        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            MARCH SESSION, 1997            July 23, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,              )   C.C.A. NO. 01C01-9606-CC-00246
                                 )
      Appellee,                  )   BEDFORD COUNTY
                                 )
                                 )
V.                               )   HON. WILLIAM CHARLES LEE,
                                 )   JUDGE
STEPHON MATTHEW FEARN,           )
                                 )   (AGGRAVATED BURGLARY
      Appellant.                 )   AND THEFT)



FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN HARWELL DICKEY                  JOHN KNOX WALKUP
District Public Defender             Attorney General & Reporter

CURTIS H. GANN                       JANIS L. TURNER
Assistant Public Defender            Assistant Attorney General
105 South Main                       425 Fifth Avenue North
P.O. Box 1119                        2nd Floor, Cordell Hull Building
Fayetteville, TN 37334               Nashville, TN 37243

                                     WILLIAM EDWARD GIBSON
                                     District Attorney General

                                     WILLIAM MICHAEL McCOWN
                                     Assistant District Attorney General

                                     ROBERT G. CRIGLER
                                     Assistant District Attorney General
                                     One Public Square, Suite 300
                                     Shelbyville, TN 37160-3953


OPINION FILED ________________________

CONVICTION AND SENTENCES AFFIRMED;
REMANDED FOR ENTRY OF AMENDED JUDGMENTS

THOMAS T. WOODALL, JUDGE
                               OPINION

      The Defendant, Stephon M. Fearn, appeals as of right according to Rule

3 of the Tennessee Rules of Appellate Procedure.           He was convicted of

aggravated burglary and misdemeanor theft following a jury trial in the Circuit

Court for Bedford County. The jury imposed fines in the amount of five thousand

dollars ($5,000.00) and one thousand dollars ($1,000.00) for his convictions,

respectively. At his sentencing hearing, Defendant was sentenced by the trial

judge to nine (9) years and six (6) months incarceration as a Range II, Multiple

Offender for the aggravated burglary conviction and eleven (11) months, twenty-

nine (29) days for the theft conviction. These sentences were ordered to be

served consecutively to each other and to Defendant’s prior sentences for which

he was on parole at the time of the aggravated burglary and theft. Defendant

argues the evidence was insufficient to support both the aggravated burglary and

the theft convictions, and that the trial court erred by imposing an excessive

sentence.




                    I. SUFFICIENCY OF THE EVIDENCE



      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). On appeal, the State is entitled to the strongest legitimate view



                                       -2-
of the evidence and all inferences therefrom . State v. Cabbage, 571 S.W .2d 832,

835 (Tenn. 1978).     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); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1973).



      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.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

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

conflicts in favor of the State. Grace, 493 S.W .2d at 476.



      Sam Bragg, the victim, testified that he is the owner of the property located

at 711 East Depot Street in Shelbyville. While it is not his primary residence, he

and his wife stay there a couple of nights each month. He was at the premises

on June 12, 1995. When he left, everything was secure. Bragg had given no

one permission to enter the home prior to the discovery of the aggravated

burglary. When he returned on June 16, 1995, Bragg found an aluminum panel

forced out of the storm door on the back porch, and the wooden frame door to the

house had been forced open. W hen he called the police, he noticed that his

answering machine was not by the phone. W hile waiting for the police, he

walked through his home and noticed other items missing. After the police

arrived, they took his statement regarding the missing items. The police officer

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then went next door to talk to his neighbor, the Defendant. Bragg stated that his

house and the Defendant’s were approximately thirty (30) feet apart, with no

hedge in between. When Bragg accompanied the police on a walk-thru of

Defendant’s hom e, he thought he saw a kerosene heater that was his.



      The following Monday, June 19, the police asked Bragg to come to the

police station to identify some property. He identified a VCR by its serial number,

a Black & Decker commercial router and skill saw, and a propane torch. He also

saw a heater at a pawn shop that he was “ninety-nine percent (99%) sure” was

his due to its wick replacement. In a later search by the police of Defendant’s

home, Bragg saw a W indsor cassette recorder, tapes with handwritten labels,

and spark plug sockets which were also his. On his next visit to the police

station, he identified his fishing poles and a tackle box recovered by the police.

