       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JULY SESSION, 1997


STATE OF TENNESSEE,    )      C.C.A. NO. 02C01-9704-CC-00132
                       )
    Appellee,          )
                       )
                       )      CARROLL COUNTY
                                                          FILED
VS.                    )                          August 27, 1997
                       )      HON. C. CREED MCGINLEY
MAURICE PIERRE TEAGUE, )      JUDGE              Cecil Crowson, Jr.
                       )                                  Appellate C ourt Clerk

    Appellant.         )      (Aggravated Burglary)


            ON APPEAL FROM THE JUDGMENT OF THE
             CIRCUIT COURT OF CARROLL COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

STEPHEN D. JACKSON            JOHN KNOX W ALKUP
161 Court Square              Attorney General and Reporter
P.O. Box 471
Huntingdon, TN 38344          KENNETH W . RUCKER
                              Assistant Attorney General
                              Cordell Hull Building, 2nd Floor
                              425 5th Avenue North
                              Nashville, TN 37243-0493

                              ROBERT RADFORD
                              District Attorney General

                              ELEANOR CAHILL
                              Assistant District Attorney General
                              P.O. Box 686
                              Huntingdon, TN 38344



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                         OPINION

          This is an appeal as of right pursuant to Rule 3, Tennessee Rules of

Appellate Procedure. The Defendant, Maurice Pierre Teague, was convicted by

a Carroll County jury of aggravated burglary 1 . The trial court sentenced him as

a Range I offender to six years in the Department of Correction. The Defendant

appeals both his conviction and his sentence and raises the following issues in

this appeal: (1) That the evidence was insufficient to convict the Defendant of

aggravated burglary when the jury acquitted him of aggravated assault; (2) that

the trial court erred in applying certain sentence enhancement factors; and (3)

that the indictment was fatally flawed. W e affirm the judgment of the trial court.



          The State presented the following proof at trial. The tumultuous events

leading to the Defendant’s conviction revolve around the home of Susan

Hollowell in Huntingdon. Ms. Hollowell testified that, in the early morning hours

of Decem ber 13, 1995, she was at her home, a public housing facility into which

she had just moved. Also present were her children; her two-year-old daughter

and her three-month-old son. Randy Cary knocked on the door and she let him

in and they talked for a while. Ms. Hollowell had known Cary for a number of

years and had a personal relationship with him in the past. An hour or so later,

someone knocked at the door. Cary told Ms. Hollowell not to answer it because

it was the Defendant and he did not want to talk to him. Approximately an hour

later, about 3:00 a.m., Steven Gibbs, Billy Ted Little, and a stranger arrived. Ms.

Hollowell and Gibbs had more recently been seeing each other in a personal



1
    Tenn . Code A nn. § 39-14-40 3(a).

                                            -2-
relationship. Gibbs wanted to come in and lie down because he and the others

had been drinking at a bar in Jackson, Tennessee. She let the three in and they

and Cary talked. The stranger left shortly after they arrived. Gibbs smelled like

he had been drinking and Little appeared obviously drunk. They argued because

Little wanted to leave. Gibbs took Little to a pay telephone because Ms. Hollowell

did not have a phone. They returned and Cary and Little exchanged words.

Little started a fight with Cary. They struggled on the floor until Gibbs broke them

up. Cary left the house.



      A few minutes later, Cary returned with his brother, Terry Cary, the

Defendant, David Myles and a fifth person (Marshall Hampton). Gibbs and Little

hid in the bathroom after the five called into the house for them to come out.

Ms. Hollowell talked with the men through the window, but refused to let them in.

She turned and walked to the back of the house when she heard a front window

break. She saw Randy Cary with a two-by-four piece of lumber. Cary also pulled

a gun. At that point, the Defendant stated: “Pop a cap in her.” The men cam e in

the house and Ms. Hollowell headed to the back bedroom with the children. Cary

handed the gun to the Defendant. The five were yelling at Gibbs and Little in the

bathroom to come out. The men broke open the door with the two-by-four and

began fighting Gibbs and Little. Little had a whiskey bottle. Ms. Hollowell did not

see if the Defendant still had the gun during the fight in the house. The m en left

and she helped Gibbs and Little, who were injured.



