
range; and (5) that the Defendant treated or allowed the victim to be treated with exceptional
cruelty during the commission of the offense. T.C.A. §40-35-114 (1) and (5) (2014). The
State asked that the Defendant be sentenced consecutively because he was a “dangerous
offender.” The State noted that he had a prior conviction for aggravated robbery and for
rape. The State asked for a total effective sentence of forty-seven years.

       The Defendant’s attorney asked that the trial court consider in mitigation that the
Defendant was a drug addict, that he had been a crack user for an extended period of time,
and that this crime occurred when he was under the influence of crack. He further noted that
the Defendant never had the opportunity to cross-examine the victim about whether the

                                               10
victim invited him into the home, about whether the two knew each other, or about whether
they had engaged in any kind of interaction prior to this event. He stated that it was not clear
whether the knife involved in the robbery was, in fact, a letter opener that did not pose a
threat to the safety and well being of the victim. The Defendant’s attorney noted that there
were many facts that were not known because the victim was unavailable at trial.

       The Defendant’s attorney informed the trial court that the Defendant’s prior
aggravated robbery had occurred when the Defendant was twenty-one years old and the
Defendant was, at the time of the hearing, forty-five years old. The Defendant’s sexual
battery conviction also occurred when the Defendant was much younger. He said that his
most recent offenses were driving-related.

       The Defendant testified on his own behalf. He noted that he had not signed the
statement, and he said he had not done so because the statement was untrue. He said he only
told the police what they wanted to hear so that he could receive a meal. The Defendant
explained that he had never been convicted of rape and that his sexual battery conviction
involved “groping a gal” when he was eighteen years old. He clarified that he never had sex
with the girl in that case. The Defendant said the girl’s mother “put the charge on [him]” and
that he had successfully completed three years of probation. The Defendant explained his
aggravated robbery conviction saying that he came into a woman’s building, picked up a
pocketbook and ran out with it. The woman chased behind the Defendant and fell down.
Based upon these facts, the judge ruled that it was an aggravated robbery.

       The Defendant said that he had never hurt anyone in any crime that he had committed.
He admitted that he had stolen items but explained that it was in an attempt to obtain
narcotics. The Defendant did not “totally deny being involved in [this] crime.” He said,
however, that the way this crime happened had been fabricated by the police.

      After hearing the testimony and arguments of Counsel, the trial court sentenced the
Defendant. The trial court considered the purposes of sentencing and the sentencing
considerations. It then found:

               I’ve considered those factors and the pre-sentence report and the
       statistics provided by the administrative office of the court and in reviewing
       the pre-sentence report it appears to the Court that [the Defendant] would
       qualify as a Range Two multiple offender for the offense of aggravated
       robbery and as a Range Three persistent offender for the offense of aggravated
       burglary.

              It also appears to me that the theft of property is a lesser-included

                                              11
       offense of the aggravated robbery. It is the same offense for the same
       property, therefore, the Court would find that Count Three should be merged
       into Count One for the conviction and I will merge the theft into the
       aggravated robbery. So I will find that – that should just be one sentence.

       The trial court found that enhancement factor (1), that the Defendant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish
his range, applied. It said:

               I think the proof is and it is obvious from the pre-sentence report that
       he does have an extensive record that goes back to when he was eighteen years
       old, back in 1987. So some twenty-five years over that time period he has
       been arrested for various felonies and theft related charges, some driving
       charges, misdemeanors, felonies, some involving violence and some involving
       just theft.

              So I am going to find that[.] I’m going to put a great deal of emphasis
       on the fact that he has an extensive background [of] criminal convictions and
       criminal behavior in addition to that . . . necessary for his range of punishment.

       The trial court found that the evidence presented was sufficient to prove that the
Defendant possessed a deadly weapon, in the form of a knife, during the commission of the
offense. The trial court noted that this was an element of aggravated robbery and, therefore,
was not an applicable enhancement factor. The trial court also declined to apply the
exceptional cruelty enhancement factor. It noted that the Defendant’s treatment of the victim
was “offensive and . . . cruel” but it did not rise to the legal level of “exceptional cruelty.”
The trial court found no mitigating factors applicable.

