        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 10, 2015


                   STATE OF TENNESSEE v. BRENT HICKS

               Appeal from the Circuit Court for Williamson County
                  No. II-CR027062      Timothy L. Easter, Judge




              No. M2014-02149-CCA-R3-CD – Filed October 30, 2015
                        _____________________________

In February 2013, the Williamson County Grand Jury indicted the Defendant, Brent
Hicks, for theft of merchandise over $1,000, a Class D felony. Following a jury trial, the
Defendant was convicted as charged and sentenced to eight years in the Department of
Correction. On appeal, the Defendant contends that the evidence presented at trial is
insufficient to support his conviction and that his sentence is excessive. Following our
review, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Sandra L. Wells, Franklin, Tennessee, for the appellant, Brent Hicks.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Kim R. Helper, District Attorney General; and Terry Wood, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                                          Facts

       This case arises from a theft of tools from a NAPA auto parts store in Franklin,
Tennessee. Patrick Bailey testified that, on September 2, 2011, he was working at NAPA
as a sales clerk when he noticed a short, heavy-set man who appeared to be leaving the
store with a box tucked under his jacket. Although Mr. Bailey was at the counter
assisting a customer, he asked a co-worker if the co-worker had sold anything in a box
like that carried by the man leaving the store. The co-worker, who was at a nearby
register speaking to a tall, slender man, said that he had not sold a boxed item. Mr.
Bailey immediately left the counter and went to the front of the store, yelling at the
heavy-set man to stop. The man got into the passenger seat of a green Chevy Malibu and
glared at Mr. Bailey from inside the car. Mr. Bailey then saw the tall, slender man who
had been talking to his co-worker get into the driver‟s seat of the green Malibu.
Although Mr. Bailey yelled at the men to stop, the car backed out of the parking lot and
drove away. At that time, Mr. Bailey was able to record the vehicle‟s tag number. Soon
after the men left the store, Mr. Bailey discovered that three impact wrenches were
missing from the store‟s inventory and called the police. Mr. Bailey testified that the
stolen items were worth approximately $1,120 in total.

       Regarding the suspects, Mr. Bailey described the tall, slender man as standing
approximately six feet, one inch tall and weighing 180 lbs. The heavy-set man at the
front of the store with the box under his arm was approximately four feet, ten inches tall
and weighed about 350 lbs. Mr. Bailey recalled that the heavy-set man had tattoos on his
forearms. Mr. Bailey believed this man to be possibly of Hispanic descent because of the
man‟s skin tone. During trial, Mr. Bailey was shown a photograph of the Defendant.
From the photograph, Mr. Bailey identified the Defendant as the man he had seen
carrying the box of items from the store. However, Mr. Bailey did not recognize the
Defendant in the courtroom.

        Robert Stem testified that, at the time of the theft from NAPA, he worked as a
mechanic. Mr. Stem acknowledged being at the auto parts store on September 2, 2011,
and that he was driving a green Chevy Malibu. Mr. Stem further admitted that he had
pled guilty to the theft of the tools based upon a theory of criminal responsibility, but he
claimed that he did not personally steal any of the items. Mr. Stem claimed that he could
not recall whether the Defendant was at the store with him on the day of the offense. Mr.
Stem acknowledged that, when he entered his guilty plea, he agreed to testify truthfully
against his co-defendant. When asked if he was testifying truthfully, Mr. Stem
responded, “I‟m not saying one way or the other.” He admitted that the Defendant was
his friend and he did not want the Defendant to get into trouble. Mr. Stem recalled
talking to Detective Chad Pace about the offense but stated he could not recall telling
Detective Pace that the Defendant stole the tools from the store. When asked to review a
police report summary of his statement to refresh his memory, Mr. Stem refused to repeat
what he told Detective Pace. On cross-examination, Mr. Stem testified that, around the
time of the offense, he employed a Cuban man who had a dark complexion. Mr. Stem
stated that this employee occasionally accompanied him to the auto parts store.

                                           -2-
        Detective Chad Pace, with the Franklin Police Department, testified that he
investigated the theft from NAPA that occurred on September 2, 2011. Based upon the
vehicle description and tag number provided by the store clerk, Detective Pace learned
that Mr. Stem had been driving the green Malibu on the day of the offense. When
Detective Pace interviewed Mr. Stem, Mr. Stem stated that the Defendant was with him
at the time of the theft. Mr. Stem admitted to the theft of the wrenches and said that the
Defendant was his accomplice. Mr. Stem told Detective Pace that it had been the
Defendant‟s idea to steal the tools and that this was how the Defendant made money.

       Detective Pace testified that, in a video-recorded interview with the Defendant, the
Defendant initially denied any involvement in the theft. However, the Defendant
eventually admitted that he was with Mr. Stem at NAPA on September 2, 2011. The
Defendant accurately described the stolen wrenches and admitted that he carried two
boxes out of the store “in front of himself.” The Defendant said that he thought Mr. Stem
had purchased the items and he was carrying them out to the car for Mr. Stem. The
Defendant denied that he had tried to hide the items as he left the store. During the
interview, Detective Pace asked the Defendant whether he had any tattoos, and the
Defendant lifted his shirt sleeve and showed Detective Pace a tattoo on his upper arm.
Detective Pace testified that the Defendant did not have any tattoos on his forearms.
Based upon this testimony, the jury found the Defendant guilty of theft over $1,000.

