IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY SESS ION, 1995
FILED STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9410-CC-00212 ) April 30, 1997 Appellee, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk ) FAYETTE COUNTY VS. ) ) HON. JON KERRY BLACKWOOD BRIAN KEITH MARTIN, ) JUDGE ) Appe llant. ) (Aggravated Burglary)
ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF FAYETTE COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD G. ROSSER CHARLES W. BURSON 102 Eas t Court Squa re Attorney General and Reporter Somerville, TN 38068 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
ELIZABETH RICE District Attorney General
CHRISTOPHER MASHBURN Assistant District Attorney General 302 Market Street Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defendant, Brian Keith Martin, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate Procedure. He was convicted by a Fayette
County jury of aggravated burglary. 1 The trial court sentenced him as a Range
II multiple offender to eight years in the Department of Correction. In this a ppea l,
the Defendant presents five issues for review:
(1) That the evid ence supp orting h is conviction is legally insu fficient; (2) that the trial c ourt er red by failing to cond uct a ju ry-out h earing regarding the admissibility of police testimony about potential crimin al cha rges o ther tha n the o ne for w hich h e was on trial; (3) that the State improperly questioned a witness about the Defendant’s prior convictions or bad acts; (4) that the trial co urt erred in allowing th e State to present testimony that he refused to make a statement to police; and, (5) that the trial court erred in sentencing him to eight years as a Range II multiple offender.
After carefully reviewing the record, we conclude the Defendant’s issues lack
merit an d affirm the judgm ent of the tria l court.
W e begin with a brief summary of the relevant facts. On November 3,
1993, the home of Smith and Eva Bowling, located on Highway 59 in Fayette
County, was burglarized. Smith Bowling returned to his home in the middle of the
day to find that the back door had been pried open. As he was looking through
his home to determine if anything was missing, he received a telephone call from
an employee of the First Tennessee Bank in Bartlett, Tennessee regarding a
check presented for payment at their drive-thru window. Bartlett is locate d in
Shelby County, just west of Fayette County. Bowling informed the bank teller that
his home had recently been burglarized and his checkbook was missing. The
1 Tenn. Code A nn. § 39-14-403(a).
-2- bank teller called th e police, who arrived minutes later and arrested two
individu als in the ca r at the d rive-thru windo w, the D efend ant an d his girlfriend,
Tina Carter. A search of the car revealed many items from the Bowlings’ home,
including a shotgun, a leather jacket , a bottle of prescription medication, a jar of
change, and several pieces of jewelry. Police officers also discovered a loaded
9mm Smith & Wesson handgun which was no t alleged to have been taken from
the Bowlings’ residence.
Tina Carter co nfesse d to breaking into and taking items from the Bowlings’
home. At the Defendant’s trial, she testified that the Defendant slept while she
committed the offense. According to her testimony, the couple was traveling from
Pennsylvan ia toward Memphis. The Defendant drove for seven or eight hours,
and then Carter began driving to allow him to sleep. Carter became lost and
stopped at the Bowlings’ home to ask for directions . She pa rked on the street,
exited the car, and approached the house, all while the Defendant remained
sleeping in the passenger seat. Finding no one home, Carter returned to the car,
retrieved a pry bar, and broke into the house through the back door. She took a
number of items and returned to the car, piling the stolen items on the back seat.
The Defenda nt woke up as she drove away. Upon discovering the stolen items,
he chastised her and asked her to return them. She refused to do so, fearing that
she migh t be ca ught. T hey ev entua lly made their way to the First Tennessee
Bank in Bartlett. Asserting her right against self-incrim ination, C arter dec lined to
answer most questions concerning what had occurred at the bank.
Kelly Dunn, the teller at the drive-thru window of the First Tennessee Bank
in Bartlett, testified that she observed Carter and the Defendant at the window
-3- early on the afternoon of November 3, 1993. Carter was driving and the
Defendant was awake in the passenger seat. Carter presented a check made
payab le to her from the acco unt of Sm ith Bowling . She had endorsed the check
and included her driver’s license number. Dunn called Smith Bowling, learned
that his checkbook was missing, and called the police. The Defendant never
spoke to Dunn during the entire episode.
