         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE               FILED
                         DECEMB ER SESSION, 1997         February 6, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,               )     C.C.A. NO. 03C01-9704-CR-00126
                                  )
           Appellee,              )
                                  )     GREENE COUNTY
                                  )
V.                                )
                                  )     HON. JAMES E. BECKNER, JUDGE
JOHN ANTHONY SANDERS,             )
                                  )
           Appe llant.            )     (AGGR AVATED BURG LARY)




FOR THE APPELLANT:                FOR THE APPELLEE:

DOUGLAS L. PAYNE                  JOHN KNOX WALKUP
114 South Main Street             Attorney General & Reporter
Greeneville, TN 37743
                                  CLINTON J. MORGAN
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  GREG W. EICH ELM AN
                                  District Attorney General for Greene Co.

                                  CECIL C. MILLS
                                  Assistant District Attorney General
                                  109 So uth Main Street
                                  Greeneville, TN 37743




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defe ndan t, John Antho ny Sa nders , appe als as of right, from his

convictions of aggravated burglary and theft in the Criminal C ourt of Green e County.

Following a jury tria l, the Defendant was found guilty of three (3) counts of

aggravated burglary and three (3) counts of theft over $ 1,000. The trial court

sentenced Defenda nt as a Ran ge I Standa rd Offender to thre e (3) consec utive

sentences of six (6) years each for the aggravated burglary convictions, and three

(3) sentences of four (4) years each for the theft convictions to be served

conc urren tly with each other and the aggravated burglary convictions. Defendant

was fined a total of $14,000 as a result of the convictions. Defendant raises three

(3) issu es in this appeal: (1) whe ther the evidenc e is sufficient to suppo rt the three

theft convictions; (2) wheth er the tr ial cou rt erred in susta ining th e pros ecuto r’s

objection to a question asked on cross-examination; and (3) whether the trial court

comm itted sente ncing err ors. W e affirm the judgm ent of the tria l court.



                            I. Sufficiency of the Evidence



      When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favora ble to the

prosection, any rational trier of fact could have found the esse ntial elem ents of the

crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).

This standa rd is applica ble to findings of guilt predicated upon direct evidence,

circumstantial eviden ce or a com binatio n of dire ct and circum stantia l evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn . Crim. A pp. 199 0). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

                                           -2-
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 bu rden in this court of illustrating why the

evidence is insufficient to support the verdict returne d by the trier o f fact. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn . 1982)); State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ).



       Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raise d by the evidenc e, are

resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W .2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn . 1987). N or may this cou rt

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdict

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

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



       Larry White testified at trial that on or about May 30, 1996, he, Jonah Hensley

and Defendant drove to the Francis home where Defendant and Hensley got out of

the car. A short time later, White picked up De fenda nt on th e stree t near th e Fran cis

home. Defendant told White to go back and get Hensle y who had a sack full of

items they had stolen from the Francis home. The three of them also went to the

Marsha ll home. Hensley and Defendant went inside the house while White stood

watch. Defendant and Hensley came out with the stolen items which they too k to

a garag e loca ted be hind D efend ant’s re siden ce. Th e three men , along with C raig

Gobble, then went to the Sexton home. Defendant and Hensley removed items from

this house and took them back to the garage. The sto len prop erty was later moved

at the direction of Defendant to another garage in the same area.

                                            -3-
         Craig Gobble testified at trial that he went with Defendant and the two other

men to the Sexton home. Hensle y and D efenda nt went ins ide and came out with

two tied-up blankets filled with stolen items and a computer screen. He testified that

they went back to the garage where the Defendant made the decision about what

to keep .



         James Rand olph, a detec tive with th e Gre ene C ounty Sher iff’s Depa rtment,

testified that he was tipped off by an incarceree that he should go talk to a Ms. Lisa

Seaton. Don Jo nes, a detective with the Greeneville Police Depa rtment, w ent with

Detective Randolph to talk with Ms. Seaton, who gave the detectives two rings which

she said were g iven to he r by the D efenda nt. The d etectives to ok the ring s to

burglary victims Ms. Francis and Mrs. Marshall, who identified them as items stolen

from their reside nces .    The d etective s then went to the De fenda nt’s ho me in

Greeneville, Tennessee.       Defendant gave them permission to search and the

detectives removed stolen items from the two garages located behind the

Defend ant’s home. Jones testified that there were numerous people around th e

garage area the day of the search. A subsequent search the following day of

Defe ndan t’s residence reve aled a tin can with items belonging to Ms. Francis and

the Sextons.



