                                                                                           06/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 17, 2018

         STATE OF TENNESSEE v. TIMOTHY WAYNE TIDWELL

                  Appeal from the Circuit Court for Bedford County
                       No. 18241 Franklin L. Russell, Judge
                      ___________________________________

                           No. M2017-00642-CCA-R3-CD
                       ___________________________________


Defendant, Timothy Wayne Tidwell, was indicted by the Bedford County Grand Jury for
one count of arson. Defendant was convicted as charged by a jury and sentenced by the
trial court as a Range III offender to 15 years in the Tennessee Department of Correction.
In this appeal as of right, Defendant contends that the evidence at trial was insufficient to
support his conviction and that his sentence was excessive. Finding no error, we affirm
the judgment of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Michael J. Collins, Assistant Public
Defender, Shelbyville, Tennessee, for the appellant, Timothy Wayne Tidwell.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Robert James Carter, District Attorney General; and Mike Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION


Facts

       In June of 2015, Richard Napper moved out of his house located on Landers Street
in Shelbyville to go live with his brother. Mr. Napper’s brother agreed to pay Terry
Tidwell, Defendant’s father, $1,500 to make repairs to Mr. Napper’s house in order to get
the house ready to sell. Defendant had been assisting his father in doing the repairs.
       In the early morning hours of July 13, 2015, Mr. Napper’s brother was contacted
by the Shelbyville Fire Department and told that there had been a fire at Mr. Napper’s
house. Mr. Napper testified that the “back portion of [the house] was just gone.” Mr.
Napper testified that the house could not be repaired, and he had to hire someone to tear it
down and clear the lot. Mr. Napper testified that he did not want his house to burn down,
and he did not give anyone permission to burn it.

       On cross-examination, Mr. Napper testified that he received approximately
$100,000 from insurance. He testified that he paid the mortgage balance of $57,000 from
the insurance proceeds. He sold the lot for $5,000.

        Mr. Napper’s brother, James Napper, testified that he lived with his wife and his
brother. He testified that he was the designated attorney-in-fact in his brother Richard’s
power of attorney. James Napper hired Terry Tidwell to make repairs to Richard’s
house. He signed a contract with Mr. Tidwell for the repairs. He testified that after the
fire, the house was “too far gone” to salvage. James Napper testified that he did not give
anyone permission to set the house on fire.

       On July 13, 2015, Matt Doak, of the Shelbyville Fire Department, responded to a
fire on Landers Street in Shelbyville. He testified that the fire department was able to
suppress the fire and save most of the structure. He testified, “the fire had progressed
from the rear of the building toward the front” and that most of the damage occurred in
the rear of the building.

        Cary Webb, a special agent for the Tennessee Bureau of Investigation, was called
to investigate the fire. Agent Webb contacted Defendant in October, 2015. Agent Webb
testified that Defendant initially denied any involvement in the fire, “[b]ut we came
around to a point where he was admitting some involvement.” Agent Webb interviewed
Defendant on November 6, 2015. Agent Webb advised Defendant of his rights, and
Defendant waived his rights. Defendant told Agent Webb that he had been approached
by a woman who offered him $300 to burn down Mr. Napper’s house. He stated that “he
had poured Coleman fuel through a broken window pane in the rear door, and then
subsequently ignited that with a disposable lighter.” Agent Webb did not investigate the
scene “[b]ecause the residence had been unsecured for nearly 90 days.” He testified that
any accelerant would have evaporated by that time. Defendant gave Agent Webb a
written statement admitting his involvement. Defendant stated that he had never met
James Napper or Richard Napper. An audio recording of Defendant’s statement was
played for the jury.

       Defendant did not testify or present any evidence at trial.
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Analysis

Sufficiency of the Evidence

       Defendant contends that the evidence at trial was insufficient to sustain his
conviction. When a defendant challenges the sufficiency of the evidence, the relevant
question for this court 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,
“‘the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any 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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       This court applies the same standard of review regardless of whether the
conviction was predicated on direct or circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). “Circumstantial evidence alone is sufficient to support a
conviction, and the circumstantial evidence need not exclude every reasonable hypothesis
except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

       As it relates to the present case, a person commits arson who “knowingly damages
any structure by means of a fire or explosion” and “[w]ithout the consent of the persons
who have a possessory, proprietary or security interest therein.” T.C.A. § 39-14-
301(a)(1) .

       On appeal, Defendant contends that the evidence supports the lesser-included
offense of reckless burning instead of the conviction offense of arson. Defendant asserts
that he “did not know that the owner had not consented to the burning,” and because it
was “reasonable that he assumed that the owner consented to this burning.” The State
responds that the evidence is sufficient to support Defendant’s conviction for arson.

