         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 6, 2007

                 STATE OF TENNESSEE v. WILLIAM T. UTLEY

                       Appeal from the Circuit Court for Chester County
                              No. 04-281   Donald Allen, Judge

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                     No. W2006-01486-CCA-R3-CD - Filed May 23, 2007
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The Appellant, William T. Utley, was convicted by a Chester County jury of the Class D felonies
of burglary and theft of property over $1000. Following a sentencing hearing, the trial court imposed
concurrent four-year sentences of incarceration for each conviction. On appeal, Utley has raised
three issues for our review: (1) whether the evidence is sufficient to support the convictions; (2)
whether the trial court erred by failing to instruct the jury on voluntary intoxication; and (3) whether
the court erred in denying alternative sentencing. Following review of the record, we find no error
and affirm the judgments of conviction and resulting sentences.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the Appellant, William T. Utley.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                              OPINION

                                        Factual Background

        At approximately 2:45 a.m., on August 4, 2004, Officer Jason Rhodes of the Henderson
Police Department was on routine patrol when he saw a short black male wearing dark clothing
attempting to push a dolly across East Main Street. Rhodes pulled into the Big Star parking lot to
investigate, and he saw the person back the dolly up behind a nearby sign. At that point, Rhodes lost
sight of the man. However, seconds later, he observed the man running west on Main Street.
Rhodes pursued in his patrol car, and he observed the male running down Old Jacks Creek Road
prior to losing sight of him again. Rhodes, who had radioed for assistance, began to search the area
on foot. Approximately three to five minutes after Rhodes had initially seen the man with the dolly,
he observed a man, the Appellant, walking towards the dolly, which was still located in the Big Star
parking lot. Rhodes noted that the man he approached in the parking lot matched the description of
the male he had initially seen with the dolly, although he could not say for sure that it was the same
person. Rhodes approached the Appellant and asked what he was doing in the area. The Appellant
responded that he was jogging, although it was 2:45 in the morning, and he was wearing jeans and
hard-soled shoes and had a strong odor of alcohol about him. Rhodes noted that the Appellant was
out of breath and perspiring and that his shoes had grass clippings on them. No one else was seen
in the area on foot. The Appellant further advised the officer that he had drunk several beers earlier
in the evening. Based upon the fact that the Appellant appeared intoxicated, Rhodes arrested him
for public intoxication.

        Rhodes then proceeded to inspect the dolly, which was still located behind the sign. On the
dolly, he discovered a safe and a plastic garbage bag, which were both attached to the dolly with red
tape. Officer Jerry Stansell, who had responded to the radio call for assistance, began checking
surrounding businesses to determine if they had been burglarized. During his investigation, he
discovered that the back door of the Dollar General, which was located on the opposite end of the
Big Star parking lot, had been entered.

        The investigation revealed that the back door, which had been sprayed with paint and liquid
wrench, was damaged, and several items of merchandise had been destroyed. The office area had
also sustained damage, and the manager confirmed that the safe was missing. The manager later
identified the safe, found on the dolly, which also belonged to the store, as the missing safe.
Additionally, it was determined that the items contained in the garbage bag found on the dolly were
also merchandise which had been removed from the store. Those items included clothes, shoes,
socks, DVDs, belts, a hammer, gloves, cigarette lighters, cough syrup, batteries, steel wool, and
various food items. The store manager valued the items in the bag at $258. He further noted that
the safe and the back door, which both had to be replaced, cost $245 and $395 respectively. When
the safe was removed from the store, it contained over $5000 in checks and cash, all of which was
recovered when the safe was returned to the store.

       Investigator Faulkner processed the crime scene and collected evidence. He sent a paint can,
along with the tape used to secure the safe and bag to the dolly, to the crime lab for fingerprint
comparison. No prints were found on the can, but two latent prints were found on the tape.
However, the examiner was unable to make any conclusive identification because the fingerprint
card containing the Appellant’s prints did not show the area of the hand necessary for comparison
well enough to be used for identification.

