FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE December 10, 1997 SEPTEMBER 1997 SESSION Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9611-CC-00482 ) vs. ) Coffee County ) BILL TEAL, ) Hon. Gerald L. Ewell, Sr., Judge ) Appellant. ) (Burglary, Theft Over $1,000) )
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY S. O'NEAL (Trial) JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter P.O. Box 555 Winchester, TN 37398 ELIZABETH B. MARNEY Assistant Attorney General GREGORY D. SMITH (Appeal) Criminal Justice Division Attorney at Law 450 James Robertson Parkway One Public Square, Ste. 321 Nashville, TN 37243-0493 Clarksville, TN 37040 C. MICHAEL LAYNE District Attorney General
STEPHEN WEITZMAN Assistant District Attorney General P.O. Box 147 Manchester, TN 37355
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE OPINION
The defendant, Bill Teal, stands convicted of aggravated burglary and
theft over $1,000, following trial by a jury of his peers in the Coffee County Circuit
Court.1 The court sentenced Teal to serve ten years for aggravated burglary and
eight years for theft. The sentences were imposed concurrently to each other but
consecutively to other sentences the defendant is serving, the defendant having
been found in other proceedings to have violated parole on other offenses. In this
direct appeal, the defendant challenges the sufficiency of the convicting evidence
and the court's imposition of maximum sentences and fines upon him. Following
a review of the record and briefs and having heard arguments in the matter, we
affirm the judgment of the trial court.
During the daytime hours of October 3, 1994, the home of Nelson
Johnson was burglarized. The burglary was discovered by Dr. Johnson's daughter,
who returned to the house in the afternoon hours. Dr. Johnson returned home
shortly after his daughter and alerted the Coffee County Sheriff's Department of the
intrusion. The Johnsons discovered several items missing, including a wooden
hope chest with a padded cloth top and which contained family mementos, an Apple
computer and peripherals, three videocassette recorders, a television and jewelry.
At trial, Dr. Johnson estimated the value of the stolen property at $4,800. In
addition, he testified the door and frame through which the burglar or burglars
gained entrance was damaged and cost $600 to $650 to replace. Doctor Johnson
further testified the hope chest which was taken was full of photographs, dolls and
other family mementos and was very heavy. He had required the assistance of his
son to move the chest from one room to another.
1 This was the defendant's second trial, the first having ended in a mistrial.
2 On the afternoon of the burglary, Sgt. Rodney Banks of the Coffee
County Sheriff's Department observed the defendant driving recklessly and stopped
him. He intended to give Teal a citation, but Sgt. Banks discovered he did not have
his citation book with him so he released Teal with a warning. Sergeant Banks
testified this took place about 3:05 p.m. While he was talking with the defendant,
Sgt. Banks noticed a cloth top hope chest, an Apple computer and peripherals,
coaxial cable, and a videocassette recorder in the back of the gray S-10 Chevrolet
pickup truck the defendant was driving. According to Sgt. Banks, the items were not
placed into the truck in a manner as he would move them if they were his property.
He also noticed Shawn Holdaway2 and Karen Alter sitting in the cab of the truck.
Sergeant Banks observed Teal to act nervously, and he recounted that Teal told
him they were moving things for a friend and were in a hurry. Sergeant Banks
recalled the truck may have had a red stripe on the side.
Investigator Tracy Alexander responded to the Johnson home and
took a report of the burglary. He was unable to locate any fingerprints. Within a few
hours, he had dinner with Sgt. Banks, and they discussed the Johnson burglary.
During the conversation, Alexander commented that it was unusual for someone to
steal a hope chest, and Banks told him about stopping the defendant earlier in the
day and seeing a hope chest in the back of his truck. The two then returned to the
Sheriff's office, called Dr. Johnson, and obtained a detailed description of the stolen
hope chest, which matched the one Sgt. Banks saw in the defendant's truck.
Cindy Alter testified Teal and Holdaway came by her house trailer
2 Holdaway's first name is spelled "Sean" in the transcript as well as in Exhibit 9, the transcript of his guilty plea. It is spelled "Shawn" in documents in the technical record, which indicate he was a co-defendant of Teal prior to his guilty pleas. Not having the benefit of the indictment relating to Holdaway, we have elected to use the latter spelling of his name, as it appears in the Motion to Consolidate and the Order Granting State's Motion to Consolidate.