       The trial court then found:

              The Court is of the opinion that the appropriate punishment for the
       aggravated burglary would be a sentence of twelve years as a Range Three
       persistent offender and the Court will so order.

               As to the offense of aggravated robbery found in Count One, the Court
       finds that [the Defendant] [is] a Range Two multiple offender. However, this
       sentence is to be served at the rate of one-hundred percent. The Court again
       finds that he has an extensive history of criminal convictions and behavior in
       addition to that necessary for this range and I am going to put a great deal of
       emphasis on that.

                                              12
       After making several considerations, the trial court sentenced the Defendant to twenty
years for the offense of aggravated robbery. The trial court declined to order consecutive
sentencing, and it sentenced the Defendant to concurrent sentences, for a total effective
sentence of twenty years to be served at 100%.

                                         II. Analysis

        On appeal, the Defendant contends that: (1) the admission of the victim’s preliminary
hearing testimony violated his constitutional right to confront and cross-examine witnesses
against him; (2) trial court erred when it admitted into evidence an unsigned statement of the
Defendant; (3) the evidence is insufficient to sustain his convictions; and (4) the trial court
erred when it sentenced him. The State counters first that the Defendant waived appellate
review by failing to timely file a motion for new trial or notice of appeal. It then asserts that
the trial court did not commit any evidentiary errors, that the evidence is sufficient to sustain
the Defendant’s convictions, and that the trial court properly sentenced the Defendant.

                                          A. Waiver

        The State contends that the Defendant’s appeal should be dismissed as untimely
because he filed his motion for a new trial and notice of appeal more than thirty days after
the final judgment. Following the Defendant’s trial, the trial court held a sentencing hearing
on June 27, 2013, and entered judgments of conviction that day. On August 15, 2013, the
Defendant filed a motion for new trial. On the same day, August 15, 2013, the trial court
held a hearing on the Defendant’s motion for new trial. At the hearing, neither party raised
the waiver issue, and the trial court ruled on the issues on their merits. The Defendant filed
his notice of appeal the same day the new trial motion was denied, August 15, 2013.

        “A motion for new trial shall be in writing or, if made orally in open court, be reduced
to writing, within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P.
33(b). The thirty day period for filing a motion for new trial “is jurisdictional and cannot be
expanded.” State v. Hatcher, 310 S.W.3d 788, 800 (Tenn. 2010). As such, “[a] trial judge
does not have jurisdiction to hear and determine the merits of a motion for new trial which
has not been timely filed.” State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004). Likewise, a
notice of appeal must be filed “within [thirty] days after the date of entry of the judgment
appealed from.” Tenn. R. App. P. 4(a). An untimely motion for new trial will not toll this
thirty-day period. State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). While this
court may waive the untimely filing of a notice of appeal pursuant to Tennessee Rule of
Appellate Procedure 4(a), we do not have the authority to waive the untimely filing of a
motion for new trial. State v. Stephens, 264 S.W.3d 719, 728 (Tenn. Crim. App. 2007).



                                               13
       Failure to timely file a motion for new trial causes all issues to be “deemed waived
except for sufficiency of [the] evidence and sentencing.” Bough, 152 S.W.3d at 460. We
may review issues normally considered waived pursuant to the plain error doctrine. Tenn.
R. App. P. 36(b).

        In the case under submission, the trial court reviewed the motion for new trial despite
the fact that the trial court did not have jurisdiction to hear and determine the merits of the
untimely motion. The trial court’s “erroneous consideration [and] ruling on a motion for new
trial not timely filed . . . does not validate the motion.” State v. Martin, 940 S.W.2d 567, 569
(Tenn. 1997) (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989)).

       Because the untimely filing of a motion for new trial does not toll the time for filing
a notice of appeal, a late filed motion for new trial will generally result in an untimely notice
of appeal. State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997); Davis, 748
S.W.2d at 207. In the case herein, the trial court denied the untimely motion for new trial on
August 15, 2013, and Defendant filed an untimely notice of appeal on the same date.

