         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 7, 2007

               STATE OF TENNESSEE v. BILLY JOHN KIMMES
                      Appeal from the Circuit Court for Madison County
                              No. 06-293 Roger A. Page, Judge


                  No. W2007-00022-CCA-R3-CD - Filed September 14, 2007



The defendant was convicted by a Madison County jury of theft of property valued at $10,000 or
more, a Class C felony, and sentenced to five years in prison as a Range I, standard offender. On
appeal, the defendant contends that the evidence produced at trial was insufficient to support the
jury’s guilty verdict, and he also contends that his sentence was excessive, both in the length of the
sentence and the trial court’s failure to impose an alternative sentence. After reviewing the record,
we conclude that the evidence produced at trial was sufficient to support the defendant’s conviction,
and that the sentence imposed by the trial court was appropriate. Accordingly, we affirm the
judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT , JR., JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin and Paul E. Meyers, Assistant
District Public Defenders, for the appellant, Billy John Kimmes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; Angela Scott, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        At trial, Officer Barry Austin with the Jackson Police Department testified that on February
12, 2006, he took a police report regarding a tractor-trailer that was reported stolen from Quality
Outdoor Products, a Jackson business. Officer Austin testified that he took a statement from Jerry
Holt, the company’s president, and then filed his report, which contained the truck’s license plate
number, color, model, and year, into the NCIC database.
         Mr. Holt testified that he had last seen the truck on February 10, 2006, parked at his business
located at 899 Highland Avenue, in Jackson, Madison County. He testified that although his trucks
were frequently left unlocked and the keys hidden inside, nobody had permission to use the stolen
tractor-trailer. Mr. Holt testified that he did not know the defendant prior to trial. Mr. Holt
described the vehicle as a 1999 International tractor trailer, and he testified that at the time he
reported the truck missing, he gave police information regarding the truck, including its Vehicle
Identification Number (VIN), United States Department of Transportation number, license plate,
color, and identifying markings including the company logo. He testified that he had bought the
tractor-trailer a few months before he reported it stolen, paying $20,000 for the truck and $3000 for
the trailer.


        Mr. Holt testified that a few days after he reported the truck stolen, a detective from Texas
informed him that the truck had been located in Texas. Mr. Holt testified that he made arrangements
to bring the tractor-trailer back to Jackson. He testified that the truck he retrieved from Texas was
the one that he had reported as stolen.


        Officer Hans Bryson with the Dallas, Texas police department testified that on February 14,
2006, he was on routine patrol when he noticed a gold tractor-trailer parked at a vacant gas station
next to a Post Office. Upon running the truck’s license plate number through NCIC, Officer Bryson
discovered that the truck had been reported stolen from Jackson, Tennessee, two days earlier.
Shortly after he first noticed the truck, Officer Bryson saw the truck pull out of the parking lot and
drive away. He then called for backup, and ultimately “half a dozen Dallas police cars” and a police
helicopter chased the tractor-trailer on Interstate 45 in Dallas. Ultimately, the police stopped the
vehicle. Officer Bryson testified that two other persons with whom he was familiar exited the
vehicle’s passenger side. These persons were not arrested in connection with the theft of the truck.
The defendant was pulled from the driver’s side at gunpoint and arrested. Officer Bryson testified
that he had never met the defendant prior to his arrest.


        Detective David Wallace with the Dallas Police Department testified that he arrived at the
scene of the defendant’s arrest after the truck had been stopped and the defendant arrested. Detective
Wallace testified that he asked the defendant, who had been read his Miranda rights by Officer
Bryson, where he lived. Detective Wallace testified that the defendant either replied “I live in
Tennessee” or “I’m coming from Tennessee.” Detective Wallace said that he was unable to hear the
exact substance of the defendant’s reply because of the large amount of traffic on the Interstate.
When Detective Wallace informed the defendant that the truck had been reported stolen from
Tennessee, the defendant refused to answer any other questions. Detective Wallace testified that he
did not question the other two persons found inside the truck when it was stopped.


        The defendant did not testify or present witnesses on his behalf. The jury found the
defendant guilty of theft of property valued at $10,000 or more, and at the sentencing hearing, the
trial court sentenced the defendant to five years in prison. This appeal follows.