3 about 2:30 or 3:00 p.m. on October 3, 1994 in a small gray truck. They invited her
to accompany them to McMinnville, and she agreed to go along. While they were
on their way, Teal drove "sort of fast" and they were stopped by Sgt. Banks. Alter
saw Teal take a watch off and throw it behind the seat before going to meet Banks
behind the truck. After Banks warned Teal about his driving, Teal and Holdaway
were nervous and confessed to Alter that they had taken the watch and the property
in the back of the truck from the home of the high school principal, Dr. Johnson.
Alter recalled seeing a hope chest with a lifting top, a computer monitor and some
wires in the back of the truck. She identified the hope chest and computer she saw
as being identical to like items in photographs taken in the victim's home. Alter
further testified she had initially given an unsworn statement that was inconsistent
with a later statement and her trial testimony. She further admitted she had
originally been charged as a co-defendant with Teal and Holdaway, but those
charges had been dropped. Further, she was on probation at the time of the
offenses, although she is no longer on probation. She denied her probationary term
had been shortened as a result of her cooperation in this case. Finally, she
admitted she had been convicted of DUI.
Willie Pittman, an elderly neighbor of the Johnsons, testified he saw
a gray Chevrolet pickup truck without stripes at Dr. Johnson's house between 1:30
and 2:00 p.m. on the date of the burglary. He saw two young, white men in the
truck. One was driving and the other was sitting in the bed of the truck holding an
object. Mr. Pittman thought the two must have been students from the high school
who had been sent by Dr. Johnson to retrieve items from his home.
William A. Vaughn, Dr. Johnson's neighbor and father-in-law, saw a
small, gray pickup truck pass his house sometime after 1:00 p.m. and again 10 to
15 minutes later. He saw two young white men inside the truck. He identified Teal
4 as looking like one of the men in the truck, though he admitted he was not certain.
Shawn Holdaway, a prisoner from the Department of Correction,
testified he is currently serving three incarcerative sentences, two of which arose
from the burglary of the Johnson home. He entered a guilty plea to the two crimes
related to the burglary so he could get a "red flag" taken off the computer, which he
said would allow him to be paroled. He testified he had, in fact, recently been given
a parole date approximately two months after this trial. Holdaway was hostile with
the prosecutor, initially asserting his Fifth Amendment privilege when asked who
committed the burglary of the Johnson home and later denying many of the
admissions he made at the plea hearing, even when the assistant district attorney
general provided him with a copy of the transcript of that hearing.3 Further, he said
he could not recall making several of the admissions. He said Teal was not guilty
of the burglary or theft. Although his evasiveness was at times inconsistent, he
apparently attempted to convey that he committed the burglary either by himself or
with someone other than Teal whose identity he could not recall. When asked
whether he would "snitch" on his buddy, he replied, "I would snitch on a person in
a heartbeat if it got me ahead, if it got me out of the system. I play dirty pool."
Holdaway admitted he and Teal had been at Alter's trailer for an hour and a half to
two hours on the afternoon of October 3. Holdaway attacked Alter's credibility,
saying she had been "up all night with her girlfriend" and was "high, drunk" when he
and Teal arrived. He claimed he drank "a few beers" with her that afternoon before
they left her trailer. Further, he testified he had a short wooden dresser that looked
3 The transcript of Holdaway's plea hearing, which was entered into evidence, indicates the hope chest and a few of the items in the back of Teal's truck were stolen from the Johnson home. Holdaway denied there was any coaxial cable, computer, television or videocassette recorder belonging to the Johnsons in the back of the truck when they were stopped by Sgt. Banks, however. He testified at the plea hearing he borrowed Teal's truck while Teal was visiting with his parole officer and committed the crimes by himself. He admitted, however, that Teal was aware the property was stolen.
5 like a hope chest, a duffel bag, and unidentified "other items" in the back of Teal's
truck that afternoon. He denied that he or Teal had admitted to Alter that they had
taken anything from the Johnson home.