      Steven Gibbs also testified at trial. He and Little went to Ms. Hollowell’s

house to visit because he had been dating her. He did not know Cary before the

incident. Little was drunk and got into an argument with Cary. They scuffled and

                                        -3-
he broke up the fight. Cary left. Gibbs helped Little clean up his bloodied mouth

and Ms. Hollowell asked them to leave. W hen they tried to leave, they saw Cary

and the other men outside. Gibbs and Little went to the bathroom. Gibbs heard

the window break and Ms. Hollowell talking to them. He heard someone say

“shoot her” or “shoot the bitch.” Ms. Hollowell let them in and the group began

beating on the bathroom door.



       Gibbs testified that he grabbed a whiskey bottle and that Little had a large

“Rambo” knife. After the group broke down the bathroom door, Little saw the gun

and laid down the knife. Cary hit Gibbs with the two-by-four while he was on the

floor. Gibbs managed to get up, but was hit from behind and others took turns

kicking him. Teague took the gun, pointed it at Gibbs head, and said “How’s it

feel to be on the ground, white boy?” Gibbs’ eye, arm and knee were injured in

the fight.



       On cross-examination, Gibbs admitted that he was dating Ms. Hollowell

while he was separated from his wife, but said that they were reunited at the time

of trial. He stated that someone broke open the door to his house sometime after

the incident in question. He denied an allegation by Cary that he and Little took

Cary’s money during the first scuffle. Gibbs also testified that he never saw a gun

when the group was outside the house and could not positively identify the voice

saying “shoot the bitch” as the Defendant’s. Gibbs saw the Defendant with a gun

after the men broke open the bathroom door.        On redirect, Gibbs stated that

Little had money that night because Gibbs was taking him to court the next day

and he had the money to pay a fine.




                                        -4-
       Officer Johnny Ray Hill of the Huntingdon Police Department testified that

he interviewed the Defendant. The Defendant admitted hitting Little and that,

during the brawl, someone dropped a gun and he picked it up and placed it in his

waistband. The Defendant stated that he was called to come over to the house

because someone took money and they thought Gibbs and Little had cocaine.



       The Defendant testified in his own behalf.           He stated that Marshall

Hampton called him and said Cary had been assaulted and robbed and to meet

at Hampton’s house. Hampton’s house was just down the street from Ms.

Hollowell’s house. The Defendant denied that he had any intention to fight, that

he had a gun, that he said “Pop a cap in her,” or that he broke the window of the

house. He testified that he followed Cary in the house and that Cary was telling

Gibbs and Little to return the money. He stated that he first obtained the gun

after it was dropped during the scuffle. He put the gun in his pants. He admitted

hitting Little after Little first hit him in the face. He also admitted to pulling Gibbs

off Cary.



       On cross-examination, the Defendant denied pointing a gun at Gibbs, but

admitted that Gibbs got into a corner and said “Please don’t kill me.”             The

Defendant denied going into the house to beat up the men, but admitted going

in to get the money back and “so that he [Cary] wouldn’t be jumped on again.”

He denied that the group had the intent to fight. The Defendant denied that

anyone pointed a gun at Ms. Hollowell when they were standing outside the

house.




                                          -5-
      Randy Cary testified that he went to Hollowell’s house to visit. He knew

she was awake because he talked to her boyfriend, Daniel Alton, after he saw

him leaving Hollowell’s house. He stated that he had dozed off in a recliner when

Gibbs, Little and a stranger showed up.        They exchanged words, left, and

returned and “jumped” him. They took some money from his jacket pocket and

a house key.    Cary left the house and organized the group, including the

Defendant. They went to Hollowell’s house. Cary admitted to carrying a gun at

that time. He denied that the Defendant possessed a gun. Cary testified that he

had no intention to fight, but he wanted to get his money back. He stated that he

took his gun out of his jacket pocket and loaded one bullet and David Myles said

“Pop a cap in her.” Ms. Hollowell saw the gun at that point. He testified that the

gun was lost during the fight and that David Myles returned it to him.



      The Defendant was charged with one count of aggravated burglary and

three counts of aggravated assault. The jury acquitted the Defendant on each

count of aggravated assault, but convicted him of aggravated burglary. The

Defendant now appeals his conviction and sentence.