In his first issue on appeal, the Defendant argues that the evidence
supporting his conviction is legally insufficient. He contends that there is no
direct evidence linking him to the burglary of the Bowlings’ home. He asserts
that, in fact, the uncontradicted testimony of Tina Carter established that he
neither particip ated in nor was aware o f the burg lary. Citing Cleveland Wrecking
Co. v. Butler, 57 Tenn. App. 570, 421 S.W.2d 380 (1967), the Defendant
contends that where testim ony is not contrad icted by direct proof or
circumstances incon sisten t with its tru th, it must be taken as true. The Defendant
does adm it that po sses sion o f recen tly stolen good s gives rise to a n inference
that the posse ssor ha s stolen th e good s. However, quoting from Bush v. S tate,
541 S.W.2d 391, 395 (Tenn. 1976), he argues that the inference is a “fiction of
the law” and an “assumption of convenience” that disappears when “refuted by
positive testimon y.” Thus , the inferen ce arising from his p ossess ion of the
Bowlings’ recently stolen items disappeared in light of Carter’s uncontradicted
testimony that he was not involved in the burglary, thereby leaving absolutely no
evidence to support his conviction.
When an accused challenges the sufficiency of the convicting evidence,
the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble
-4- to the prosecution, any rational trier of fact could have found the essential
eleme nts of the crime beyond a reason able do ubt. Jack son v. V irginia, 443 U.S.
307, 319 (1 979). Q uestio ns co ncern ing the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by
the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or
reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).
A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,
476 (Tenn . 1973). O n appe al, the Sta te is entitled to the stronge st legitima te
view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493
S.W.2d at 476.
The evidenc e estab lished tha t the Bowlings’ residence had been
burglarized and that several items had been stolen. The proof further established
that the Defendant was at the scene at the time of the crime. He was traveling
with his girlfrie nd, T ina Ca rter, wh o adm itted to c omm itting the crime s. W ithin a
few hours after the burglary, the Defen dant wa s arreste d as he sat in the ca r with
his girlfriend at a ba nk’s dr ive-thru window after she had attempted to pass a
-5- forged check taken from the burglarized residence. Numerous other items taken
during the burg lary were found in the vehicle with the D efendant an d Carter.
Carter was called as a witness for the Defendant. She testified that the
Defendant stayed in the car and slept while she burglarized the house. She s aid
that he knew nothing about her breaking into the house and stealing the various
items until he woke up after she drove away from th e resid ence . Wh ile it is
accurate to say that her testimony that the Defendant was asleep and thus
unaware of the burglary was uncontroverted, certain ly the jury was not required
to give her testimo ny any credibility, and obviously the jury chose not to do so.
It is well established in Tennessee that the possession of recently stolen
property gives rise to an inference that the possessor has stole n it and may, in
light of surrounding circumstances, suppo rt a convictio n for burg lary. See, e.g.,
State v. Hamilton, 628 S.W .2d 742 , 746 (T enn. C rim. App. 1981) (citations
omitted); see also, State v. Land, 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984)
(citation omitted). The Defendant cites Bush v. S tate, 541 S.W.2d 391, 395
(Tenn. 1976), for the proposition that the inference arising from proof of
possession of recently stolen property is a “fiction of the law” and an “assumption
for convenience” which disappears upon the introduction of contrary proof. The
Defen dant, howeve r, is quoting fro m a se ction of Bush in which the court was
attempting to clarify the often confused terms “presumption” and “inference ,” as
used in case s involvin g pos sess ion of re cently stolen property. Immediately after
this explanation, the Bush court c learly an d suc cinctly stated that “the inference
arising from the proven fact of possession of recently stolen property is not
destroyed by contra dictory evide nce, even the positive testimon y of witness es....”
-6- Bush, 541 S.W.2d at 395 (emphasis added). The court went on to hold that the
force of the inference does not vanish upon the offering of an explanation by the
defend ant. Rather, the inference “remain s to be weighed by the jury against the
evidence offered by defendant in explanation of his possession of the rec ently
stolen property.” Id.; see also Land, 681 S.W.2d at 591.
Applying that sound reasoning to the case at bar, we believe it was the
jury’s province to weigh the evidence presented by the State, including the
inference arising from the Defendant’s possession of recently stolen prop erty,
against the explanation offered by the Defendant. The jury did so in this case,
by rejecting the explanation of the Defenda nt’s actions and find ing him guilty.
