           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE          FILED
                            AUGUST 1997 SESSION
                                                      September 19, 1997

                                                    Cecil W. Crowson
STATE OF TENNESSEE,                   )
                                                   Appellate Court Clerk
                                      )    NO. 01C01-9608-CR-00384
      Appellee,                       )
                                      )    WILSON COUNTY
VS.                                   )
                                      )    HON. J. O. BOND, JUDGE
CHARLES W. SANDERSON,                 )
                                      )    (Aggravated Burglary)
      Appellant.                      )




FOR THE APPELLANT:                         FOR THE APPELLEE:

COMER DONNELL                              JOHN KNOX WALKUP
District Public Defender                   Attorney General and Reporter


KAREN G. CHAFFIN                           JANIS L. TURNER
Assistant District Public Defender         Assistant Attorney General
213 North Cumberland St.                   450 James Robertson Parkway
Lebanon, TN 37087                          Nashville, TN 37243-0493

                                           TOM P. THOMPSON, Jr.
                                           District Attorney General

                                           H. DOUGLAS HALL
                                           Assistant District Attorney
                                           111 Cherry St.
                                           Lebanon, TN 37087-3609




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       On November 29, 1995, a Wilson County jury found defendant, Charles W.

Sanderson, guilty of aggravated burglary, a Class C felony. The trial court sentenced

defendant to 15 years as a Range III (45%) Persistent Offender.               Defendant

challenges both the conviction and sentence alleging the following errors:

              (1)    the failure of the trial judge to dismiss the indictment for
                     lack of a preliminary hearing recording;
              (2)    the trial court’s incorrect statement of the law regarding
                     circumstantial evidence;
              (3)    the trial court’s improper definition of reasonable doubt;
              (4)    the trial court’s denial of the request to exclude witnesses
                     from the courtroom prior to voir dire;
              (5)    the failure to suppress defendant’s statement giving a
                     false name to the officer;
              (6)    allowing the indictment in the jury room;
              (7)    the wrongful admission of a screwdriver into evidence;
              (8)    improper final argument by the state;
              (9)    insufficiency of the evidence; and
             (10)    an improper sentence.

              We AFFIRM the conviction and the sentence.



                                        FACTS



       Houston Dedman, father of the victim, saw a pick-up truck at the victim’s

mobile home on October 7, 1994, the date of the crime. While his wife was calling

the victim at her workplace and then 911, Dedman continued to watch from his back

porch approximately 350 feet away. He saw a heavy-set, long-haired man wearing

a white tee-shirt and blue jeans go first to the front door of the trailer and then to the

back door. The man entered the mobile home and stayed inside five to ten minutes

before exiting by the back door. The authorities then arrived on the scene and

apprehended the defendant and another suspect. Dedman identified the defendant

as the same person he saw enter the mobile home. Defendant’s fingerprints were

found on the back door of the mobile home.

       Lieutenant Kenny Burns responded to the 911 dispatch. As he pulled into the

driveway, he saw a truck and a male with long hair standing close to the mobile

home. He testified that defendant saw him and started to run toward the truck. At

                                            2
that point, Burns made him stop and lie down on the ground. The man had on blue

jeans and a white tee-shirt. When asked his name, the defendant gave Lt. Burns the

false name of “Chuck Binkley.” Chuck Binkley was actually a female who was the

owner of the truck and the wife of the other person apprehended. Lt. Burns identified

defendant as the man he had apprehended.

       According to the TBI lab report, a screwdriver found in the truck could have

produced the pry marks on the back door frame, but there were not sufficient

identifying characteristics to show exclusion of all other prying devices.

       The victim testified that no one had permission to be on her property on that

date, and all her doors had been locked. She arrived shortly after the apprehension

of the defendant and before officers left the scene. The chain on her back door had

been broken. She went into her house and found the bedroom “ransacked” with

doors opened and drawers pulled out. The jewelry box on the bed had all of its

drawers pulled out. Nothing had been taken.



              LACK OF RECORDING OF PRELIMINARY HEARING



       The General Sessions Court judgment shows that defendant was bound over

on “attempt to commit aggravated burglary.” Defendant claims prejudicial error

because the trial court refused to dismiss the indictment based on the General

Sessions Court’s failure to make a recording of his preliminary hearing in violation

of Tenn. R. Crim. P. 5.1(a). Butts v. State, 640 S.W.2d 37, 38 (Tenn. Crim. App.

1982), held that “the failure to provide a recording or its equivalent may constitute

harmless error. . . [when] the trial evidence so conclusively showed . . . guilt that a

record of the preliminary hearing could not have aided the defense.” Defendant

claims his facts justify a different outcome. We do not agree.      Proof of guilt was

overwhelming. Defendant has failed to show any prejudice. The failure to record the

preliminary hearing was harmless error. Tenn. R. App. P. 36(b); see also State v.

