        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 21, 2010

              STATE OF TENNESSEE v. JASON MICHAEL FINT

                 Appeal from the Criminal Court for Bradley County
                        No. M-09-016     Amy Reedy, Judge




                No. E2010-01316-CCA-R3-CD - Filed January 21, 2011


A Bradley County Criminal Court jury convicted the defendant, Jason Michael Fint, of one
count of theft of property valued at $1,000 or more but less than $10,000. Finding that the
defendant qualified as a career offender, the trial court imposed the maximum Class D felony
sentence of 12 years’ incarceration. In this appeal, the defendant challenges the sufficiency
of the convicting evidence and contends that the sentence is excessive. Discerning no error,
we affirm the judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); and Charles G. Wright, Jr.,
Chattanooga, Tennessee (at trial), for the appellant, Jason Michael Fint.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Stephen Hatchett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

            The conviction in this case relates to the theft of several power tools from the
Cleveland home of the victim, Ralph King.

                At trial, Bradley County Sheriff’s Office Detective Sergeant Kevin White
testified that on October 21, 2008, the victim reported that several items had been taken from
his home. During the investigation, the victim telephoned the detective and told him that two
of the items, a nail gun and a staple gun, had been located at Wildwood Pawn Shop.
Detective White later learned that the defendant had pawned the items. When questioned,
the defendant denied stealing the items from the victim and claimed that he had purchased
the items in June or July of that same year from an individual named “David” whose last
name might have been “Dunn.” The defendant also claimed that a previous boyfriend of
Brandi McLemore, the victim’s step-daughter, had stolen two chainsaws from the victim.

               During cross-examination, Detective White acknowledged that none of the
other items listed as stolen had been recovered. He conceded that he had never visited the
scene of the theft and did not interview other individuals that had access to the area.

                Brandi McLemore, the victim’s step-daughter, testified that in 2008 she lived
in a basement apartment of the home of her mother and the victim. During that time, she
became acquainted with the defendant via “MySpace.” At some point, the defendant came
to stay with her for approximately one week after he and his girlfriend separated. At the time
of the defendant’s stay, the victim’s tools were kept in an unlocked room adjacent to Ms.
McLemore’s basement apartment. Ms. McLemore stated that the defendant had access to
the room, but she clarified that “the door was heavy and so when you opened it you would
hear it jiggle.”

               Ms. McLemore acknowledged that the victim had previously accused another
individual of stealing chainsaws from the same area. The victim did not follow through with
the previous accusation. Ms. McLemore testified that she had informed an attorney
representing the defendant that it was possible that David Dunn, a friend of the defendant’s,
had taken the tools when he stole Ms. McLemore’s cellular telephone. Ms. McLemore said
that she asked the defendant if he had taken the tools and that he had denied doing so.

               During cross-examination, Ms. McLemore admitted that she generally left the
garage door that provided access to the basement open. The door leading to the interior
apartment and to the area where the tools were kept was, however, locked every night. She
stated that neither she nor her three-year-old son was allowed in the room where the tools
were kept. She said that the victim did not enter the room everyday. During the time that the
defendant stayed in the house, he assisted the victim with the repair of a toilet and was given
access to the tools for that purpose. Ms. McLemore acknowledged that a man named
Michael Moore lived with her for a year, but she insisted that the tool room was “off-limits”
to Mr. Moore.

              The victim, Ralph King, testified that he was in the “[a]ir conditioning and
sheet metal” business and that his business required the use of “a number of tools from
‘Saws-all’ to staple guns, you know, grinders, snips, you know, hammers.” He stated that

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“around the 14th or 15th of October” he noticed that several of his tools were missing. The
victim recalled that in December 2007 or January 2008, one of Ms. McLemore’s boyfriends
had taken two chainsaws from the tool room, but he stated that those chainsaws had been
replaced. He noticed that the two new chainsaws were among the items missing in October
2008. He valued the chainsaws at $150 to $200. After he noticed the missing items, he did
an inventory of the room and compiled a list of all the items that were missing. A partial list
of those items was admitted into evidence. The victim stated that he last recalled seeing
some of the items on October 10, 2008, but that some of the items could have been missing
for a longer period of time.

               The victim stated that at the time the items were stolen, the only person with
access to the tool room other than the members of his family was the defendant. He stated
that he believed the defendant had taken the items from the tool room and that, as a result,
he had kicked the defendant out of the house on the same day he made the police report. The
victim recalled that the defendant denied taking any of the tools. He identified the staple gun
and nail gun recovered from Wildwood Pawn Shop as belonging to him. The victim placed
the total value on all of the tools stolen at $5,000.

