         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 7, 2006

                     STATE OF TENNESSEE v. TONY SAMUEL

                     Appeal from the Circuit Court for Lauderdale County
                             No. 7690   Joseph H. Walker, Judge



                      No. W2005-01448-CCA-R3-CD - Filed April 5, 2006


The Defendant, Tony Samuel, was convicted by a Lauderdale County jury of burglary and Class E
felony theft. He received an effective seven-year sentence for these convictions. In this appeal as
of right, the Defendant argues that: (1) the evidence is insufficient to support his convictions and (2)
his sentences are excessive. After a review of the record, the judgments of conviction and resulting
sentences are affirmed.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

Kari I. Weber, Covington, Tennessee, for the appellant, Tony Samuel.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Tracey Brewer-Walker, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                              OPINION

                                       Factual Background

        At approximately 2:58 a.m. on May 27, 2004, surveillance cameras recorded a burglary at
the Little General store in Halls, Tennessee. The video showed two individuals, driving a white
vehicle, stop and park in front of the store. The individuals then “got out of the vehicle, walked up
to the window of the store, looked through the window, walked back across there several times, went
back to their car, came back.” One of the individuals used a “stick like object” to break the window.
“[T]hen they both enter[ed] the store and [took] several items off the shelf and then [left], [came]
back a second time and [took] more items and [left] the store again.” It was later determined that
twenty-seven cartons of cigarettes were stolen from the store, worth $901.53.
        Halls Chief of Police Joe Pursell viewed the surveillance video in the manager’s office of the
Little General. Chief Pursell could not identify the individuals on the video and determined that “the
subject may not be from Halls, Tennessee.” About a week later, Chief Pursell “took the tape to
Ripley because [he] knew they had better equipment[.]” Chief Pursell and Officer Terry Jordan of
the Ripley Police Department viewed the video a “[c]ouple dozen times[,]” and Officer Jordan
identified the Defendant as one of the perpetrators of the burglary. According to Officer Jordan, he
had known the Defendant for ten to twelve years and, from the video, he was able to identify facial
hair on the Defendant. He stated that, during the burglary, the Defendant was “[w]earing a dark
colored shirt and a white ball type cap.”

         Based upon the identification of the Defendant from the surveillance video, Chief Pursell and
Officer Jordan went to the home of April Powell, the Defendant’s girlfriend. The Defendant lived
at the residence with Ms. Powell. The officers “made a trip by the house” and noticed the Defendant
sitting “on the front porch wearing a white ball cap[.]” The officers also identified the vehicle in Ms.
Powell’s driveway as similar in “make, model and design features” to the vehicle used in the
burglary of Little General. Ms. Powell owned a 1996 white Buick. The officers elected to conduct
further investigation before making an arrest.

         On June the 8th, Chief Pursell received a call that he was needed at Baptist Memorial
Hospital in Ripley. At the hospital, he encountered Ms. Powell and told her that he “believed her
vehicle might have been used in a burglary.” Ms. Powell consented to a search of the vehicle. Inside
the car, Chief Pursell located a stick that looked similar to the object used to break the window of
the Little General store. According to Chief Pursell, the stick was not “usable” for fingerprint
testing.

       Ms. Powell stated that her vehicle and car keys were missing when she woke up on May 27,
2004. When she saw the Defendant at 7:30 a.m. that morning, the car had been returned. Ms.
Powell was on a fixed income and stated that she kept track of the amount of gas in her vehicle. On
the morning of May 27th, her car was unusually low on gas.

       At some point during the investigation, Sergeant Rita Burnett also viewed the surveillance
video and identified the Defendant, whom she had known for about six years, as one of the
perpetrators. She stated the perpetrator was a black male and was the same height and build as the
Defendant. After viewing the video on two separate occasions for approximately ten minutes each
time, Sergeant Burnett identified the Defendant based upon his “distinctive” facial features.

        On October 4, 2004, a Lauderdale County grand jury indicted the Defendant for burglary and
theft of property valued over $500 but less than $1,000. The Defendant did not testify on his own
behalf at trial and, following the State’s presentation of evidence, the jury found the Defendant guilty
as charged.

        A sentencing hearing was held on March 8, 2005. The trial court sentenced the Defendant
to seven years as a Range II, multiple offender for the burglary conviction and three years as a Range


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II, multiple offender for the Class E felony theft conviction. These sentences were to be served
concurrently in the Department of Correction. The Defendant filed a motion for new trial, which
was denied. This appeal followed.

                                             ANALYSIS

I. Sufficiency of the Evidence

        First, the Defendant contends that the evidence was insufficient to support his convictions
for burglary and theft of property valued over $500 but less than $1,000. Specifically, he argues that
“the proof of identification was minimal at best.” The Defendant asserts that the officers’
identification of him from the surveillance video is suspect based upon the following rationale:

        [T]he video itself and still photos from the video introduced into evidence at the trial
        provide no clear assistance in identification of the individuals in the video. Officer
        Terry Jordan conceded in viewing a still photo from the video that he could not see
        the individual’s eyes, whether they are close together or far apart, the type of
        forehead, the type of cheekbones, whether the person had facial hair, the type of nose,
        or the length of hair. Officer Jordan agreed he could not see these characteristics in
        the video played at trial either. Similarly, Officer Rita Burnett could not identify
        facial features in the video or photos introduced as evidence in the trial.

