IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 20, 1999
Cecil Crowson, Jr. JUNE 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9811-CR-00383 Appellee, ) ) HAWKINS COUNTY VS. ) ) HON. JAMES E. BECKNER, JERRY K. CRAWFORD, ) JUDGE ) Appellant. ) (Burglary of an Auto & Theft of Property Valued Under $500.00)
FOR THE APPELLANT: FOR THE APPELLEE:
GREG EICHELMAN PAUL G. SUMMERS District Public Defender Attorney General & Reporter
R. RUSSELL MATTOCKS CLINTON J. MORGAN Asst. Public Defender Asst. Attorney General 1609 College Park Dr., Box 11 Cordell Hull Bldg., 2nd Fl. Morristown, TN 37813-1618 425 Fifth Ave., North Nashville, TN 37243-0493
C. BERKELEY BELL . District Attorney General
DOUG GODBEE Asst. District Attorney General Hawkins County Courthouse Main St. Rogersville, TN 37857
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was found guilty by a jury of burglary of an automobile and
theft of property valued at five hundred dollars ($500.00) or less. The trial court
sentenced the defendant as a Range I standard offender to a term of one year and three
months for burglary and a term of eleven months and twenty-nine days for theft. These
sentences were to run concurrently and were to be served in confinement. The
defendant’s subsequent motion for a new trial was denied by the trial court. The
defendant now appeals and contends that the evidence is insufficient to support his
convictions and that his sentence is excessive. After a review of the record and
applicable law, we find no merit to the defendant’s contentions and thus affirm the
judgment of the court below.
The evidence at trial established that in the early morning hours of April 9,
1998, the passenger side window of the victim’s car was broken and her purse, which
was inside the car, was stolen. According to the victim, Karen Stokes, she heard a
“crash” outside, but “thought it was lightening [sic].” She subsequently realized that her
car had been burglarized. When she later heard a witness describing the suspect to the
police, she thought the description matched that of the defendant, her husband’s cousin,
and gave the police the defendant’s name.
A neighbor of the victim, Tina Alley, also testified at trial. According to Ms.
Alley, she “heard glass breaking” and ran to the window. She saw a man wearing jeans
and white t-shirt running to a red, four-door Cavalier. Ms. Alley further testified that there
was enough light “shining down where I could see who it was.” Although Ms. Alley
admitted that she did not immediately recognize the man, she testified that she later
realized the man she had seen was the defendant, a relative. After this realization, Ms.
Alley gave the defendant’s name to the police. Ms. Alley also made an in-court
2 identification of the defendant.
Also testifying at trial was Kimberly Reed, a woman visiting Ms. Alley when
the crime occurred. Ms. Reed testified that she heard glass breaking, went outside, and
saw a man running toward a red, four-door Cavalier. Ms. Reed testified that she yelled
“hey” and the man turned around. Ms. Reed testified that she was able to see the man’s
face. She then identified the defendant as the man she saw running from the scene.
After receiving a description of the suspect, his clothing, and the
defendant’s name, the police went to the defendant’s residence. Officer Robert
Schmutzler of the Kingsport Police Department testified that when he arrived at the
defendant’s residence, he felt the hood of the defendant’s red Cavalier parked outside.
According to Officer Schmutzler, the hood of the Cavalier was still warm. In addition, he
noticed small pieces of glass in the driver’s seat of the Cavalier. Officer Schmutzler then
knocked on the door of the defendant’s residence and the defendant answered. Officer
Schmutzler subsequently found a wet white t-shirt on the top of a clothes pile in the
defendant’s bedroom. According to Officer Schmutzler, the t-shirt matched the
description given by witnesses on the scene. Officer Schmutzler took the t-shirt back to
the scene of the crime where Ms. Alley positively identified it as the shirt worn by the
suspect. Ms. Alley also made an in-court identification of the t-shirt.
The evidence further established that the pieces of glass found in the
defendant’s Cavalier, pieces of glass from the passenger window of the victim’s car, and
the defendant’s t-shirt were all sent to the TBI crime laboratory. Randall Nelson, a
forensic scientist in the TBI crime laboratory, testified at trial. According to Mr. Nelson,
the glass found in the driver’s seat of the defendant’s Cavalier was “consistent” with the
glass from the passenger side window of the victim’s car. However, the glass fragments
that were subsequently found on the defendant’s t-shirt were not “consistent” with the
3 glass from the passenger side window of the victim’s car.
The defendant now contends that the evidence is insufficient to support his
conviction. Specifically, the defendant points to apparent inconsistencies and faults in
the testimony of Ms. Alley, Ms. Reed, and Officer Schmutzler and alleged faults in the
physical evidence linking the defendant to this crime. The defendant further contends
that the evidence with which he was convicted was purely circumstantial in nature and
therefore insufficient to support his convictions.