                                                  -2-
                                 SUFFICIENCY OF EVIDENCE


        The defendant contends that the evidence produced at trial was insufficient to support his
conviction. Specifically, the defendant contends that the state has not produced sufficient evidence
to establish that he committed the offense in Madison County. We disagree.


        An appellate court’s standard of review when the defendant questions the sufficiency of the
evidence on appeal is “whether, after viewing 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, 99 S. Ct. 2781, 2789 (1979) (emphasis
in original). The appellate court does not reweigh the evidence; rather, it presumes that the jury has
resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and
the weight and value to be given to evidence were resolved by the jury. See 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, and on appeal the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This standard 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).


         The defendant was convicted of committing theft of property valued at $10,000 or more. In
Tennessee, “[a] person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103 (2006). The unexplained “[p]ossession of recently stolen
goods gives rise to an inference that the possessor has stolen them.” State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App. 1995) (citing Bush v. State, 541 S.W.2d 391, 394 (Tenn. 1976)). In addition
to proving the elements of a criminal offense beyond a reasonable doubt, Tenn. Code Ann. § 39-11-
201(a)(1)-(4) (2006), “[t]he state has the burden to prove that the offense was committed in the
county of the indictment.” State v. Smith, 926 S.W.2d 267, 269 (Tenn. Crim. App. 1995) (citations
omitted); see Tenn. Code Ann. § 39-11-201(e). Because venue is not an element of a criminal
offense, proof of venue “may be shown by a preponderance of the evidence, which may be either
direct, circumstantial, or a combination of both.” Smith, 926 S.W.2d at 269 (citation omitted).


        In this case, the evidence produced at trial established that the defendant was driving the
tractor-trailer when it was stopped in Dallas, and the defendant did not offer an explanation as to
how he came into possession of the truck. Furthermore, the truck’s owner testified that the
defendant did not have permission to drive the truck. This evidence was sufficient for a jury to find


                                                 -3-
that the defendant committed the elements of theft of property beyond a reasonable doubt.
Regarding venue, at the time the defendant was arrested, he told police that he was from or had
recently been to Tennessee. This statement, coupled with the owner’s testimony that the truck was
taken from his business, which was located in Madison County, was sufficient to establish by a
preponderance of the evidence that the defendant committed the offense in Madison County. Our
court has similarly held that in theft cases where the evidence established that property was taken
from one county and the defendant exercised control of the property in another county, venue was
proper in the county wherefrom the property was taken. State v. Gene Allan Logue, No. W1999-
01795-CCA-R3-CD, 2000 WL 1843248, at *3 (Tenn. Crim. App. at Jackson, Dec. 15, 2000); State
v. Oscar Randall Hopkins, No. 01C01-9308-CC-00271, 1994 WL 390428, at *2 (Tenn. Crim. App.
at Nashville, July 28, 1994). As such, the defendant is denied relief on this issue.


                                    EXCESSIVE SENTENCE


       The defendant contends that the trial court erred in sentencing him to five years in prison and
refusing to impose an alternative sentence. We disagree.


                                        Standard of Review


        An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2006). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the defendant
to show that the sentence is improper. This means that if the trial court followed the statutory
sentencing procedure, made findings of fact that are adequately supported in the record, and gave
due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).


        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 this respect, for the purpose of meaningful appellate review,


       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found, state the
       specific facts supporting each enhancement factor found, and articulate how the
       mitigating and enhancement factors have been evaluated and balanced in determining
       the sentence.



                                                 -4-
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann. § 40-35-
210(e) (2006).


                                         Length of Sentence


        The defendant was convicted of theft of property valued at $10,000 or more, a Class C
felony. Tenn. Code Ann. §39-14-105(4) (2006). The sentence range for a Class C felony where the
defendant is sentenced as a Range I, standard offender is three to six years in prison. Tenn. Code
Ann. § 40-35-112(a)(3) (2006). Tennessee’s revised sentencing act provides:


       (c) The court shall impose a sentence within the range of punishment, determined
       whether the defendant is a mitigated, standard, persistent, career, or repeat violent
       offender. In imposing a specific sentence within the range of punishment, the court
       shall consider, but is not bound by, the following advisory sentencing guidelines:
               (1) The minimum sentence within the range of punishment is the
               sentence that should be imposed, because the general assembly set the
               minimum length of sentence for each felony class to reflect the
               relative seriousness of each criminal offense in the felony
               classifications; and
               (2) The sentence length within the range should be adjusted, as
               appropriate, by the presence or absence of mitigating and
               enhancement factors set out in §§ 40-35-113 and 40-35-114.


