         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 17, 2003

             STATE OF TENNESSEE v. ANDREW J. ROCHESTER

                   Direct Appeal from the Circuit Court for Wayne County
                           No. 12373   Robert L. Holloway, Judge



                   No. M2002-01332-CCA-R3-CD - Filed January 27, 2004


The defendant was convicted of one count of burglary. He contends on appeal that 1) there is
insufficient evidence to sustain the conviction, 2) no proper foundation was laid for opinion
testimony by certain witnesses, 3) the warrantless search of the vehicle was improper, and 4) the
trial court erred in sentencing the defendant. The judgment of the trial court is affirmed.

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

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Andrew J. Rochester.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney General;
for the appellee, State of Tennessee.


                                            OPINION

        The defendant, Andrew J. Rochester, was found guilty of one count of burglary (Class D
felony). Following a sentencing hearing, the trial court found that the defendant was a Range III,
career offender and sentenced him to twelve years in the Tennessee Department of Correction. This
appeal timely followed. The defendant contends on appeal that 1) there is insufficient evidence to
sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain witnesses,
3) the warrantless search of the vehicle was improper, and 4) the trial court erred in sentencing the
defendant. The judgment of the trial court is affirmed.
                                               Facts

        At approximately 10:00 p.m. on March 28, 2000, Jennifer Skelton heard an alarm sounding.
She initially thought that it was a car alarm. Skelton went outside of her home and discovered that
the alarm at the Waynesboro Middle School, which was across the street, had been activated.
Moments later, she saw a white Pontiac Grand Am speeding away from the school. Skelton, who
worked at an auto parts store and was very familiar with different types of automobiles, was certain
that the vehicle was a late eighties or early nineties model Grand Am. The vehicle left the school
traveling in the direction of the jail. There was only one road leading in and out of the school
grounds. Skelton immediately called the police and relayed what had transpired. Randall
Whitehead, Skelton’s boyfriend, was also present that night and verified what Skelton had witnessed.

        Officer Gerald Henderson was at the Sheriff’s Department when he received the call placed
by Skelton. He pulled out and waited at an intersection. About a minute after the call, a white
Pontiac Grand Am approached from the direction of the school. Henderson pulled beside the driver
of the vehicle, later identified as the defendant, and engaged him in conversation. The defendant
admitted that he had been at the school. He said that he stopped there to look at a map. While
Henderson was giving directions to the defendant, another police officer was at the school checking
for signs of a break-in. Henderson then noticed that the tags on the defendant’s vehicle were
expired. He ran the tags and discovered that they were registered to a different vehicle. While
Henderson was issuing a citation to the defendant, the officer at the school radioed to Henderson that
someone had broken into the school. Henderson asked the defendant to return to the school with
him, and the defendant complied. Upon arriving at the school, Henderson noticed that there was
damage to an inside door at the school. The glass window on the door had been broken, and there
was also damage to the doorknob. It looked as if someone had tried to pry the door open. The
defendant was placed under arrest and taken to the Sheriff’s Department.

        A search of the defendant’s person revealed what Henderson described as “lock picking
tools.” Henderson said that he had seen these types of instruments used to pick locks in a friend’s
body shop. After the defendant had been placed in jail, Henderson and Officer William Bolitho, an
investigator with the Waynesboro Police Department, conducted a search of the defendant’s vehicle
while it was in the parking lot of the Sheriff’s Department. Henderson stated that they were looking
for other evidence. The officers found a crowbar wedged between the passenger seat and the center
console. Under the driver’s seat, they also found a license plate registered to the vehicle.

        Bolitho investigated the scene of the crime and stated that a glass panel on one of the inside
doors to the office area had been broken. There was also damage to the doorknob and lock
mechanism. Bolitho did not check for fingerprints. The officer never determined how the defendant
gained access to the interior of the school building. Bolitho testified that a crowbar is commonly
used to gain access to doorways. In his opinion, the shiny marks on the crowbar were “fresh.”
Additionally, he observed a white powder-like substance on the crowbar that he believed to be glass
particles. Bolitho said the defendant told him that the tools found in his pocket were used for



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removing fish hooks. A crime lab report indicated that the marks on the doorknob were “similar in
size and contour of marks made by the tools on a test surface.”

                                                Analysis

       The defendant has raised four issues on appeal. He contends that 1) there is insufficient
evidence to sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain
witnesses, 3) the warrantless search of the vehicle was improper, and 4) the trial court erred in
sentencing the defendant. We will address these issues in order.

I. Sufficiency of Evidence

        The defendant first contends that the evidence is insufficient to sustain the conviction for
burglary. When a defendant challenges the sufficiency of the evidence, the standard of review is
whether, after viewing 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. Tenn. R. App. P.
13(e); Jackson v. Virginia, 443 U.S. 307, 319, (1979); State v. Evans, 838 S.W.2d 185, 190-91
(Tenn. 1992). On appeal, the State is entitled to the strongest legitimate view of the evidence and
all reasonable or legitimate inferences which may be drawn therefrom. State v. Elkins, 102 S.W.3d
578, 581 (Tenn. 2003). This Court will not re-weigh the evidence, reevaluate the evidence, or
substitute its evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d 93,
95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is given to the result
reached by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

        Once approved by the trial court, a jury verdict accredits the witnesses presented by the State
and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
The credibility of witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the proof are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
A jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and
raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant
then bears the burden of overcoming this presumption of guilt on appeal. State v. Black, 815 S.W.2d
166, 175 (Tenn. 1991).

