IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 20, 1999
Cecil Crowson, Jr. JANUARY 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. NO. 03C01-9712-CR-00537
APPELLEE, * SULLIVAN COUNTY
VS. * Hon. R. Jerry Beck, Judge
JAMES D. HORN, * (Aggravated Burglary, Theft)
APPELLANT. *
For Appellant: For Appellee:
Julie A. Martin John Knox Walkup P.O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 450 James Robertson Parkway Nashville, TN 37243-0493 Richard Tate Assistant Public Defender R. Stephen Jobe Blountville, TN 37617 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North, 2nd Floor Nashville, TN 37243-0493
Teresa M. Smith and Ed Wilson Assistant District Attorneys General Blountville, TN 37617
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
The appellant, James D. Horn, was convicted by a jury in the Sullivan
County Criminal Court of thirty-one counts of aggravated burglary, eighteen counts
of theft of property valued between one thousand and ten thousand dollars, one
count of theft of property valued between five hundred and one thousand dollars,
and ten counts of theft of property valued at five hundred dollars or less. The trial
court sentenced him as a Range II multiple offender to ten years for each
aggravated burglary conviction, eight years for each conviction of theft of property
valued between one thousand and ten thousand dollars, two years for his conviction
of theft of property valued between five hundred and one thousand dollars, and
eleven months and twenty-nine days for each conviction of theft of property valued
at five hundred dollars or less. The trial court ordered the appellant to serve nine
aggravated burglary sentences consecutively and all remaining sentences
concurrently, resulting in an effective sentence of ninety years incarceration in the
Tennessee Department of Correction.
In this appeal as of right, the appellant presents the following issues
for review:
(I) Whether the evidence is sufficient to sustain the appellant’s convictions of thirty-one counts of aggravated burglary, eighteen counts of theft of property valued between one thousand and ten thousand dollars, one count of theft of property valued between five hundred and one thousand dollars, and ten counts of theft of property valued at five hundred dollars or less;
(II) Whether the trial court erred by imposing an effective sentence of ninety (90) years imprisonment.
Following a review of the record, we affirm the judgment of the trial court.
I. Factual Background
On May 31, 1995, officers of the Carter County Sheriff’s Department
2 went to the appellant’s residence on Anderson Road in Carter County in order to
serve the appellant with a fugitive warrant. Linda McClain, another resident of the
Anderson Road home, permitted the officers to enter the home and search for the
appellant. The officers thereby discovered that the house was full of property that
had been stolen from various counties in Upper East Tennessee.
Kenneth Potter, a chief deputy with the Carter County Sheriff’s
Department, testified that he was dispatched to the Anderson Road residence on
May 31, 1995. Upon entering the home with the permission of Linda McClain, he
noticed a large amount of merchandise, including several weapons, videos,
televisions, video cassette recorders, camcorders, and other assorted items.
Suspicious that these items might be stolen, Chief Deputy Potter ordered two
officers, including Rocky Croey, to start entering the serial numbers of these items
on the NCIC computer. According to Rocky Croey’s testimony, the NCIC computer
indicated that several of the items matched reports of stolen property from several
counties, including Sullivan County. Chief Deputy Potter then directed his officers to
transport these items to the evidence room at the Carter County Sheriff’s
Department.
The Carter County Sheriff’s Department apprehended the appellant in
the early morning hours of June 1, 1995, and transported him to the police station.
Chief Deputy Potter testified that, in his presence, Officer Keith Range read the
appellant his Miranda rights. The appellant did not request an attorney and
informed the officers that he wanted to cooperate with the police. The appellant
then confessed that he had participated in numerous burglaries, including burglaries
in Sullivan County.
3 Richard D. Hodges, a detective with the Sullivan County Sheriff’s
Department, testified that he was contacted on June 1, 1995, by Rocky Croey, a
lieutenant with the Carter County Sheriff’s Department. As a result of this
communication, Detective Hodges and Detective Randy Simpson traveled to the
Carter County Sheriff’s Department and examined the property that had been
transported from the Anderson Road residence to the evidence room at the police
station. Referring to cases they had recently investigated in Sullivan County,
Detective Hodges and Detective Simpson began to set aside items that matched or
appeared to match the descriptions of the stolen property in those cases.
