        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 1, 2011

                  STATE OF TENNESSEE v. GUY T. GRAVES

                    Appeal from the Circuit Court for Madison County
                             No. 09-757 Donald Allen, Judge



                  No. W2010-00984-CCA-R3-CD - Filed March 8, 2011


Appellant, Guy T. Graves, was indicted in November of 2009 by the Madison County Grand
Jury for three counts of burglary. At trial, the trial court granted Appellant’s motion for
acquittal on count three of the indictment. The jury found Appellant guilty of the two
remaining charges. The trial court sentenced Appellant as a Range III, persistent offender,
to twelve years for each conviction, ordering Appellant to serve the sentences consecutively.
After the denial of a motion for new trial, the following issues are presented for this Court
on appeal: (1) whether the evidence was sufficient to establish Appellant’s identity as the
perpetrator of the crimes; and (2) whether the trial court properly ordered consecutive
sentencing. After a review of the record, we affirm the judgments of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Guy
T. Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                    OPINION

                                              Factual Background

       On April 18, 2009, Express Mail Depot and Green Frog Café in Jackson, Tennessee,
were burglarized. Brandy Stewart, the owner of Express Mail Depot, explained that someone
used a brick to break the glass door and take a pair of donation jars off the front counter. The
donation jars were for Jackson Downtown Development and a friend who had lost a child.
The jars contained about $150 and were visible from the front window of the business.
Video surveillance of the storefront showed a man breaking into the building and running
out.

        Adam Kuykendall was employed by the Green Frog Café in April of 2009. The Green
Frog Café is located next door to the Express Mail Depot. On April 18, 2009, at around 2:45
a.m., the glass in the front door of the Green Frog Café was broken with a brick. Missing
from the business was a donation jar containing about thirty to forty dollars. Mr. Kuykendall
saw the surveillance video of the burglary at Green Frog Café and Express Mail Depot on
Monday morning. In each video, the perpetrator is seen approaching the building, throwing
a brick through a window, entering the building, and leaving with a jar in his hands.

        After the burglaries, Appellant was identified as a suspect from a tip on a crime
stoppers telephone call. Eddie McClain, a Jackson Police Department Investigator, noted
that the same subject was visible in each video, wearing a distinctive cap. The perpetrator
also had a goatee. Investigator McClain photographed Appellant after taking him into
custody. When Investigator McClain first met Appellant, he was wearing “the same hat that
was in the [surveillance] video.” In addition, Appellant was also wearing a gray and black
jacket.

       At the conclusion of the proof, counsel for Appellant moved for a judgment of
acquittal. The trial court granted the motion with respect to Count Three1 of the indictment.
After deliberation, the jury found Appellant guilty of two counts of burglary.

       The trial court held a separate sentencing hearing at which Appellant was sentenced
to consecutive twelve year terms as a Range III, persistent offender. On appeal, Appellant
challenges the sufficiency of the evidence and the trial court’s decision to order consecutive
sentencing.



        1
            Count Three dealt with the burglary of The Discovery Museum. There was no surveillance video showing this
burglary.

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                                           Analysis

       On appeal, Appellant argues that the evidence is insufficient to sustain his convictions
for burglary. Specifically, Appellant stated it “was not proven beyond a reasonable doubt
that Appellant was the individual who committed these burglaries.” The State, on the other
hand, argues that it was the jury’s prerogative to determine from the evidence that Appellant
was the perpetrator of the offenses.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).

       Appellant argues that because the witnesses were unable to identify him without
question, the evidence is insufficient. We agree with Appellant that the identity of the
perpetrator is an essential element of any crime. State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975). However, the identification of the defendant as the person who committed the
crime is a question of fact for the trier of fact. See State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993).




                                              -3-
       Burglary is committed when a person “without the effective consent of the property
owner . . . [e]nters a building other than a habitation . . . not open to the public, with intent
to commit a felony, theft or assault.” T.C.A. § 39-14-402(a).

        The evidence at trial included surveillance video from the two stores that were
burglarized. On the videos, the perpetrator appears to be the same person. The video shows
a man wearing a dark jacket and hat with a distinct pattern. The perpetrator has facial hair.
 The perpetrator is shown throwing something through the window or door of each business,
later exiting with a container in his hands. When Appellant was arrested, he was wearing a
hat with a distinct pattern. The evidence at trial was sufficient for the jury to determine
Appellant’s identity. Appellant is not entitled to relief on this issue.