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        Defendant admitted to having set fire to Mr. Napper’s house. Mr. Napper testified
that he never gave anyone permission to burn down his house. Defendant asserts that
another individual, who apparently assisted in the hiring of Defendant’s father to do the
repairs to Mr. Napper’s house, “set up” Defendant to set the fire. The only evidence to
support this assertion was a portion of Defendant’s statement to Agent Webb. As the
trier of fact, the jury was free to disregard and find that portion of the statement not
credible. See State v. Jeremy Wendell Thorpe, No. M2012-02676-CCA-R3-CD, 2013
WL 5436701, at *6 (Tenn. Crim. App. Sept.27, 2013) (“The jury, as the sole arbiter of
the facts and the credibility of the witnesses, was free to accredit any portion of any
witness’s testimony as it saw fit.”) (citing State v. Allen, 69 S.W.3d 181, 189 (Tenn.
2002); Tenn. Const. art. I, § 19)). Based on the evidence at trial, any rational trier of fact
could reasonably find that Defendant committed arson. Defendant is not entitled to
relief.

Sentencing

       Defendant contends that the trial court abused its discretion in imposing his
sentence. Specifically, Defendant asserts that the maximum within range sentence of 15
years is excessive.

       It is well settled that this court reviews within range sentences and alternative
sentences imposed by the trial court under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012); State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Once the trial court has determined the
appropriate sentencing range, it “is free to select any sentence within the applicable
range.” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008) (citing T.C.A. § 40-35-210
(d)). When determining a defendant’s sentence and the appropriate combination of
sentencing alternatives, trial courts are to consider 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 the mitigating and
        enhancement factors set out in §§ 40-35-113 and 40-35-114;
        (6) Any statistical information provided by the administrative office of
        the courts as to sentencing practices for similar offenses in Tennessee;
        and
        (7) Any statement the defendant wishes to make in the defendant’s own
        behalf about sentencing.
                                            -4-
T.C.A. § 40-35-210(b). The trial court must state on the record the statutory factors it
considered and the reasons for the ordered sentence. T.C.A. § 40-35-210(e); Bise, 380
S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons for imposing a
particular sentence, however, should not negate the presumption [of reasonableness].”
Bise, 380 S.W.3d at 705-06. A trial court’s 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 709-10.

       The parties agreed that Defendant was a Range III offender. Arson is a Class C
felony. T.C.A. § 39-14-301(b)(1). The sentencing range for a Range III offender
convicted of a Class C felony is 10 to 15 years. T.C.A. § 40-35-112(c)(3). Thus,
Defendant’s 15-year sentence is within range.

        At the conclusion of the sentencing hearing, the trial court found that Defendant
had a history of previous criminal behavior. The trial court noted that Defendant’s
criminal history was “absolutely horrific, and there are a multitude of convictions” in
addition to those necessary to establish Defendant’s Range III offender status.
Defendant’s prior convictions included, “13 theft, felony theft convictions; one
facilitation of theft between 1,000 and 10,000; a simple burglary.” The trial court also
found that Defendant had failed to comply with the conditions of release “to an extreme
degree.” The trial court noted,

        I use “R”s to indicate revocations in my notes from the presentence
        reports, and I’ve got “R”s where he was revoked in, from a conviction in
        2013 on theft, on facilitation of theft in the same year. He was . . .
        revoked in 2010 on a theft between 1,000 and 10,000. So, he has a
        multitude of those.

       The trial court found that Defendant was on supervised probation in two other
counties at the time he committed the offense in this case. The trial court found that
enhancement factor six was present, because “there was a great amount of damage” to the
victim’s property, but the trial court stated that it did not afford any weight to that factor.
The trial court also determined that there were no applicable mitigating factors. The trial
court noted that Defendant’s conduct did not cause serious bodily injury, but stated,
“even assuming that mitigating factor number (1) is present, I give it no weight under
these circumstances.” Accordingly, the trial court imposed the maximum sentence in
Range III of 15 years.

      Defendant argues that the trial court’s use of “three or four enhancing factors to
enhance to the maximum sentence is . . . an abuse of discretion.” He also states in his
                                             -5-
brief that “Tennessee prisons are overcrowded,” and that “[g]iving an offender a fifteen[-
]year sentence only stretches those resources even thinner.” Defendant cites State v.
Ashby, 823 S.W.2d 166 (Tenn. 1991), in which our supreme court stated that “[t]he
imposition of sentences must accede to the reality that the state does not have available
sufficient prison facilities to accommodate all persons who, according to traditional
concepts of punishment, would be incarcerated. Id. at 168. The court noted in Ashby that
the legislature, in response to overcrowding, had created a presumption in favor of
alternative sentencing for especially mitigated and standard offenders. Id. at 168-169
(citing T.C.A. § 40-35-102(5)). However, as noted, Defendant is a Range III persistent
offender.

       We conclude that the trial court imposed a within-range sentence after considering
the purposes and principles of sentencing. Accordingly, we conclude the trial court did
not abuse its discretion, and we affirm the sentence.

                                    CONCLUSION

      Based on the foregoing analysis, we affirm the judgment of the trial court.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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