From a review of the record, we con clude tha t the eviden ce pres ented, a long with
the inference which may properly be drawn from the possession of the Bowlings’
recen tly stolen pro perty, is sufficie nt to supp ort the De fendan t’s conviction of
aggravated burgla ry beyo nd a re ason able d oubt. T he De fenda nt’s first is sue is
therefore without m erit.
In his second issue, the Defendant argues that the trial court erred by
failing to conduct a jury-out hearing regarding the admissibility of police testimony
about poten tial crim inal ch arges other th an the one fo r which he wa s on tria l. In
particular, the Defendant complains about the testimony of two officers, How ard
Doyle and David Appleberry, concerning the reason each came to the bank and
one s pecific item, a 9mm handgun, found during the se arch o f the D efend ant’s
car.
-7- The Defendant filed a host of pretrial motions. Among them was a motion
in limine requesting that the trial co urt order th e State’s witnesse s not to tes tify
concerning evidence of other potential criminal charges, with specific reference
to forgery and possession of a firearm by a felon.2 The trial court took this motion
under advisement and reserved ruling on its merits until faced with a specific
instance of such testimony at trial. At the same time, however, the trial court’s
order indicated that no State’s witness should testify concerning “any prior bad
acts of the Defendant” until the admissibility of such testimony was determined
at a jury-out hearing.
Officer Doyle testified prior to Officer Appleberry. Before Doyle testified,
the Defendant’s trial counsel asked to approach the bench. At that bench
conference, the Defendant’s counsel vo iced his concern that the police officer
would testify “regarding a forgery, or possession of firearms, espe cially by a
felon.” Counsel contended that such statem ents were irrelevant for purposes
of the charged offense and would be unduly prejudicial. The assistant district
attorney responded that he would not ask if the Defendant “was charged with that
offense ,” but inte nded to ask Office r Doyle what items were discove red in the car.
The trial court instru cted the prosecutor not to elicit testimony regarding the
Defe ndan t’s prior criminal record or status as a felon. The Defendant’s counsel
voiced no further concerns, and the bench conference was concluded.
2 The Defendant was initially represented by an assistant public defender. The assistant public defender filed a number of pretrial motions, including a typical motion in limine requesting a hearing pursuant to State v. Morgan, 541 S.W .2d 3 85 (T enn . 197 6), be fore testim ony by t he S tate’s witnesses about any prior convictions or bad acts of the Defendant. The Defendant’s present counsel was eventually substituted for the assistant public defender and filed additional pretrial motions, including a motion in limine seeking to restrict the potential testimony of police officers regarding forgery or possession of a firearm by a felon.
-8- After the bench conference, the assistant district attorney questioned
Officer Doyle as follows:
Q. We re you called to the First Tennessee Bank Branch at the corner o f Highwa y 64 and 70 in Ba rtlett? A. Yes, sir. Q. Okay . Could you tell the jury the nature of the call, and what you did in response? A. The c all cam e out fro m dis patch as a fo rgery, w ith the subject still on the scene in the drive-out lane.
At this point, the Defendant moved for a mistrial based on unfair prejudice arising
from the mention of “forgery.” The trial court denied the motion but instructed the
jury to disregard Officer Doyle’s testimony concerning the reason he came to the
bank. Later in his testimony, Officer Doyle described the items found in the car
after the arre st of the Defe ndan t and T ina Ca rter. Do yle testified that a loaded
9mm Smith & Wesson handgun was discovered during the sea rch of the car.
The handg un was not allege d to have been taken from the Bowlings’ residence.
The Defenda nt made n o contem poraneou s objection to O fficer Doyle’s
testimony abou t the ha ndgu n. After cross -exam ining D oyle, the Defe ndan t’s
counsel again ap proach ed the benc h. At this point, h e obje cted to Doyle ’s
testimony about the 9mm handgun, contending that it was irrelevant for purposes
of the Defe ndant’s a ggravate d burgla ry trial. The trial court overruled the
objection.
Officer David App leberry testified imm ediately after Officer Do yle. The
assistant district attorney questioned Appleberry as follows:
Q. Did you receive a call to come to First Tennessee Bank at the corner of Highway 64 and 70, on November 3rd, 1993? A. Yes, I did. Q. An d how did you receive the ca ll?
-9- A. I received the call to come to the First Tenne ssee Bank , in regards to a subjec t attemp ting to cas h a stolen check, is w hat I was referred to by the ba nk teller that called the B artlett Dispatcher.