Bragg estimated the value of the goods stolen from his home to be around five

hundred ($500.00) dollars.



      Bobby Peacock, a police officer with the Shelbyville Police Department,

was working on June 16, 1995, and answered the burglary call at 711 Depot

Street. He testified that he saw where the storm door was caved in and entry was

gained through the back door into Bragg’s home.          Officer Peacock took a

statement from the victim in which he reported the VCR, fishing rods, tackle box,

skill saw and router were missing from his home.



      Virgil Casteel testified that Defendant called him and then met him after

work asking him to buy a VCR and fishing equipment. The VCR was to serve as

collateral so that Defendant could have money to go to Alabama. Casteel took

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the VCR, but not the fishing equipment. The following morning, Defendant called

Casteel and asked him to come by his house to look at some other items. When

he dropped by his house, Defendant showed him a skill saw, router and propane

torch. As Defendant stated he needed money to pay his electric bill, Casteel

agreed to purchase the items. Subsequently, he read in the local paper that

Bragg’s residence was burglarized and that his VCR and fishing poles were

missing.



      For the defense, Tony Collins and Pat Mathis, investigators with the

Shelbyville Police Department, testified that they responded to a call on June 16,

1995 at Depot Street. They talked with the Defendant who acted like he was

nervous, but was polite. The officers obtained consent to search Defendant’s

hom e. The Defendant did not testify.



      Defendant contends that there is no evidence of his entering the residence

and all the evidence of his guilt is circumstantial, therefore, the evidence is

insufficient to support his convictions of aggravated burglary and theft. A crime

may be established by circumstantial evidence alone. State v. Tharpe, 726

S.W .2d 896, 899-900 (Tenn. 1987).       However, before an accused may be

convicted of a criminal offense based only upon circumstantial evidence, the

facts and circum stances “must be so strong and cogent as to exclude every other

reasonable hypothesis save the guilt of the defendant.” State v. Crawford, 225

Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 613.

                                        -5-
         In viewing the evidence in the light most favorable to the State, the

evidence was sufficient to support a conviction for aggravated burglary and theft.

Both the outside storm door and the wooden frame door to the inside of Bragg’s

home were forcibly opened.      Upon examination of his home, Bragg found that

several items were missing. The evidence established that some of the items

missing from Bragg’s home after the aggravated burglary were found in

Defendant’s home, and the remainder of the items, including the tools, fishing

equipment, and VCR, were seen in the Defendant’s possession by Mr. Casteel.



         W hen a burglary has been committed, personal property was taken during

the burglary, the personal property is found in the exclusive possession of the

accused shortly after the burglary, and there is no satisfactory explanation of how

the accused obtained the stolen property, a trier of fact may infer that the

accused committed the burglary and took the personal property from the situs of

the burglary. W yatt v. State, 4 Tenn. Crim. App. 1, 11-14, 467 S.W .2d 811, 814-

15(Tenn. Crim. App.), cert. denied (Tenn. 1971) (citations omitted).        W hile

Defendant argues that there was no evidence presented by the State regarding

his entering Bragg’s property, the State was not required to present a witness

who actually observed defendant enter the premises in order to meet its burden

of presenting evidence sufficient to convict him. See State v. Avery, 818 S.W .2d

365, 367 (Tenn. Crim. App. 1991). There was no satisfactory and reasonable

explanation for Defendant’s possession of recently stolen property taken during

the course of an aggravated burglary. There was overwhelming proof to support

Defendant’s convictions of aggravated burglary and theft. This issue is without

merit.




                                        -6-
                               II. SENTENCING



      Defendant argues that the sentence given to him by the trial court was

excessive. Defendant was ordered to serve nine (9) years and six (6) months

and to pay five thousand dollars ($5,000.00) in fines for the aggravated burglary

conviction. He was also ordered to serve eleven (11) months and twenty-nine

(29) days and to pay one thousand dollars ($1,000.00) in fines for the theft

conviction. The sentences were to be served consecutively to each other and to

other convictions Defendant had in Franklin County for which he was on parole

at the time of the above offenses.



      W hen 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 presum ption 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). 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).