Bohanon, 745 S.W.2d 892, 896 (Tenn. Crim. App. 1987).




                                          3
                             TRIAL COURT COMMENTS



        Defendant argues that the trial court erred in commenting incorrectly on the

burden of proof during voir dire, and that the court erred in its definition of reasonable

doubt in comments made before voir dire.

                                           A.

        The language cited by defendant is an effort by the trial court during voir dire

to illustrate the difference in direct and circumstantial evidence. The language used

by the trial judge accurately paraphrases T.P.I. - Crim. § 42.03 (4th ed. 1995). This

issue is without merit.

                                           B.

        Defendant complains the trial court erroneously told the jury before voir dire

that:

                Beyond a shadow of a doubt is not the rule, beyond any doubt
        is not the rule. It’s simply beyond a reasonable doubt. That there’s no
        other reasonable answer to it other than just--reasonable answer.

        Although the last phrase concerning a “reasonable answer” is vague, no harm

inured to the defendant. The statements concerning “shadow of a doubt” and

“beyond any doubt” are accurate statements of the law. This issue is without merit.



            MOTION TO SEQUESTER WITNESSES PRIOR TO VOIR DIRE



        Defense counsel requested sequestration of the witnesses prior to voir dire.

The trial court denied the request so the potential jurors could determine if they knew

any of the witnesses.      At the time of trial, Tenn. R. Evid. 615 provided that

sequestration was to be effective before voir dire if requested.1 However, defendant

has demonstrated no prejudice as a result of the failure to sequester prior to voir dire.




        1
         The rule has now been amended to make sequestration before voir dire
discretionary with the trial court.


                                            4
This is harmless error. Tenn. R. App. P. 36(b); State v. Anthony, 836 S.W.2d 600,

605 (Tenn. Crim. App. 1992).



              MOTION TO SUPPRESS GIVING NAME TO OFFICER


       Defendant contends the officer’s request for defendant’s name should have

been preceded by Miranda warnings since defendant was in custody. A request for

a defendant’s name does not trigger the necessity of Miranda warnings. See

Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990); State v. Williams, 623 S.W.2d

118, 121 (Tenn. 1981). This issue is without merit.



                        INDICTMENT IN THE JURY ROOM



       Defendant contends the trial court erred in allowing the jury to take the

indictment into the jury room during deliberations. As a matter of custom, many trial

courts allow the indictment to be taken to the jury room; however, there is no express

legal authority concerning this custom. Raybin, Tennessee Criminal Practice and

Procedure, § 31.14 (1985). We see no prejudice to the defendant. The indictment

was read to the jury at the beginning of trial. The trial judge properly instructed the

jury that the indictment was not evidence against the defendant and could not create

any inference of guilt. This issue is without merit.



                ADMISSION OF SCREWDRIVER INTO EVIDENCE



       Defendant contends the trial court erred in allowing evidence about the

screwdriver found in the vehicle.      Even though the scientific testing was not

conclusive, the screwdriver was found in a place that, coupled with trial testimony,

would allow an inference that it was a tool used to pry the door of the residence.

There is nothing in the record to reflect that its probative value was outweighed by its

prejudice to defendant. This issue is without merit.



                                           5
                       PROSECUTOR’S CLOSING ARGUMENT



         Defendant complains of the following argument made by the prosecutor in final

argument:

               He [defense counsel] wants you to say, if he was in there, he
         was just doing trespass, just little ole misdemeanor trespass is what he
         was doing. Convict him of that. You know, bring it down to trespass.

         The defendant did not request the range of punishment charge and claims that

the mention of “misdemeanor” constituted prejudicial conduct. The State did not

advise the jury of the range of punishment. We find nothing improper in telling the

jury that a particular offense is a misdemeanor or a felony. This issue is without

merit.



                          SUFFICIENCY OF THE EVIDENCE



         Defendant contends the evidence is insufficient to justify the guilty finding. In

determining the sufficiency of the evidence, this court does not reweigh or re-evaluate

the evidence. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978). Nor may this Court

substitute its inferences for those drawn by the trier of fact from circumstantial

evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). A jury

verdict approved by the trial judge accredits the state’s witnesses and resolves all

conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the State is entitled to

the strongest legitimate view of the evidence and all legitimate or reasonable

inferences which may be drawn therefrom. Id. This Court will not disturb a verdict

of guilty due to the sufficiency of the evidence unless the defendant demonstrates

that the facts contained in the record and the inferences which may be drawn

therefrom are insufficient, as a matter of law, for a rational trier of fact to find the

accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19

(Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm the

conviction if the evidence, viewed under these standards, was sufficient for any


                                             6
rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       The evidence was clearly sufficient to sustain the conviction of aggravated

burglary. The defendant was seen unlawfully entering and leaving the premises and

was apprehended at the scene. The premises were “ransacked;” therefore, the jury

could conclude there was an intent to steal. See State v. Chrisman, 885 S.W.2d 834,

838 (Tenn. Crim. App. 1994). The fact that nothing was actually removed is not

determinative. This issue is without merit.