        When the motion for a new trial is not timely filed, the appellate court will consider
only those issues that would result in the dismissal of the case, including sufficiency of the
evidence, or a sentencing issue. Tenn. R. App. P. 3(e); see also State v. Boxley, 76 S.W.3d
381 (Tenn. Crim. App .2001); State v. Timothy Wayne Henderson, No. 01C01-9801-CC-
00001, 1998 WL 731576, at *1 (Tenn. Crim. App., at Nashville, Oct. 21, 1998), no Tenn.
R.App. P. 11 application filed. There is, however, no automatic appeal of this issue to this
Court. Either the timely filing of a notice of appeal must occur, or a waiver of the timely
filing of a notice of appeal must be obtained from this Court in order to perfect an appeal.
Tenn. R.App. P. 4(a). This Court has commented:

               An attorney who fails to perfect a timely appeal from the entry of a
       judgment places his client’s appeal in peril of dismissal. See T[enn]. R. A[pp].
       P. 4(a). Although certain post-judgment motions may suspend the time for
       filing the notice of appeal, none of those motions were timely filed in this case.
        See T[enn]. R. A[pp]. P. 4(c). However, Rule 4(a) provides that the notice of
       appeal “is not jurisdictional and the filing of such document may be waived in
       the interest of justice.” T[enn]. R. A[pp]. P. 4(a). “In determining whether
       waiver is appropriate, this Court will consider the nature of the issues
       presented for review, the reasons for and the length of the delay in seeking
       relief, and any other relevant factors presented in the particular case.” State
       v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, Davidson County,
       slip op. at 2 (Tenn. Crim. App. Dec. 27, 2005).



                                               14
State v. Baldomero Galindo, No. E2009-00549-CCA-R3-CD, 2010 WL 4684469, at *13
(Tenn. Crim. App., at Knoxville, Nov. 19, 2010), Tenn. R. App. P. 11 application denied
(Tenn. Apr. 13, 2011).

        The Defendant in this case challenges the trial court’s admission of the victim’s
preliminary hearing testimony, the trial court’s admission of his unsigned statement, the
sufficiency of the evidence, and his sentence. The evidentiary issues have been waived by
the failure to timely file a motion for new trial, other than our review for plain error. With
respect to the other two issues, we elect to waive the timely filing of a notice of appeal.

                                    B. Plain Error Review

        We may review issues normally considered waived pursuant to the plain error
doctrine. Tenn. R. App. P. 36(b). The doctrine of plain error only applies when all five of
the following factors have been established:

       (1) the record clearly establishes what occurred in the trial court;

       (2) the error breached a clear and unequivocal rule of law;

       (3) the error adversely affected a substantial right of the complaining party;

       (4) the error was not waived for tactical reasons; and

       (5) substantial justice is at stake; that is, the error was so significant that it
       “probably changed the outcome of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274,
282-83 (Tenn. 2000)). “An error would have to [be] especially egregious in nature, striking
at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.”
State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). All five factors must be present for plain
error review. See State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000). It is the accused’s
burden to persuade an appellate court that the trial court committed plain error. See United
States v. Olano, 507 U.S. 725, 734 (1993). Further, our complete consideration of all five
of the factors is not necessary when it is clear from the record that at least one of them cannot
be satisfied. Smith, 24 S.W.3d at 283.

                       1. Victim’s Preliminary Hearing Testimony

       The Defendant contends that the admission of the victim’s preliminary hearing

                                                15
testimony violated his Sixth Amendment right to confront and cross-examine adverse
witnesses. He asserts that the victim’s preliminary hearing testimony was “hearsay,” falling
under the United States Supreme Court ruling in Crawford v. Washington, 541 U.S. 36
(2004). The Defendant concedes that the victim was “unavailabl[e],” but he asserts that “as
a matter of law and fundamental fairness, the admission of [the victim’s] preliminary hearing
testimony was error and violated” his constitutional rights.

        The Defendant asserts that the victim’s testimony did not fall under Tennessee Rule
of Evidence 804(b)(1) because there was a substantial difference in the development of the
testimony at the preliminary hearing and a trial by jury. He notes that the standard of proof
is different because the preliminary hearing is a limited procedure and lacks the finality of
a jury trial, and a preliminary hearing may be waived. The Defendant also notes that, prior
to the preliminary hearing, the State is not required to share any information that may be
discoverable to a defendant at a trial by jury, and the identification standards are more “lax”
at the preliminary hearing stage.