         All three burglary victims, Greg Marshall, Janet Francis and Joe Sexton,

testified that their homes had been broken into and that nu merous items were

missing. The victims testified concerning the fair market value of the items taken

from their homes as follows:


State:                Q. Do yo u have a fair marke t value for the items that were
                      taken from your home?

                                            -4-
Greg Mars hall:      A. Approximately $1,200.

...

State:               Q. What was the fair market value of all those items?

Jane t Franc is:     A. Close to $1,800.

...

State:               Q. Wh at was the fair marke t value of the items that were
                     taken from your home,Mr. Sexton?

Joe Sexton:          A. There’s a lot of things you couldn’t put a value on.

State:               Q. That’s almost always true.

Joe Sexton:          A. Som ewhere betwee n two an d three th ousan d dollars.



         In the instant case, Defendant does not challenge his aggravated burglary

convic tions and he also doe s not cha llenge the fact that he comm itted the three

thefts. His argument is that the State failed to prove that the stolen property had a

fair market value, which is an eleme nt of the offense. Sp ecifically, Defendant argues

that the question “What is the fair market value of your property?” is not an

acce ptable way to pro ve value a nd that th erefore th e responses to that question

shou ld be disregard ed as being legal conclusion s.        The jury in this case was

instructed by the court that it could fin d that the va lue of the p roperty was more than

$1,000 but less than $10,000, and that it could also consider the lesser value of

more than $500 but less than $1,000. The jury in this case found each count of theft

to be more than $1,000 but less than $10,000. So the issue becomes whether or not

the evidenc e was s ufficient to esta blish the value of the items stolen exceeded

$1,000. Value is defined as follows:

         (i)   The fair market value of the property . . . at the time and place of
               the offense; or




                                            -5-
         (ii)    If the fair market value of the property cannot be ascertained, the cost
                 of replacing the property within a reasonable time after the offense. . . .


Tenn. C ode Ann . § 39-11-106 (a)(36)(A)(i) and (ii).



         The owner of personal property may testify as to the fair market value of the

property. Tenn . R. Evid. 70 1(b); Reave s v. State, 523 S.W.2d 218, 220 (Tenn. Crim.

App. 1975).        All three burglary victims testified at trial as to the accuracy of

docum ents entered into eviden ce listing the stolen item s. Furthermore, each victim

looked at pictures taken by the police of the stolen items and testified that those

were in fact items stolen from each of their h ome s. The lists of sto len item s as w ell

as the pictures o f the items were m ade exh ibits and sh own to th e jury. A trier of fact

may, from all of the evidence presented at trial, determine the fair market value of

the stolen property. State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 198 1). There

were circumstances sufficient to esta blish D efend ant’s in volvem ent in th e theft o f all

of the items taken from the victims’ residences and there was sufficient proof that the

value exceed ed $1,0 00 in eac h coun t. In viewing th e eviden ce in the ligh t most

favorable to the State, we find that the evidence of the value of the stole n prope rty

was establish ed by the proof beyond a reasonable doubt. This issue is without

merit.



                II. Trial Court’s Sustaining of State’s Objection to Testimony



         Defendant argues that the trial court erred when it sustained a “hearsay”

objection by the Assistant District Attorney General when the Defendant’s attorney

asked Defendant’s wife whether she had knowledge of an affair between anoth er

prosecution witness, Lisa Seaton, and the Defendant.              However, the Assistant

                                              -6-
District Attorney did not state the basis of his objection . Befor e the c ourt co uld

announce that the objec tion was s ustained , the witnes s answ ered “N o, sir.” Defense

counsel did not request the court to require the prosecutor to give the basis for the

objection, and did not request an offer of proof. Th ere is nothing in the re cord

showing that Defe ndant p resente d how th e eviden ce wou ld be releva nt and

admissible. Even if it was error for the court to sustain the objection, relief on appeal

is not re quired for a pa rty who fails to take whate ver act ion is re ason ably availab le

to prevent or nullify the harmful effect of an error. Tenn. R. App. P. 36(a). This issue

is without m erit.