        The defendant does not challenge whether the elements of burglary were proven by the State.
He contends that he was not the person responsible for committing the offense. Two witnesses
observed a white Pontiac Grand Am speeding away from the school shortly after the burglar alarm
sounded. The defendant was stopped by Henderson coming from the direction of the school. The
defendant was driving a white Pontiac Grand Am. The defendant admitted that he had been at the
school. The officers found “lock-picking” tools in the defendant’s pocket. The crime lab report
indicated that test marks made by the tools were consistent with the marks found on the doorknob
at the school. They also found a crowbar next to the passenger seat of the defendant’s car. The
officers found the correct license plate for the vehicle under the driver’s seat, while the car displayed


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a tag that did not belong to the vehicle. After viewing the evidence in the light most favorable to the
State, a rational trier of fact could have found that the defendant was the person responsible for
committing this offense. This argument is without merit.

II. Opinion Testimony by Officers

        The defendant next contends that no proper foundation was laid for the officers to give
opinion testimony as to whether the instruments were “lock-picking tools” or whether the marks on
the crowbar were “fresh.” The defendant never contemporaneously objected to these statements
made by the witnesses on the grounds that they lacked expert qualifications. The defendant argued
in a pre-trial motion that the “lock-picking tools” were irrelevant, but never objected on the basis of
lack of expert qualification. Generally, a party’s failure to take available action to prevent or nullify
an alleged error waives the issue. Tenn. R. App. P. 36(a). The defendant has waived this issue on
appeal. Therefore, the defendant’s contention regarding the admissibility of these statements is
without merit.

III. Search of Vehicle

        The defendant contends that the officers improperly searched his vehicle. Therefore, any
evidence obtained should have been suppressed. As with the previous issue, the defendant has
waived this issue on appeal. Tenn. R. App. P. 36(a). The defendant argued at the pre-trial motion
that the evidence obtained from the vehicle should not be admitted because it was not relevant. He
never raised the issue of an illegal search. In fact, the State and the trial court were under the
impression that the defendant would be arguing illegal search. The defendant apologized to the court
for the confusion and again stated that he was objecting based on the grounds of relevancy. This
issue has been waived and is without merit.

IV. Sentencing

        Lastly, the defendant contends that the trial court erred in finding that the defendant was a
Range III, “career offender.” A defendant who challenges his or her sentence has the burden of
proving the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a
defendant appeals the length, range, or manner of service of his or her sentence, it is this Court’s duty
to conduct a de novo review of the record with a presumption the trial court’s determinations are
correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        The defendant was convicted of a Class D felony. In order for the trial court to have properly
found that the defendant is a Range III, “career offender,” he must have “[a]t least six (6) prior felony
convictions of any classification.” Tenn. Code Ann. § 40-35-108(a)(3). “Convictions for multiple
felonies committed as part of a single course of conduct within twenty-four (24) hours constitute one


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(1) conviction for the purpose of determining prior convictions[.]” Id. § 40-35-108(b)(4). The
defendant argues that the prior convictions should have been proven by certified judgments. The
State may prove the existence of prior convictions through methods other than the introduction of
certified judgments. State v. Ralph Miller, No. 02C01-9709-CC-00361, 1998 Tenn. Crim. App.
LEXIS 726, *2-3 (Tenn. Crim. App., Jackson, July 14, 1998); State v. Greg Lee Sword, No. 03C01-
9203-CR-00074, 1993 Tenn. Crim. App. LEXIS 229, *3-8 (Tenn. Crim. App., Knoxville, Mar. 31,
1993). For example, a prior conviction may be proved if it “is set forth in the presentence report and
it is not contradicted.” Miller, 1998 Tenn. Crim. App. LEXIS 726, * 2-3 (citation omitted).

        The presentence report introduced at the sentencing hearing reveals that the defendant has
at least six prior felony convictions. It appears from the record that many of his approximately
twenty-three felony convictions may have occurred within twenty-four hour periods. Even assuming
that some of the convictions were part of a single course of conduct, the record still indicates that
the defendant committed at least six prior felony offenses on the following dates: 2/19/92, 3/2/92,
3/12/92, 3/21/92, 10/21/92, and 10/1/95. The State did introduce certified judgments for three of the
felony offenses in order to correct mistakes in the presentence report. However, as noted above, the
State was not required to introduce certified judgments for all of the convictions. The defendant did
not deny that any of the convictions occurred. The record supports the trial court’s finding that the
defendant is a Range III, “career offender.” This issue is without merit.

         In his brief, the defendant also addresses the application of several enhancement and
mitigating factors to his sentence. Finding that the defendant is a Range III, “career offender,” the
trial court was required to sentence the defendant to the maximum sentence in the range. Tenn. Code
Ann. § 40-35-108(c). Therefore, the issue of enhancement and mitigating factors is irrelevant, and
we do not address it on appeal.

                                            Conclusion

       Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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