       The State responds that the Defendant cannot prove that the trial court committed
error, much less plain error, when it admitted the preliminary hearing testimony. It asserts
that the victim’s testimony meets the requirements for admissible testimony from an
unavailable witness, as the victim was unavailable due to his death and because the witness
was cross-examined at the preliminary hearing.

        Our review requires us to examine whether the trial court’s admission of the victim’s
preliminary hearing testimony breached a clear and unequivocal rule of law. Hatcher, 310
S.W.3d at 808. Generally, the admissibility of evidence rests within the sound discretion of
the trial court, and this court does not interfere with the exercise of that discretion unless a
clear abuse appears on the face of the record. State v. Franklin, 308 S.W.3d 799, 809 (Tenn.
2010). “A trial court abuses its discretion only when it applies an incorrect legal standard or
makes a ruling that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Id. However, the determination of “[w]hether the admission of hearsay
statements violated a defendant’s confrontation rights is . . . a pure question of law.” State
v. Brian Roberson, No. E2013-00376-CCA-R3-CD, 2014 WL 1017143, at *6 (Tenn. Crim.
App., at Knoxville, Mar. 14, 2014) (quoting State v. Franklin, 308 S.W.3d 799, 809 (Tenn.
2010)) (footnote omitted). Thus, the proper application of that law to the trial court’s factual
findings is a question of law and is subject to de novo review. Id.

         “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by
other controlling provisions of law. Id. at 802. Tennessee Rules of Evidence 803 and 804

                                              16
list the exceptions to this general rule of inadmissibility. One such exception is for former
testimony. Tenn. R. Evid. at 804(b)(1). It provides as follows:

       The following [is] not excluded by the hearsay rule if the declarant is
       unavailable as a witness:

       (1) Former Testimony. Testimony given as a witness at another hearing of the
       same or a different proceeding or in a deposition taken in compliance with law
       in the course of the same or another proceeding, if the party against whom the
       testimony is now offered had both an opportunity and a similar motive to
       develop the testimony by direct, cross, or redirect examination.

Tenn. R. Evid. 804. As relevant to this appeal, the requirements for unavailability are met
when a witness “is unable to be present or to testify at the hearing because of the declarant’s
death or then existing physical or mental illness or infirmity.” Tenn. R. Evid. 804(a)(4). “A
preliminary hearing transcript is precisely the type of former testimony contemplated under
[Rule 804(b)(1)].” State v. Bowman, 327 S.W.3d 69, 88-89 (Tenn. Crim. App. 2009)
(concluding that the witness’s preliminary testimony was “admissible under the ‘former
testimony’ hearsay exception of Rule 804(b)(1) and . . . did not violate the defendant’s rights
under the Confrontation Clause”) (internal quotations omitted).

        The Sixth Amendment of the United States Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI. The Tennessee Constitution provides the
corresponding right “to meet witnesses face to face.” Tenn. Const. art. I, § 9. In order to
protect a defendant’s right to confrontation, before the prior testimony of a witness will be
admitted, the State must show that (1) the witness is unavailable and (2) the defendant had
a prior opportunity to cross-examine the witness. See State v. Maclin, 183 S.W.3d 335, 351
(Tenn. 2006) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).

      A panel of this court in State v. Michael James Grubb, No. E2005-01555-CCA-R3-
CD, 2006 WL 1005136 (Tenn. Crim. App., at Knoxville, Apr. 18, 2006), succinctly
addressed this issue, reaching the same conclusion as that in Bowman:

               The “purpose of a preliminary hearing is . . . to determine whether there
       exists probable cause to believe that a crime has been committed and that the
       accused committed the crime.” State v. Lee, 693 S.W.2d 361, 363 (Tenn.
       Crim. App. 1985). The difference in the standard of proof not-withstanding,
       the basic purpose of the preliminary hearing and the trial are not “totally
       separate” as the Defendant argues, but rather deal with precisely the same