                                     III. Sentencing



       When 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 senten ce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-3 5-401(d). Th is presump tion is “conditioned u pon the affirma tive

showing in the reco rd that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). There are, however, exceptions to the presumption of correctness. First, the

record must d emon strate that the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces. Id. Seco nd, the presu mptio n doe s not a pply

to the legal conc lusions re ached by the trial co urt in sente ncing.          T hird, the

presumption does not apply whe n the determ inations mad e by the trial court are

predicated upon u ncontro verted fac ts. State v. S mith, 898 S.W.2d 742, 745 (Tenn.

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).




                                            -7-
      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 ow n beh alf; and (7) the d efend ant’s

potential for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, & -

210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentenc e after having given due consideration and

proper weight to the facts and principles 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 th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court followed proper statutory sentencing procedure, and

therefore, review by this Court is de novo with a pres umptio n of corre ctness. W e

make this conclusion notwithstanding the fact that we determine, as explained

below, that the trial court should have found one mitigating factor to be applicable,

though worthy of n egligible effe ct.



      Defendant argues the following four issues in regards to sentencing: (1) the

trial court erred in its reliance on one enhancement factor; (2) the trial court erred in

rejecting two mitigating factors; (3) the trial court erred in im posing con secutive

senten ces; and (4) the trial co urt erred in impos ing ma ximum senten ces.




                                           -8-
       The trial court found the following four enhancement factors to be applicable:

(1) Defendant had a previous history of criminal convictions or criminal behavior; (2)

Defendant was a leader in the commission of the offense; (3) Defendant had a

previous history of unwillingness to comply with the conditions of a sentence

involving releas e in the com mun ity; and ( 4) the fe lony wa s com mitted while

Defendant was on parole from a prior felony conviction. Tenn. Code Ann. § 40-35-

114(1), (2 ), (8) and (1 3)(B). Th e court fou nd no m itigating facto rs to app ly.



       First, Defendant only contests the enhancement factor asserting that he was

a leade r in the c omm ission of the offenses. T enn. Cod e Ann. § 40 -35-114(2).

Enhancement for being a leader in the commission of an offense d oes not requ ire

the Defendant to be the sole leader but only that he be “a” leader. State v. Hicks,

868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). Testimony at trial revealed that

Defendant chose the homes to burglarize and told the other men what to get out of

each home. H e made the decisions a bout what pro perty to keep and he wa s in

control of the gara ges be hind his re sidence where th e stolen ite ms we re kept. He

also had first choice of the items he wanted to keep for himself. Clearly, Defendant

was a lead er in the com mission of the offenses. We find that the enhancement

factor is fully su pported by the evid ence. T his issue is without m erit.



       Second, Defendant argues that the trial court erred in not applying the

following two mitiga ting factors: (1) Defendant’s criminal conduct did not cause or

threaten seriou s bod ily injury; a nd (2) D efend ant’s m ental c onditio n sign ificantly

reduced his culpability. Tenn. C ode Ann . § 40-35-113(1) and (8). This Court has

observed that “application of the mitigating factor under T.C.A. § 40-35-113(1)

shou ld occur unless the conduct related to serious bodily injury and th e facto r shou ld

                                            -9-
be considered in relation to the facts and circums tances of the partic ular case .”

State v. Christman, C.C.A. No. 0 1-C-01-9211-C C-003 61 (Te nn. Crim . App.,

Nashville, Sept. 2, 1993 ) (no Ru le 11 app lication filed). Although the trial court may

be correct in stating that bu rglaries always involve a chance that the property owner

might return, in the instant case there was no immediate threat of confrontation or

harm. Therefore, the trial court should have considered this factor in mitigation of

the aggravated burglary sentence. The trial court did state that even if the mitigating

factor were applicable, it would be afforded so little weight that it would have no

value in reducin g the sen tence in th is particular c ase. We agree, and conclude that

any mitigation effect is completely outweighed by the applicable enhancement

factors. Any re sulting error in not applying this mitigating factor is ha rmless , at most.

Tenn. R . App. P. 36(b); T enn. R. Crim . P. 52(a).



       Defendant argue s that h is mental condition should have been a mitigating

factor. The o nly eviden ce offere d by De fendan t was a lette r from a m ental hea lth

center. Defendant was found competent to stand trial and was also found sane at

the time of the commission of the offenses. Although the letter did address several

emotional disorders, it did not evidence a men tal condition that wou ld have

signific antly reduced Defendant’s culpab ility for the offenses. Therefore, the trial

court did not abu se its discretion in rejecting this m itigating factor.



