        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 7, 2016

           STATE OF TENNESSEE v. CHARLES BRADLEY MIMS

                  Appeal from the Circuit Court for Chester County
                   No. 15-CR-10       Roy B. Morgan, Jr., Judge


                No. W2015-02072-CCA-R3-CD - Filed July 19, 2016


A Chester County jury convicted the Defendant of theft of property valued over $500,
and the trial court sentenced him as a Career Offender to six years of incarceration. On
appeal, the Defendant contends that the evidence presented at trial is insufficient to
sustain his conviction and that the trial court erred when it sentenced him. After review,
we affirm the trial court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

George Morton Googe, District Public Defender; Kandi Kelly Collins, Assistant District
Public Defender, Jackson, Tennessee, for the appellant, Charles Bradley Mims.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Jerry Woodall, District Attorney General; and Jody S. Pickens, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

                                         A. Trial



       This case arises from the theft of a livestock trailer on Friday, September 12, 2014.
For this offense, a Chester County grand jury indicted the Defendant for theft of property
valued over $1,000. At the Defendant‟s trial on these charges, the parties presented the
following evidence: Clarence Wells testified that he owned a farm on Wells Road and
that he also owned trailers to transport his cattle. On September 12, 2014, he went to his
farm at around 8:00 a.m. He left at some point and, when he returned at 4:00 p.m. with
his wife, his fourteen-foot cattle trailer was missing. He said that the trailer was painted
with old yellow primer but had a good set of eight-ply tires. Inside the trailer, a board
had been nailed over a portion of the floor.

        Mr. Wells said that he called his brother and asked about the whereabouts of the
trailer. His brother said he had not seen the trailer when he went to the farm at 12:00
p.m. that day and thought that it was in Mr. Wells‟s possession. Mr. Wells said that he
called the Sheriff‟s Department to make a report. Mr. Wells said that he had owned the
trailer for approximately eighteen months and that he had purchased it for $1,000.

        Mr. Wells testified that he went to an establishment called Darty Trailer the day
after his trailer was stolen to see if anyone had attempted to sell his trailer to them. When
he arrived, he spoke with the owner, Mr. Darty, who informed him that he received the
trailer at 11:00 a.m. on the Friday that it was stolen. Mr. Darty told him that he had sold
Mr. Wells‟s cattle trailer for $2,500 later that same day. Mr. Darty assisted Mr. Wells in
getting the trailer returned. Mr. Wells asked Mr. Darty who had sold the trailer to him,
and Mr. Darty gave only the name “Brad.”

        During cross-examination, Mr. Wells testified that he did not have to repurchase
his trailer but that it cost him his time and gas expense to get the trailer returned. He said
that, when the trailer was returned, the lights and some of the wires were pulled out from
under the trailer, but he was able to repair the trailer himself. Mr. Wells said that he still
owned the trailer at the time of trial and that it was working properly.

        Charles Darty testified that he owned Darty Trailer Sales and that he had been in
the trailer business for almost forty years. Mr. Darty said that he knew the Defendant,
having had brief conversations with him. The Defendant discussed with Mr. Darty that
he wanted to trade for a trailer. The Defendant showed him a trailer that Mr. Darty
thought was “quite junky,” which Mr. Darty later learned belonged to Mr. Wells. The
Defendant came to Mr. Darty‟s trailer store the afternoon of September 12, 2014, offering
to sell the trailer that he had in his possession. Mr. Darty said he gave the Defendant
$665 for the trailer and that he planned to sell the trailer for profit.

        Mr. Darty testified that Mr. Wells came to Darty Trailer Sales on the Saturday
after Mr. Darty purchased the trailer from the Defendant. Mr. Wells described the stolen
trailer, and Mr. Darty realized that he had sold the trailer that morning for $895. Mr.
Darty said that he helped Mr. Wells retrieve the trailer and returned the money to his
customer. Mr. Darty said he called the Defendant, who maintained that the trailer

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belonged to him at the time he sold it. Mr. Darty said that he identified the Defendant
from a photographic lineup that police showed to him.

