         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                      Assigned on Briefs September 27, 2000 Session

                  STATE OF TENNESSEE v. STEVE A. JACKSON

                    Direct Appeal from the Criminal Court for Knox County
                           No. 61760    Mary Beth Leibowitz, Judge



                                   No. E1999-02013-CCA-R3-CD
                                          June 29, 2001

A Knox County jury convicted the defendant of aggravated burglary. For this offense the trial court
sentenced him to twelve years as a Range III, persistent offender. Through the instant appeal the
defendant challenges both the validity of his convictions and his sentence. More specifically, he
alleges that the evidence is insufficient to support the jury’s verdict of guilty; that the trial court did
not appropriately carry out its role as the thirteenth juror; that the copies of prior convictions used
to enhance his sentence were not properly certified; and that one of these prior convictions from
another state should not have been utilized in sentencing because the State failed to prove that the
offense would have been a crime in Tennessee. After reviewing the record, we find that these claims
lack merit and, therefore, affirm the lower court’s actions.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and JAMES
CURWOOD WITT, JR., J., joined.

Mark E. Stephens, District Public Defender; Paula R. Voss, Assistant District Public Defender,
Knoxville, Tennessee, for appellant, Steve A. Jackson.

Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Steve Garrett, Patti Cristil, Assistant District
Attorneys, for appellee, State of Tennessee.

                                               OPINION


                                      Factual Background
       At approximately five o’clock on the morning of April 15, 1996, the victim Takisha
Fitzgerald was preparing to take a shower. Though she had heard tapping outside, she had ignored
it. However, she subsequently “felt a presence in [her] house” and went to investigate. Upon re-
entering her bedroom, she saw the defendant, who stated, “Oh don’t worry. I’m a nice burglar. I’m
just here to rob you. Just go back to bed.” Thereafter the defendant looked toward Fitzgerald’s stereo
and asked, “What’s that?”1 then went to another part of the apartment while the victim stayed in her
bedroom. Wearing only a towel, she asked and was granted permission to dress. When the defendant
returned to the bedroom, he told the victim to lie down and touched either a button on his pants or
his zipper. The victim began protesting, and quite shortly thereafter the police arrived.
        The responding officers were Jamie Russell and Walter Ricketts. After arriving at the
complex to investigate a disturbance call concerning someone banging on apartment doors, the
officers heard a scream coming from the victim’s residence. Officer Ricketts announced that they
were the police, and the pair entered through the broken doorway. According to Officer Russell the
defendant indicated that everything was fine and twice claimed to live there. When the visibly
shaken victim emerged from the bedroom, she clarified the situation, and the defendant began telling
the police that he was “a good burglar” with no intention of hurting anyone. The defendant was
subsequently placed under arrest.
        In presenting his case, the defendant called Carmen Clemons, his girlfriend, and Tameka
Chandler, another friend. These witnesses recounted that the defendant had begun drinking alcohol
at Clemons’ birthday party on the Saturday preceding the offense, and Chandler noted that this
seemed odd since the defendant usually drank cranberry juice when others had alcohol. Clemons
also testified that the defendant typically did not drink alcohol but had done so on that particular
weekend.2 Both witnesses stated that the defendant had become intoxicated by the end of the event
early Sunday morning. Clemons added that she had also briefly seen the defendant drunk at around
1:00 a.m. on the following Monday and had not been in contact with him again until after his arrest
for the instant offense.
        Upon hearing this and additional proof, the jury convicted the defendant as charged of
aggravated burglary. As above-noted, the defendant now brings this appeal raising four issues.

                                              Sufficiency
         First the defendant alleges that the evidence presented was insufficient to support his
conviction. While acknowledging various elements of aggravated burglary were proven, the
defendant avers that the State failed to show that the defendant’s entry into the home had been for
the purpose of committing a theft.
         When an appellant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts
in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a
presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with
one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of
proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The


         1
            A gospel mu sic program was playing, an d the defens e attempts to suggest that the defendant was not interested
in the stereo but was curious about the program.

