        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 6, 2015

              STATE OF TENNESSEE v. THOMAS MITCHELL

                 Appeal from the Criminal Court for Shelby County
                   No. 1306257    Carolyn Wade Blackett, Judge


             No. W2014-02515-CCA-R3-CD - Filed November 24, 2015
                           ______________________

The Defendant-Appellant, Thomas Mitchell, was convicted by a Shelby County jury of
burglary of a building, a Class D felony. See Tenn. Code Ann. § 39-14-402(a)(1). As a
Range III, persistent offender, he was sentenced to ten years in the Tennessee Department
of Correction. On appeal, the Defendant-Appellant argues that the evidence was
insufficient to support his conviction and that the trial court abused its discretion in
applying certain enhancement factors. Discerning no reversible error, we affirm the
judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Jennifer Mitchell, Memphis, Tennessee, for the Defendant-Appellant, Thomas Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Kevin Rardin, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       The Defendant-Appellant was arrested after he was confronted by the owner of
Zip Products (Zip), a Shelby County business, for entering a building on his property
without permission and cutting and removing wire from the premises. The proof adduced
at the Defendant-Appellant‟s November 4, 2014 trial was as follows. On July 8, 2013,
the day of the offense, Timothy Irwin Jr. and Mike Crawford, employees of Zip, were
having lunch in their break room. Zip is a metal stamping company that consists of three
adjacent buildings, two of which were used primarily for storage. Because of previous
instances of burglary, Zip had placed security cameras equipped with motion detecting
technology in strategic locations among the three buildings. When the motion sensors
were tripped, the cameras were programmed to send photographs of the scene to assigned
cell phones.

        At roughly 11:45 a.m. on the day of the offense, Irwin and Crawford received
alerts that the cameras had been triggered and received photographs of a man, identified
at trial as the Defendant-Appellant. Irwin and Crawford asked another employee to call
the police and proceeded to the location of the camera. Both men had handgun carry
permits and were armed with pistols.

       Irwin testified that he approached the alley near the second building where the
picture had been taken and observed the Defendant-Appellant walking back and forth
from the third building and the alley. The Defendant-Appellant was cutting wire from
the building and piling it up in a bundle in the alleyway. Irwin and Crawford watched the
Defendant-Appellant for approximately fifteen or twenty minutes as he used bolt cutters
to cut into the conduit and pull wiring out of one of the buildings. Irwin continued to
watch the Defendant-Appellant pile the wiring up in the alley between the two buildings,
and the Defendant-Appellant did not appear to notice him. However, Irwin eventually
felt compelled to draw his weapon and told the Defendant-Appellant “to drop everything
and just sit on the ground. And that‟s exactly what he did.” Irwin further testified that he
did not know the Defendant-Appellant, and that the Defendant-Appellant did not have
permission to remove anything from Zip‟s buildings.

       Crawford testified consistently with the testimony of Irwin; however, Crawford
did not observe the Defendant-Appellant enter or exit any of the buildings. Crawford
explained that while he and Irwin stood in the alley, Irwin partially blocked his view of
the Defendant-Appellant. John Canter, a patrol officer with the Memphis Police
Department, testified that, upon his arrival, “the owners . . . had caught an individual
taking stuff off the side of their building.” Officer Canter searched the Defendant-
Appellant, found a pair of “tin snips” on his person, and placed him under arrest. Officer
Canter also took several photographs of the scene, which were introduced at trial.

       The Defendant-Appellant did not offer any proof. After deliberations, the jury
convicted the Defendant-Appellant, as charged, of burglary of a building. At the
December 3, 2014 sentencing hearing, the Defendant-Appellant conceded that he
qualified to be sentenced as a Range III, persistent offender based on his prior
convictions. Following arguments of counsel, the trial court enhanced the Defendant-
Appellant‟s sentence based on factors (1), that the Defendant-Appellant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range, and (8), that the Defendant-Appellant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
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community. Tenn. Code Ann. § 40-35-114(1), (8). The trial court declined to apply
mitigation factor (1) of Tennessee Code Annotated section 40-35-113, and sentenced the
Defendant-Appellant to ten years at forty-five percent in the Tennessee Department of
Correction. That same day, the Defendant-Appellant filed a motion for new trial or
judgment of acquittal, which was denied. The Defendant-Appellant then filed a timely
notice of appeal.