The Defendant made no contemporaneous objection to this testimony.
Appleberry testified further that a 9mm Smith & Wesson handgun was discovered
in the car. Again, the Defendant made no contemporaneous objection.
On appeal, the Defendan t argues that the trial co urt erred b y failing to
conduct a jury-out hearing regarding the admissibility of police testimony about
both the 9mm handgun and being called to the scene of a “forgery” or an attempt
“to cash a stolen check,” especially since the trial court’s pretrial motion order
implied that such a hea ring wo uld be held. The Defendant is presumably relying
on Tennes see Rule o f Evidence 40 4(b) as well as the general relevance and
prejudice principles contained in Tennessee Rules of Evidence 401, 402 and
403. We point out that this issue does not involve a Morgan hearing problem
because we are not face d with imp eachm ent evide nce offer ed purs uant to
Tennessee Rules of Evidence 607, 608 an d 609. See State v. Morgan, 541
S.W .2d 385 (Te nn. 1976).
After careful consideration, we find no reversible error with regard to the
trial court’s m anner o f handling the police testimony about potential criminal
charges not conta ined in the indictme nt. Althoug h the trial judge’s order
concerning the Defendant’s pretrial motions is somewhat confusing, it seems
reaso nably clear that he reserved ruling on the motion in limine to restrict police
testimony about other potential crimin al cha rges u ntil the D efend ant’s concerns
regarding unfair prejudice were implicated. Prior to Officer Doyle’s testimony, the
trial court conducted a bench conference, at which time the Defendant voiced
-10- concerns about testimony regarding forg ery or p osse ssion of a firea rm, es pecia lly
by a felon. The trial court instructed the prosecutor not to elicit testimony about
the Defendant’s status as a felon.
W e believe that if the Defendant had any lingering concerns in the wake
of the trial c ourt’s in structio ns at th e ben ch co nferen ce, it was h is duty to request
a jury-out he aring to ad dress tho se con cerns, m aking ap propriate references to
any authority that suppo rted his po sition. See Tenn. R . Evid. 404(b)(1); Neil P.
Cohen et al., Tennessee Law of Eviden ce § 40 4.7 (3rd e d. 1995 ); see also State
v. Copenny, 888 S.W.2d 450, 456 (Tenn. Crim . App. 1993 ) (citations omitted).
Obviously, the trial judge believed he had addressed the Defendant’s concerns
at the bench conference. Absent a request by the Defendant, we find no error
with the trial court’s failure to conduct a jury-out hearing after having already
considered the Defendant’s issue at the bench conference.
In any event, the trial court sp ecifically instructed the jury to disregard
Officer Doyle ’s testimony concerning the reason he came to the bank, namely the
“forgery” call. In the absence of proof to the contrary, we must presume that the
jury followe d the tria l court’s curative instruc tion. See State v. Compton, 642
S.W.2d 745, 74 6 (Ten n. Crim. A pp. 198 2); Frazier v. State, 566 S.W.2d 545, 551
(Tenn. Crim. App. 1977) (citations omitted). Thus, we conclude that the trial
court’s limiting instruction cured any error regarding Officer Doyle’s testimony
about forgery.
Moreover, although the Defen dant co mplain s of App leberry’s re ference to
a subject “attempting to cash a stolen check” on appeal, he did not object to the
-11- testimony at trial, no r did he request a jury-out hearing at the bench conference
immed iately prior to the testimony. Furthermore, he did not request a limiting
instruction even though it seems reasonable to conclude that the trial cou rt would
have given one similar to the instruction given after Officer Doyle’s testimony
concerning forgery. We conclude that the Defendant cannot now complain about
Officer Appleberry’s testimony in light of his own failure to object at the time
Appleberry testified. See T.R.A.P. 36 (a); Teag ue v. State , 772 S.W.2d 915, 926
(Tenn. Crim. App. 19 88); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim.
App. 1988 ).
Likewise, the Defendant made no contemporaneous objection to the
testimony from both officers concerning the 9mm handgun discovered during the
search of the car. Both officers tes tified about the han dgun as the y were
describing the items retrieved from the car. Neither officer offered any detailed
testimony about the firearm. On cross-examination of the State’s witnesses, the
Defendant elicited testim ony tha t the ha ndgu n was discov ered u nder th e drive r’s
side seat. Furthermore, Tina Carter testified that the handgun belonged to her.