                                              17
       issue: whether or not the accused is guilty of the crimes for which he or she is
       charged. See State v. Howell, 868 S.W.2d 23 8, 251 (Tenn. 1993) (holding that
       a preliminary hearing testimony of a declarant could be introduced at trial
       under the former testimony exception based primarily on a finding that “at
       both the [preliminary] hearing and the subsequent trial, the testimony was
       addressed to the same issue of ‘[w]hether or not the defendant[ ] had
       committed the offense’ charged.”). Accordingly, we conclude that the
       Defendant in this case had the opportunity to cross-examine Officer Beyer at
       the preliminary hearing with the same motives that would have guided his
       cross-examination of the declarant had he been available at trial. See State v.
       Brian Eric McGowen, No. M2004-00109-CCA-R3-CD, 2005 WL 2008183,
       at *11 (Tenn. Crim. App., Nashville, Aug. 18, 2005) (holding that the trial
       court did not err in allowing preliminary hearing testimony to be introduced at
       trial under the former testimony exception because the motive to
       cross-examine the defendant was the same at both the preliminary hearing and
       trial). Thus, Crawford's cross-examination requirement was met in this case.

Id. at *7; State v. Edward Warren Wise, No. M2012-02129-CCA-R3-CD, 2013 WL
4007787, at *5-6 (Tenn. Crim. App., at Nashville, Aug. 6, 2013); see also Roberson, 2014
WL 1017143, at *6.

        As in Grubbs and Bowman, we also conclude that the Defendant’s motive for
cross-examining the victim at the preliminary hearing was “similar” to the motive for cross-
examining him at trial: to negate the Defendant’s culpability for the offense charged. The
Defendant’s attorney asked the victim questions challenging his sobriety, his vision, his
memory, his recollection of the lights being illuminated, among other questions. The victim
died of natural causes before the trial. The victim’s testimony qualifies as “former
testimony” and was admissible under Rule 804(b)(2). The record clearly shows that the
victim was “unavailable” at trial, that the Defendant had a similar motive to develop the
testimony at the preliminary hearing as he would have had at trial, and that the preliminary
hearing cross-examination was sufficient to meet the confrontation requirements of
Crawford. See also Wise, 2013 WL 4007787, at *6 (reaching the same conclusion on similar
facts). Therefore, we conclude that the trial court did not violate an unequivocal rule of law
when it admitted the victim’s testimony from the preliminary hearing, and the Defendant is
not entitled to plain error review of this issue.

                        2. The Defendant’s Unsigned Statement

       We review for plain error the Defendant’s contention that the trial court erred when
it admitted into evidence an unsigned statement given by the Defendant. The Defendant

                                             18
asserts that he moved to suppress this statement because it was not signed. The Defendant
asserts that his mental state was “poor” because he had been awake for a week without eating
or drinking and he was using drugs. The trial court denied his motion to suppress, relying
on the fact that the Defendant signed an Advice of Rights Form. He asserts that his statement
was not knowingly and voluntarily given. The trial court found that the lack of signature on
the statement went to its weight and not its admissibility. The State counters that this issue
does not require plain error review because the Defendant voluntarily and knowingly gave
this statement as evidenced by the facts that he understood his rights, signed the Advice of
Rights form, and was not under the influence of drugs or alcohol.

         In determining whether plain error review is warranted, we first turn to address
whether the trial court breached a clear and unequivocal rule of law by allowing the
statement into evidence. See Hatcher, 310 S.W.3d at 808. Our standard of review for a trial
court’s findings of fact and conclusions of law on a motion to suppress evidence is set forth
in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”
Id. at 23. As is customary, “the prevailing party in the trial court is afforded the ‘strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State
v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the
trial court’s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State
v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact, is able
to assess the credibility of the witnesses, determine the weight and value to be afforded the
evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing
a trial court’s ruling on a motion to suppress, an appellate court may consider the evidence
presented both at the suppression hearing and at the subsequent trial. State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).

