         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 22, 2005

                  STATE OF TENNESSEE v. BILLY R. SHELLEY

                      Appeal from the Criminal Court for Sullivan County
                           No. S46, 826   Phyllis H. Miller, Judge



                      No. E2004-00145-CCA-R3-CD - Filed July 29, 2005



The Appellant, Billy R. Shelley, was convicted by a Sullivan County jury of theft of property over
$1,000, a class D felony, and sentenced as a Range II multiple offender to eight years in the
Department of Correction. On appeal, Shelley raises the following issues for our review: (1) whether
the evidence was sufficient to support the verdict; (2) whether the trial court erred in ruling that his
prior convictions, which expired more than ten years prior to this prosecution, were admissible for
impeachment purposes; and (3) whether his sentence was proper. After a review of the record, the
judgment of the Sullivan County Criminal Court is affirmed.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

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

Steve McEwen (on appeal), Mountain City, Tennessee; and Richard Tate (at trial), Assistant Public
Defender, Blountville, Tennessee, for the Appellant, Billy R. Shelley.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth II, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

       On November 15, 2002, Larry Hammonds, Jr. was living in a mobile home located at 390
Barnett Drive in Kingsport. At approximately 5:30 a.m., he went outside and started his recently
purchased 1991 Mazda 626 to clear the windows of frost and ice. He left the car running and went
back inside his mobile home. Inside only ten to fifteen seconds, Hammonds heard a “thud.” At trial
Hammonds testified:
         It sounded like a door closed. Didn’t know what it was. I went to the front bedroom,
         seen somebody in front of the trailer. Went out the side door, went over, and I seen
         Billy Ray Shelley getting into my car. And I was - - by the time he was at my car, he
         had his hand upon the door, I was in front of my girlfriend’s car and he just getting
         in and got it in drive. He hit the front of my trailer, the tongue . . . then stuck it in
         reverse.

He described the person who stole his car as having long brown hair and wearing a black leather
jacket and testified that he saw the side of the person’s face. Hammonds’ porch light and that of a
neighbor provided the only lighting. At trial, Hammonds testified that he had lived at the mobile
home park for two weeks prior to the incident and that he had seen the Appellant several times and
knew that the Appellant lived in a neighboring trailer but did not know the Appellant’s name.
Hammonds stated that the Appellant ran into a couch sitting in his own driveway and drug it a
distance before backing into a meter and running over some cinder blocks. He also testified that he
tried to chase the car on foot, and, when this attempt failed, he called 911 on his cell phone.

        Soon thereafter Officer Jeff Sluss with the Kingsport Police Department arrived at the scene.
As Officer Sluss sat in his patrol car talking to Hammonds, a man in a black leather jacket with long
brown hair approached. Hammonds alerted the officer “this is the guy that stole my car” and saw
the man drop something on the pavement. The Appellant approached the police car and asked what
was going on. Officer Sluss told the Appellant to go to his residence and that they would talk in a
few minutes. He then told Hammonds to retrieve what the Appellant had dropped, and Hammonds
verified that the item was his car keys. Officer Sluss transported Hammonds to a vehicle he had seen
on his way to the mobile home community, which was parked at the dead end of Barnett Drive, less
than one mile way. Hammonds identified the car as belonging to him.

         On October 16, 2002, the Appellant was indicted for theft of property over $1,000. After a
trial by jury, the Appellant was found guilty as indicted on November 6, 2003. On December 19,
2003, he was sentenced to eight years in the Department of Correction as a Range II multiple
offender. This appeal followed.

                                                      Analysis

        As a preliminary matter, we note that the record fails to include a motion for new trial and
an order overruling the motion for new trial.1 Tennessee Rule of Appellate Procedure 3(e) states in
pertinent part that “in all cases tried by a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.” Due to the failure to file
a motion for new trial, the Appellant has waived the following evidentiary issue: whether the trial


         1
           A footnote to the Appellant’s brief states that no motion for new trial was filed by Appellant’s trial counsel
although a timely notice of appeal was filed. Appellate counsel states he was appointed after “trial counsel apparently
retired from law practice.”