Next, Detective Hodges traveled to the Anderson Road residence to
inspect items remaining in the house. Once there, he spoke with the appellant, who
was in the custody of the Carter County Sheriff’s Department. Detective Hodges
asked the appellant if he would identify any stolen items in the house. The appellant
responded that “probably everything but the washer and dryer is stolen.” When
Detective Hodges entered the residence, he observed several items that fit the
descriptions of property reported as stolen in Sullivan County. He subsequently
confirmed the matches with written police reports of burglaries that had occurred in
Sullivan County in the previous three months. He then transported the stolen
property to the Sullivan County Sheriff’s Department and contacted the burglary
victims. He asked that the victims come to the Sheriff’s Department and identify
their property.
Detective Hodges and Detective Simpson later returned to the Carter
County Sheriff’s Department in order to interview the appellant. Detective Hodges
4 advised the appellant of his Miranda rights.1 Again, the appellant did not request an
attorney and stated his desire to cooperate with the police. Following the interview,
Detective Hodges transported the appellant to Sullivan County where the appellant
agreed to identify homes he had burglarized. Detective Hodges and the appellant
drove through several neighborhoods, and the appellant pointed out numerous
homes he had burglarized, sometimes recalling specific details about the homes.
Detective Hodges again informed the appellant of his Miranda rights and obtained a
formal statement from the appellant, in which the appellant admitted burglarizing a
number of homes and taking various items of property in Sullivan County.
Likewise, John Blessing, an officer with the Kingsport Police
Department, testified that he traveled to Carter County on June 2, 1995, in order to
match property recovered from the Anderson Road residence with property reported
stolen in Kingsport. After identifying several matches, Officer Blessing met with the
appellant, read him his Miranda rights, and obtained a waiver of those rights from
the appellant. Officer Blessing then drove the appellant through several
neighborhoods in Kingsport, and the appellant identified homes he had burglarized.
During their drive through Kingsport, the appellant stated to Officer Blessing that he
did not have a job, that he furnished his home with stolen merchandise, and that he
sold stolen items in order to obtain money. According to Officer Blessing, the
appellant also stated that if property recovered from the Anderson Road residence
1 Detective Hodges advised the appellant of his Miranda rights without the aid of a form or card. Consequently, Detective Hodges inadvertently omitted portions of the Miranda warning. Nevertheless, the trial court overruled the appellant’s motion to suppress his statements to the Sullivan County officers. The trial court found that the appellant had been fully advised of his Miranda rights by officers from Carter County and Washington County earlier on the same day. The trial court further found that the appellant was willingly cooperating with police officers from all jurisdictions, including Sullivan County. The trial court concluded that the statements given to the Sullivan County officers were voluntary and knowing, notwithstanding Detective Hodges’ failure to fully advise the appellant of his rights. The appellant does not appeal the trial court’s ruling on the motion to suppress.
5 matched property reported as stolen, then the appellant had committed the burglary
and theft. Officer Blessing later obtained a formal statement from the appellant, in
which the appellant admitted that he had burglarized numerous homes in Kingsport.
The remaining evidence offered by the State consisted of virtually
identical testimony from forty-one homeowners who had been burglarized. The
homeowners generally testified that they returned home one day to find that their
residences had been forcibly entered and ransacked. The homeowners also
testified that primarily their bedrooms were in disarray and that there were items
missing, including jewelry, firearms, coins, furniture, and other home furnishings.
The homeowners asserted that the appellant did not have permission to enter their
homes. On cross-examination, they conceded that they did not personally observe
the appellant break into their homes or take any of their property.
II. Analysis
A. Sufficiency of the Evidence
The appellant complains that there was insufficient evidence to sustain
his convictions of thirty-one counts of aggravated burglary, eighteen counts of theft
of property valued between one thousand and ten thousand dollars, one count of
theft of property valued between five hundred and one thousand dollars, and ten
counts of theft of property valued at five hundred dollars or less. He contends that
the State failed to prove that he was the person who burglarized the homes and
committed the thefts in question. Moreover, the appellant argues that the State
failed to prove which specific items of property were stolen by the appellant as
opposed to Linda McClain or the other two occupants of the Anderson Road
residence.
6 In Tennessee, appellate courts accord considerable weight to the
verdict of a jury in a criminal trial. In essence, a jury conviction removes the
presumption of the defendant’s innocence and replaces it with one of guilt, so that
the appellant carries the burden of demonstrating to this court why the evidence will
not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The appellant must establish that “no reasonable trier of fact” could have found the
essential elements of the charged offenses beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn therefrom.
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions
concerning the credibility of witnesses and the weight and value to be given the
evidence, as well as factual issues raised by the evidence, are resolved by the trier
of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.
1990).
In the instant case, the appellant was convicted pursuant to Tenn.
Code Ann. § 39-14-403 (1994) of thirty-one counts of aggravated burglary.