        At a subsequent sentencing hearing, the Defendant testified that, if he were to be
released on probation, he intended to live with a friend in Nashville. The Defendant then
explained that he had a history of medical problems. He stated that he was diabetic and
had “bad” arthritis. The Defendant further stated he previously had open heart surgery,
dislocated knees, and torn rotator cuffs in his shoulders. The Defendant testified that he
was not a threat to society and that he wanted to “get [his] disability and go home to
Texas and live in peace.” On cross-examination, the Defendant testified that he was
fifty-eight years old. He admitted that he had been convicted of thirty-three
misdemeanors and three felonies since turning forty. The Defendant explained that
approximately nine of the misdemeanor convictions were for theft under $500 and twelve
were for driving on a revoked license. The Defendant acknowledged that he had been
placed on probation in the past and that he had violated probation “a few” times.

       The State then introduced the presentence report and certified copies of the
Defendant‟s prior convictions. These exhibits indicated that the Defendant had two
previous felony convictions for theft, a felony conviction for possession of a controlled
substance for resale, and multiple misdemeanor convictions. The State‟s proof further
established that the Defendant was on probation for theft out of Sumner County at the
time he committed the instant offense.

                                           -3-
        The trial court found the Defendant to be a Range II multiple offender based upon
his prior convictions. In setting the length of the Defendant‟s sentence at eight years, the
trial court considered as enhancement factors the Defendant‟s previous history of
criminal convictions in addition to those necessary to establish the appropriate range and
that the Defendant was on probation for theft at the time of the instant offense. The trial
court stated that the Defendant “was pretty much a thief since the age of 40. And that
seems to be the way he lives is by stealing other people‟s stuff.” As a mitigating factor,
the trial court considered that the Defendant‟s conduct did not cause or threaten bodily
injury. The trial court also determined that the Defendant was not an appropriate
candidate for probation, noting the Defendant‟s “long history of criminal conduct” and
that measures less restrictive than confinement had frequently or recently been applied
unsuccessfully to the Defendant. Based upon these considerations, the trial court ordered
the Defendant to serve his eight-year sentence. This appeal followed.

                                            Analysis

       The Defendant argues that the evidence presented at trial is insufficient to support
his conviction and that his sentence is excessive. At the outset, the State contends this
appeal should be dismissed because the Defendant‟s motion for new trial and subsequent
notice of appeal were untimely filed.

       Tennessee Rule of Criminal Procedure 33(b) requires that a motion for new trial
be made in writing and filed within thirty days of the date the sentencing order is entered.
The time for filing a motion for new trial is mandatory and may not be extended. Tenn.
R. Crim. P. 45(b)(3); State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998).
An untimely filed motion for new trial is a nullity and will not toll the thirty-day time
period for filing a notice of appeal. State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim.
App. 1987); see Tenn. R. App. P. 4(c).

       In this case, the judgment of conviction was entered on June 25, 2014, and the
Defendant‟s motion for new trial was filed more than thirty days later on July 31, 2014.
Although the trial court entered an order denying the motion for new trial on October 28,
2014, the motion for new trial was a nullity and did not toll the thirty-day time period for
the notice of appeal. Consequently, the Defendant‟s notice of appeal was also untimely
when it was filed on October 30, 2014.

       As noted by the State, a timely filed notice of appeal is not jurisdictional in this
court, and we may elect to waive the requirement in the interest of justice. Tenn. R. App.
P. 4(a). “„In determining whether waiver is appropriate, this court will consider the
nature of the issues presented for review, the reasons for and the length of the delay in
seeking relief, and any other relevant factors presented in the particular case.‟” State v.
                                           -4-
Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L.
Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App.
Dec. 27, 2005)). Here, it appears that the Defendant attempted to comply with the time
requirements for filing an appeal. The record shows that the Defendant filed a pro se
notice of appeal on July 25, 2014, within thirty days of the entry of the judgment of
conviction. However, the Defendant later filed a motion requesting a voluntary dismissal
of the appeal after trial counsel filed a motion for new trial.1 Although the Defendant has
not specifically asked this court to waive the requirement of a timely notice of appeal, the
Defendant raises only the issues of sufficiency of the evidence and sentencing, and this
court would not be precluded from reviewing these issues despite the Defendant‟s
untimely motion for new trial. See State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim.
App. 2001) (citing State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997)).
For these reasons, we conclude that the “interest of justice” is best served by waiving the
timely notice of appeal.

                                     Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient because the State failed to
establish his identity as the perpetrator of the offense. The State responds that the
evidence is sufficient to support the Defendant‟s conviction for theft over $1,000. We
agree with the State.

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded on other grounds by Tenn. R. Crim. P. 33 as stated in State v. Moats, 906
S.W.2d 431, 434 n.1 (Tenn. 1995). This court will not reweigh the evidence. Id. Our
standard of review “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)) (internal quotation marks omitted).