She stated that she had borrowed the handgun from a friend in Pennsylvania and
was carrying it for protection purposes.
Although the handgun evidence may have been irrelevant and the trial
court may have erred in adm itting tes timon y abou t the firea rm, we can o nly
conclude that any error was harmless beyond a reasonable doubt. The handgun
evidence was certainly not critical to the case. In fact, the Defendant was
effective ly distanced from the wea pon thro ugh the testimon y of both Tina Carter
and witnesses for the State. We are satisfied that the jury would have convicted
-12- the Defendant even in the absence of the testimony about the 9mm handgun.
See T.R.A.P. 36 (b); Tenn. R . Crim. P. 52(a).
From a review of the record, we conclude that the trial court committed no
revers ible error in failing to condu ct a jury-ou t hearing regardin g the ad missibility
of police testimony about other potential criminal charges. The Defendant had
amp le opportunity to request such a hearing when faced with testimony which
implicated his conc erns, bu t never did so. Add itionally, none of the testimony
complained of affirmatively a ppears to have a ffected the result of the trial. The
Defen dant’s se cond iss ue is there fore witho ut merit.
In his third issue, the Defendant argues that the State im prope rly
questioned a witne ss ab out the Defe ndan t’s prior convictions or bad acts. Tina
Carter testified for the defense. On direct examination, she testified as follows:
Q. Did Brian Martin go into the Smith Bowling house? A. No. Q. Did he help you burglarize that house? A. No. As a matter of fact, we got into a fight, after he found out what I did. Q. W hy is that? A. Because he had already been in some trouble, and he wanted me to take the stuff back to the house, and I was afraid if I did, I’d be caugh t. You kn ow, I did n’t get caught in the house when I left, so I didn’t figure I’d get in any trouble for it.
This testimony concluded direct examination. The assistant district attorney
began cross-examination by asking, “Mr. Martin had already been in some
trouble?” Carter replied, “In h is past. That w as befo re I knew him.” At this point,
the Defen dant’s co unsel as ked to approach the bench and ap parently m oved to
dismiss the case.3 The trial court denied the motion but, stating that the
3 A portion of defense counsel’s statements to the court were marked as “indiscernible” in the record. It is reasonably clear, however, that he moved to dismiss the case at the bench conference.
-13- Defe ndan t’s character was not at issue, instructed the assistant district attorney
not to go any further into his prior record. No limiting instruction was requested,
nor was one given.
After reviewing the record, we agree with the Defendant that the assistant
district attorney’s question was improper. See Tenn . R. Evid. 40 4(b). We
believe, however, that the error was harmless in the context of the present case.
Tina Carter’s testimony was first elicited by the Defendant on direct examination.
The assistant dis trict attor ney’s im prope r ques tion m erely re peate d Car ter’s
previous testimony. The colloquy added no significant information beyond that
which had been brought forth during direct examination. As a result, we are
satisfied that the D efenda nt would have been convicted even without the
improper question, and the error in asking th e que stion d oes n ot affirm atively
appear to have affected the result of the trial. We therefore conclude that the
error was ha rmless beyond a reaso nable d oubt. See State v. Williams, 851
S.W.2d 828, 833 (Tenn. Crim. App. 1992); T.R.A.P. 36(b); Tenn. R. Crim. P.
52(a). T he De fendan t’s third issue lacks m erit.
In his fourth issue, the D efendant arg ues that the trial court erred in
allowing the State to prese nt testimo ny that he had refu sed to make a statement
to the police upon his arrest. He contends tha t references by two police officers
to his refusal to make a statement violated his right against self-incrimination
secured by the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 9 of the Tennessee Constitution.
-14- The testimony at issue came from Officers David Appleberry and Don
Pugh. Officer Appleberry testified on direct examination as follows:
Q. All right. W hen you arrested the subjects, including the defend ant, did they make any statements to you, or did you engage them in conversation? A. The conversation was limited. We mainly secured the scene . ... Q. And the defendant did not make any statements to the Ba rtlett Police? A. To my rec ollectio n, I don ’t recall.
The Defendant made no objection to the testimony. After conducting cross-
examination of Appleberry, the Defendant moved to dismiss the case based on
the assistant district attorney’s questions about whether he had made a
statement to police upon arrest. The trial court denied the motion but instructed
the assis tant district atto rney not to ask que stions “ab out any s tateme nts.”
