State v. Dennis J. Shelton, Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED

AT KNOXVILLE

December 29, 1999

Cecil Crowson, Jr.

OCTOBER 1999 SESSION Appellate Court Clerk

STATE OF TENNESSEE, * C.C.A. # 03C01-9903-CR-00098 Appellee, * GREENE COUNTY VS. * Hon. James E. Beckner, Judge

DEN NIS J. S HELT ON, JR ., * (Aggra vated B urglary; T heft of Property over $1,000)

Appe llant. *

For Ap pellant: For Appellee:

Douglas L. Payne Paul G. Su mme rs 114 So uth Main e Street Attorney General & Reporter Greeneville, TN 37743 Clinton J. Morgan

Counsel for the State

425 Fifth A venue N orth

Nashville, TN 37243-0493

Cecil C. M ills, Jr.

Assistant District Attorney General 109 South Main Street

Greeneville, TN 37743

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE

OPINION

The defendant, Dennis Shelton, was convicted of aggravated burglary and theft of property over $1,000 but less than $10,000. The trial court impos ed Rang e I sentences of six years for the agg ravated burglary conviction and four years for the theft conviction. The sentences were ordered to be ser ved con currently. T he trial cou rt also imp osed a fine of $4,0 00. In this appeal of right, the following issues are presented for review: (1) whether the evidence is sufficient to support the guilty verdicts; and (2) whether the sentence imposed is excessive.

We affirm the ju dgme nt of the trial co urt.

On December 4,1997, Donald Tunnell saw two young males run from th e Eug ene B ritton ho me in Gree ne Co unty an d get in to a ca r parke d in the driveway. Tunnell, who was approximately one hundred yards away, was unable to identify either of the two young men, but described one as having blond e hair w ith a lon g pon ytail.

Jim E llison, a detec tive serg eant w ith the G reene Coun ty She riff’s Department, received a radio report of the burglary. The report included a description of a veh icle. As the result of a sec ond radio rep ort, Detective Ellison drove to a trailer park where he observed four young males standing near a d ark blue o lder mo del Olds mobile . Three of the four m en fled. Dete ctive E llison te stified th at the d efend ant wa s am ong th e three who ra n; all

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were able to evade arrest. Officers arrested the fourth young male, who was a brother of the defendant. The blue Oldsmobile was the same vehicle that had previously been seen at the Britton residence.

At trial, Roy Johnson, who lived in the trailer park, testified that on the day of the burglary the defendant arrived at his residence driving a blue Oldsmobile. He described the defendant as having long blonde hair with a pony ta il. John son re called that the defen dant, w ho wa s acco mpa nied b y his three bro thers, ask ed if he wa nted to bu y a pistol, sho tgun, an d som e rifles. The defendant claimed that he had hidden the guns "where they couldn't be found." Johnson testified that when the police officers arrived, the defendant and two of his brothers fled on foot. The officers arrested Billy Shelton, one of the defendant’s brothers, inside the trailer as he attempted to flush some jewelry down the commode.

Eugene Britton testified that two shotguns, two rifles, and a pistol were m issing from his reside nce. Va rious rings and ne cklaces belong ing to his wife were also missing. While admitting he had never had the items appraised, Britton estimated their total fair market value to be about $6,000.

The d efenda nt first argue s that the e vidence is insufficient to support the guilty verdicts. He specifically contends that Tunnell did not identify the defendant, never saw the defendant inside the Britton residence, and did not see the defendant in possession of the stolen goods. The defendant also submits that the state failed to adequately establish the value

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of the item s as in exc ess of $1 ,000 be cause Britton ha d little knowle dge as to the value of his wife's jewelry and had not purchased the stolen guns. The defendant asserts that he is entitled to a judgment of acquittal or, in the alternative, an entry of a judgment of theft of property less than $500.

On appeal, the state is entitled to the strongest legitimate view of the evide nce an d all reaso nable infe rences which m ight be dra wn there from. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in th e proof a re matte rs entrus ted to the ju ry as triers of fa ct. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have fo und th e ess ential e leme nts of th e crim e beyo nd a re ason able doubt. Jack son v. V irginia, 443 U.S . 307, 319 (1979); State v. Williams, 657 S.W .2d 405 , 410 (T enn. 19 83), cert. denied, 465 U.S. 1073 (1984); Tenn. R. App. P. 13(e ).

The state m ay use direct evide nce, circums tantial evidence, or a comb ination of b oth to pro ve the req uisite elem ents of a c riminal offe nse. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). The weight to be given circums tantial evidence, an d any inference s to be drawn therefrom "are question s prima rily for the jury." Marab le v. State, 313 S.W.2d 451, 457 (Tenn . 1958).