       Third, Defendant argues that the trial court erred in ordering the three burglary

sentences to run consecutively to each other. However, pursuant to Tennessee

Code Annotated section 40-35-115(b)(2), we find that the record sup ports by a

preponderance of the evidence that Defendant is an offender whose record of

criminal activity is extensive, thus mak ing him a ca ndidate for con secutive

                                            -10-
senten cing. Defendant’s prior criminal history includes a conviction of aggravated

burglary in 1986, ro bbery in 1 980, as sault by sta bbing a nd cutting a fellow inm ate

while in a penitentiary, and a lengthy juvenile record from age 10 through age 16

when he was committed to the Ohio Yo uth Commission and paroled about the time

of his eighteenth birthday. The juvenile reco rd include s assa ult upo n a tea cher in

school at age 10, larceny of an automobile at age 11, aggravated robbery, theft, and

probation violation at age 12, breaking and entering at age 13, agg ravated burglary,

rape, and aggra vated robbery at age 15, and aggravated burglary and violation of

court order at a ge 16. D efenda nt was thirty-four (34) years old at the time of the

sentencing hearin g, and his ad ult reco rd also includes a parole violation for

absconding. He had apparently spent a significant amount of time during his ad ult

life in the penitentiary system of Ohio.



      Consideration of prior criminal convictions and conduct for both enhancement

and consecutive sentencing purposes is not prohibited by the Tennessee Criminal

Sentencing Reform Act of 19 89. State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim.

App. 1991).    Furthermore, this court has held that juvenile offenses may be

considered to justify consecutive se ntence s. State v. Jeffrey A. Mika, C.C.A. No.

02C01-9508-CR-00244, Shelby County, slip op. at 10-11 (T enn. C rim. App .,

Jackson, filed Feb. 25, 1997) (no Rule 11 application filed); State v. Robe rt

Chapman, C.C.A . No. 02C 01-951 0-CR -00304 , Shelby C ounty, slip op. at 8 n . 1

(Tenn. Crim . App., Jacks on, Ja n. 14, 1 997) (R ule 11 applic ation denied Sept. 8,

1997). In addition, we find from the record that co nsecutive sen tencing is nece ssary

to protect the public from Defendant and is reasonably related to the severity of the

offenses comm itted by De fendan t. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.

1995). T his issue is without m erit.

                                           -11-
         Lastly, Defendant argues that the trial court erred in sentencing him to the

maximum sentence of six (6) years for each aggravated burglary conviction.

Tennessee Code Annotated section 40-35-210(c) provides that the minimum

sentence within the range is the presum ptive sente nce for a Class C felony. If there

are enhancing and mitigating factors, the court must start at the minimum sentence

in the range and enhance the sentence as appropriate for the enhan cemen t factors

and then reduce the sentence within the range as appropriate for the mitigating

factors. Tenn. Code Ann. § 40-35-210(e). If there are no mitigating factors, the

court may set the sentence above the minimum in that range but still within the

range.     Tenn . Code Ann. § 4 0-35-21 0(d).      If the tria l 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 fac tors

is genera lly left to his discre tion. See State v. Mars hall, 870 S.W.2d 532, 541 (Tenn.

Crim. A pp.), perm. to appeal denied (Tenn. 1993). Defendant was sentenced as a

Range I offender because the prosecutor failed to timely file the notice of intent to

seek enhanced punishment as set forth in Tennessee Code Annotated section 40-

35-202. Aggravated burglary, a Class C felony, has a sentence range of three (3)

to six (6) years for a Range I offender. Tenn. Code Ann. §§ 40-35-112(a)(3) and 39-

14-403(b). The trial court correctly found four enhancement factors to apply. Even

if the trial c ourt ha d app lied the one mitiga ting fac tor reg arding no se rious b odily

injury, it would not weigh heavily against the four enhancement factors. The trial

court was ju stified in impo sing th e ma ximum sente nce. E ven if some evidence of

mitigation exists, where the mitigation factors are strongly outweighed by the

enhancement factors, as in this case , the ma ximum senten ce is warra nted. State

v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim. App. 1995). This issue is without

merit.

                                            -12-
      After thoroug h review o f the record, we fin d no m erit to D efend ant’s

argum ents. Th e judgm ents of the trial court are accord ingly affirme d.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge


CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




                                         -13-