                                       ANALYSIS

        On appeal, the Defendant-Appellant argues that the evidence was insufficient to
support his conviction for burglary of a building and that the trial court erred in its
application of sentencing factors (1) and (8). Specifically, he claims that the testimony of
the State‟s witnesses as to whether he entered the building was inconsistent and that the
trial court‟s misapplication of sentencing factors resulted in an excessive sentence. The
State contends that the evidence was sufficient to support the conviction and that the trial
court properly imposed a ten-year sentence. Upon review, we agree with the State.

       I. Sufficiency of the Evidence. In this case, the Defendant-Appellant contends
that the testimony regarding whether he “entered” any of the buildings on Zip‟s property
was so inconsistent that no rational jury could have found the necessary elements for
burglary of a building beyond a reasonable doubt. The State maintains that the evidence
was sufficient to support the conviction.

        In considering this issue, we apply the following well-settled principles of law.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant
challenges the sufficiency of the evidence, the standard of review applied by this court is
“whether „any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the
Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the finding by the trier of fact of guilt beyond a reasonable doubt.”

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
                                            -3-
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “„is the same whether the conviction is based upon
direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
shall not substitute its inferences for those drawn by the trier of fact. Id.

       “In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence.” Dorantes, 331 S.W.3d at 379 (citing Duchac v.
State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-58
(Tenn. 1958)). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” Rice, 184 S.W.3d at 662 (quoting Marable, 313 S.W.2d at 457).
This court may not substitute its inferences for those drawn by the trier of fact in cases
involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (citing
State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” Dorantes, 331 S.W.3d at 379 (quoting Hanson, 279 S.W.3d at
275).

       To sustain a conviction for burglary of a building, the State was required to prove
that the Defendant-Appellant entered a building, other than a habitation, that was not
open to the public, with the intent to commit a felony, theft or assault within the building.
Tenn. Code Ann. § 39-14-402 (a)(1). Here, the Defendant-Appellant challenges only the
“entry” element of the offense, arguing that the State‟s evidence regarding whether he
entered one of Zips‟ buildings was insufficient for a reasonable jury to find that element
of the offense beyond a reasonable doubt. “Entry” means the intrusion of any part of the
body or intrusion of any object in physical contact with the body or controlled by remote
control. Id. § 39-14-402(b).

       Viewed in the light most favorable to the State, the record shows that on the day of
the offense, a motion sensor from Zip‟s camera system was triggered and alerted Zip
                                             -4-
employees of an intruder. The alert sent employees a photograph of the Defendant-
Appellant, who was located between two of their buildings. Irwin, one of the employees,
approached the area indicated by the camera and observed the Defendant-Appellant for
fifteen minutes “walking back and forth between the alleyway and inside the farthest
third building.” He further observed the Defendant-Appellant removing wire from the
same building. A photograph of the Defendant-Appellant, admitted into evidence,
showed him located in the alleyway of Zip‟s property at the time of the offense. Another
photograph, admitted into evidence, showed the wiring he was carrying when he was
confronted by Irwin. Irwin testified that the photograph accurately reflected the inside of
the third building and that “this is exactly where the Defendant-Appellant dropped all of
the stuff he was carrying, the bolt cutters, and some gloves and all the main wiring he‟d
pulled out.” And finally, the Defendant-Appellant was found in possession of wire
cutters and tin snips when police searched him. Based on the above proof, there is more
than ample evidence for a rational jury to find that the Defendant-Appellant entered the
building, not open to the public, with the intent to commit a felony or theft within the
building. See e.g., State v. Paul Eugene Riggins, No. 01C01-9512-CC-00408, 1997 WL
211256, at *3 (Tenn. Crim. App. Apr. 30, 1997) (affirming burglary of a building
conviction and noting that a rational juror could conclude beyond a reasonable doubt that
since the door was open, the bolt pried loose, and the padlock missing, some part of the
defendant‟s body or the tools used had intruded into the equipment room). He is not
entitled to relief on this issue.

        II. Sentencing. The Defendant-Appellant argues that the trial court abused its
discretion by imposing a ten-year sentence. Although he does not dispute his status as
Range III, persistent offender, he argues that the trial court erred in its application of
sentencing factors (1) and (8), which resulted in an excessive sentence. The Defendant-
Appellant offered no proof at the sentencing hearing, and the presentence report is not
included in the appellate record. The State responds that any issue as to sentencing is
waived for failure to include a copy of the presentence report in the record on appeal, and
that, in any event, the trial court properly imposed the sentence in this case. For the
reasons that follow, we agree with the State.