         2
             The crime occurred on a Mo nday morning.

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relevant question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom. See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence." Matthews, 805 S.W.2d at 779.
        As aforementioned, the defendant does not challenge the fact that he entered the victim’s
habitation without her consent; however, he contends that he did not have the intent to commit a
theft therein. In support of this allegation, he points to various factors such as his behaving
conspicuously by banging on multiple apartment doors prior to coming to Fitzgerald’s; not
immediately absconding with her belongings; having sisters who lived in the same apartment
complex; etc.
         Nevertheless, our examination of the evidence before us viewed in the light most favorable
to the State leads us to conclude that the defendant’s conduct fulfilled beyond a reasonable doubt all
of the elements of aggravated burglary. See Tenn. Code Ann. § 39-14-403. While the circumstances
of this offense are bizarre, the uncontroverted proof remains that the defendant broke into the
victim’s residence and told her that he was a nice burglar only there to rob her. He arguably then
asked about her stereo and proceeded to steal food from her kitchen. Furthermore, after being
surprised by the arrival of the police, the defendant again described himself as a “good burglar.”
These facts prove sufficient to support the jury’s finding the defendant guilty of aggravated burglary.
         We next turn more specifically to the defendant’s allegation that his intoxication interfered
with his ability to form the requisite intent.3 Generally, “[t]he defense of intoxication negating
specific intent is a question for the jury” to determine. State v. Givens, 631 S.W.2d 720, 721 (Tenn.
Crim. App. 1982). “[T]here must be ... evidence that the intoxication deprived the accused of the
mental capacity to form the requisite specific intent.” State v. Bowers, 744 S.W.2d 588, 590 (Tenn.
Crim. App. 1987).
        In this case there was conflicting testimony. According to Fitzgerald, the defendant had not
smelled of alcohol and had not stumbled around the apartment. Officer Russell affirmed that she had
not smelled alcohol on him and noted that the defendant had been “coherent enough to try to trick”
the police by saying that he lived in the victim’s apartment. Officer Rickett’s testimony was not quite
as clear-cut. While he also stated that the defendant had not smelled of alcohol, one of the reports
that he had completed at the time of the offense indicated that the defendant had been intoxicated.
On direct-examination, Ricketts indicated that the defendant had not appeared intoxicated but had
behaved erratically. On cross-examination, this officer stated that the defendant seemed to have been
“intoxicated on something” other than alcohol. Additionally, Clemons and Chandler testified that
the defendant had been drinking earlier that weekend. However, both stated that they had not seen
him take any drug; Clemons formed her opinion that the defendant was drunk approximately four


         3
           The defendant does not press this argument on appe al but does make refere nce to it in his brief; thus, we will
briefly addre ss it.

                                                           -3-
hours before the crime based upon having briefly seen him from across a room; and Chandler had
last seen him over twenty-four hours before the occurrence of this offense.
         As we have noted, the question of whether the defendant’s alleged intoxication negated his
ability to form the necessary intent is for the jury to decide. At the close of the proof, the jurors were
given a voluntary intoxication instruction. In the instant case, the jury weighed the conflicting
testimony on this subject and rejected this defense. Viewing the evidence in a light most favorable
to the state, the jury was justified in making this decision. Therefore, this issue lacks merit.