       The Appellant was subsequently indicted by a Chester County grand jury for Class D felony
burglary, Class D felony theft of property over $1000, and Class C misdemeanor public




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intoxication.1 At trial, the Appellant testified that he did not commit the burglary or theft of the
Dollar General and that he was not intoxicated at the time of his arrest. He maintained that he had
simply left his uncle’s home and gone for a jog. The Appellant was found guilty of the burglary and
theft offenses but not guilty of public intoxication. A sentencing hearing was subsequently held,
after which the trial court sentenced the Appellant to concurrent four-year sentences for each offense.
The court also ordered that the sentences be served in the Department of Correction. Following the
denial of his motion for new trial, the Appellant filed the instant timely appeal.

                                                       Analysis

        On appeal, the Appellant has raised three issues for our review: (1) whether the evidence is
sufficient to support the convictions for burglary and theft of property; (2) whether the court erred
in not instructing the jury on voluntary intoxication; and (3) whether the court erred in denying the
Appellant an alternative sentence.

I. Sufficiency of the Evidence

         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], 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, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

      Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and


         1
          W e are constrained to note that a copy of the indictment has not been included in the record before us.
W hile we are able to ascertain the indicted offenses from other parts of the records, the indictments are an integral
part of any direct appeal of a conviction and, as such, should have been included in the appellate record.

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connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”
State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn.
1985)). However, as in the case of direct evidence, the weight to be given circumstantial evidence
and “the 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.” Marable
v. State, 313 S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

       As noted the Appellant was convicted of Class D felony burglary and Class D felony theft
of property over $1000. In order to prove the crime of burglary, as indicted in this case, the State
was required to establish that a person, without the effective consent of the property owner:

               (1) Enters a building other than a habitation (or any portion thereof) not open
       to the public, with intent to commit a felony, theft or assault;

T.C.A. § 39-14-402(a)(1) (2006). Theft of property is committed when “[a] person . . . , with intent
to deprive the owner of property, . . . knowingly obtains or exercises control over the property
without the owner’s effective consent.” T.C.A. § 39-14-103 (2006).

        On appeal, the Appellant challenges the sufficiency of the evidence upon the ground that any
evidence establishing his identity as the perpetrator of the crime was “purely circumstantial.” In
support of his argument, the Appellant relies upon the fact that Officer Rhodes was unable to
positively identify him as the person that he had seen initially seen pushing the dolly, only testifying
that the Appellant matched the description. He also points to the facts that he did not attempt to flee
when approached by the officer in the parking lot and that no fingerprint evidence was found
positively linking him to the crime.

        The Appellant’s argument is without merit. It is undisputed that both a burglary and theft
were committed on the morning in question. Officers observed the broken door of the Dollar
General, which was closed to the public at that time in the morning, and found merchandise inside
the building scattered and destroyed. Moreover, the manger of the store testified that the safe, which
contained over $5000, and several items of merchandise were removed from the store without
permission. Both the safe and a garbage bag containing merchandise were found on a dolly in the
parking lot outside the store. The manager testified that, in addition to a day of lost revenue because
of the burglary, the store had to purchase a new safe and rear entrance door.

        The Appellant’s argument challenges only the proof with regard to the establishment of his
identity as the perpetrator. However, viewing the evidence presented in the light most favorable to
the State, the proof was more than sufficient to establish that it was in fact the Appellant who
committed the crimes. A black male, matching the Appellant’s description, was seen pushing the
dolly containing the stolen merchandise and the safe at approximately 2:45 a.m. Upon seeing the
police car, the black man hid the dolly and fled in the opposite direction. Approximately three to
five minutes later, after pursuing the man on foot, Officer Rhodes encountered the Appellant in the
Big Star parking lot walking toward the dolly. The Appellant stated that he had been jogging,


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although he was clearly not attired for that activity. Additionally, officers testified that they saw no
one else in the area on foot matching the description of the man seen with the dolly. The fact that
no fingerprint evidence conclusively tied the Appellant to the crime scene is not determinative in this
case, as the fingerprint examiner testified that the results were inconclusive because the Appellant’s
fingerprint card did not contain the area of the hand needed to compare the prints.