The defendant presented the testimony of William Teal, the
defendant's uncle. Mr. Teal testified he had received word from "Rodney,"
presumably a reference to Sgt. Banks, that on Oct. 3 his nephew had been stopped
driving a gray S-10 Chevrolet pickup truck registered to Mr. William Teal. Mr. Teal
said this was impossible because his truck did not smell of smoke, as it would if Bill
Teal, Holdaway and Alter had been riding in it, and further, some papers he had in
the cab were not disturbed when he next drove the truck. Further, he testified his
truck has a six inch red stripe and says "Sport" on it. He admitted Bill Teal also has
a gray pickup truck, though Bill Teal's truck is a darker color gray and, Mr. Teal
thought, did not have red detailing. Mr. Teal believed the investigating officers
suspected him of the crimes at first, though he was never asked if he had seen any
of the property.
Charlotte Teal, the defendant's mother, testified she bought her son
an Apple computer 12 or 13 years ago and paid $300 to $400 for it. She paid cash
and did not think she retained a receipt. Additionally, she recalled that her son
brought home a hope chest a few months before the burglary of the Johnson home.
Her son bought this hope chest in Knoxville, where he was working at the time. It
had drawers that pulled out, although it had a flowered top which did not lift up. The
drawers had round knobs, rather than handles on them. Mrs. Teal admitted she
did not know where either the computer or the hope chest was on the day of trial.
The defendant's father, Winfred Teal, testified he was home on
October 3. He said Holdaway spent the previous night in the Teal home. That
6 morning, Bill Teal left the home about 10:30 to go to an appointment in Tullahoma.
He returned about 12:00. Holdaway remained at the Teal house while Bill Teal was
gone. Bill Teal and Holdaway decided to go to McMinnville that afternoon, and
Winfred Teal helped Bill load a four-drawer chest and Apple computer into Bill's
truck. According to Winfred Teal, the computer had been a gift Bill received from
his mother when he was 10 or 11 years old. Winfred Teal did not know how much
money his wife had paid for the computer. The chest, which Winfred Teal testified
had drop-down pulls rather than round knobs, had been purchased by Bill Teal
while he was working in Knoxville and had been in the Teal home for two to three
months. Winfred Teal assumed his son was taking these items to his girlfriend's
home in McMinnville. Bill Teal and Holdaway left the Teal home around 2:00 or
2:15 p.m. Finally, Winfred Teal said he had no photographs of Bill Teal receiving
the computer at Christmas, and he did not know where the computer and hope
chest were on the day of trial.
With this evidence in hand, the jury found the defendant guilty of
aggravated burglary and theft of property valued at over $1,000.
At the sentencing hearing, the defendant's parole officer, Deborah
Riddle, testified for the state. She confirmed that the defendant met with her
between 11:00 and 11:30 a.m. on the day of the crimes. He was under her
supervision for three Marion County convictions for aggravated robbery. Prior to
trial, Ms. Riddle filed a violation report on the defendant because he had been
terminated from his job. She had previously warned him not to get fired again after
he had been fired from a previous job. She confirmed the firing by speaking with
Vickie Gilley of Gilley Construction Company. Further, she reported, he had tested
positive for marijuana on two occasions after he was charged with the instant
7 offenses. The defendant reported being arrested for burglary and told her he had
receipts for the items which were found in the back of his truck.
Laura Prosser, who prepared the presentence report on the
defendant, testified Teal had a juvenile adjudication for grand larceny, in addition
to convictions for public intoxication and "indictments" for three counts of
aggravated robbery, all with different dates and victims. 4 She further testified that
the defendant had been fired from two jobs and worked for his father for a time.
The presentence report filed by the state also reflects that the
defendant quit school in the tenth grade but obtained his G.E.D. certificate while
incarcerated in the Department of Correction. He received substance abuse
treatment in late 1995, a few months prior to the trial and the sentencing hearing.
The "family information" section of the report indicated several adult family
members living in the community. A victim impact statement attached to the
presentence report reflected that several family mementos which could not be
replaced were taken from Dr. Johnson, and he had been deprived of the opportunity
to hand these heirlooms down to his children. In addition to the family items which
had no monetary value, Dr. Johnson had not received reimbursement for $240 of
the loss from his insurance company. Further, the Johnson home had been
vandalized during the burglary.