                                            Thirteenth Juror
         Through his second contention the defendant avers that the trial judge did not properly fulfill
her role as the thirteenth juror. Rule 33(f) of the Tennessee Rules of Criminal Procedure provides
that "[t]he trial court may grant a new trial following a verdict of guilty if it disagrees with the jury
about the weight of the evidence." Tenn. R. Crim. P. 33(f). “This portion of the Rule is the modern
equivalent to the ‘thirteenth juror rule,’ whereby the trial court must weigh the evidence and grant
a new trial if the evidence preponderates against the weight of the verdict.” State v. Blanton, 926
S.W.2d 953, 958 (Tenn. Crim. App. 1996). The Tennessee Supreme Court has held “that Rule 33(f)
imposes upon a trial court judge the mandatory duty to serve as the thirteenth juror in every criminal
case." State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Moreover, the “approval by the trial judge
of the jury's verdict as the thirteenth juror is a necessary prerequisite to the imposition of a valid
judgment.” Id. However, "Rule 33(f) does not require the trial judge to make an explicit statement
on the record." Id. "Instead, when the trial judge simply overrules a motion for new trial, an
appellate court may presume that the trial judge has served as the thirteenth juror and approved the
jury's verdict." Id.
         At the defendant’s new trial motion, the trial court went through a lengthy restatement of the
proof prior to denying the defendant relief in its role as the thirteenth juror. While the defendant
avers that the trial court did not address the weight of the State’s proof regarding the elements of the
offense, the record indicates otherwise. In fact, the trial court explicitly stated, “indeed, [the
defendant] has committed the aggravated burglary.” The record reflects the trial judge exercised her
role as the thirteenth juror. This issue has no merit.

                                             Sentencing
                                      A. Standard of Review
        "When reviewing sentencing issues ..., the appellate court shall conduct a de novo review on
the record of such issues. Such review shall be conducted with a presumption that the determinations
made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d).
"However, the presumption of correctness which accompanies the trial court's action 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
conducting our review, we must consider the defendant's potential for rehabilitation, the trial and
sentencing hearing evidence, the pre-sentence report, the sentencing principles, sentencing
alternative arguments, the nature and character of the offense, the enhancing and mitigating factors,
and the defendant's statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at
169. The defendant has the burden of demonstrating “that the sentence is improper." Id.


                                                   -4-
                       B. Improper Certification of Out of State Convictions
        In his initial challenge to the propriety of his sentence, the defendant claims that his sentence
as a Range III, persistent offender should be overturned because the sister state convictions relied
upon were not properly certified.4 To support this contention, the defendant asserts that the validity
of the out of state convictions should have been proven pursuant to Tennessee Rule of Evidence
902.5
        However, Tennessee Code Annotated § 40-35-209(b) clearly provides that at sentencing
hearings “reliable hearsay including, but not limited to, certified copies of convictions or documents,
may be admitted if the opposing party is accorded a fair opportunity to rebut any hearsay evidence
so admitted.”6 Tenn. Code Ann. § 40-35-209(b). Furthermore, Tennessee Code Annotated § 40-35-
202(a) states that “[t]he original or certified copy of the court record of any prior felony conviction,
bearing the same name as that by which the defendant is charged in the primary offense, is prima
facie evidence that the defendant named therein is the same as the defendant before the court, and
is prima facie evidence of the facts set out therein.” Tenn. Code Ann. § 40-35-202(a).
        After reviewing the record, we find proper certification present. With respect to all of the
previous offenses, the State provided multiple documents such as incident reports, information, and
sentencing forms. In addition, for each of the necessary five prior felonies, a judgment was included
bearing the stamp of Dade County Florida and the signature of a deputy clerk. While the defendant
correctly notes that every page included is not so stamped, multiple paged documents are numbered
as a specific page in a set such as “Page 1 of 4.” At least the last page of these sets is marked with
the above-described stamp. Under these circumstances the trial court correctly determined that the
prior convictions were admissible; therefore, this issue lacks merit. See State v. Jerry W. Rodgers,
No. W1999-01443-CCA-R3-CD, 2000 WL 1664263 at *3 (Tenn. Crim. App. at Jackson, July 11,
2000); State v. Delbert G. Mosher, No. 01C01-9807-CC-00320, 1999 WL 820871 at *3 (Tenn.
Crim. App. at Nashville, October 13, 1999).


                                        Prior “Fire bomb” Conviction

         4
          The requisite five prior felony convictions involved here from F lorida were for possession of cocaine;
possession of a fire bomb (in this instance a Molotov cocktail); sale of counterfeit cocaine; possession of a firearm by
a convicted felon; and ag gravated a ssault.