       This Court has upheld the admission of an unsigned statement in situations where the
statement was otherwise voluntarily given. See State v. Bruce C. Reliford, No. W2007-
02899-CCA-R3-CD, 2010 WL 1610517, at *5 (Tenn. Crim. App., at Jackson, April 19,
2010), perm. app. denied (Tenn. Sept. 23, 2010); State v. Gregory Lynn Redden, No. M2000-
009880CCA-R3-CD, 2000 WL 1897141, at *14 (Tenn. Crim. App., at Nashville, Dec. 28,
2000), perm. app. denied (Tenn. Apr. 30, 2001). In Reliford, this Court stated:

               Next, the defendant argues that the trial court erred in determining that
       his unsigned statement was admissible. The trial court relied on the decision
       in State v. Gregory Lynn Redden, No. M2000-00988-CCA-R3-CD, 2000 Tenn.
       Crim. App. LEXIS 988, 2000 WL 1879141 (Tenn. Crim. App. at Nashville,

                                              19
       Dec. 28, 2000). The defendant in Redden also signed an advice of rights form
       before giving a statement of confession to the crime of which he was
       ultimately convicted. Redden also refused to sign the statement after it was
       reduced to writing. Id. at *4. This court held that the defendant’s oral
       confession was just as binding as a written confession in the absence of
       evidence to show that the statement was not given voluntarily. Id. at *14
       (citing Campbell v. State, 215 Tenn. 95, 384 S.W.2d 4, 9 (Tenn. 1964)). The
       lack of a signature on the statement did not affect its admissibility, only the
       potential weight assigned to the evidence by the jury. Id. The trial court
       properly admitted the unsigned statement.

Reliford, 2010 WL 1610517, at *5. Because the trial court followed the law as stated in
Redden and Reliford, it did not violate a clear and unequivocal rule of law. The Defendant
is not entitled to plain error review of this issue.

                               C. Sufficiency of Evidence

       The Defendant next contends that the evidence is insufficient to sustain his
convictions for aggravated robbery, aggravated burglary, and theft of property valued over
$1,000. He asserts that the trial court “erroneous[ly]” admitted the victim’s preliminary
hearing testimony and his unsigned statement and that, absent these pieces of evidence, no
rational trier of fact could have found that the Defendant was the perpetrator of the charged
offenses. The State counters that the evidence is sufficient to support each of the
Defendant’s convictions. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be
given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of

                                             20
review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State
v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme
Court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000) (citations omitted).

                                  1. Aggravated Robbery

       Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear. T.C.A. § 39-13-401 (2014). Aggravated robbery is
robbery as defined in § 39-13-402(a):

                                               21
       (1) Accomplished with a deadly weapon or by display of any article used or
       fashioned to lead the victim to reasonably believe it to be a deadly weapon; or

       (2) Where the victim suffers serious bodily injury.

T.C.A. § 40-13-402 (2014). As previously discussed, the trial court did not err when it
admitted the victim’s preliminary hearing testimony and the Defendant’s statement. The
evidence, viewed in the light most favorable to the State, showed that the Defendant entered
the victim’s home and forced the naked victim into his bedroom. The Defendant placed the
victim in a chair and covered him with a sheet. The Defendant found and picked up a steak
knife that the victim had in his bedroom. The Defendant told the victim that he would kill
him if he raised the sheet again. The victim described himself as “so scared” and prayed out
loud continually. The Defendant took a video camera, money, and other items from the
victim’s home. He loaded the items into the victim’s car, took the victim’s keys, and left the
home in the victim’s car. This evidence is sufficient to support the Defendant’s conviction
for aggravated robbery.

                                 2. Aggravated Burglary

        Aggravated burglary occurs when a person enters a habitation with the intent to
commit a felony, theft, or assault. T.C.A. § 39-14-402(a)(1), -403(a) (2014). The specific
intent required for a burglary may be established by circumstantial evidence. See Bollin v.
State, 486 S.W.2d 293, 296 (Tenn. Crim. App. 1972). Additionally, when a defendant breaks
and enters into a building containing valuable property with the absence of an “acceptable
excuse” for doing so, a jury may “reasonably and legitimately infer . . . a defendant intends
to commit theft.” State v. Ingram, 986 S.W.2d 598, 699 (Tenn. Crim. App. 1998) (citing
Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973)).

        In this case, the evidence considered in the light most favorable to the State, showed
that the Defendant was walking through a neighborhood when he came upon a house that he
thought might be empty. He entered the home looking for money or items he could sell to
obtain money to use to purchase drugs. The Defendant saw the victim in the home, and
forced him to lay down in his bedroom. The Defendant then began looking for items to steal,
and he took two wallets, two cell phones, cash, a $700 video camera, and the victim’s car.
This evidence is sufficient to support the Defendant’s conviction for aggravated burglary.