                                       -7-
      In conducting a de novo review of a sentence, this court must consider:

(a) the evidence, if any, received at 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 enhancement or mitigating factors; (f) any statement

the defendant made on his or her 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).

The trial court stated its reasons and findings on the record. First, the trial court

found the Defendant to be a Range II, Multiple Offender due to his previous

felony convictions. Tenn. Code Ann. § 40-35-106. The evidence adduced at the

sentencing hearing clearly establishes Defendant’s eligibility for sentencing within

Range II as a Multiple Offender, and Defendant does not contest this finding by

the trial court. Thus, the applicable sentencing range for the aggravated burglary

conviction was six (6) to ten (10) years. Tenn. Code Ann. § 40-35-112(b)(3).



      The Defendant received a sentence of nine (9) years and six (6) months

for the aggravated burglary. The trial court applied enhancement factor 1, that

the Defendant had a previous history of criminal convictions in addition to those

necessary to establish him as a Range II Offender, enhancement factor 8, that

Defendant had a previous history of unwillingness to comply with the conditions

of a sentence involving release into the community, and enhancement factor 13,

that Defendant committed the felony while he was on parole. Tenn. Code Ann.

§ 40-35-114. The trial court found one mitigating factor, that Defendant’s conduct

neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-

113. The weight to be attributed to each factor is determined based on the

                                         -8-
degree of culpability and totality of the circumstances of each case. State v.

Moss, 727 S.W.2d 229, 238 (Tenn. 1986). The trial court properly determined

the application of the enhancem ent factors and one mitigating factor.

Defendant’s criminal history was rather extensive, and that factor was entitled to

substantial weight.    Included in his criminal history were three (3) felony

convictions in addition to those necessary to establish a Range II sentence.

Defendant’s unwillingness to comply with conditions of a prior sentence involving

release in the community was also heavily weighed by the trial court. Defendant

was on parole at the time of the aggravated burglary. He also had been on

probation at the time he committed prior offenses. If the trial judge complies with

the purposes and principles of sentencing and his findings are adequately

supported by the record, then the weight assigned to the existing enhancing and

mitigating factors is generally left to his discretion. See State v. Marshall, 870

S.W.2d 532, 541 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1993). The

trial court also found that Defendant lied during the sentencing hearing, and thus

found that Defendant’s potential for rehabilitation was, at best, remote. Upon

viewing Defendant’s demeanor, the trial court was in a better position to assess

Defendant’s rehabilitative potential. Upon de novo review, we find no error in the

trial court’s judgment based upon the record.



      Defendant was sentenced to serve eleven (11) months and twenty-nine

(29) days for the theft conviction. W hile Defendant does not challenge the length

of this sentence, he argues that this sentence should not be served consecutively

to his sentence for aggravated burglary. Consecutive sentencing was properly

applied by the trial court based upon Defendant’s extensive record of criminal

activity. Tenn. Code Ann. § 40-35-115(b)(2). While the trial judge also used

                                        -9-
Defendant’s criminal history as an enhancem ent factor in the length of his

sentence, there is no prohibition against using the same facts and circumstances

both to enhance sentences under applicable enhancem ent factors and to require

those sentences to be served consecutively. State v. Melvin, 913 S.W .2d 195,

205 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1995). In fact, this Court

has previously upheld consideration of prior criminal convictions and conduct for

both enhancement and consecutive sentencing purposes. Id.; State v. Meeks,

867 S.W .2d 361, 377 (Tenn. Crim. App. 1993), cert. denied, 114 S.Ct. 1200

(1994). We also find that consecutive sentencing is necessary to protect the

public against further criminal conduct by the Defendant and that the consecutive

sentences in this case reasonably relate to the severity of the offenses

com mitted. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 1995).



      This issue is without merit.



      W hile not raised by the State on appeal, we note that the judgments in this

case do not specifically set forth the trial court’s order that the sentences be

served consecutively with each other and consecutively to prior felony convictions

of the Defendant in Franklin County Circuit Court.



      W e affirm the judgments of conviction, the sentences imposed by the trial

court, and the manner of service of those sentences. This case is remanded to

the trial court for entry of corrected judgments which reflect consecutive

sentencing ordered by the trial court.



                                ____________________________________

                                         -10-
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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