         5
           Subsection (1) of this rule provides that extrinsic proof of authenticity is not needed when “[a] document
bear[s] a seal purporting to be that of the State of T ennessee, the United Sta tes (or any othe r state, district,
commonwealth, territory ...), or of a p olitical subdiv ision, depa rtment, office, or agency th ereof, and a signature
purporting to be an attestation or execution.” Tenn. R. Evid. 902(1). The following subsection states that no additional
authentication is needed for
         [a] document purporting to bear the signature in the official capacity of an officer or employee of any
         entity included in paragrap h (1) having no seal, if a public officer having a seal and having official
         duties in the district or p olitical subdiv ision of the office r or emplo yee certifies und er seal that the
         signer has the official capacity and that the document is genuine.
Tenn. R. Evid. 902(2).


         6
          The defendant makes no claim that he was not afforded a fair oppo rtunity to rebut these prior convictions
though he obviously does raise the alleged objections to their admission addressed in this opinion.

                                                          -5-
        During the sentencing hearing, the defense argued that the facts of the actual crime
committed by the defendant in Florida would have been a misdemeanor rather than a felony in
Tennessee. The defendant argued that a Molotov cocktail did not fall under Tennessee Code
Annotated § 39-17-1302(1) but rather under a subsequent misdemeanor provision. On appeal, the
defendant instead asserts that the State failed to make its case because the State did not use the
elements of the relevant Florida statute to prove that the defendant’s behavior would have been a
crime in Tennessee. As the defendant has raised this issue for the first time on appeal, he has waived
the issue. See Tenn. R. App. P. 36(a).
        Nevertheless, we find that the sentencing range is appropriately applied to this defendant. Our
legislature has provided that prior out of state felony convictions may be used in classifying someone
as a multiple, persistent, or career offender. See Tenn. Code Ann. §§ 40-35-106(5), -107(5), -108(5).
The code further indicates: “[i]n the event that a felony from a jurisdiction other than Tennessee is
not a named felony in this state, the elements of the offense shall be used by the Tennessee court to
determine what classification the offense is given.” Tenn. Code Ann. § 40-35-107(5).
        According to Florida Statutes Annotated § 806.111 “[a]ny person who possesses,
manufactures, transports, or disposes of a fire bomb with intent that such firebomb be willfully and
unlawfully used to damage by fire or explosion any structure or property is guilty of a felony ....” Fla.
Stat. Ann. § 806.111(1). Thereafter, a fire bomb is defined as “a container containing flammable or
combustible liquid, or any incendiary chemical mixture or compound having a wick or similar device
capable of being ignited or other means capable of causing ignition ....” Fla. Stat. Ann.
§806.111(2)(b).
        Tennessee Code Annotated § 39-17-1302 states that “[a] person commits an offense who
intentionally or knowingly possesses, manufactures, transports, repairs or sells ... [among other
things] an explosive or an explosive weapon.” Tenn. Code Ann. § 39-17-1302(a)(1). For the
purposes of this statute, an explosive weapon is defined as “any explosive, incendiary, or poisonous
gas: (A) Bomb; (B) Grenade; (C) Rocket; (D) Mine; or (E) Shell, missile, or projectile that is
designed, made or adapted for the purpose of inflicting serious bodily injury, death or substantial
property damage.” Tenn. Code Ann. § 39-17-1301(3).
        Comparing these two crimes to one another, we find that the elements of the Tennessee
felony and the Florida crime are sufficiently close to allow use of the Florida offense to boost the
defendant’s sentence to Range III. Furthermore, we agree with the trial court’s conclusion that the
defendant’s behavior involving a Molotov cocktail would have constituted the Tennessee felony
regarding prohibited weapons as described in Tennessee Code Annotated §39-17-1302(1). Thus,
this issue also lacks merit.
                                               Conclusion
        For the foregoing reasons we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.


                                                        ____________________________________
                                                        JERRY L. SMITH, JUDGE




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