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court erred in ruling that his prior convictions expiring more than ten years prior to this prosecution
were admissible for impeachment purposes.2 We decline plain error review of this issue because it
does not rise to the level of affecting a substantial right which would necessitate review in order to
do substantial justice. See Tenn. R. Crim. P. 52(b); see also State v. Michael Woods, No. W2003-
02762-CCA-R3-CD (Tenn. Crim. App. at Jackson, Feb. 17, 2005, (review of prior convictions for
impeachment purposes did not rise to level of plain error review as issue did not affect a substantial
right as required by Tenn. R. Crim. P. 52(b)).

I. Sufficiency of the Evidence

         The Appellant contends that the evidence was insufficient to support his conviction for theft
of property over $1,000. Specifically, he argues that Hammonds’ identification was flawed and that
his testimony was inconsistent. The Appellant challenges Hammonds’ credibility with the following
rationale:

         Hammonds had only lived in the trailer park for two (2) weeks, and had never
         socialized with the appellant. It appears that Hammonds based his identification
         almost entirely upon his brief observation that the subject had long hair and was
         wearing a black leather coat. . . .

         It was dark when the incident occurred, without much illumination. Hammonds did
         not have a frontal view of the subject.

         At trial, Hammonds testified that he had a “split-second” view of the side of the
         subject’s face. Assuming this was true, a “split-second” view of the side of
         someone’s face in the dark is woefully inadequate and insufficient upon which to
         base a positive identification of the person.

         However, the proof further demonstrated that at the preliminary hearing Hammonds
         testified that he did not see the subject’s face. . . .

         ....

         . . . Hammonds was the only party that actually observed the keys on the road.
         Officer Sluss did not go with Hammonds to retrieve the alleged keys. Additionally,
         there was no evidence that Officer Sluss took possession of the keys to positively
         identify that the key would start the subject vehicle.


         2
          The trial court ruled that the Appellant’s two burglary convictions and an aggravated robbery conviction were
admissible for purposes of impeachment. The Appellant challenges only the admission of the two burglary convictions
upon grounds that the probative value of the convictions is substantially outweighed by their prejudicial effect. The
Appellant concedes admissibility within the ten-year rule, as the convictions occurred within ten years between the
Appellant’s release from confinement and his arrest for the instant offense. See Tenn. R. Evid. 609(b).

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         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after reviewing 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, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). These rules are
applicable to findings of guilty predicated upon direct evidence, circumstantial evidence, or a
combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). As in the
case of direct evidence, the weight to be given 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.” Marable v. State, 313 S.W.2d
451, 457 (Tenn. 1958) (citation omitted).

         Tennessee Code Annotated section 39-14-103 (2003) provides, “[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.” The Appellant’s sufficiency
argument is hinged completely upon his assertion that the victim lacks credibility. The credible
testimony of one identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made. See State
v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). Inconsistency, inaccuracy, and omissions
in the description of a defendant by a witness who is otherwise able to positively identify the
defendant are questions for the jury to consider in determining the weight to be given the testimony.
State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). Further, although inconsistencies or
inaccuracies may make the witness less credible, the jury's verdict will not be disturbed unless the
inaccuracies or inconsistencies are so improbable or unsatisfactory as to create a reasonable doubt
of the Appellant's guilt. Id. The jury’s verdict in this case is supported by the evidence. The
positive identification testimony of Larry Hammonds, Jr. sufficiently supports the Appellant's
conviction. Though inconsistencies are apparent, Hammonds’ testimony is not so improbable or
unsatisfactory as to create a reasonable doubt of the Appellant's guilt.

         Additionally, the Appellant contends that should this court find the evidence sufficient to
conclude that he took Hammonds’ vehicle, we should conclude that “the proof was merely sufficient
to support a guilty verdict for the lesser included offense of unauthorized use of automobiles or other
vehicles (joyriding).” He maintains that the car was located less than one mile from Hammonds’
home and returned to the owner within one hour of being taken. Although the necessary element of
intent to deprive the owner of property was not proven by direct evidence at trial, circumstantial
evidence can establish such intent. See State v. Scates, 524 S.W.2d 929, 931 (Tenn. 1975).
Moreover, a “jury may infer a criminal defendant’s intent from the surrounding facts and
circumstances.” State v. Roberts, 943 S.W.2d 403, 410 (Tenn. Crim. App. 1996). Notwithstanding
the fact that the vehicle was abandoned less than one mile away from where it was taken and quickly


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recovered by its owner, a reasonable jury could conclude that the Appellant intended to deprive
Hammonds of his property regardless of the amount of time involved. See State v. James Stanley
Beckman, M2002-00401-CCA-R3-CD (Tenn. Crim. App. at Nashville, June 30, 2003); State v.
Marvin D. Brown, M2000-00388-CCA-R3-CD (Tenn. Crim. App. at Nashville, Apr. 16, 2001). The
trial court instructed the jury on the lesser-included offense of joyriding, but the jury concluded that
the Appellant was guilty of theft of property over $1,000. We find no reason to disturb the jury’s
verdict.