      W e first address the Defendant’s third issue, that the indictment was fatally

flawed. The indictment charging the Defendant with aggravated burglary in this

case is as follows:

      That RANDY L. CARY, TERRY RAY CARY, DAVID EARLE MYLES,
      MAURICE PIERRE TEAGUE and MARSHALL HAMPTON, heretofore,
      ON OR ABO UT THE 13TH DAY OF DECEMBER, 1995, before the
      finding of this indictment, in the County and State aforesaid, did
      intentionally or knowingly enter the habitation of SUSAN HOLLOW ELL,
      109 DREW COURT, HUNTINGDON, CARROLL COUNTY,
      TENNESSEE without the owner’s effective consent, with intent to
      commit a felony, thereby committing the offense of AGGRAVATED


                                         -6-
      BURGLARY, in violation of T.C.A. 39-14-403(a), against the peace and
      dignity of the State of Tennessee.


(emphasis added).     The Defendant asserts that the indictment is defective

because it does not specify the felony intended to be committed.



      An indictment or presentment must provide notice of the offense charged,

an adequate basis for the entry of a proper judgm ent, and suitable protection

against double jeopardy. State v. Trusty, 919 S.W .2d 305, 310 (Tenn. 1996);

State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 1991); State v. Lindsay, 637 S.W .2d

886, 890 (Tenn. Crim. App. 1982).      The indictment “must state the facts in

ordinary and concise language in a m anner that would enable a person of

common understanding to know what is intended, and with a degree of certainty

which would enable the court upon conviction, to pronounce the proper

judgment.”    W arden v. State, 214 Tenn. 391, 381 S.W .2d 244, 245 (1964);

Tenn. Code Ann. § 40-13-202.



      A lawful accusation is an essential jurisdictional element, thus, a

prosecution cannot proceed without an indictment that sufficiently informs the

accused of the essential elements of the offense. State v. Perkinson, 867 S.W .2d

1, 5 (Tenn. Crim. App. 1992); State v.Morgan, 598 S.W.2d 796, 797 (Tenn. Crim.

App. 1979).   A judgment based on an indictment that does not allege all the

essential elements of the offense is a nullity. W arden v. State, 381 S.W .2d at

245; McCracken v. State, 489 S.W .2d 48, 53 (Tenn. Crim. App. 1972).



      The State argues that the Defendant has waived consideration of the issue

on appeal because he did not raise the issue prior to trial. Rule 12(b)(2) of the

                                       -7-
Tennessee Rules of Criminal Procedure provides that “[d]efenses and objections

based on defects in the indictment . . . other than that it fails . . . to charge an

offense” must be raised in a pretrial m otion.       Tenn. R. Crim. P. 12(b)(2).

Furthermore, failure to raise defenses and objections pretrial constitutes a waiver.

Tenn. R. Crim. P. 12(f). W e note the waiver rule does not apply when an

indictment fails to charge an essential element of an offense because no offense

has been charged. State v. Perkinson, 867 S.W .2d 1, 5-6 (Tenn. Crim. App.

1992).



       In the case at bar, the Defendant has not alleged that the indictment fails

to charge an offense. Rather, he claims that the indictment has failed to describe

the offense with the “degree of certainty” required and therefore the indictment

is void.   Aggravated burglary is burglary of a habitation as defined in sections

39-14-401 and 39-14-402. Tenn. Code Ann. § 39-14-403(a). “ A person commits

burglary who, without the effective consent of the property owner: (1) Enters a

building other than a habitation (or any portion thereof) not open to the public,

with intent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)

(emphasis added). The Defendant cites State v. Haynes, 720 S.W .2d 76 (Tenn.

Crim. App. 1986), quoting Hooks v. State, 289 S.W. 529, 529 (Tenn. 1926),

which states that an indictment for burglary “must set out and define the felony

intended to be committed.” Hooks, 289 S.W . at 529.



       The Defendant has first raised the issue in his appeal. Because he failed

to raise the issue pretrial as required by Rule 12(b), this issue has been waived.

Moreover, the Defendant could have, but did not file a motion for a bill of

particulars pursuant to Rule 7(c) of the Rules of Criminal Procedure to clarify the

                                        -8-
offense with which he was charged. See State v. Joyner, 759 S.W.2d 422, 424-

25 (Tenn. Crim. App. 1987). Instead, he clearly proceeded to trial with a defense

that he had no intent to commit any of the assaults when he arrived at the house.

W e believe the Defendant has waived any consideration by this Court of this

issue.



         The Defendant also challenges the sufficiency of the evidence convicting

him of aggravated burglary. He contends that because he was acquitted of all

aggravated assault charges, the burglary conviction cannot stand because the

assaults were the underlying felonies comprising an element of the offense of

burglary.