Officer Pugh testified after Officer Appleberry. Officer Pugh gave the
following testimony on direct examination:
Q. Okay. Now, after the Fayette County Sheriff’s Department took the defendant and Ms. Carte r into cu stody, d id you ascertain w here they had come from? A. I did. Q. Oka y. Wh ere was that? A. Carlisle, Pennsylvania. Q. Both of them? A. I think so. I’d have to look back on my note s. I talked to Mr. Martin first, and advise d him of his rights, and about the extent of our conversation, I asked him how long they had been on the road, and he told m e appro ximately tw o weeks. I asked him, “Was that the reason you broke into the house?” And he did not an swer tha t, and refused to talk anymore on the advice o f his attorney.
At this point, the Defendant objected and again moved to dismiss the case. The
trial court denied the motion.
It is well-established that a defe ndan t has a cons titutiona l right to re main
silent in the face o f accu sation , not on ly during trial but a lso up on arre st and while
-15- in custody. The prosecution may not use at trial the fact that a defendant claimed
the privilege. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966); Brade n v. State, 534 S.W.2d 657, 66 0 (Ten n. 1976 ); Wa re v. State ,
565 S.W.2d 906, 908 (Tenn. Crim. App. 19 78). Furth ermor e, a defen dant’s po st-
arrest silence ordina rily cann ot be u sed to impe ach h is testim ony at tr ial. See
Doyle v. Ohio , 426 U.S . 610, 96 S .Ct. 2240, 49 L.Ed.2d 91 (1976); Honeycu tt v.
State, 544 S.W .2d 912, 917 -18 (Tenn . Crim. App. 19 76). Simply put, when a
defendant exercises his constitutional right to remain silent, the fact that he or
she does so genera lly cannot be use d against him or her.
On appeal, the Defendant argues that the testimony about his refusal to
make a statement violated his right against self-incrimination and that the the trial
court erred in ad mitting the testimon y. W e believe that the assistant district
attorne y’s questions to O fficer Appleberry we re improp er. See, e.g., Hone ycutt,
544 S.W.2d at 917. The Defendant, however, did not make a contemporaneous
objec tion to the testim ony of O fficer Ap plebe rry. Mor eover , Apple berry’s
testimony indicated only that he did not recall whether the Defendant had made
a statement. It appears to this Court that A pplebe rry’s testimo ny was n ot a
reference to the refusal of the Defendant to make a statement, but rather a
comment on the limited nature of both his duties at the scene and h is interaction
with the D efenda nt.
With regard to Officer Pugh, it is clear that his comments specifically
concerning the Defendant’s refusal to make a statement were ina ppropria te. W e
note that the assistant district attorney did not elicit that testimony, nor was the
questioning so broa d and s ugges tive as to risk eliciting improper tes timony.
-16- Nevertheless, Pugh ’s testim ony infr inged upon the De fenda nt’s co nstitutio nal
right to rem ain silent. Id.
W e believe, ho wever, tha t any error in the adm ission of the testimony of
Officers Appleberry and Pugh was harmless beyond a re ason able d oubt. It is
important to note th at the assistant district attorney made no comment
whatsoever on the Defendant’s post-arrest silence d uring arg umen t. In this way,
the case at bar is distinguishable from cases such as State v. Mabe, 655 S.W.2d
203 (Ten n. Crim . App. 1 983), w herein the prosecutor’s closing argument focused
heavily upon the defendant’s failure to make a statement upon arrest and
resulted in the reversal of the defe ndant’s conviction . Moreover, the trial court
gave a jury ins truction regard ing the Defe ndan t’s right to remain silent and the
fact that no inference can be drawn from such silence. We must presume that
the jury followed the trial cour t’s instruction s. See State v. Locke, 771 S.W .2d
132, 138-39 (Tenn. Crim. App. 1988) (citing Ford v. S tate, 101 Tenn. 454, 458,
47 S.W. 703, 705 (1898)). In the absence of prejudicial comments by the
assistant district attorney, we conclude that the trial court’s instructions cured any
possibility of harm from the testimony of Officers Appleberry and Pugh in the
context of the pres ent case . See State v. Flanagan, 223 Tenn. 134, 138-39, 443
S.W.2d 25, 27 (T enn. 19 69); see also Johns on v. Sta te, 596 S.W .2d 97, 104
(Tenn. Crim . App. 1 979). T he De fenda nt’s fou rth issu e is therefore without m erit.