        While the evidence supporting the Appellant’s identity as the perpetrator is circumstantial,
the facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the
Defendant and the Defendant alone.” Black, 815 S.W.2d at 175. The jury listened to the evidence
presented, including the Appellant’s assertions that he did not commit the crimes, and weighed the
credibility of the witnesses. Obviously, from their verdict, the jury found that the Appellant’s
testimony was not credible. Our review reveals that the evidence presented was sufficient to allow
a rational juror to conclude that the Appellant was guilty of the crimes beyond a reasonable doubt.

II. Voluntary Intoxication Instruction

        Next, the Appellant contends that the trial court erred by “failing to instruct the jury as to the
law of intoxication.” According to the Appellant, the charge was warranted as Officer Rhodes
smelled alcohol on the Appellant’s breath and arrested him for public intoxication. Thus, he argues
that intoxication was legitimately raised by the proof presented. He further argues that the
instruction was necessary because it bore on his ability to form the specific intent required to commit
the crimes.

       It is fundamental that the trial court has a duty “to give a complete charge of the law
applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also
Tenn. R. Crim. P. 30. Jury instructions must, however, be reviewed in the context of the overall
charge rather than in isolation. Sandstrom v. Montana, 442 U.S. 510, 527, 99 S. Ct. 2450, 2461
(1979); see also State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is
prejudicial error only “if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Because questions of the
propriety of jury instructions are mixed questions of law and fact, the standard of review is de novo
with no presumption of correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

        On appeal, the Appellant argues that the pattern instruction on voluntary intoxication, T.P.I.
40.02, should have been submitted to the jury for both burglary and theft of property. However,
Tennessee Code Annotated section 39-11-503(b) (2006) expressly provides that an intoxication
instruction should not be given when recklessness is sufficient to establish the culpable mental state
of the crime charged. Thus, because burglary may be committed “recklessly,” an intoxication
instruction for this crime would have been improper. See T.C.A. § 39-14-402 (2006); T.C.A. § 39-
11-301(c) (2006).

       With regard to the theft conviction, we note that this court has held that the trial court is
required to “instruct the jury on those principles closely and openly connected with the facts before


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the court and which are necessary for the jury’s understanding of the case.” State v. Elder, 982
S.W.2d 871, 876 (Tenn. Crim. App. 1998). First, in this case, no evidence was presented at trial
with regard to any effect that alcohol consumption had with respect to the Appellant’s ability to form
the requisite intent to commit theft. See State v. Harrell, 593 S.W.2d 664, 672 (Tenn. Crim. App.
1979) (In order for a defendant to rely upon voluntary intoxication as a defense, “[t]he determinative
question is not whether [he] was intoxicated, but what was his mental capacity.”). Indeed, the proof
established that the Appellant had the mental presence and ability to break into a building and, after
removing numerous items of merchandise and a safe from the store, flee when approached by police.
Second, an intoxication instruction was “[un]connected with the facts” of the case and not “necessary
for the jury’s understanding,” as the Appellant defended upon grounds that he was not the perpetrator
of the theft. Thus, an intoxication defense, which in effect concedes the actus reus of the crime but
denies the mens rea element, would have been inconsistent with the defense theory and unwarranted
under the evidence. Thus, we find no error in the court’s failure to charge the instruction.

III. Alternative Sentencing

        Finally, the Appellant contends that the trial court erred by failing to sentence him to
community corrections or another form of alternative sentencing. When an accused challenges the
length, range, or the manner of service of a sentence, 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.
T.C.A. § 40-35-401(d) (2006); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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.” Ashby, 823 S.W.2d at 169.