Tenn. Code Ann. § 40-35-210. The weight to be afforded an enhancement or mitigating factor is
left to the trial court’s discretion so long as its use complies with the purposes and principles of the
1989 Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);
State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at 169.


        While the court can weigh sentence enhancement factors as it chooses, the court may only
apply the factors if they are “appropriate for the offense” and “not themselves essential elements of
the offense.” Tenn. Code Ann. § 40-35-114 (2006). These limitations exclude enhancement factors
“based on facts which are used to prove the offense” or “facts which establish the elements of the
offense charged.” Jones, 883 S.W.2d at 601. Our supreme court has stated that “[t]he purpose of
the limitations is to avoid enhancing the length of sentences based on factors the Legislature took
into consideration when establishing the range of punishment for the offense.” State v. Poole, 945
S.W.2d 93, 98 (Tenn. 1997); Jones, 883 S.W.2d at 601.




                                                  -5-
       In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State
v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).


        In this case, the trial court considered one enhancement factor and one mitigating factor. The
enhancement factor was the defendant’s history of criminal convictions or criminal behavior, Tenn.
Code Ann. § 40-35-114(1), and the mitigating factor was the fact that “[t]he defendant’s criminal
conduct neither caused nor threatened serious bodily injury,” Tenn. Code Ann. § 40-35-113(1).
Regarding the enhancement factor, the sentencing report indicated that the defendant had one prior
felony conviction, a 1992 felony conviction in Wisconsin for burglary. The defendant also had
several misdemeanor convictions, including a 1992 conviction in Wisconsin for disorderly conduct,
two Tennessee convictions for driving on a revoked license, a 2000 Tennessee conviction for
criminal trespassing, and a 2000 Tennessee conviction for misdemeanor assault. At the sentencing
hearing, the defendant also expressed remorse for his actions.


        The enhancement factors applied by the trial court were supported by the record, as is
required by the sentencing guidelines, and the trial court’s imposed sentence was within the
statutorily-defined range. The trial court’s decision to impose a five-year prison sentence after
weighing the enhancement and mitigating factors and the defendant’s statement of remorse was
within the court’s discretion. Thus, we conclude that the trial court did not abuse its discretion in
imposing a five-year prison sentence and accordingly deny the defendant relief on this issue.


                                       Alternative Sentencing


        In determining whether incarceration or an alternative sentence is most appropriate, a trial
court should consider whether (1) confinement is needed to protect society by restraining a defendant
who has a long history of criminal conduct, (2) confinement is needed to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective deterrence to
people likely to commit similar offenses, or (3) less restrictive measures than confinement have
frequently or recently been applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169
(citing Tenn. Code Ann. § 40-35-103(1)(A)-(C)). The trial court shall also consider the mitigating
and enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. Tenn.
Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). In
addition, a trial court should consider a defendant’s potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code. Ann. §
40-35-103(5); Boston, 938 S.W.2d at 438. A defendant convicted of a Class C, D, or E felony and
sentenced as an especially mitigated or standard offender “should be considered as a favorable

                                                 -6-
candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code
Ann. § 40-35-102(6) (2006). However, under the revised Sentencing Act, “[a] court shall consider,
but is not bound by, this advisory sentencing guideline.” Id. Furthermore, although probation must
be considered, “the defendant is not automatically entitled to probation as a matter of law.” Tenn.
Code Ann. § 40-35-303(b) (2006), Sentencing Comm’n Comments; State v. Hartley, 818 S.W.2d
370, 373 (Tenn. Crim. App. 1991).


        In denying alternative sentencing, the trial court applied the “confinement is needed to avoid
depreciating the seriousness of the offense” and “less restrictive measures than confinement have
frequently or recently been applied unsuccessfully to the defendant” factors enumerated in Tennessee
Code Annotated section 40-35-103(1)(B) and (C). The application of these factors, as well as the
other principles of sentencing, in denying the defendant an alternative sentence was within the trial
court’s discretion, and the defendant has failed to show that the trial court abused its discretion in
denying an alternative sentence. Thus, the defendant is denied relief on this issue.


                                          CONCLUSION


        Upon consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                              ______________________________
                                                              D. KELLY THOMAS, JR., JUDGE




                                                 -7-