                     3. Theft of Property Valued more than $1,000

        The Defendant contends that the evidence is insufficient to sustain his conviction for
theft of property valued more than $1,000. The trial judge merged this conviction with the

                                             22
Defendant’s conviction for aggravated robbery.

       “A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the owner's
effective consent.” T.C.A. § 39-14-103(a) (2014). “‘Knowing’ means that a person acts
knowingly with respect to the conduct or to circumstances surrounding the conduct when the
person is aware of the nature of the conduct or that the circumstances exist.” T.C.A. § 39-11-
106(a)(20) (2014). Theft of property valued at $1,000 or more but less than $10,000 is a
Class D felony. T.C.A. § 39-14-105(a)(3) (2014).

        The evidence in this case proved that the Defendant entered the victim’s home and
took items of personal property. He took two wallets, two cell phones, one $700 video
camera, an “amp.” The Defendant then took the victim’s automobile. The jury could have
inferred from the evidence that the value of the property taken totaled more than $1,000.
This evidence is sufficient to sustain the Defendant’s conviction, and he is not entitled to
relief on this issue.

                                       D. Sentencing

       Finally, the Defendant contends that the trial court erred when it sentenced him as a
multiple offender for his aggravated robbery conviction and a persistent offender for his
aggravated burglary conviction. The Defendant concedes that he had the requisite number
of felonies to establish these ranges, but he contends that his other convictions were “non-
violent and relatively minor.” Further, he asserts that the trial court failed to consider his
drug use as mitigating evidence. He next contends that the “steak knife” was not a deadly
weapon used in the commission of the aggravated burglary. The State counters that the
record demonstrates that the Defendant’s sentence was supported by the proof and was
determined in accordance with the applicable sentencing principles.

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2012); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In 2005, the Tennessee
General Assembly amended the sentencing law in order to bring Tennessee’s sentencing
scheme into compliance with United States Supreme Court rulings on the subject. See
United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004).
As a result, the appellate courts were “left with a narrower set of circumstances in which they
might find that a trial court has abused its discretion in setting the length of a defendant’s
sentence.” Carter, 254 S.W.3d at 345-46.

                                              23
       Appellate review of sentences has been de novo with a presumption of correctness.
See T.C.A. § 40-35-401(d) (2012). In a recent decision, the Tennessee Supreme Court
reviewed changes in sentencing law and the impact on appellate review of sentencing
decisions. State v. Bise, 380 S.W.3d 682 (Tenn. 2012). The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Id. at 708; State v. Caudle, 338 S.W.3d 273, 278-79 (Tenn. 2012)
(explicitly applying the same standard to questions related to probation or any other
alternative sentence).

        A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record
must be void of any substantial evidence that would support the trial court’s decision. Id.;
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980). In the context of sentencing, as long as the trial court places the
sentence within the appropriate range and properly applies the purposes and principles of the
Sentencing Act, this Court must presume the sentence to be reasonable. Bise, at 704-07. As
the Bise Court stated, “[a] sentence should be upheld so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Id. at 708.

       The misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from a trial court’s sentencing decision. Id. A reviewing
court should not invalidate a sentence on this basis unless the trial court wholly departed
from the principles of the Sentencing Act. Id. at 707. So long as there are other reasons
consistent with the purpose and principles of sentencing, a sentence within the appropriate
range should be upheld. Id.

        In conducting its review, this Court considers the following factors: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See T.C.A. §§ 40-35-102, -103, -210 (2014); see also Bise, 380
S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his

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sentence. See T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

        We conclude that the trial court properly sentenced the Defendant. The trial court
considered the relevant principles and sentenced the Defendant to a within range sentence.
The evidence presented at trial and during the sentencing hearing supports the trial court’s
application of the relevant enhancement factor. The trial court did not err when it did not
consider the Defendant’s drug addiction as a mitigating factor. Our review of the record
reveals that the trial court followed the purposes and principles of the Sentencing Act when
it applied a sentence within the appropriate sentencing range. The Defendant has not carried
his burden of showing that the trial court’s sentence is improper and, therefore, is not entitled
to relief.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the trial
court’s judgments.

                                                      ________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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