The defendant presented the testimony of his wife, Mary Teal, at the
sentencing hearing. She is a student at Motlow State Community College and
would like to have the defendant home with her and her two children of a previous
marriage, who consider the defendant to be their father. The defendant has lived
4 The presentence report reflects that there are actually three convictions of aggravated robbery, two from Marion County and one from Rutherford County.
8 up to his family obligations, though he would be better able to do so outside of
prison where he could work to support his family. Mrs. Teal would encourage him
to receive alcohol or other treatment, as would his parents. She related that her
husband had completed an anger control class in prison and was currently taking
drug and alcohol classes.
Vickie Gilley, the manager and owner of Gilley Construction Company,
testified the defendant had worked for her on several occasions. She did not have
any problems with his work and did not recall having fired him. She admitted
someone else, possibly the defendant's brother, may have fired the defendant,
although she could not remember.
The trial court found the defendant a Range II offender. After
considering the enhancement and mitigating factors, it sentenced the defendant to
maximum sentences of ten years and eight years for aggravated burglary and theft
of property over $1,000, respectively. The court also set the fines at $10,000 and
$5,000, respectively.
I
Teal's first challenge is to the sufficiency of the convicting evidence.
When an accused challenges the sufficiency of the evidence, an appellate court’s
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. Jackson v. Virginia, 443 U.S.
307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
9 1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). 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). Nor may this Court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee 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. Cabbage, 571 S.W.2d at 835.
Moreover, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.
Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d
608 (Tenn. Crim. App. 1987). However, 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, 225 Tenn. 478, 470
S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. 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." Crawford, 470 S.W.2d at 613;
State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
Aggravated burglary is committed when "[a] person . . . without the
10 effective consent of the property owner: (1) Enters [a habitation] . . . with the intent
to commit a felony, theft or assault [or] . . . (3) Enters [a habitation] and commits or
attempts to commit a felony, theft or assault." Tenn. Code Ann. § 39-14-402 to -403
(1997). Theft of property is committed where "[a] person . . . with the intent to
deprive the owner of property . . . knowingly obtains or exercises control over the
property without the owner's effective consent." Tenn. Code Ann. § 39-14-103
(1997).
Teal's challenge to the sufficiency of the evidence as to these crimes
is primarily an argument of witness credibility. He claims the jury should have
rejected the unreliable testimony of Alter in favor of that of Holdaway, Winfred Teal
and William Teal, Holdaway having maintained the defendant's innocence and
Winfred and William Teal being respected members of the community whose
testimony the defendant interprets as exculpatory. As noted above, it is not the duty
of this court to revisit questions of witness credibility on appeal, that function being
the province of the trier of fact. We decline the defendant's invitation to overturn his
convictions by making a different choice than the jury made about whose testimony
the jury should have accredited.
Moreover, we find the defendant's convictions to be well-supported by
the evidence of record when it is considered in the light most favorable to the state.
The defendant was seen driving a truck erratically with the victim's stolen property
in the back. The truck matched the description of the truck two neighbors saw
leaving the victim's home loaded with the stolen goods. The traffic stop occurred
a short time after the neighbors saw the truck leaving the victim's home. It has long
been the law in this state that proof of the possession of recently stolen goods, if not
satisfactorily explained, gives rise to the inference that the possessor has stolen
them, Bush v. State, 541 S.W.2d 391 (Tenn. 1976); State v. Land, 681 S.W.2d
11 589, 591 (Tenn. Crim. App. 1984), and has committed the burglary antecedent to
the theft. State v. Hamilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981)
(citations omitted). In this case, the jury was certainly within its province in rejecting
the defendant's evidence that the property was the victim's, not his. The state's
evidence also included the fact the defendant behaved nervously when stopped by
a sheriff's deputy for a traffic violation, as well as his admission of the burglary and
theft to Cindy Alter. A rational jury, as the jury in this case, could have accepted
the state's evidence, rather than the defendant's evidence, determined it wove a
web of guilt unerringly around the defendant, and found him guilty of aggravated
burglary and theft of property beyond a reasonable doubt. Accordingly, the
evidence is sufficient to support the convictions.