Aggravated burglary is burglary of a habitation as defined in Tenn. Code Ann. §§ 39-
14-401 and 39-14-402. Under Tenn. Code. Ann. § 39-14-402 (1994), a person
commits burglary who
without the effective consent of the property owner (1) enters a building . . . with the intent to commit a felony or theft; (2) Remains concealed, with the intent to commit a felony or theft, in a building; (3) Enters a building and commits or attempts to commit a felony or theft; . . ..
Under Tenn. Code Ann. § 39-14-401 (1997), a habitation is
any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted
7 for the overnight accommodation of persons . . ..
The appellant was also convicted pursuant to Tenn. Code Ann. § 39-
14-103 (1997) of various grades of theft of property. Theft of property occurs 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.
Tenn. Code Ann. § 39-14-103 (1997). Tenn. Code. Ann. § 39-14-105 (1997) grades
the theft offense according to the value of the stolen property.
We conclude that the record supports the jury’s conclusion that the
appellant burglarized the homes and committed the thefts listed in the indictments
underlying his convictions. Property recovered from the appellant’s residence
matched the descriptions of property reported stolen in Sullivan County. The
appellant gave a formal statement to Detective Hodges in which he admitted
burglarizing homes and taking various items of property in Sullivan County.
Moreover, the appellant voluntarily assisted the Sullivan County Sheriff’s
Department by identifying the numerous residences he had burglarized. These
residences correspond with homes listed in indictments underlying the appellant’s
convictions. Finally, owners of the listed residences identified stolen property
recovered from the appellant’s residence.
Furthermore, the appellant told Officer Blessing of the Kingsport Police
Department that if the property recovered from his residence matched the
description of property reported as stolen, then the appellant had committed the
burglary and theft. The appellant later gave a formal statement to Officer Blessing
in which he admitted burglarizing homes and taking various items of property in
Kingsport. Officer Blessing matched property recovered from the appellant’s
8 residence with the descriptions of property reported stolen in Kingsport. The
appellant then voluntarily assisted the Kingsport Police Department by identifying
the numerous residences he had burglarized. These residences also correspond
with residences listed in an indictment underlying the appellant’s convictions, and
homeowners in Kingsport also identified stolen property recovered from the
appellant’s residence. This issue is without merit.
B. Sentencing
I. Excessive sentence
The appellant next contends that the trial court erred by sentencing the
appellant to a term of ninety (90) years imprisonment. Specifically, the appellant
argues that the trial court, in determining the sentence for each count of aggravated
burglary and each count of theft of property valued between one thousand and ten
thousand dollars, failed to consider certain mitigating factors and also erroneously
balanced enhancement and mitigating factors found by the court.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d) (1997). This presumption of correctness is “conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The burden is upon the appellant to demonstrate the
impropriety of the sentence. State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995).
Our review of the appellant’s sentences requires an analysis of (1) the
evidence, if any, received at trial and at the sentencing hearing; (2) the presentence
9 report; (3) the principles of sentencing and the arguments of counsel relative to
sentencing alternatives; (4) the nature and characteristics of the offenses; (5) any
mitigating or enhancement factors; (6) any statements made by the appellant on his
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn.
Code Ann. § 40-35-102, -103, and -210 (1997).
The presumptive sentence for Class B, C, D, and E felonies is the
minimum sentence in the range if there are no enhancement or mitigating factors.
Tenn. Code Ann. § 40-35-210 (1997). If the trial court finds that there are
enhancement or mitigating factors, the court must start at the minimum sentence in
the range, enhance the sentence within the range as appropriate for the
enhancement factors, and then reduce the sentence within the range as appropriate
for the mitigating factors. Id. The weight given to any existing factor is left to the
trial court’s discretion so long as the trial court complies with the purposes and
principles of sentencing and the court’s findings are adequately supported by the
record. State v. Shropshire, 874 S.W.2d 634 (Tenn. Crim. App. 1993). See also
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
We initially commend the trial court in this case for its meticulous
consideration of sentencing principles and all relevant facts and circumstances. In
light of the exemplary record of the sentencing proceedings, we apply a presumption
of correctness in conducting our de novo review of the appellant’s sentences. Tenn.
Code Ann. § 40-35-401(d) (1997).
The trial court sentenced the appellant as a Range II multiple offender
to ten years for each count of aggravated burglary and eight years for each count of
theft of property valued between one thousand and ten thousand dollars.
10 Aggravated burglary is a class C felony. Tenn. Code Ann. § 39-14-403(b) (1994).
The sentencing range applicable to the appellant for this offense is six to ten years.