        The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing.” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012).
In light of this broader discretion, “sentences should be upheld so long as the statutory
purposes and principles, along with any applicable enhancement and mitigating factors,
have been properly addressed.” Id. at 706. Moreover, “a trial court‟s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
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should be upheld.” Id. Therefore, this court reviews a trial court‟s sentencing
determinations under “an abuse of discretion standard of review, granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707.1

        Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant‟s specific sentence and the
appropriate combination of sentencing alternatives: (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 mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement the defendant wishes to
make in the defendant‟s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b).

       The defendant has the burden of showing the impropriety of the sentence on
appeal. Id. § 40-35-401(d), Sentencing Comm‟n Cmts. In determining the proper
sentence, the trial court must consider the defendant‟s potential for rehabilitation or
treatment. Id. §§ 40-35-102(3)(C), -103(5). In addition, the court must impose a
sentence “no greater than that deserved for the offense committed” and “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-
35-103(2), (4).

       “A „persistent offender‟ is a defendant who has received: (1) [a]ny combination of
five (5) or more prior felony convictions within the conviction class or higher, or within
the next two (2) lower felony classes where applicable.” Id. § 40-35-107(a). Persistent
offenders receive Range III sentences, see Tenn. Code Ann. § 40-35-107(c), which carry
higher criminal penalties and require offenders to serve a greater portion of the sentence
before becoming eligible for release. Id. § 40-35-107, Sentencing Comm‟n Cmts.; see
also id. § 40-35-501(e). The punishment range for burglary of a building, a Class D
felony, is between two and twelve years, with sentences in Range III from eight to twelve
years. Tenn. Code Ann. §§ 39-14-402(c), 40–35–112(c)(4).

       After finding that the Defendant-Appellant had a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the
appropriate range, enhancement factor (1), and that the Defendant-Appellant, before trial
or sentencing, failed to comply with the conditions of a sentence involving release into
        1
          The Defendant-Appellant‟s brief cites our standard of review for the length, range and manner
of sentence prior to the 2005 amendment to the Sentencing Act. Significantly, our review is no longer de
novo with a presumption of correctness.
                                                  -6-
the community, enhancement factor (8), the trial court sentenced the Defendant-
Appellant to ten years. Because the sentence is within the applicable range, it is afforded
a presumption of reasonableness so long as the record reflects a proper application of the
purposes and principles of sentencing.

       Initially, we note that the Defendant-Appellant has failed to include the
presentence report in the record on appeal. The absence of the presentence report from
the record on appeal significantly hampers our ability to analyze the application of the
enhancement factors in this case. The appellant has the burden of ensuring that the
appellate record contains a fair, accurate, and complete account of what has occurred
regarding the issues that are the bases of the appeal. See Tenn. R. App. P. 24(b); State v.
Ballard, 855 S.W.2d 557, 560 (Tenn.1993). The appellant risks waiving the issues on
appeal if an incomplete record is submitted to this court. Here, the record contains the
transcript from the sentencing hearing, the State‟s Notice of Intent to Seek Enhanced
Punishment, and the Defendant-Appellant‟s Notice of Mitigating Factors. Because we
find these documents sufficient to facilitate review, incomplete record notwithstanding,
we will address the Defendant-Appellant‟s issues on their merits.

       First, the Defendant-Appellant challenges the trial court‟s application of
enhancement factor (1). In his brief, the Defendant-Appellant concedes that the
presentence report, which was introduced as an exhibit at the sentencing hearing, lists six
prior felony convictions in the Defendant-Appellant‟s criminal history along with
“several misdemeanor convictions.” The Defendant-Appellant argues, however, that the
State was bound by its Notice of Intent to Seek Enhanced Punishment, which lists five
felony convictions and two misdemeanor theft convictions. Therefore, the Defendant-
Appellant asserts that the trial court erred in applying enhancement factor (1) because
there was “no proof presented establishing the sixth felony conviction.” We disagree.

