            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                              AT KNOXVILLE                         September 9, 1999

                                                                   Cecil Crowson, Jr.
                            JULY 1999 SESSION                      Appellate C ourt
                                                                       Clerk



STATE OF TENNESSEE,          *     C.C.A. # 03C01-9811-CR-00401

      Appellee,              *     SULLIVAN COUNTY

VS.                          *     Hon. Phyllis H. Miller, Judge

KYLE ROBERT BALL,            *     (Aggravated Burglary and

      Appellant.             *     Theft Under $500.00)




For Appellant:                     For Appellee:

Julie A. Rice, Attorney            Paul G. Summers
P.O. Box 426                       Attorney General and Reporter
Knoxville, TN 37901-0426
(on appeal)                        Marvin S. Blair, Jr.
                                   Assistant Attorney General
Richard A. Tate                    Criminal Justice Division
Assistant Public Defender          425 Fifth Avenue North
Second Judicial District           Nashville, TN 37243-0493
P.O. Box 889
Blountville, TN 37617              Barry P. Staubus
(at trial)                         Assistant District Attorney General
                                   P.O. Box 526
                                   Blountville, TN 37617




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The defendant, Robert Kyle Ball, was convicted of aggravated burglary

and one count of theft under $500.00. The trial court imposed a Range II sentence

of ten years on the aggravated burglary and eleven months and twenty-nine days for

the misdemeanor theft. Fines imposed totaled $2,000.00. The sentences are to be

served consecutively to each other and consecutive to a prior sentence for which

parole had been revoked.



               In this appeal of right, the defendant challenges the sufficiency of the

evidence and contends that the sentence is excessive. We affirm the judgment of

the trial court.



               On the evening of July 4, 1997, there was a break-in at the Kingsport

apartment of the victim, Dexter Carl Morelock, Jr., during which an AMT Mark III .30

caliber carbine pistol, a reloading die, and two boxes of .30 caliber ammunition were

stolen from a bedroom closet. Earlier that afternoon, between 6:00 and 6:30 P.M.,

the defendant, who "was drinking pretty heavily," stopped as he drove his vehicle by

the apartment of the victim. The victim, who was standing in the front yard, had just

returned from a shooting practice range and had in his possession the AMT pistol.

The weapon was unusual because it fired rifle cartridges. The victim, who had

known the defendant for fifteen or twenty years, had not seen him for two or three

years prior to the meeting at the apartment. When the defendant saw the pistol, he

asked the victim if he would sell it, to which the victim replied, "No, sir." The

defendant then asked permission to use the victim's bathroom and did so, after

which the victim invited the defendant to a July Fourth picnic at his wife's mother's

residence. During the time before the victim and his wife left to go to the picnic, the

defendant persisted in his effort to purchase the pistol. Although the victim agreed


                                            2
to purchase a television from the defendant for $75.00, the victim was adamant that

the pistol was not for sale. By then, the victim had placed the pistol, a reloading die,

and two boxes of ammunition in a bedroom closet. The defendant again asked for

and received permission to use the restroom. When he did not return for several

minutes, the victim looked for the defendant and discovered him coming out of the

bedroom where the pistol was stored. At that point, the victim directed the

defendant to leave the bedroom whereupon both men left the apartment to attend a

picnic.



              The defendant stayed at the picnic for only a short period of time.

Later, when the victim discovered that he had forgotten fireworks he had intended to

display, he returned to his apartment. As he approached the apartment building, he

saw a vehicle which resembled that of the defendant. W hen he walked to the back

door of his unit, he found that the door was ajar. The outside light had been turned

off and a stone had been used to break the glass. When the victim checked the

inside of his apartment, he discovered that only his pistol, the ammunition, and the

reloading die were missing. Several other guns, which were also stored inside the

apartment, had not been stolen.



