        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE             FILED
                     JANUARY SESSION, 1998        November 13, 1998

                                               Cecil W. Crowson
STATE OF TENNESSEE,      )                   Appellate Court Clerk
                              C.C.A. NO. 01C01-9705-CC-00192
                         )
      Appellee,          )
                         )
                         )    MARSHALL COUNTY
VS.                      )
                         )    HON. CHARLES LEE
JOHN WILLIAM TAYLOR,     )    JUDGE
                         )
      Appe llant.        )    (Dire ct Ap pea l - Agg ravat ed B urglary-
                         )    Theft over $1,000)




FOR THE APPELLANT:            FOR THE APPELLEE:

HERSHELL D. KOGER             JOHN KNOX WALKUP
135 N. 1st Street             Attorney General and Reporter
P. O. Box 1148
Pulaski, TN 38478             CLINTON J. MORGAN
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243

                              MIKE MCCOWEN
                              District Attorney General

                              WEAKLEY E. BARNARD
                              Assistant District Attorney
                              Marshall County Courthouse
                              Lewisburg, TN 37091




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

      On Octob er 3, 1996 a Marshall county jury convicted Appellant, John

William Taylor, of a ggravate d burgla ry and the ft over $10 00.00. T he trial cou rt,

sitting as thirteenth juror, found the weight of the evidence insufficient for the

offense of theft over $1000.00 and entered a judgment of guilty of theft of

property over the va lue of $50 0.00. Afte r a sente ncing he aring, the trial court

sentenced Appellant as a career offender to serve fifteen years at 60%,

consecu tive to all prior con victions an d conc urrently with six years at 60% on the

theft convic tion. Ap pellan t appe als from the judgment and the sentence, raising

three issues:



      1) whether the evidence was sufficient to sup port the conv ictions for the ft
and burglary;
      2) whethe r the trial cou rt erred in refusing to inform the jury that the
appropriate ran ge of punishm ent for Appellan t was as a ca reer offender;
      3) whethe r the trial cou rt erred in or dering A ppellant’s sentences to run
consecutive to his prior sentences.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                       FACTS




      On Janua ry 12, 199 5, Carla S ue Rich ards retu rned to h er Mars hall Cou nty

home to find that someone had broken into her home. The back door was ajar

and twisted, with a foot print on the door. Sh e went into the house and called a

neighbor, her husband, and law enforcement. It was discovered that a television,

two rifles, a shotgun, and jewelry were missing from the house. Law enforcement

personnel put the serial number from the stolen television in the National Crime


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Information Center computer. Two weeks later, Metro Davidson county police

advised a Marshall County detective that the Richards’ television had been

pawned in Nash ville by Tammy Taylor, Appellant’s wife. Ms. Taylor was arrested,

tried and ac quitted for th e burgla ry and the ft of the Richard’s property. During the

course of investigating Ms. Taylor, law enforcem ent officials took an incu lpatory

statement from Appellant in which Appellant stated that he entered the Richards’

house an d stole the television, gun s, and jewelry.



                       I. SUFFICIENCY OF THE EVIDENCE




       Appellant challenges the jury’s verdic t allegin g that th e evide nce in troduced

at trial was insufficient for a rational trier of fact to determine beyon d a rea sona ble

doubt that he comm itted the theft and burg lary. Appellant con tends that there was

no physical eviden ce to lin k him to the crime, and that indeed the only evidence

against him were the multiple statements he made to the police, which he now

contends were untrustworthy. When an appellant challenges the sufficiency of

the evidence, this Court is obliged to review that challenge acco rding to certain

well-settled principles. A verdict of guilty by the jury, approved by the trial judge,

accredits the testimon y of the Sta te’s witnes ses an d resolve s all conflicts in the

testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.

1994); State v. Harris, 839 S.W.2d 54, 75 (T enn. 1 992). A lthoug h an a ccus ed is

origina lly cloaked with a presumption of innocence, a jury verdict removes this

presumption and re place s it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On ap peal, “the

[S]tate is entitled to the stronge st legitim ate view of the e videnc e as w ell as all

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reaso nable and le gitimate in ference s that ma y be draw n therefro m.” Id. (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of

the evidence is contested on appeal, the relevant question for the reviewing court

is whether any rational trier of fact could have fo und the acc used guilty of every

element of the offens e beyon d a reas onable doubt. Harris , 839 S.W.2d 54, 75;

Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). In conducting our eva luation o f the co nvicting eviden ce, this Cour t is

precluded from reweighing or recons idering the evidenc e. State v. Morgan, 929

S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Mathews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own

inferences “for those drawn by the trier of fact from circums tantial evide nce.”Id.

at 779. Finally, the Tennessee Rules of Appellate Procedure, Rule 13(e)

provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.” See also State v. Mathews, 805 S.W.2d at

780.



       In the matter sub judice, statements by Appellant confessing to the

commission of these crimes were introduced at trial. The corpus delicti of the

crime was more than amply established independently of Appellant’s confession.

See, State v. Ervin, 731 S.W.2d 70, 72 (Tenn. Crim. App. 1987). The weight and

credibility of the evidence presented are matters entrusted solely to the jury as

the triers of fact. State v. She ffield, 676 S.W.2d 542 (T enn. 19 84); Byrge v. State,

575 S.W.2d 292 (Tenn. Crim. App. 1978). This Court may not reweigh evidence.

Because sufficient evid ence w as pres ented a t trial upon w hich a rational ju ry

could determine that Appellant committed the crimes, this issue is without m erit.