In his fifth iss ue, the Defe ndan t argue s that th e trial co urt erre d in
sentencing him to eight years as a Range II multip le offender. When an accused
challenges the length, range, or the manner of service of a sente nce, this court
has a duty to conduct a de novo review of the sentence with a presumption that
-17- the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d). This presum ption is "conditioned upon the affirm ative show ing in the
record that the trial court con sidered the sentencing principles and all relevant
facts and circums tances ." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a se ntenc e, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own be half; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
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 principals set out under the sentencing law, and
that the trial c ourt's fin dings of fact a re ade quate ly supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
The Defendant has three specific complaints about his sentence, the first
of which involves the State’s notice of intent to seek sentencing as a multiple
offender. The Defendant contends that the State’s notice was defective because
it did not include properly certified copies of his convictions from Pennsylvania.
-18- As a result, he argues that the trial court erred in senten cing him as a Ra nge II
multiple offende r.
The Defendant was tried on April 8, 1994. On November 24, 1993, m ore
than four months prior to trial, the State filed its notice to seek enhanced
punish ment. In that notice, the State listed s ix prior convictions from
Pennsylvania.4 The notice set forth the date of conviction, the nature of the
conviction, and the court of conviction.
The Defenda nt argues that the State’s no tice did no t comp ly with
Tennessee Code Annotated section 40-35-202(a) in that it did not include
prope rly certified copies of the Pennsylvania convictions. We do not believe that
Tennessee Code Annotated section 4 0-35-20 2(a) requ ires the S tate to include
certified copies of convictions when filing its notice to seek enhanced
punish ment. The on ly requirem ent in term s of conte nt of the notice is that it
“must set forth the nature of the prior felony convictions, the dates of the
convictions and the identity of the courts of the convictions.” Tenn. Code Ann.
§ 40-35-202(a) (1990). It is clear that the State’s notice in the present case
complied with those requirements. Accordingly, we conclude the Defendant’s
first allegation of senten cing erro r lacks m erit.
In his second allegation of sentencing error, the Defendant contends that
the copies of the Pennsylvania convictions introduced at his sentencing hearing
4 At the sentencing hearing, the State offered proof of seven Pennsylvania convictions. One of them, a misdemeanor theft charge alleged to have occurred on February 18, 1990 to which the Def end ant p leade d guilt y on Ju ne 5, 1990 (#60 1 Crim inal 19 90(B -1)), w as no t listed on th e Sta te’s notic e to s eek enha nce d pun ishm ent. A s su ch, w e will no t con side r that c onvic tion in revie wing this issue.
-19- were not pro perly ce rtified. W e belie ve the D efend ant’s c onten tion is cle arly
without merit. Each of the convictions introduced by the State at the sentencing
hearing is certified as a true copy from the records of the Clerk of the Courts of
Cumberland County, Pennsylvania. A Deputy Clerk signed the copies and
affixed the seal of the Cumberland County Courts. We therefore conclude that
the certified copies of the Defendant’s prior convictions were properly admitted
pursuant to Tennessee Rules of Evidence 902. The Defendant’s second
allegation of a sente ncing err or is withou t merit.
In his third allegation of a sentencing error, the Defendant contends that
the trial court improperly applied and weighed enhancement and mitigating
factors. The sentencing hearing took place on April 28, 1994. The State’s proof
established that the Defendant had at least three prior felony convictions and
qualified as a Ra nge II m ultiple offende r. See Tenn. Code Ann. § 40-35-
106(a)(1). The appropriate sentencing range for aggravated burglary, a class C
felony, was six to ten years . At the conclusion of the hearing, the trial cou rt
sentenced the Defendant to eight years imprisonment. The trial court later
entered an order reflecting what had occurred at the sentencing hearing.
The record is somewha t unclear as to wh ich enhanc ement fac tors were
applied. There is no dou bt that the trial c ourt applied the “previous history of
criminal behavior in addition to that necessary to establish the sentencing range”
enhan ceme nt factor. See Tenn. C ode Ann . § 40-35-114 (1).
The trial court also applied as an enhancement factor that the offense
involved “more than one actor.” This language does not correspond to any of the
-20- statutory enhancement factors set forth at Tennessee Code Annotated section
40-35-114. From a review of th e argument prior to the imposition of sentence,
however, it appears that the trial court was referring to the “leader in the
commission of an offense involving two or more actors” enhancement factor.