              The victim reported the crime to the Sullivan County Sheriff's

Department and Officer Joe Delp investigated. On the following Monday, the victim

and his wife drove throughout Kingsport looking for the defendant. When they saw

him walking along Center Street, the defendant ran but the victim caught up with him

in his car. According to the victim, the defendant immediately apologized for

stealing the pistol and offered $600.00 in restitution. When the victim stated that he

would rather have the gun, the defendant remarked that he did know whether he

could get it back. The defendant never returned the gun and never compensated


                                           3
the victim for his loss.



               The defendant did not testify and offered no proof at the trial.



               Initially, the defendant claims that the state failed to prove beyond a

reasonable doubt that he burglarized the apartment or that he took the items with

the intent to deprive the owner thereof, as required by the theft statute. The

defendant contends that the evidence did not exclude the possibility of another

having burglarized the apartment and having taken the pistol, the ammunition, and

the reloading die. He argues that the failure on the part of the victim to identify the

defendant as a suspect when the matter was first reported to the police supports his

argument that the evidence is insufficient. The defendant submits that the victim

was motivated to lie by the lack of insurance coverage for the items stolen and his

desire to identify a suspect with a prior criminal record in order to extort a

settlement.



               On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832 (Tenn. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after a review 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. State v. Williams, 657 S.W.2d

405 (Tenn. 1983); Tenn. R. App. P. 13(e). This court may neither reweigh nor

reevaluate the evidence. Nor may a court substitute its inferences for those drawn

by the trier of fact. Likas v. State, 286 S.W.2d 856 (Tenn. 1956).



               Tenn. Code Ann. § 39-14-402 provides that a "person commits


                                            4
burglary who, without the effective consent of the property owner ... (3) [e]nters a

building and commits or attempts to commit a felony, theft or assault .... The

offense is aggravated when the burglary is committed in a place of "habitation."

Tenn. Code Ann. §§ 39-14-401 to -403.



              A misdemeanor theft is committed when the value of the property is

$500.00 or less if the perpetrator "with the intent to deprive the owner of property ...

knowingly obtains or exercises control over the property without the owner's

effective consent." Tenn. Code Ann. §§ 39-14-103, -105.



              In this instance, there was circumstantial evidence that the defendant

entered the apartment of the victim without his consent and for the purpose of

committing a theft. Here, of course, the jury was entitled to accredit the testimony

offered by the witnesses of the state and reject the defense theory. The record

shows that the state offered proof against the defendant of each of the elements of

theft: (1) an intent to deprive the owner of the property; (2) knowingly obtaining

control of the property; and (3) a failure to gain the consent of the owner. It was the

jury's prerogative to accept the testimony of the victim who claimed that the

defendant acknowledged having stolen and then having sold the pistol. Certainly,

the accompanying circumstances proved by the state at trial tend to corroborate the

claim.



              Next, the defendant complains that the trial court erred by imposing

the maximum sentence possible for aggravated burglary and by ordering the

sentences to be served consecutively.



              When there is a challenge to the length, range, or manner of service of


                                            5
a sentence, it is the duty of this court to conduct a de novo review 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 circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies

inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the

presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.

Crim. App. 1992). The Sentencing Commission Comments provide that the burden

is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

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

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in

this case demonstrates that the trial court made adequate findings of fact.



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,


                                           6
additional words of caution:

                 [C]onsecutive sentences should not routinely be imposed
                 . . . and . . . the aggregate maximum of consecutive
                 terms must be reasonably related to the severity of the
                 offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The defendant is an offender whose record of
                 criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to
                 sentencing that the defendant's criminal conduct has
                 been characterized by a pattern of repetitive or
                 compulsive behavior with heedless indifference to
                 consequences;

                 (4) The defendant is a dangerous offender whose
                 behavior indicates little or no regard for human life, and
                 no hesitation about committing a crime in which the risk
                 to human life is high;

                 (5) The defendant is convicted of two (2) or more
                 statutory offenses involving sexual abuse of a minor with
                 consideration of the aggravating circumstances arising
                 from the relationship between the defendant and victim
                 or victims, the time span of defendant's undetected
                 sexual activity, the nature and scope of the sexual acts
                 and the extent of the residual, physical and mental
                 damage to the victim or victims;

                 (6) The defendant is sentenced for an offense
                 committed while on probation;



        1
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                      7
              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involve

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938.