        During cross-examination, Mr. Darty testified that the Defendant had been to
Darty Trailers a couple of times before the day he came to sell the trailer. On the day that
he came to sell the trailer, the Defendant arrived “after lunch.” He said he did not require
the Defendant to show proof of ownership because “on a trailer that age, there probably
[was] no proof of ownership.” He said the State of Tennessee did not require a title and
tag for a trailer, old or new.

        Jason Crouse, an investigator with the Chester County Sheriff‟s Department,
testified that he investigated the theft in this case. He said that the theft report was made
on September 12, 2014, and that he did not speak with Mr. Wells until after Mr. Wells
had recovered his trailer. Investigator Crouse said that he learned that the Defendant may
have taken the trailer, so he showed Mr. Darty a photographic lineup on September 15,
2014, that included the Defendant‟s picture. Mr. Darty identified the Defendant as the
man who had sold him the trailer.

        The Defendant called as a witness Dennis Maness, a deputy with the Chester
County Sheriff‟s Department, who testified that he took Mr. Wells‟s report of a stolen
trailer. Mr. Wells had told him that the stolen trailer was valued at $4,500. During cross-
examination, Deputy Maness said that Mr. Wells was “pretty mad that somebody stole
his trailer” at the time that he made his report. Deputy Maness said that he did not write
the report of this incident until the day after Mr. Wells reported it. He used his notes to
write his report.

      Based upon this evidence, the jury convicted the Defendant of theft of property
valued over $500 but less than $1,000.

                                      B. Sentencing

       At the Defendant‟s sentencing hearing, the parties agreed that the Defendant
qualified as a Career Offender and that his sentence should be six years to be served at
60%. The State offered and the trial court entered the presentence report into evidence.
The State noted that the Defendant was on parole for theft offenses involving trailers at
the time he stole the trailer in this case. The State noted the Defendant‟s lengthy criminal
history. The State asked the trial court to sentence the Defendant to six years of
incarceration, to be served consecutively to the sentence he would receive for violating
his parole.


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       The Defendant contended that he had three years remaining on the sentence for
which he was on parole at the time he committed the present offense. He noted that his
offense did not cause or threaten any serious bodily injury and that he had never
committed a violent offense. The trial court interjected that the Defendant had been
convicted of ten counts of wanton endangerment, and first degree fleeing and abating
police in Fulton, Kentucky. The Defendant asked the trial court to order split
confinement.

       The trial court found:

       [The Defendant] has accomplished two things for sure. The jury has found
       him guilty, but he‟s labeled himself a thief. A number of self-convictions
       and he‟s reached the level of career offender. They call it career offender
       for a reason. I didn‟t make it up. That‟s what it is in the books. Career
       offender.

               Under the circumstances as agreed a 6-year sentence is the sentence
       to impose and the release eligibility is at 60 percent, [the Defendant].
       That‟s how much of a sentence you have to serve if you‟re serving sentence
       before you‟re eligible for release, but it‟s not an automatic release time. So
       that is the sentence. Sixty percent career offender on a 6-year sentence.

              You were paroled out on the Chester County case. So you‟ve been
       in and out of jail. You even had that 10-year sentence you paroled out on
       and it‟s mandated by law since this offense occurred while you were on
       parole that it be consecutive to the Chester County case number, which the
       State alluded to.

               There is no restitution due and you‟re not to have any contact
       whatsoever with the witnesses or victims in the case. Based upon your
       entire record there is no way the Court could consider anything other than
       you serve your sentence.


It is from this judgment that the Defendant now appeals.


                                       II. Analysis

       On appeal, the Defendant contends that the evidence presented at trial is
insufficient to sustain his conviction and that the trial court erred when it sentenced him.
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                               A. Sufficiency of Evidence

       The Defendant contends that the evidence is insufficient to sustain his conviction
because Mr. Darty was the only person to identify him, and Mr. Darty‟s testimony was
inconsistent. The State counters that credibility issues are within the domain of the jury
and cannot be revisited on appeal. 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 rule 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). 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) (citations omitted).

        “The standard of 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); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of 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); Liakas, 286 S.W.2d at 859. “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);
State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). 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
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      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. 1996) (citing Carroll v. State, 370 S.W.2d
523 (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
inferences which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing
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).