              During cross-examination, the victim stated that most of the missing items
appeared to be in the room when he looked on October 10, 2008. The victim admitted that
the garage door leading to the tool room stayed open most of the time and that it was visible
from the street.

               Following the victim’s testimony, the State rested, and the defendant presented
the testimony of Erica Garner. Ms. Garner testified that she and the defendant were
romantically involved and that the two of them lived together from October 2007 to
September 29, 2008. She stated that while she and the defendant were living together, they
built a goat pen and that the defendant used the nail gun and staple gun in the construction
of the goat pen. Ms. Garner said that the defendant told her that he had borrowed the tools
from a friend. She said that the two often borrowed tools from the defendant’s mother.

              The 32-year-old defendant testified that he and Ms. McLemore became
acquainted via MySpace and that the two eventually became close friends. On October 9,
2008, Ms. McLemore telephoned the defendant and asked if he could help Mr. King repair
her malfunctioning toilet. He stated that he worked at the King residence from October 9 to
October 12. The defendant said that he accessed Ms. McLemore’s basement apartment
through the garage door, which, he claimed, “was actually broken in the upright position.”
He stated that both Michael Moore and David Dunn, as well as numerous other friends of
Ms. McLemore, had access to the room where the victim stored his tools. The defendant
denied spending a week at the house, explaining that the house was “to[o] messy” and “there

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was no running water downstairs.”

             The defendant admitted that he took the nail gun and staple gun from the
victim’s home, but he claimed that he did not take them “maliciously.” He explained:

              I had acquired some goats. Myself and Erica had acquired some
              goats from friends of ours for our children, and I had had them
              chained up in the front yard and our youngest, Julia, who was
              three at the time, just turned three, she was getting injured by
              one of the goats who kept bucking her and kicking her and so I
              needed to build a goat pen, and I acquired all the necessary
              materials to do so, but didn’t have a way to build them and so I
              went to Mr. King’s residence but he was at work still and he
              didn’t get home until late I was told and then he normally went
              straight to bed, and so instead of being patient and asking I
              found the items that I took in the garage, which is the main entry
              point, and I took those with me with the intention of bringing
              them back, but I never did. After I got through building the goat
              pens I just put them in my cabinet and left them.

The defendant also admitted pawning the nail gun and staple gun on September 4, 2008. He
denied taking any of the remaining items from the victim’s home. The defendant said that
law enforcement officers never searched his residence or his car for the missing items. He
stated that he had been into the tool room on one occasion after helping the victim repair the
toilet and that he did not recall seeing any chainsaws or table saws in the room at that time.

              The defendant testified that the victim had forbidden Mr. Moore from coming
to the residence but that Ms. McLemore “was sneaking him in late at night after her father
had turned in for the night and sneaking him out early in the morning before he left for
work.” He stated that Mr. Dunn was a friend of his and that he took Mr. Dunn to the victim’s
residence so that the two of them could smoke marijuana with Ms. McLemore. He said that
after Ms. McLemore told him that she was uncomfortable around Mr. Dunn, he told Mr.
Dunn to leave. On the following day, Ms. McLemore told the defendant that Mr. Dunn had
taken her cellular telephone. He said that Mr. Dunn was trying to sell the telephone back to
Ms. McLemore for $20. The defendant said that he and Mr. Dunn ended up in an altercation
over the telephone and that he was arrested and charged with the aggravated assault of
Zanesome Forbes as a result of the altercation. He said that he was incarcerated from
October 13 to October 17, when the aggravated assault charge against him was dismissed.

              During cross-examination, the defendant stated that he found out that the

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victim’s garage door was broken when Ms. McLemore’s “son ran out of the house without
us looking and ran across the main street down there . . . and almost got hit by a car.” The
defendant admitted having been previously convicted of theft on six occasions and of
aggravated burglary on two occasions. The defendant insisted that he used the nail gun and
staple gun, which ran on compressed air, to put together the pen for his goats and stated that
he borrowed an air compressor to run the tools from his mother’s boyfriend.

               The defendant stated that “technically” he did steal the nail gun and the staple
gun because he “took them without [the victim’s] permission and did not bring them back,”
but he insisted that he “did not set out to steal them and keep them from him.” He admitted
that when initially confronted by Detective White, he denied taking the tools and instead
blamed David Dunn. The defendant claimed that he warned Ms. McLemore about Mr.
Moore because Mr. Moore “had gotten her on meth[amphetamine] and cocaine” and he “was
trying to help her get off that stuff.” The defendant nevertheless admitted using marijuana
with Ms. McLemore.

              Based upon the proof presented, the jury convicted the defendant of theft of
property valued at $1,000 or more.