II
Next, the defendant contends the trial court erred in imposing
maximum sentences and fines for his crimes. In determining whether the trial court
has properly sentenced an individual, this court engages in a de novo review of the
record with a presumption the trial court's determinations were correct. Tenn. Code
Ann. § 40-35-401(d) (1990). 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). In conducting our de novo review, we must consider the evidence at
sentencing, the presentence report, the sentencing principles, the arguments of
counsel, the statements of the defendant, the nature and characteristics of the
offense, any mitigating and enhancement factors, and the defendant’s amenability
to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby,
823 S.W.2d at 168. On appeal, the appellant has the burden of showing the
sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing
Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
12 Our review of the record leads us to conclude that the trial court
complied with its statutory obligations, and as such, its determination is afforded the
presumption of correctness. 5
The record of the sentencing hearing and the court's order reflect that
the court found the presence of both enhancement and mitigating factors. The
enhancement factors were
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range . . . (2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors ... (8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community ... (13)(B) The felony was committed while on . . . [p]arole.
Tenn. Code Ann. § 40-35-113 (1997). The mitigating factors were the defendant's
criminal conduct neither caused nor threatened serious bodily injury, the defendant
was supporting his family, was a long-time resident of Coffee County, has strong
family ties, has a supportive family, and has obtained a G.E.D. while incarcerated.
Tenn. Code Ann. § 40-35-114(1), (13) (1997). In addition to the mitigating and
enhancement factors, the court announced in its sentencing order but not on the
record at the sentencing hearing that one of the "prime considerations" in imposing
maximum sentences was "the multitude of daylight burglary offenses which occur
in unpopulated areas of Coffee County of which this Court may take judicial
knowledge."
The defendant does not challenge the specific enhancement and
mitigating factors relied on by the trial court. Rather, he argues the court erred first
5 The defendant has conceded in his brief that our review should be de novo with the presumption of correctness.
13 in taking sua sponte judicial notice of the daylight burglary problem in Coffee
County, and second in imposing a maximum sentence despite a finding of mitigating
factors.
In considering the particular crime problem in the county, the court
was essentially considering the need for general deterrence within the community.
See Tenn. Code Ann. § 40-35-103(1)(B) (1997). The need for general deterrence
is not an enhancement factor which may be considered in lengthening a sentence,
see Tenn. Code Ann. § 40-35-114 (1997), though it is a factor to be considered in
determining whether the defendant should receive alternative sentencing. See
Tenn. Code Ann. § 40-35-103(1)(B) (1997); State v. Hartley, 818 S.W.2d 370, 375
(Tenn. Crim. App. 1991). In order for the court to consider the need for general
deterrence, however, there must be some actual proof supporting it the record.
See, e.g., State v. William Mitchell, No. 03C01-9411-CR-00418, slip op. at 5-6
(Tenn. Crim. App., Knoxville, July 24, 1995); State v. Ernest Myers, Jr., No. 03C01-
9404-CR-00162, slip op. at 7-8 (Tenn. Crim. App., Knoxville, Feb. 7, 1995), perm.
app. denied (Tenn. 1995); State v. David Edward Tiffin, Jr., No. 01C01-9308-CR-
00254, slip op. at 6-7 (Tenn. Crim. App., Nashville, May 5, 1994); Hartley, 818
S.W.2d at 375. As such, the court should not have considered this factor in
sentencing the defendant.6
The questions which remain are whether the defendant's sentence is
improper given the trial court's impertinent consideration of general deterrence and
the imposition of a maximum sentence in the presence of mitigating factors. We
begin our inquiry by noting that, contrary to the defendant's assertion, we do not
view the court's statement of the need for general deterrence as reflecting solely on
6 Further, the defendant, a Range II offender, was not presumptively entitled to an alternative sentence. Tenn. Code Ann. § 40-35-102(6) (1997).
14 the length of the sentence, though we believe the court may have considered
deterrence to some extent in determining the defendant should receive a maximum
sentence.
As such, the issue becomes whether the length of the defendant's
sentence is justified given the enhancement and mitigating factors applicable to
him. Contrary to the defendant's argument, he is not entitled to less than a
maximum sentence simply because the court found mitigating factors existed. In
State v. Boggs, 932 S.W.2d 467 (Tenn. Crim. App.), perm. app. denied (Tenn.