Tenn. Code Ann. § 40-35-112(b)(3) (1997). Furthermore, theft of property valued
between one thousand and ten thousand dollars is a class D felony. Tenn. Code
Ann. § 39-14-105(3) (1997). The sentencing range applicable to the appellant for
this offense is four to eight years. Tenn. Code Ann. § 40-35-112(b)(4) (1997). The
trial court imposed the maximum sentences within the applicable ranges.
The appellant concedes and the record reflects that the trial court
properly found three enhancement factors: the appellant has a previous history of
criminal convictions in addition to those necessary to establish his sentencing range;
the appellant was a leader in the commission of the offenses; and he has a previous
history of unwillingness to comply with the conditions of a sentence involving release
into the community. Tenn. Code Ann. § 40-35-114(1), (2), and (8). The record
additionally supports the trial court’s application of two mitigating factors: the
appellant’s conduct neither caused nor threatened serious bodily injury and the
appellant assisted the authorities in locating or recovering any property or victim
involved in the offenses. Tenn. Code Ann. § 40-35-113(1) and (10).
Nevertheless, as noted earlier, the appellant argues that the trial court
erred by not finding one additional mitigating factor, namely, that he assisted the
authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses. Tenn. Code Ann. §
40-35-113(9) (1997). We cannot agree. The trial court refused to apply mitigating
factor (9) based upon its finding that, although the appellant cooperated with the
authorities in his case, he did not assist the authorities in investigating other
individuals, in particular, Linda McClain. Nothing in the record contradicts the trial
11 court’s finding.
The appellant also argues that the trial court’s erroneous balancing of
enhancement and mitigating factors resulted in an excessive sentence. The
appellant asserts in his brief that the trial court “actually considered the current
number of sixty convictions for which he was being sentenced rather than the
statutory enhancing factors when the trial court found them so heavily and grossly
outweighing the mitigating factors.” Even assuming that the trial court considered
the appellant’s numerous convictions in this case, we conclude that the appellant’s
sentences are appropriate.
Moreover, as stated above, the weight given to any existing factor is
left to the trial court’s discretion so long as it complies with the purposes and
principles of sentencing and its findings are adequately supported by the record.
State v. Shropshire, 874 S.W.2d 634 (Tenn. Crim. App. 1993). See also State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). This court has previously
held that, “[w]hile we have declined to use the previous history enhancer to enhance
subsequent criminal acts as a result of previous ones occurring very close in
time, . . . a court is not required to ignore that conduct as it relates to the evaluation
of other enhancement and mitigating factors.” State v. Hicks, 868 S.W.2d 729, 732
(Tenn. Crim. App. 1993). This issue is without merit.
ii. Consecutive sentences
The appellant’s final argument is that the trial court erred by imposing
consecutive sentencing. Specifically, the appellant contends that his ninety year
sentence is disproportionate to the severity of his offenses.
12 Tenn. Code Ann. § 40-35-115(a) (1997) provides that a trial court may
impose consecutive sentences only upon a determination that a defendant meets
one of the criteria listed therein. In this case, the trial court found, and the appellant
concedes, that the appellant is a professional criminal as set forth in Tenn. Code.
Ann. § 40-35-115(b)(1) (1997) and the appellant possesses an extensive record of
criminal activity pursuant to Tenn. Code. Ann. § 40-35-115(b)(2).
However, in State v. Wilkerson, our supreme court ruled that a
sentencing court must also find that a defendant’s sentence “reasonably relate to
the severity of the offenses committed and are necessary in order to protect the
public from further serious criminal conduct by the defendant.” 905 S.W.2d at 938.
In the appellant’s case, the trial court found that the appellant’s offenses were
calculated and extensive, demonstrating that he was in the business of burglarizing
homes to make a profit. Moreover, the appellant admitted that he had taken stolen
property to Kentucky to sell in pawn shops and that his only livelihood was theft.
Further, the trial court found a pattern of such conduct by the appellant, as
evidenced by his previous convictions in other states for stolen property offenses.
The court in Wilkerson described sentencing as “a human process that neither can
nor should be reduced to a set of fixed or mechanical rules.” Id. (footnote omitted).
Applying the presumption of correctness to the trial court’s sentencing
determination, we conclude that the record supports the imposition of consecutive
sentences in this case.
Accordingly, the judgment of the trial court is affirmed.
__________________________________ Norma McGee Ogle, Judge
CONCUR:
13 ______________________________ Gary R. Wade, Presiding Judge
_______________________________ John K. Byers, Senior Judge