II. Sentencing

        Next, the Appellant challenges two aspects of his sentencing. First, he argues that the trial
court erred in imposing a sentence of eight years, the maximum for this conviction. Second, he
contends that the trial court erred in its denial of alternative sentencing.

         A. Length of Sentence

        The Appellant argues that the trial court’s imposition of enhancing factors, which resulted
in the maximum sentence of eight years, as a Range II offender, for his Class D felony conviction
violated Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).3 First, we note that this issue
is waived because it was not raised by the Appellant at the sentencing hearing. See State v. Edwin
Gomez and Jonathan S. Londono, M2002-01209-SC-R11-CD (Tenn. Apr. 15, 2005). Moreover,
our Supreme Court held in Gomez that the Sentencing Reform Act of 1989 does not violate the Sixth
Amendment guarantee of a jury trial and was not affected by the Blakely decision. Id. Accordingly,
this issue is without merit.

         B. Denial of Alternative Sentencing

       The Appellant also contends that the trial court erred by failing to grant him alternative
sentencing. Specifically, he argues that the trial court should have imposed a community corrections
sentence due to his “serious drug and alcohol addiction.” The State argues that the Appellant’s
extensive criminal history and his past uncooperativeness with sentences involving release into the
community justify the manner of sentence imposed by the trial court. We agree with the State.

        When an accused challenges the length, range, or the manner of service of a sentence, this
court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” Ashby, 823 S.W.2d at 169. When conducting a de novo review of a sentence,


         3
           The Appellant presents no challenge to his enhanced sentence under the 1989 Sentencing Act. The sentencing
range, as a Range II offender for a class D felony, is four to eight years. Tenn. Code Ann. § 40-35-112(a)(2) (2003).



                                                        -5-
this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b)
the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives;
(d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or
enhancement factors; (f) any statement that the Appellant made on his own behalf; and (g) the
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210 (2003); Ashby, 823 S.W.2d at 168. The burden of showing that the sentence is improper is
upon the appealing party. Tenn. Code Ann. § 40-35-401(d).

         The Community Corrections Act permits trial courts to sentence certain nonviolent felony
offenders, who are either not eligible for probation or not good candidates for probation, to
participate in community-based alternatives to incarceration. State v. Grigsby, 957 S.W.2d 541, 547
(Tenn. Crim. App. 1997). A community corrections sentence provides a desired degree of flexibility
that may be beneficial to the offender, yet serve legitimate societal purposes. State v. Griffith, 787
S.W.2d 340, 342 (Tenn. 1990). A sentence under the Community Corrections Act is an alternative
sentence. Grigsby, 957 S.W.2d at 544 (citing State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim.
App. 1987)). As a Range II multiple offender, the Appellant is not presumed a favorable candidate
for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). Our code provides that a trial court
should impose a sentence of confinement 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). In this case, the trial court found that the Appellant had little
potential for rehabilitation due to his extensive criminal history and his previous unwillingness to
comply with the conditions of a sentence involving release into the community.

        The presentence report indicates that the Appellant has forty-one prior convictions for felony
and misdemeanor crimes, including felony convictions for aggravated robbery, third degree burglary,
first degree burglary, as well as convictions for drug and alcohol offenses, theft, assault, disorderly
conduct, criminal trespass, and traffic offenses. The report also indicates that efforts at rehabilitation
in the past have failed, as the Appellant has previously violated probation and parole. Accordingly,
the Appellant has failed to carry his burden of demonstrating that the sentence imposed by the trial
court was improper.




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                                       CONCLUSION

       Based upon the foregoing, the judgment of conviction and resulting sentence of the
Sullivan County Criminal Court is affirmed.


                                            ___________________________________
                                            DAVID G. HAYES, JUDGE




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