1996), this court held that a maximum sentence may be justified even in the
presence of mitigating evidence. There we noted,
The appellant's sentence is not determined by the mathematical process of adding the sum total of enhancing factors present then subtracting from this figure the mitigating factors present for a net number of years. Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record.
Boggs, 932 S.W.2d at 475-76 (citations omitted); see State v. Franklin, 919 S.W.2d
362 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996). Thus, the trial court
may, in making its sentencing determination, give the mitigating factor(s) only slight
weight in comparison with the enhancement factors and arrive at a maximum
In the case at bar, the record explicitly reflects that the court gave
mitigating factor (13) slight weight7 and implicitly reflects that the court gave
mitigating factor (1) little weight in comparison to the great weight given the
enhancement factors. As such, this is not a case wherein we may interpose our
7 The facts which fit under factor (13) are that the defendant was supporting his family, was a long-time resident of Coffee County, has strong family ties, has a supportive family, and obtained a G.E.D. while incarcerated. See Tenn. Code Ann. § 40-35-114(13) (1997).
15 judgment in place of the trial court’s, even if we might prefer a different result. State
v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Although the trial court
may have deviated from the statute and considered a non-statutory enhancement
factor, we find that the record supports the lower court’s sentences, apart from the
non-qualifying factor of deterrence,8 especially in view of the defendant’s prior
criminal history. Accordingly, we will not disturb the sentences imposed by the trial
court.
The final issue is whether the defendant was excessively fined. He
urges that the trial court should have waived the fines because he is indigent. He
cites no authority in support of his argument, and in support of his indigency he
refers us to an order entered several months after the sentencing hearing which
finds him indigent for purposes of appointing appellate counsel. 9 Though the
defendant has waived the issue by failing to cite authority in his brief, see Tenn. R.
App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b), we find the issue nevertheless
without merit.
In reviewing fines imposed in conjunction with sentencing, we look to
“the amount of the fine, the defendant’s ability to pay that fine, and other factors of
judgment involved in setting the total sentence.” State v. Bryant, 805 S.W.2d 762,
766 (Tenn. 1991). Although the defendant’s ability to pay a fine is not necessarily
a controlling factor, an oppressive fine can disrupt future rehabilitation and prevent
8 The transcript of the sentencing hearing does not reflect that deterrence was considered by the trial court in setting the sentences. The reference to deterrence appears in a sentencing order subsequently entered by the court and could plausibly be viewed as surplusage. 9 The record does not reflect an order appointing counsel prior to trial. We therefore presume the defendant did not claim or was not found to be indigent prior to trial and retained his trial counsel through his own means or those available to him.
16 a defendant from becoming a productive member of society. State v. Marshall, 870
S.W.2d 532, 542 (Tenn. Crim. App. 1993). A significant fine is not automatically
precluded, however, simply because it works a substantial hardship on the
defendant. Marshall, 870 S.W.2d at 542.
In this case, the jury ordered and the court imposed fines of $10,000
for aggravated burglary and $5,000 for theft. Both are the maximum allowed for
these offenses. See Tenn. Code Ann. § 40-35-111(b)(3), (4) (1997).
While the defendant may well be indigent, there is no indication he
was indigent at the time the court imposed the fines. Further, the record reflects he
is physically able to work, although it will be impossible for him to work in a job
which will pay "street wages" while he is incarcerated in the Department of
Correction. In addition, he has a wife and step-children who rely on him for support.
These facts indicate a large fine may impede the defendant's rehabilitation.
Further, the defendant has made some effort toward productive living since
returning to the Department of Correction by enrolling in self-help classes and
competing his G.E.D. On the other hand, the defendant's prospects for
rehabilitation are diminished by his history of theft-related convictions and his
considerable experience with the law despite his relatively young age of 23 at the
time of sentencing.
The case before us presents an extremely close question; however,
in view of the presumption of correctness afforded the trial court's judgment, we
cannot say the court erred in imposing these fines.
The judgment of the trial court is affirmed.
17 _______________________________ CURWOOD WITT, JUDGE
CONCUR:
_______________________________ GARY R. WADE, JUDGE
_______________________________ THOMAS T. WOODALL, JUDGE