      A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). The defendant bears the burden of proving why the
evidence was insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle,

        1
            This court granted the Defendant‟s motion to voluntarily dismiss his appeal on September 24,
2014.
                                                  -5-
639 S.W.2d at 914. On appeal, the “State must be afforded the strongest legitimate view
of the evidence and all reasonable inferences that may be drawn therefrom.” State v.
Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

       The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

       “[A] person commits theft of property if the person, with the intent to deprive a
merchant of the stated price of merchandise, knowingly . . . [r]emoves, takes possession
of, or causes the removal of merchandise.” Tenn. Code Ann. § 39-14-146(a)(2) (2010).
Theft of property is a Class D felony if the value of the property obtained is $1,000 or
more but less than ten thousand dollars $10,000. Tenn. Code Ann. § 39-14-105(a)(3)
(2010).

        The evidence, when viewed in the light most favorable to the State, shows that the
Defendant stole three impact wrenches from NAPA auto parts store that were worth a
total of $1,120. In his brief, the Defendant attacks the testimony of the State‟s main
identification witness, Mr. Bailey, as unreliable.2 The Defendant seems to forget,
however, that he admitted to Detective Pace that he was inside the auto parts store on
September 2, 2011, and that he carried the box containing the wrenches out of the store.
Thus, the Defendant‟s own admissions support Mr. Bailey‟s identification of the
Defendant as the man he saw removing merchandise from the store. It was for the jury to
determine whether the Defendant removed the merchandise “with the intent to deprive
[the] merchant of the stated price of merchandise” or whether, as the Defendant claimed,
he had innocently relied upon Mr. Stem‟s statement that Mr. Stem had already paid for
the items. Based upon the verdict, the jury clearly accredited the State‟s proof as to the
Defendant‟s identity and rejected the Defendant‟s claim that he lacked intent to deprive
NAPA of the price of the merchandise. As noted previously, questions of fact and the
credibility of witnesses are resolved by the jury, and this court will not reweigh the
evidence presented at trial. Cabbage, 571 S.W.2d at 835; Crawford, 635 S.W.2d at 705.
Thus, we conclude that the evidence presented at trial is sufficient for any rational trier of
fact to find the Defendant guilty beyond a reasonable doubt of theft over $1,000.
        2
            In his challenge to the sufficiency of the evidence, the Defendant seems to additionally assert
that Mr. Bailey‟s photographic identification of the Defendant at trial was unnecessarily suggestive and
resulted in a due process violation. However, we conclude that the Defendant has waived consideration
of this issue by failing to raise an objection before or during trial and by failing to include the issue in a
timely filed motion for new trial. See Tenn. R. App. P. 36(a).
                                                    -6-
                                         Sentencing

       The Defendant also challenges the trial court‟s imposition of an eight-year
sentence as excessive. The State responds that the trial court did not abuse its discretion
in sentencing the Defendant. We agree with the State.

        When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). So long as
the trial court sentences within the appropriate range and properly applies the purposes
and principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Bise, 380 S.W.3d at 707. “[A] trial court‟s misapplication of an
enhancement or mitigating factor does not remove the presumption of reasonableness
from its sentencing determination.” Id. at 709. Moreover, under those circumstances,
this court may not disturb the sentence even if it had preferred a different result. See
State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2014); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2014), Sentencing Comm‟n Cmts.

        In determining the proper sentence, the trial court must consider: (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 Tennessee Code
Annotated sections 40-35-113 and -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 made in the defendant‟s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210; State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
                                            -7-
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103 (2014).

      Additionally, the trial court should consider, but is not bound by, the following
advisory 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.

Tenn. Code Ann. § 40-35-210(c) (2014).

       We note that “a trial court‟s weighing of various mitigating and enhancement
factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at 345. In other
words, “the trial court is free to select any sentence within the applicable range so long as
the length of the sentence is consistent with the purposes and principles of [the
Sentencing Act].” Id. at 343 (internal quotation marks omitted). “[Appellate courts are]
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.

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at
347 (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing
guidelines provide that a defendant “who is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code
Ann. § 40-35-102(6).

      Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

                                            -8-
      (B) Confinement is necessary to avoid depreciating the seriousness of the
      offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

      (C) Measures less restrictive than confinement have frequently or recently
      been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2014).

        In this case, the trial court properly considered the principles and guidelines of
sentencing and placed on the record the enhancement and mitigating factors it
considered, as well as its reasons for the sentence imposed. The Defendant‟s eight-year
sentence is within the applicable range for his conviction. See Tenn. Code Ann. § 40-35-
112(b)(4). Moreover, the trial court considered the confinement considerations and
found that the Defendant had a long history of criminal conduct and that measures less
restrictive than confinement had frequently or recently been applied to the Defendant
without success. The record fully supports the trial court‟s application of the various
enhancement and mitigating factors and its findings under the confinement
considerations. Thus, the Defendant has not established that the trial court abused its
discretion in sentencing, and he is not entitled to relief.

                                          Conclusion

      Based upon the foregoing, we affirm the judgment of the trial court.


                                                _________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE




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