              Following the denial of his timely motion for new trial, the defendant filed a
timely notice of appeal in this court. In this appeal, the defendant challenges the sufficiency
of the convicting evidence, arguing that the State failed to establish a value greater than
$500, and asserts that the sentence imposed is excessive.

                                I. Sufficiency of the Evidence

               The defendant claims that the evidence is insufficient to support his conviction
because the State failed to establish that he stole items other than the nail gun and staple gun,
which had a combined value of less than $500. He asks that this court modify his conviction
of theft of property valued at $1,000 or more but less than $10,000 to a conviction of theft
of property valued at less than $500. The State contends that the evidence supports the
defendant’s conviction. We agree with the State.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791-92 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence, or
a combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.

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              Although a criminal offense may be established exclusively by circumstantial
evidence, Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); Winters, 137 S.W.3d at 654, before
an accused may be convicted of a criminal offense based upon circumstantial evidence alone,
the facts and circumstances “must be so strong and cogent as to exclude every other
reasonable hypothesis save the guilt of the defendant.” State v. Crawford, 470 S.W.2d 610,
612 (Tenn. 1971). “In other words, ‘[a] web of guilt must be woven around the defendant
from which he cannot escape and from which facts and circumstances the jury could draw
no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.’”
State v. McAfee, 737 S.W.2d 304, 306 (Tenn. Crim. App. 1987) (quoting Crawford, 470
S.W.2d at 613).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the 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. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

              “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.” T.C.A. § 39-14-103 (2006). When “the property or services
obtained is one thousand dollars ($1,000) or more but less than ten thousand dollars
($10,000),” the crime is a Class D felony. See id. § 39-14-105(3).

               Here, the victim testified that several of his tools were stolen from their
basement storage area. He compiled a list of the missing items and testified that their
combined value exceeded $5,000. The victim stated that other than members of his
immediate family, the only person with access to the tool room was the defendant, who was
a friend of Ms. McLemore’s. Ms. McLemore confirmed that the defendant had access to the
tool room during the time frame in which the tools went missing. The defendant admitted
taking a nail gun and staple gun belonging to the victim and conceded that he pawned the
items on September 4, 2008. The defendant concocted a very detailed account of why he
took the nail gun and staple gun and how they came to be at Wildwood Pawn Shop but
denied taking the remaining tools on the victim’s list. He claimed that either David Dunn or
Michael Moore, both of whom were incarcerated with him in the Bradley County Jail, had
likely stolen the tools. The jury, as was its prerogative, rejected the defendant’s version of
the offense. The record established that the defendant had access to the tool area and had
pawned at least two of the tools listed by the victim as stolen. The victim stated that the fair

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market value of the stolen tools was more than $5,000. This evidence supports the
defendant’s conviction of theft of property valued at $1,000 or more but less than $10,000.

                                       II. Sentencing

               The defendant concedes that he had the requisite number of prior convictions
to qualify as a career offender but nevertheless complains that the trial court erred by
imposing the maximum Class D felony sentence of 12 years’ incarceration. He additionally
contends that the trial court erred by enhancing his sentence on the basis that he abused a
position of trust because that factor was not supported by the record. The State asserts that
because the defendant qualified as a career offender, the 12-year sentence is proper. We
agree with the State.

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, 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 §§ 40-35-113 and
              40-35-114;

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               (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.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

                  Here, the defendant’s five previous convictions of theft of property valued at
$1,000 or more but less than $10,000, his two prior convictions of aggravated burglary, and
his prior convictions of felony escape and aggravated assault qualified him as a career
offender. See id. § 40-35-108(a)(3) (“A career offender is a defendant who has received .
. . [a]t least six (6) prior felony convictions of any classification if the defendant’s conviction
offense is a Class D or E felony.”). Indeed, the defendant does not challenge his status as a
career offender. Because the defendant qualified as a career offender, the only sentence the
trial court could have imposed was 12 years. See id. §§ 40-35-108(c) (“A defendant who is
found by the court beyond a reasonable doubt to be a career offender shall receive the
maximum sentence within the applicable Range III.”); 40-35-112(c)(4) (“A Range III
sentence is . . . [f]or a Class D felony, not less than eight (8) nor more than twelve (12)
years.”). Thus, any finding of enhancement factors, even if erroneous, did not result in the
imposition of the 12-year sentence in this case and would not avail the defendant any relief.

                                           Conclusion

               Because the evidence was sufficient to support his conviction and because the
trial court imposed the only legally available sentence, the defendant is not entitled to any
relief. Accordingly the judgment of the trial court is affirmed.

                                                      _________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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