         W hen an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, 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). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).




         A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

                                         -9-
view of the evidence and all inferences therefrom . Cabbage, 571 S.W .2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.



      W e first address the contention that, because the jury acquitted the

Defendant of all aggravated assault charges, the evidence to convict for

aggravated burglary is insufficient. The Defendant challenges the sufficiency of

proof of the element that he entered a habitation without consent “with intent to

commit a felony.” Tenn. Code Ann. § 39-14-402(a)(1). The crime of burglary is

com plete and has been committed when an entry has been made without

consent and with the intent to commit a felony once inside. State v. Lindsay, 637

S.W.2d 886, 889 (Tenn. Crim. App. 1982). The eventual consummation of the

intended crime is not required to support a conviction for aggravated burglary.

See Petree v. State, 530 S.W .2d 90, 92 (Tenn. Crim. App. 1975).

      The intent requirement is general in nature and there is no need to
      prove that the intruder succeeded in carrying out the intent for which
      the structure was broken into. Therefore, if one breaks into the dwelling
      of another with the intent to commit murder or any other felony he is
      guilty of burglary even if he leaves without finding his intended victim or
      without having committed any felony in the dwelling.

Id. (quoting Duchac v. State, 505 S.W .2d 237, 239-40 (Tenn. 1973)(citations

omitted)). Thus, it is of no consequence that the Defendant in the case sub

judice was acquitted of the actual aggravated assaults.




                                        -10-
      The Defendant also makes a general argument that the proof was

insufficient to show an intent on his part to commit an assault when he entered

Ms. Hollowell’s house. He highlights the facts that he and Randy Cary both

testified that they went to the house only to get Cary’s money. He notes that

Cary testified that no assaults would have occurred if Gibbs and Little had simply

returned the money. Yet, we are mindful that the intent to commit a felony may

be proved by circumstantial evidence. Hall v. State, 490 S.W .2d 495, 496 (Tenn.

1973); State v. Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994).



      On appeal we must consider the evidence in the light most favorable to the

State. Obviously the jury rejected the Defendant’s proffered reason for entering

Ms. Hollowell’s house. There is evidence in the record that the Defendant joined

a group of men organized by Randy Cary after he got into a fight with Billy Ted

Little. There is evidence that Cary was angry with both Gibbs and Little. The

group of men arrived with Cary holding a two-by-four board. There is also

evidence that Cary had a handgun and that the Defendant stated: “Pop a cap in

her.” Both Ms.Hollowell and Gibbs testified that the crowd outside was yelling for

the two men to come outside. None of the State’s witnesses testified that Cary

or the others were at the house to get Cary’s money back.           There is also

evidence that Cary sm ashed a window and that, once inside the house, the group

of men hit and kicked Gibbs and Little.



      In considering the evidence in the record, we conclude that the jury could

have found beyond a reasonable doubt that the Defendant entered Ms.

Hollowell’s house with the intent to exact retribution for Cary by assaulting Gibbs

and Little.   W e also note that the trial judge charged the jury with criminal

                                       -11-
responsibility for the conduct of another and the lesser offense of facilitation of

a felony. Tenn. Code Ann. §§ 39-11-402; 39-11-403. The jury could have

convicted of the lesser offense, but chose to convict the Defendant for the greater

offense. Furthermore, the jury could have convicted the Defendant based on

criminal responsibility for the conduct of another. This would only require that the

Defendant acted “with intent to promote or assist the commission of the offense.”

Tenn. Code Ann. § 39-11-402.          The jury could reasonably infer that the

Defendant acted with the intent to assist Cary with entering the house to assault

the victims. In any event, we can only speculate regarding the theory upon which

the jury relied. In either case, the evidence was sufficient to support a finding of

guilt. This issue is without merit.



      Finally, the Defendant argues that the trial court imposed an excessive

sentence by misapplying two sentence enhancement factors. 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). This presumption is "conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant

facts and circum stances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



      In conducting a de novo review of a sentence, 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 enhancem ent factors; (f) any statement

                                        -12-
that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



      The Defendant’s sentencing hearing was conducted on October 9, 1996.

His presentence report indicates that, at the time of sentencing, he was twenty-

four years old and single. He dropped out of high school in the eleventh grade.