        To support Defendant‟s conviction for theft of property valued at more than $500
but less than $1,000, the State was required to prove that Defendant violated Tennessee
Code Annotated section 39-14-109, which states: “[a] person commits theft of property
if, with intent to deprive the owner of property, the person knowingly obtains or exercises
control over property without the owner‟s effective consent.” T.C.A. § 39-14-103(a)
(2014). Theft of property valued at more than $500 but less than $1000 is a Class E
felony. T.C.A. § 39-14-105(a)(2) (2014).

       In the case under submission, the Defendant contends that the proof of his identity
as the perpetrator was insufficient to support his conviction. The identity of the
perpetrator is “an essential element of any crime.” State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006). Identity may be established with circumstantial evidence alone, and the
“jury decides the weight to be given to circumstantial evidence, and [t]he inferences to be
drawn from such evidence . . . .” Id. (internal quotation marks omitted). The question of
identity is a question of fact left to the trier of fact to resolve. State v. Crawford, 635
S.W.2d 704, 705 (Tenn. Crim. App. 1982). “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.” State v. Radley, 29
S.W.3d 532, 537 (Tenn. Crim. App. 1999).

       We conclude that the evidence of the Defendant‟s identity is sufficient to support
his conviction for theft. Mr. Wells noticed that his trailer had been taken during the day
on Friday, September 12, 2014. Prior to that day, Mr. Darty said that he had spoken with
the Defendant on several occasions. On September 12, 2014, the Defendant came to him
with a used trailer that the Defendant wanted to sell. Mr. Darty gave the Defendant $665
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for the trailer. He positively identified the Defendant from a photographic lineup and in
court. Mr. Darty had written down the Defendant‟s name as “Brad” and his address at
the time of the transaction. The Defendant‟s possession of the trailer shortly after it was
taken, Mr. Darty‟s recognition of him, and Mr. Darty‟s writing of the name “Brad,”
support the Defendant‟s identity as the perpetrator of this offense. The jury as the trier of
fact resolved any inconsistent testimony by its verdict. The Defendant is not entitled to
relief on this issue.

                                      B. Sentencing

       The Defendant does not challenge his status as a Career Offender or the length of
his sentence, but he contends that the trial court erred when it sentenced him to a term of
confinement rather than an alternative sentence because it failed to properly articulate and
weigh the enhancement and mitigating factors. The State counters that the record
supports the trial court‟s conclusion that the Defendant was a Career Offender and did not
deserve an alternative sentence. We agree with the State.

       The parties in this case agreed that the Defendant was a Career Offender and that
the length of his sentence should be six years and should run consecutively to his
sentence in a theft case for which he was on parole at the time that he committed this
theft.

       This Court reviews challenges to the manner of service of a sentence within the
appropriate sentence range “under an abuse of discretion standard with a „presumption of
reasonableness.‟” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel‟s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. § 40-35-103 (2014), -210 (2014); State
v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn.
Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“„subserve the ends of justice and the best interest of both the public and the defendant.‟”
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State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant‟s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant to incarceration when:

       (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014).

        The record reflects that the trial court considered all the appropriate principles and
purposes of sentencing. In denying the Defendant‟s request for alternative sentencing,
the court relied heavily upon the Defendant‟s previous criminal convictions, emphasizing
that the Legislature had termed it “Career Offender” for a reason. The record also
supports that confinement was necessary to protect society from the Defendant‟s criminal
conduct because the Defendant had continued engaging in criminal conduct for the
majority of his life. See T.C.A. § 40-35-103(1)(A). Likewise, the record reflects that the
Defendant had received the benefit of parole, and was in fact on parole for a theft of a
trailer when he stole the trailer in this case. See T.C.A. § 40-35-103(1)(C). Although the
Defendant was eligible for alternative sentencing, his previous convictions resulted in his
unfavorable candidacy for alternative sentencing. See T.C.A. § 40-35-102(6)(A) (2014)
(stating that “a defendant who is being sentenced for a third or subsequent felony
conviction involving separate periods of incarceration or supervision shall not be
considered a favorable candidate for alternative sentencing”). The trial court did not
abuse its discretion by denying his request for alternative sentencing, and the Defendant
is not entitled to relief.

                                      III. Conclusion


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        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‟s judgment.


                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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