         When conducting a de novo review of a sentence, this court must consider: (a) the evidence,
if any, received at the trial and sentencing hearings; (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) any statutory mitigating or enhancement factors; (f) any statements
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. T.C.A. § 40-35-102, -103, -210 (2006); State v. Brewer, 878 S.W.2d
298, 302 (Tenn. Crim. App. 1993). Furthermore, we emphasize that facts relevant to sentencing
must be established by a preponderance of the evidence and not beyond a reasonable doubt. State
v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)(citing State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997)). If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). The appealing party bears the burden of showing that the sentence is
improper. T.C.A. § 40-35-401, Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d
250, 257 (Tenn. 2001).




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        A defendant “who is an especially mitigated or standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence
of evidence to the contrary.” T.C.A. § 40-35-102(6). Guidance as to what constitutes “evidence to
the contrary” is found in Tennessee Code Annotated section 40-35-103(1), which sets forth the
following considerations:

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

       (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[.]

T.C.A. § 40-35-103(1)(A)-(C). In this case, the Appellant was convicted of Class D felonies and
sentenced as a standard offender; thus, the presumption in favor of alternative sentencing does apply.

       On appeal, the Appellant argues that he should have received a community corrections
sentence based upon his “history of chronic alcohol abuse.” However,

       a determination that the [A]ppellant is suitable for placement in the [community
       corrections] program [under the special needs section] . . . requires the following
       findings of fact: (1) the offender has a history of chronic alcohol, drug abuse, or
       mental health problems, (2) these factors were reasonably related to and contributed
       to the offender’s criminal conduct, (3) the identifiable special need (or needs) are
       treatable, and (4) the treatment of the special need could be served best in the
       community rather than in a correctional institution.

State v. Boston, 938 S.W.2d 435, 439 (Tenn. Crim. App. 1996). At trial, the Appellant denied that
he was intoxicated on the date of the crimes. Moreover, at sentencing, no evidence was introduced
with regard to any of the four above criteria. Thus, the Appellant’s argument is without merit.

       In denying all alternative sentencing options, the trial court found as follows:

               . . . the Court finds that in this particular case that measures less restrictive
       than confinement have been recently and frequently been applied to [the Appellant]
       without success. Again, as I mentioned, on at least five different occasions by my
       calculations, [the Appellant] had been placed on probation and every time he’s been
       placed on probation, he’s got out and committed new offenses, although
       misdemeanors, they’re still new offenses committed while on probation. It just
       appears to the Court that [the Appellant] just simply can’t make it on probation. He


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        can’t follow the rules. He can’t stop committing crimes based upon his history. Also
        the Court finds that confinement in this case is necessary to protect society from a
        defendant with along [sic] history of criminal record. Again, I’m talking about 13
        prior misdemeanor convictions which he has committed. The Court does not find
        that he is an appropriate candidate for probation. He’s not an appropriate candidate
        for Community Corrections or any other type of alternative sentencing. He will be
        ordered to serve these sentences in the Tennessee Department of Corrections.

        Our review of the record indicates that the trial court correctly denied an alternative sentence.
The pre-sentence report indicates that the Appellant has previously been convicted of four DUI
offenses, three driving with a revoked license offenses, two misdemeanor assault offenses, a
violation of the open container law, resisting arrest, simple possession of marijuana, and a weapons
offense. Additionally, as the trial court found, the Appellant has been placed on probation numerous
times and has violated the terms of his probation by committing new offenses. Accordingly, the
record before us amply supports the trial court’s findings that measures less restrictive than
confinement have previously been applied unsuccessfully to the Appellant and that confinement is
necessary to protect society from an appellant who has a long history of criminal conduct, either of
which is sufficient to establish “evidence to the contrary” in order to rebut the presumption in favor
of alternative sentencing.

                                           CONCLUSION

        Based upon the foregoing, the Appellant’s judgments of conviction and resulting sentences
are affirmed.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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