It reflects that the Defendant had nearly thirty misdemeanor convictions as an

adult and more as a juvenile. He denied regular alcohol or drug abuse, yet some

of his convictions were for possession of drugs. The Defendant reported a

sporadic employment history. He had one uncle living in McKenzie and a four-

year-old daughter in Trenton.



      At the sentencing hearing, the State proposed six enhancement factors of

which the trial court found five to be applicable. Those applied were that (1) The

defendant has a previous history of criminal convictions; (8) The defendant has

a previous history of unwillingness to comply with the conditions of a sentence

involving release in the community; (9) The defendant possessed or employed

a firearm during the commission of the offense; (10) The defendant had no

                                        -13-
hesitation about committing a crime when the risk to human life was high; and

(13)(c) The felony was committed while the defendant was on probation. Tenn.

Code Ann. § 40-35-114(1),(8),(9),(10),(13)(c). The trial court considered and

rejected the application of any mitigating factors.



      The trial court also evaluated the Defendant’s amenability to alternative

sentencing pursuant to Tennessee Code Annotated section 40-35-102. The trial

court refused alternative sentencing based on the Defendant’s past criminal

history, including a disrespect for the law manifested in convictions for failure to

appear and escape. Aggravated burglary is a Class C felony and the sentence

range a Range I offender is three to six years. Tenn. Code Ann. §§ 39-14-

403(b); 40-35-101. The trial court sentenced the Defendant to the maximum in

the range of six years in the Department of Correction.



      The Defendant argues that the trial court erred by applying enhancement

factors (9), that the Defendant possessed or employed a firearm during the

commission of the offense and (10) that the Defendant had no hesitation about

committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-

35-114(9),(10). We agree with the Defendant’s contention that the trial court

misapplied enhancement factor (9), but we do not reach our conclusion based on

the Defendant’s reasoning.     He argues that, because he was acquitted of the

aggravated assaults, the use of a weapon cannot be used to enhance the

burglary conviction. The State counters that two of the aggravated assault

charges were based on serious bodily injury rather than use of a weapon.




                                        -14-
      However, a careful review of the record reveals that there is simply no

evidence that the Defendant possessed the gun during the perpetration of the

aggravated burglary. Ms. Hollowell testified that Cary handed the gun to the

Defendant after they entered the house.         Gibbs testified that he saw the

Defendant with a gun when the group broke down the bathroom door. The

Defendant denied having a gun until he picked it up during the scuffle. Cary

testified that he had possession of the gun in his pants when the group entered

the house. As we have previously stated, the crime of burglary is complete and

has been committed when an entry has been m ade without consent and with the

intent to commit a felony once inside. Lindsay, 637 S.W .2d at 889.           Thus,

because the record is devoid of evidence that the Defendant possessed or

employed a weapon while effecting the entry into Ms. Hollowell’s home, the

application of factor (9) was error. We do not believe the proof sufficiently links

the gun to the Defendant to allow enhancement based on this factor.             We

conclude, however, that the error was harmless.



      Next, the Defendant contends that the trial court misapplied enhancement

factor (10), that he committed a crime when the risk to human life was high. He

argues that this was an element of the aggravated assaults of which he was

acquitted, therefore, the trial court could not apply it to the aggravated burglary.

W e disagree. See State v. Jones, 883 S.W .2d 597, 603 (Tenn. 1994). This

Court has held that a burglary conviction may be enhanced using factor (10)

when the circumstances create a risk to human life.         See State v. John L.

Goodwin, III, C.C.A. No. 01C01-9601-CR-00013, Sumner County (Tenn. Crim.

App., Nashville, Jul. 23, 1997); State v. Jimm y Ray Potter, C.C.A. No. 01C01-

9301-CC-00021, Fentress County (Tenn. Crim. App., Nashville, Mar. 17, 1994);

                                        -15-
cf. State v. Avery, 818 S.W .2d 365, 369 (Tenn. Crim. App. 1991). Here, the

Defendant was part of a group of men who brandished weapons, smashed in a

window, and threatened to shoot a woman, all while she was visible through the

window holding her three-month-old-son. The Defendant knew that the men they

sought were in the home and an entry would likely result in a confrontation. This,

we feel, is sufficient proof to support the application of enhancem ent factor (10).



      Even though we conclude that the trial court misapplied one enhancement

factor, we believe the remaining enhancement factors justify the sentence of six

years in the Departm ent of Correction.



      The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                        -16-