        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that 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); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. Carruthers, 35 S.W.3d at 558;
Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier
of fact, and this Court will not re-weigh or re-evaluate the evidence. Evans, 108 S.W.3d at 236;
Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from


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circumstantial evidence for those drawn by the trier of fact. Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

        As relative to this case, Tennessee Code Annotated section 39-14-103 provides, “A person
commits theft of property if, with intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.” Tenn. Code
Ann. § 39-14-103. Additionally, in order to sustain a conviction for burglary, the State must prove
that a person, without the effective consent of the property owner, entered a building other than a
habitation, which was not open to the public, with intent to commit a theft. § 39-14-402(a)(1).

        In this case, the Defendant’s sufficiency argument is based upon the credibility of Officers
Jordan and Burnett, who identified the Defendant as one of the perpetrators from the Little General
surveillance video. Both officers stated that they were certain that the Defendant was the person who
appeared in the video. The evidence at trial also established that the Defendant had access to his
girlfriend’s car, which was similar to the one used by the perpetrators; a stick, like the one wielded
to shatter the store window, was found in the girlfriend’s vehicle; and the Defendant was seen
wearing a “white ball cap” that resembled the hat worn by a perpetrator. We conclude that the
positive identification testimony by the officers from the surveillance video and the corroborative
evidence of the video and other proof sufficiently support the Defendant’s convictions for burglary
and theft of property. See State v. Stacy Johnson, No. W2004-00464-CCA-R3-CD, 2005 WL
645165, at *10 (Tenn. Crim. App., Jackson, Mar. 15, 2005). This issue is without merit.

II. Sentencing

         Next, the Defendant argues that his sentences for burglary and theft are excessive because
the trial court failed to properly weigh the enhancing and mitigating factors. Specifically, he states:

       Based on his record as a whole, this sentence does not match the severity of the
       offenses for which he is convicted.

               ....

               . . . The Court did find that the defendant neither caused nor threatened
       serious bodily injury as a mitigating factor. Defendant asserts that the adjustment of
       the sentence above the minimum in the range was not appropriate based on his prior
       record alone.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the 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) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own


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behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). 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. State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). However, 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, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and 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). We
will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

        Tennessee Code Annotated § 40-35-210 states that, if both enhancement and mitigating
factors are present, the court must start at the minimum sentence, enhance as appropriate for
enhancement factors, and then reduce the sentence as appropriate for applicable mitigating factors.
Tenn. Code Ann. § 40-35-210(e).1 The Defendant was convicted as a Range II, multiple offender
of burglary, a class D felony, which carries a sentence range of four (4) to eight (8) years. § 40-35-
112(b)(4). He was also convicted of the theft of property valued over $500 but less than $1,000, a
Class E felony, see § 39-14-105(2), which carries a range of two (2) to four (4) years, see § 40-35-
112(b)(5). Here, the trial court found one (1) enhancement factor, the Defendant’s history of
criminal conduct, see § 40-35-114(2) (2004), and one (1) mitigating factor, the lack of serious bodily
injury, see § 40-35-113(1) (2004), applied. Thereafter, the trial court enhanced the Defendant’s
sentences to seven (7) years for burglary and three (3) years for theft.

       The Defendant disputes the weight the trial court gave to the sole enhancement factor. In
enhancing the Defendant’s sentences based upon is prior criminal record, the trial court stated:



         1
            W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his
sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,
and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.

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                As set out in the presentence report, he has multiple Theft convictions out of
       Lauderdale General Sessions. He has, in May of ‘99 for the offense date, conviction
       date . . . August of ‘99. Then he has August of ‘99 offense date, conviction date in
       September of ‘99, Driving While his License is Revoked in Sessions Court in August
       of ‘99. Another Theft in February of ‘99 with a conviction date in May of ‘99. The
       Burglary conviction in Docket Number 6784 was used to establish the appropriate
       range. He has a Theft conviction in the same docket number. He has another Theft
       conviction in the same docket number. He has another Theft conviction out of
       General Sessions Court for May of ‘98. At least one of the Forgery convictions was
       used to establish the appropriate range, but there are a couple of additional Forgery
       convictions. A Theft conviction out of Ripley City Court in April of ‘98. There’s
       a conviction for which he received three years in Docket Number 5934 out of Circuit.
       There’s also a Theft conviction that’s a misdemeanor in 5582 out of Circuit in ‘92.
       An Aggravated Burglary conviction in 1991 used to establish the appropriate range.
       So in addition to those convictions used to establish the appropriate range, there are
       a number of other misdemeanor and a couple of felony convictions.

In imposing the sentences, the trial court then concluded that the enhancement factor “greatly
outwiegh[ed]” the mitigating factor.

        The Defendant’s criminal history includes thirteen convictions in addition to those necessary
to establish the range of multiple offender. Relying on the presentence report, these thirteen
convictions consist of one conviction for driving on a revoked license, one conviction for failure to
appear, two convictions for driving while license suspended, seven misdemeanor theft convictions,
and two forgery convictions. Additionally, the report establishes three prior violations of parole or
probation. We exercise our de novo review and find that enhancement factor (9), the Defendant has
a previous history of unwillingness to comply with the conditions of a sentence involving release in
the community, also applies to the Defendant. Tenn. Code Ann. § 40-35-114(9) (2004). While the
trial court found that mitigating factor (1) applied, the lack of serious bodily injury, see § 40-35-
113(1) (2004), the trial court noted that this factor applied merely because “no victims [were] present
on the scene” and, therefore, it was entitled to minimal weight. Upon our de novo review, we
conclude that the record supports the sentencing decision of the trial court.

                                          CONCLUSION

         In accordance with the foregoing authorities and reasoning, we conclude that the evidence
is sufficient to support the Defendant’s convictions for burglary and Class E felony theft and that his
sentences are not excessive. Accordingly, the judgments of the trial court are affirmed.




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      ___________________________________
      DAVID H. WELLES, JUDGE




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