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"A person commits burglary who, without the effective consent of the prop erty owne r," enters a b uilding "with intent to co mm it a felony or th eft." Tenn. Code Ann. §§ 39-14-401, -402. The burglary becomes aggravated when the building entered is a place of habitation. Tenn. Code Ann. § 39-14- 403.

"Value" is as follows:

(i) The fair market value of the property... at the time and place of the offense; or (ii) If the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offe nse...

Tenn . Code Ann. § 3 9-11-10 6(35).

The defendant fit the description provided by an eyewitness who observed two young males flee the scene of a burglary. Later that day, Roy Johnson saw the defendant driving a vehicle that met the description of the getaw ay car. Wh en po lice office rs arrive d, the d efend ant wa s trying to sell Johns on firearm s similar to th ose rep orted m issing from the victim's re sidence . The defendant ran. Officers itemized the stolen jewelry. The victim testified as to the s pecific guns which were s tolen. A s own er, he te stified th at the fa ir market value of all the items was approxima tely $6,000. Ow ners are comp etent by fa ct of owne rship to tes tify to the value of the prop erty stolen. State v. Hamm, 611 S.W .2d 826 (Tenn . 1981); Reave s v. State, 523 S.W.2d 218, 22 0 (Ten n. Crim. A pp. 197 5); see N. Cohen, D. Paine, and S. Shep peard, Tennessee Law of Evidence § 701.2 (3 rd ed. 1995). From these facts, it was entirely reasonable for the jury to conclude that the defendant was

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guilty of th e crim e. It was up to th e jury to a sses s cred ibility of the victim's testimony regarding the value of the jewelry. In our view, the circumstantial evidenc e was s ufficient to su pport the verdict.

The defendant's second argument is that the trial court erred by imposing the maximum possible sentence. He specifically contends that being the driver of the car used in a crime does not necessarily mean that he is a leade r in the com mission of the offen se. See Tenn. Code Ann. § 40-35- 114(2).

Wh en there is a cha llenge to the length , range, or ma nner of service of a sentence, it is the duty of this court to conduct a de novo review with a pre sump tion that the determ inations m ade by th e trial court a re correc t. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court ap plies inap propriate factors or o therwise fails to follow the 1 989 Se ntencing Act, the pr esum ption of co rrectnes s falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the imp ropriety of the senten ce.

Our review req uires an ana lysis of (1) the evidence , if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the

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principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitiga ting or e nhan cing fa ctors; (6 ) any sta teme nts m ade b y the de fenda nt in his own behalf; an d (7) the d efenda nt's poten tial for rehab ilitation or treatm ent. Tenn . Code Ann. §§ 40-35-1 02, -103 , and -21 0; State v. S mith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial cou rt made adequ ate finding s of fact.

In calculating the sentence for felony convictions committed before July 1, 1995, the presumptive sentence is the minimum within the range if the re are no enhan ceme nt or mitiga ting factors . Tenn. C ode An n. § 40-35-210 (c) (1990) (am ended Ju ly 1, 1995 to provide that the presum ptive sentence fo r a Class A felon y as the midp oint in the range). If there are enhancement factors but no mitigating factors, the trial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the ra nge by a ny weigh t assigne d to the m itigating facto rs prese nt. Id.

The d efenda nt was co nvicted of a Class D and a C lass C fe lony.

The trial court imposed a Range I standard offender sentence, with a 30% release eligibility status for both convictions. The sentence for the Class D felony, therefore, could be as little as two years or as much as four years. The sentence for the Class C felony could be as little as three years or as much as

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six years. Tenn. Code Ann. § 40-35-112(a)(3) and (4). The trial court found three enha nceme nt factors: (1) that the defe ndant had a prior criminal history; (2) that the defendant was a leader in the commission of the offenses; and (3) that the de fendan t had a his tory of unw illingness to comp ly with cond itions of a previous releas e. Tenn. C ode Ann . § 40-35-114 (1),(2), and (8).

As the only mitigating factor, the trial court found that the defend ant's crim inal cond uct did no t cause o r threaten serious b odily harm . Tenn. Code Ann. § 40-35-113(1). The trial court assigned little weight to the mitigating factor.

In our view, the evidence supports the application of all three enhancement factors. The evidence not only indicated that the defendant was the driver of the vehicle that was used in these offenses, but that he took the lead in hiding the guns and attempting to sell them to Roy Johnson. In our opinion, the trial court corre ctly applied this factor. Furthe rmore, the trial court has the prerogative to weigh the enhancement factors against any mitigating circumstances. So long as conscientious consideration is given to all relevant factors, this court will not disturb a sentence even if our assessment might have be en differen t than that o f the trial judge . State v. Fletcher, 805 S.W.2d 785 (T enn. C rim. App . 1991).

The judgment of the trial court is affirmed.

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Gary R. Wade, Presiding Judge

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CONCUR:

____________________________

David H. Welles, Judge

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David G. Hayes, Judge