                                          Sentencing

        Next, Appellant challenges the trial court’s decision to order Appellant to serve the
sentences consecutively. Specifically, Appellant acknowledges that he “does have eleven
prior felony conviction[s] and approximately thirteen prior misdemeanor convictions, which
can support a finding that Appellant has an extensive criminal history” but urges this Court
to modify the sentences to run concurrently because, as a Range III offender, he will “still
have to serve nearly six years in prison before being eligible for parole” and “such a lengthy
period of confinement would more than suffice to accomplish the goals of sentencing, and
would not depreciate the seriousness of the offenses. . . .” The State argues that the trial
court properly ordered consecutive sentencing after considering the record and the sentencing
principles.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

       In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific

                                               -4-
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

      When imposing the sentence within the appropriate sentencing range for the
defendant:

       [T]he 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.


T.C.A. § 40-35-210(c) (emphasis added). However, the weight given by the trial court to the
mitigating and enhancement factors are left to the trial court’s discretion and are not a basis
for reversal by an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An
appellate court is . . . bound by a trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles set
out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       “The amended statute no longer imposes a presumptive sentence.” Carter, 254
S.W.3d at 343. As a result of the amendments to the Sentencing Act, our appellate review
of the weighing of the enhancement and mitigating factors was deleted when the factors
became advisory, as opposed to binding, upon the trial court’s sentencing decision. Id. at
344. Under current sentencing law, the trial court is nonetheless required to “consider” an
advisory sentencing guideline that is relevant to the sentencing determination, including the



                                              -5-
application of enhancing and mitigating factors. Id. The trial court’s weighing of various
mitigating and enhancement factors is now left to the trial court’s sound discretion. Id.

       To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that “the trial court appl[ied] inappropriate mitigating
and/or enhancement factors or otherwise fail[ed] to follow the Sentencing Act, the
presumption of correctness fails” and our review is de novo. Carter, 254 S.W.3d at 345.

        A trial court may impose consecutive sentences upon a determination that one or more
of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This
section permits the trial court to impose consecutive sentences if the court finds, among other
criteria, that:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life 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-
       (6) The defendant is sentenced for an offense committed while on probation;
       or

       (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

       Appellant was convicted of two counts of burglary, both Class D felonies.

       In this case, the trial court based the imposition of consecutive sentencing on
Tennessee Code Annotated section 40-35-115(b)(2), the defendant is an offender whose
record of criminal activity is extensive. After making it clear that the trial court had
considered the evidence at trial and sentencing as well as the presentence report, the
principles of sentencing, the nature and characteristics of the criminal conduct involved, the
mitigating factors, sentencing practices in Tennessee, the Appellant’s statements on his
presentence report and the potential for rehabilitation, the trial court made the following
statement with regard to consecutive sentencing:

       I’m now looking at an individual, [Appellant], who has eleven felony
       convictions and thirteen misdemeanor convictions, most of which have
       occurred in the last fifteen years. Again, it’s interesting to note that that’s the
       same time period that the defendant says he’s been dealing with drug and
       alcohol addiction over the last 16/17 years. Well, he’s basically using crime
       as a way to fuel his drug habit. There’s no doubt about that. When you look
       at this prior criminal history of burglaries, forgeries, trespass, thefts, stolen
       property, you now, it’s all related to drug addiction. There’s no question about
       it. Yet he tells me that in February of 2009, he simply resolved his drug
       addiction. That’s what he tells me, but, yet, I have to question that because I
       see him committing more acts in April of 2009 and then as recent as January
       of this year, committing more criminal acts. You know, based upon all of
       these factors that I’ve talked about, the Court finds that these sentences of 12
       years should be run consecutive . . . .

              ....




                                               -7-
       The interests of society need to be protected from this defendant who has a
       long history where measures less restrictive than confinement have been used
       frequently and recently, as recently as two years ago, without success to this
       defendant.

              The Court finds again that his potential for rehabilitation is very poor.

       In our review, the record shows that Appellant has indeed had at least eleven felony
convictions and thirteen misdemeanor convictions. We conclude that Appellant’s criminal
history is enough to support the imposition of consecutive sentences pursuant to Tennessee
Code Annotated section 40-35-115(b)(2). Therefore, this issue is without merit.

                                         Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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