              Initially, the defendant concedes that the trial court, which found five

enhancement factors applicable, properly determined the presence of four

enhancement factors under Tenn. Code Ann. § 40-35-114: (1) a previous criminal

history of criminal convictions ... in addition to those necessary to establish the

appropriate range; (8) a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; (13) (B) the felony was


                                            8
committed while on ... parole; and (20) that the defendant was adjudicated to have

committed a delinquent act as a juvenile that would have constituted a felony if

committed by an adult.



              The defendant argues that he did not violate a position of private trust,

as adjudged by the trial court, because, in fact, the victim did not actually entrust

the victim with the items stolen and was so suspicious of his behavior that he sought

out the defendant after the latter's second trip to the restroom. The defendant also

contends that the trial court did not give sufficient weight to a mitigating factor, Tenn.

Code Ann. § 40-35-113(1), that "the defendant's criminal conduct neither caused

nor threatened serious bodily injury."



              As a Range II offender, the defendant could have received a sentence

as little as six years and as much as ten years. The record demonstrates that the

trial court carefully considered each of the enhancement factors and expressed

particular concern about the defendant's prior criminal history and his failure, on a

number of occasions, to comply with a sentence involving release into the

community. Those factors, in our view, would warrant an enhanced sentence.

Moreover, there was a violation of private trust. The defendant and the victim had

been in high school together and had known each other for over twenty years. The

victim invited the defendant into his home based upon their long acquaintanceship,

consented to his use of the restroom facilities, and invited him to attend an

Independence Day picnic at his mother-in-law's residence. The defendant, in our

view, took advantage of the knowledge he had acquired through the relationship

both to identify the items he desired and to enter the apartment to commit a theft at

a time he knew the victim and his wife would be absent. While the record

demonstrates that the trial court gave little weight to the trust factor, this court


                                             9
concludes that there was sufficient evidence of a violation of private trust.



              Furthermore, the record shows that the trial court did, in fact, give

some weight to the mitigating factor identified by the defendant (i.e., the absence of

serious bodily harm) but concluded that that should not lessen the sentence from

ten years. That, in our view, was a proper exercise of discretion. The conclusion is

presumptively correct and one that this court will not disturb.



              Finally, the defendant argues that the trial court erred by determining

that the defendant was a professional criminal and by finding his prior record of

criminal activity was so extensive as to warrant consecutive sentences. The

defendant submits that the trial court erred by concluding that the public required a

period of long-term protection from the defendant and that the effective ten-year,

eleven month and twenty-nine day sentence reasonably related to the severity of the

offenses.



              The defendant's criminal history included a number of felony

convictions and spanned over a period of thirteen years. There were several

convictions for automobile burglary and felony theft and two prior aggravated

burglaries. The defendant had been found guilty on prior occasions of vandalism

and escape. Whereas the evidence did not support the trial court's conclusion that

the defendant had "knowingly devoted [his] life to criminal acts as a major source of

livelihood," it is nonetheless apparent that the defendant qualified as "an offender

whose record of criminal activity is extensive...." Tenn. Code Ann. § 40-35-

115(B)(1) & (2). Despite the fact that the criminal offenses committed by the

defendant were, as argued by the defendant, "non-violent, non-threatening property

offenses," the statute does not limit the term "extensive criminal activity" to purely


                                           10
violent crimes. Here, the defendant's record was clearly extensive. In that regard,

he qualified for a consecutive sentence. In our view, the trial court acted within its

discretion when it determined that the aggregate sentence imposed fit the entirety of

the circumstances.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Joe G. Riley, Judge




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