                                   SENTENCING



       Finally, defendant contends the trial court erred by imposing a 15-year

sentence to run consecutively to his prior sentences. This Court’s review of the

sentence imposed by the trial court is de novo with a presumption of correctness.

Tenn. Code. Ann. § 40-35-401(d).        This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).

       The burden is upon the appealing party to show that the sentence is improper.

Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting

our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider

the following factors in sentencing:



              (1) [t]he evidence, if any, received at the trial and sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §40-35-113 and §40-35-114; and(6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.


       If no mitigating factors or enhancement factors are present, Tenn. Code Ann.

§ 40-35-210 provides that the presumptive sentence shall be the minimum sentence

                                          7
within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim.

App. 1991). However, if such factors do exist, a trial court should start at the

minimum sentence, enhance the minimum sentence within the range for

enhancement factors, and then reduce the sentence within the range for the

mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each

factor is prescribed by the statute, as the weight given to each factor is left to the

discretion of the trial court as long as its findings are supported by the record. State

v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v. Santiago, 914 S.W.2d 116 (Tenn.

Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission

Comments.

                                          A.

       In sentencing the defendant to the maximum Range III punishment of 15

years, the trial court found no mitigating factors and four (4) enhancement factors.

The applicable enhancement factors found by the trial court were:

              (1)    previous history of criminal convictions in addition to
                     those necessary to establish Range III punishment
                     under Tenn. Code Ann. § 40-35-114(1);

              (2)    previous history of unwillingness to comply with
                     conditions of a sentence involving release in the
                     community under Tenn. Code Ann. § 40-35-114(8);

              (3)    the defendant abused a position of public trust when
                     he committed this crime while on furlough under
                     Tenn. Code Ann. § 40-35-114(15); and

              (4)    the crime was committed under circumstances under
                     which the potential for bodily injury to a victim was
                     great under Tenn. Code Ann. § 40-35-114(16).

Defendant contends the trial court erred in its application of the last three

enhancement factors.

       Defendant concedes he has prior convictions in addition to those necessary

to establish Range III punishment. More specifically, the defendant has been

convicted of second degree burglary (enhanced to a life sentence as an habitual

criminal), grand larceny (enhanced to a life sentence as an habitual criminal), three

(3) separate counts of third degree burglary and robbery by use of a deadly weapon.




                                           8
       The proof also established that defendant had two (2) prior parole revocations.

Accordingly, the court properly applied the enhancement factor relating to a previous

history of unwillingness to comply with the conditions of a sentence involving release

in the community.

       The trial court found that the defendant was on a three-day furlough when this

offense was committed and, therefore, found the defendant abused a position of

public trust. We find no support for the application of this factor in the context of a

furlough. See State v. Seay, 945 S.W.2d 755, 766 (Tenn. Crim. App. 1996) (holding

that this factor did not apply to a defendant who committed an offense while on

probation). However, committing a crime while on furlough for a felony qualifies as

an enhancement factor under Tenn. Code Ann. § 40-35-114(13)(E). Furlough is a

type of release into the community under the indirect supervision of the Department

of Correction or local governmental authority. Accordingly, this enhancement factor

should have been applied instead of the public trust enhancement factor.

       The trial court found that this aggravated burglary was committed under

circumstances under which the potential injury to the homeowner was great. The

homeowner was not present at the time of the burglary. The state concedes and we

agree that this factor was erroneously applied. See State v. Avery, 818 S.W.2d 365,

369 (Tenn. Crim. App. 1991).

       In spite of the misapplication of the above-mentioned enhancement factors,

we conclude under our de novo review that the maximum 15-year sentence is

appropriate for this defendant.

                                          B.

       The trial court ran this 15-year sentence consecutively to the sentences for

which defendant was on furlough at the time of the offense. The trial court found that

the defendant was a professional criminal and an offender whose record of criminal

activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(1) and (2). We further

find that consecutive sentencing is necessary to protect the public against further

criminal conduct by the defendant and that the consecutive sentences reasonably




                                          9
relate to the severity of the offenses. See State v. Wilkerson, 905 S.W.2d 933, 938

(Tenn. 1995). We find no error in the sentence.



                                 CONCLUSION



      For the reasons stated above, we AFFIRM the conviction for aggravated

burglary and the sentence imposed.




                                        JOE G. RILEY, JUDGE




CONCUR:




CURWOOD WITT, JUDGE




JOE H. WALKER, III, SPECIAL JUDGE




                                        10