       The trial court‟s application of enhancement factor one is supported by the
existence of the two misdemeanor theft convictions on the Defendant-Appellant‟s record.
Those misdemeanor convictions were listed on the State‟s Notice of Intent to Seek
Enhanced Punishment and our review of the sentencing transcript reflects that they were
noted on the presentence report as well. Furthermore, the Defendant-Appellant never
challenged the existence of those misdemeanor convictions at the sentencing hearing or
on appeal. Accordingly, the State was not required to submit proof of an additional
felony conviction. See State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD, 2000
WL 298744, at *2 (Tenn. Crim. App. Mar. 14, 2000) (“There is no restriction in our
sentencing provisions limiting the type of criminal convictions or behavior which may be
used to support application of enhancement factor one.”); see also State v. Lawrence
Hailey, No. W2009-00759-CCA-R3-CD, 2010 WL 2219574, at *11 (Tenn. Crim. App.
May 24, 2010) (noting that misdemeanor convictions could be used to apply
                                            -7-
enhancement factor (1)). Accordingly, we conclude that the trial court properly applied
enhancement factor (1) based on the Defendant-Appellant‟s previous misdemeanor
convictions.

        As to enhancement factor (8), the Defendant-Appellant contends that the trial
court erred in finding that he had previously failed to comply with the conditions of
sentencing involving release into the community based on two probation violation
convictions that occurred in 1988 and 2012. As stated above, the Defendant-Appellant
does not contest the existence of these convictions, but instead argues that they should
not have been used to enhance the Defendant-Appellant‟s sentence because they did not
occur during the pendency of the case at trial. As an initial matter, we are compelled to
note that the Defendant-Appellant has failed to cite any authority or argument in support
of this view. Technically, this issue can be waived on that ground alone. “Issues which
are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). Waiver
notwithstanding, this issue is meritless. This court has repeatedly held that enhancement
factor (8) contemplates a previous history of unwillingness to abide by the conditions of
release into the community and, therefore, cannot be triggered solely by the commission
of the offense for which the Defendant-Appellant is being sentenced. See State v. Barry
Smith, Julian Kneeland, and Barron Smith, W2011-02122-CCA-R3-CD, 2013 WL
6388588, at *24 (Tenn. Crim. App. Dec. 5, 2013) (citing State v. Hayes, 899 S.W.2d 175,
186 (Tenn. Crim. App. 1995)); see also State v. Adams, 45 S.W.3d 46, 60 (Tenn. Crim.
App. 2000). Accordingly, we conclude that the trial court properly applied enhancement
factor (8).

       Finally, the Defendant-Appellant also claims the trial court erred in rejecting his
claim that his conduct neither caused nor threatened serious bodily injury. See Tenn.
Code Ann. § 40-35-113(1). In declining to mitigate the sentence on this ground, the trial
court reasoned as follows:

      [I‟m] focusing on the word „threatened‟. Okay. That‟s what I‟m looking
      at. And I think that whenever somebody is in a situation like that at that
      point and time of it happening, there‟s a possibility that something could go
      wrong where somebody could get hurt. Fortunately in this particular
      situation nothing happened. He was orderly. He did what he was asked to
      do. . . . but technically speaking he had no business on the property. He was
      wrong from the very beginning. So nobody knows what the outcome could
      have been. But we can look back on it now and say that nothing happened.
      Everything was orderly.



                                           -8-
       In State v. Ross, the Tennessee Supreme Court stated that mitigation factor (1)
“focuses not on the circumstances of the crime,” but rather “upon the defendant‟s conduct
in committing the crime.” 49 S.W.3d 833, 848 (Tenn. 2001); see also State v. George
Anthony Flevaris, No. E2012-00978-CCA-R3-CD, 2013 WL 3816601, at *4 (Tenn.
Crim. App. July 18, 2013). Based on the evidence adduced at trial, it is clear that, once
caught, the Defendant-Appellant complied with the business owners and did not cause or
threaten bodily injury. His conduct in committing the burglary of the building supported
application of this mitigation factor. While we disagree with the trial court‟s failure to
apply mitigating factor (1), given our review of the record, it does not invalidate or alter
the sentence in this case. As a Range III, persistent offender, the Defendant-Appellant
received a mid-range sentence of ten years. Upon our review, the record reflects a proper
application of the purposes and principles of sentencing. Therefore, the Defendant-
Appellant is not entitled to relief.

                                     CONCLUSION

        Based on the foregoing authorities and analysis, we affirm the judgment of the
trial court.


                                                  _________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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