See Tenn. C ode Ann . § 40-35-114 (2).
In addition, in the sentencing order entered after the imposition of sentence
at the sentencing hearing, the trial judge stated that he applied the enhancement
factor for a “felony com mitted while on p arole.” See Tenn . Code Ann. § 40-35-
114(13)(B ). As he imposed sentence at the hearing, however, the trial judge
stated that he was not considering whether the Defendant was on parole at the
time of the prese nt offen se. Th is state men t cam e in res pons e to the Defe ndan t’s
objection to the he arsay in the prese ntence repo rt concerning his parole status
from two burglary convictions in Pennsylvania. Given the Defendant’s objection
to that aspe ct of the presentence report and the trial court’s recognition of that
objection at the sente ncing hearing, we will not consider Tennessee Code
Annotated section 40-35-114(13)(B) as an enhancement factor in our review of
this issue.
It is clear from the record that the trial court applied only one mitigating
factor, nam ely that th e “con duct n either c ause d nor th reaten ed se rious b odily
injury.” See Tenn. Code Ann. § 40-35-113(1). The Defendant offered several
other mitigating fac tors for con sideration , all of which th e trial court re jected. It
is also clear that the trial court found that the enhancement factors outweighed
the mitigating factor.
-21- W e find no erro r with regard to the trial court’s application of the “previous
history of criminal behavior” enhancement factor. The State introduced proof of
multip le misdemeanor convictions in addition to the felony co nvictions u sed to
support sentencing the Defendant as a Range II multiple offender. Likewise, we
find no error with regard to the trial court’s application of only one mitigating
factor, that the Defendant’s conduct “neither caused nor threatened serious
bodily injury.”
From our review of t he record, ho wever, we co nclude that the trial cou rt
erred in applying the “leader in the commission of the offense” enhancement
factor pursuant to Tennessee Code Annotated section 40-35-114(2). The
Defe ndan t’s conviction rested on the circumstances discovered upon his arrest
at the bank and the inference arising from possession of recently stolen prop erty.
The State offered no proof at trial or at the sentencing hearing from which the trial
court could have reasonably concluded that the Defendant qualified as a leader
in the com mission of the offense. As a result, it was e rror for the trial c ourt to
apply that enha nceme nt factor.
Yet we believe that there was anothe r approp riate enhancement factor not
applied by the trial court. The certified copies of convictions from P enns ylvania
clearly reveal that two of the Defendant’s prior felony convictions for bu rglary,
numbe rs 601 Criminal 1990(A-2) and 1928 Crimina l 1989 , were c omm itted “wh ile
the defendant was on parole or otherwise out of jail.” Given that evidence, we
believe that trial c ourt co uld have properly found that the Defendant has a
-22- “previous history of unwillingness to comply with the conditions of a sentence
involving release into the comm unity.” See Tenn. C ode Ann . § 40-35-114 (8). 5
Having reviewed the applicable enhancement and mitigating factors, we
conclude that the trial court did not err in sentencing the Defendant to the mid-
range sentence of eight years imprisonment. Although the trial judge incorre ctly
applied the “lea der in th e com miss ion of th e offen se” en hanc eme nt facto r, he did
not apply the appropriate “previous history of unwilling ness to c omply w ith
release into the community” enhancement factor. Because we find no other
sente ncing errors, we be lieve tha t the trial c ourt’s s enten ce of e ight yea rs is
adeq uately supported by the re cord. T hus, th e Def enda nt’s fifth is sue is without
merit.
For the reasons set forth in the discussion above, we conclude that the
Defe ndan t’s issues on appeal lack merit. We therefore affirm the ju dgme nt of the
trial court.
5 We point out that we are not considering whether the Defendant was on parole from those Pennsylvania burglary convictions (numbers 601 Criminal 1990(A-2) and 1928 Criminal 1989) at the time of the offense involved in the case sub judice, as is alleged in the presentence report. Rather we are considering the fact, established by the certified copies of the Pennsylvania convictions introduced at the sentencing hearing, that the Defendant committed those two Pennsylvania burglaries while he was on some form of release into the community from prior convictions.
-23- ____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ JOSEPH M. TIPTON, JUDGE
___________________________________ JERRY SCOTT, SPECIAL JUDGE
-24-