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                                II. JURY CHARGE




      The State filed a notice that it would at sentencing seek to have Appellant

declared a career offender. Appellant agreed that he was a career offender.

Appellant argues that the trial court erred in refusing to instruct the jury that

Appellant would have to serve as a career offender if convicted of the charges

against him. Appellant requested the instruction under Tennessee Code

Annotated § 40-35-201, but upon the trial court’s ruling that, if the court instructed

the jury as to pun ishm ent, the court w ould use the entire spectrum of punishment

from mitigated offenders to career offenders, Appellant withdrew the motion

requesting the jury instruction.



      In State v. Cook, the State failed to notify the defendant of intent to seek

enhanced punishment. The defendant filed a motion to strike the notice, which

was granted. The State then appealed the application of Range I punishment to

the defendant. The Court of Criminal Appeals reversed the trial court’s sentence

and ordered resentencing under Range II. By statute the defendant if convicted

of the aggravated rape and a ggravated se xual battery charges against him, was

considered an automatic Range II offender. The defenda nt then appealed,

arguing that he had a statutory right to a jury instruction regarding the actual

range of punishment to which he was subject. The State argued that the

defendant had waived that right by filing the motion to strike. In upholding the

defen dant’s right to the requested Range II jury instruction, the Suprem e Court

of Tennessee held that “ whatever rights or benefits the Legislature had in mind

for the defendant when it passed T[ennessee] C[ode] A[nnotated] § 40-35-201(b)

would be lost if the defendant were to be senten ced to pu nishm ents greater than

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what the jury finding guilt was instructed w ould be imp osed.” State v. Cook, 816

S.W.2d 322 (T enn. 1991). The Court went on to hold that “where a defendant

wants his trial jury to know the range of possible punishments resulting from

convictions that he is e ntitled to have that information conveyed to the jury. To

deny... that statutory right constitutes prejudice to the judicial process, rendering

the error reversible under                    Rule 36(b)T[ennessee] R[ules] A[ppellate]

P[roced ure].” State v. Cook, 816 S.W.2d at 327. The situation in the instant case

is somew hat analogo us, howeve r important distinctions in this case and Cook

warrant a different result in the case sub judice.                     Unlike Cook the Ap pellan t in

the instant case was not subject to the increased punishment as a matter of law.

Rather, a finding would h ave to be made at the sentencing hearing that he was,

in fact, a career offender. Although the Appellant offered to stipulate he was a

career offende r, no such stipulation was ever actually entered, and Appellant

never agreed to forever forego any contention that he was n ot a career offend er.

Finally, Appe llant ac tually with drew h is request that the jury be instructed that he

was a career offende r.1 Under these circumstances we cannot say it was error

for the trial cour t to refuse to in struct the jury only as to punishment for career

offenders convicted of aggravated burglary and theft of property valued over

$1,000.



                              III. CONSECUTIVE SENTENCING

        Under Tennessee law, “[w]hen reviewing sentencing issues . . . including

the granting or denial of probation and the length of sentence, the appellate cou rt



        1
         We need not address the issue of the correctness of the trial court’s decision had Appellant not
withdrawn his requested instruction and had a valid stipulation as to Appellant’s actual sentencing range
been e ntered a long with a v alid waiver o f any future conten tion that Ap pellant wa s not in the c ategory to
which he stipulated. T hat cas e is not pre sented by this recor d.

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shall conduct a de novo review on the record of such issues. Such review shall

be conducted with a presumption that the determinations made by the court from

which the app eal is taken are corre ct.” Tenn. C ode Ann . § 40-35-401 (d) (1997).

“Howeve r, the pre sum ption o f correc tness which acco mpa nies the trial c ourt's

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and a ll relevant fac ts and circ umsta nces.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhan cing and mitigating factors, arg umen ts of coun sel, the appellan t’s

statements, the nature and character of the offense, and the appellant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.               “The defendant has the burden of

demon strating that the sente nce is improp er.” Id.



      Consec utive sentencing is governed by Tennessee Code Annotated §

40-35-115. The trial court has the discretion to order consecutive sentencing if

it finds that one or more of the required statutory criteria exist. State v. Black,

924 S.W .2d 912 , 917 (T enn. C rim. App . 1995). F urther, the court is req uired to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles

of senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



      In the instant case the trial court found that Appellant is a “professional

crimin al” defined at Tennessee Code Annotated § 40-35-115(b)(1) as one “. . .

who has knowingly devoted [his/her] life to criminal acts as a major source of

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livelihood. . .” The Court also noted that past efforts at both incarceration and

non-incarce rative sentences had failed to deter Appellant from continued criminal

acts. Indeed, the rec ord ref lects A ppella nt was on pa role at the time the instant

offenses were c omm itted. T he rec ord als o reflec ts a crim inal record of over

twenty convictions for burglary and theft convictions over a four year period.

Clearly, the record dem onstra tes Ap pellan t is a professional burglar from whom

the public ne eds pro tection. Consec utive sentence s are amp ly warra nted in this

case.



        Accordingly the judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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