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
It is a well established principle of law in this state that circumstantial
evidence alone may be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d
718, 721 (Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial
evidence “must be not only consistent with the guilt of the accused but it must also be
inconsistent with his innocence and must exclude every other reasonable theory or
hypothesis except that of guilt.” State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In
addition, “it must establish such a certainty of guilt of the accused as to convince the
mind beyond a reasonable doubt that [the defendant] is the one who committed the
crime.” Tharpe, 726 S.W.2d at 896. Moral certainty as to each element of the offense
is required, but absolute certainty is not. Tharpe, 726 S.W.2d at 896. While following
these guidelines, this Court must remember that the jury decides the weight to be given
4 to circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence are questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958); State v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 20, 1999
Cecil Crowson, Jr. JUNE 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9811-CR-00383 Appellee, ) ) HAWKINS COUNTY VS. ) ) HON. JAMES E. BECKNER, JERRY K. CRAWFORD, ) JUDGE ) Appellant. ) (Burglary of an Auto & Theft of Property Valued Under $500.00)
FOR THE APPELLANT: FOR THE APPELLEE:
GREG EICHELMAN PAUL G. SUMMERS District Public Defender Attorney General & Reporter
R. RUSSELL MATTOCKS CLINTON J. MORGAN Asst. Public Defender Asst. Attorney General 1609 College Park Dr., Box 11 Cordell Hull Bldg., 2nd Fl. Morristown, TN 37813-1618 425 Fifth Ave., North Nashville, TN 37243-0493
C. BERKELEY BELL . District Attorney General
DOUG GODBEE Asst. District Attorney General Hawkins County Courthouse Main St. Rogersville, TN 37857
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was found guilty by a jury of burglary of an automobile and
theft of property valued at five hundred dollars ($500.00) or less. The trial court
sentenced the defendant as a Range I standard offender to a term of one year and three
months for burglary and a term of eleven months and twenty-nine days for theft. These
sentences were to run concurrently and were to be served in confinement. The
defendant’s subsequent motion for a new trial was denied by the trial court. The
defendant now appeals and contends that the evidence is insufficient to support his
convictions and that his sentence is excessive. After a review of the record and
applicable law, we find no merit to the defendant’s contentions and thus affirm the
judgment of the court below.
The evidence at trial established that in the early morning hours of April 9,
1998, the passenger side window of the victim’s car was broken and her purse, which
was inside the car, was stolen. According to the victim, Karen Stokes, she heard a
“crash” outside, but “thought it was lightening [sic].” She subsequently realized that her
car had been burglarized. When she later heard a witness describing the suspect to the
police, she thought the description matched that of the defendant, her husband’s cousin,
and gave the police the defendant’s name.
A neighbor of the victim, Tina Alley, also testified at trial. According to Ms.
Alley, she “heard glass breaking” and ran to the window. She saw a man wearing jeans
and white t-shirt running to a red, four-door Cavalier. Ms. Alley further testified that there
was enough light “shining down where I could see who it was.” Although Ms. Alley
admitted that she did not immediately recognize the man, she testified that she later
realized the man she had seen was the defendant, a relative. After this realization, Ms.
Alley gave the defendant’s name to the police. Ms. Alley also made an in-court
2 identification of the defendant.
Also testifying at trial was Kimberly Reed, a woman visiting Ms. Alley when
the crime occurred. Ms. Reed testified that she heard glass breaking, went outside, and
saw a man running toward a red, four-door Cavalier. Ms. Reed testified that she yelled
“hey” and the man turned around. Ms. Reed testified that she was able to see the man’s
face. She then identified the defendant as the man she saw running from the scene.
After receiving a description of the suspect, his clothing, and the
defendant’s name, the police went to the defendant’s residence. Officer Robert
Schmutzler of the Kingsport Police Department testified that when he arrived at the
defendant’s residence, he felt the hood of the defendant’s red Cavalier parked outside.
According to Officer Schmutzler, the hood of the Cavalier was still warm. In addition, he
noticed small pieces of glass in the driver’s seat of the Cavalier. Officer Schmutzler then
knocked on the door of the defendant’s residence and the defendant answered. Officer
Schmutzler subsequently found a wet white t-shirt on the top of a clothes pile in the
defendant’s bedroom. According to Officer Schmutzler, the t-shirt matched the
description given by witnesses on the scene. Officer Schmutzler took the t-shirt back to
the scene of the crime where Ms. Alley positively identified it as the shirt worn by the
suspect. Ms. Alley also made an in-court identification of the t-shirt.
The evidence further established that the pieces of glass found in the
defendant’s Cavalier, pieces of glass from the passenger window of the victim’s car, and
the defendant’s t-shirt were all sent to the TBI crime laboratory. Randall Nelson, a
forensic scientist in the TBI crime laboratory, testified at trial. According to Mr. Nelson,
the glass found in the driver’s seat of the defendant’s Cavalier was “consistent” with the
glass from the passenger side window of the victim’s car. However, the glass fragments
that were subsequently found on the defendant’s t-shirt were not “consistent” with the
3 glass from the passenger side window of the victim’s car.
The defendant now contends that the evidence is insufficient to support his
conviction. Specifically, the defendant points to apparent inconsistencies and faults in
the testimony of Ms. Alley, Ms. Reed, and Officer Schmutzler and alleged faults in the
physical evidence linking the defendant to this crime. The defendant further contends
that the evidence with which he was convicted was purely circumstantial in nature and
therefore insufficient to support his convictions.
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
It is a well established principle of law in this state that circumstantial
evidence alone may be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d
718, 721 (Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial
evidence “must be not only consistent with the guilt of the accused but it must also be
inconsistent with his innocence and must exclude every other reasonable theory or
hypothesis except that of guilt.” State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In
addition, “it must establish such a certainty of guilt of the accused as to convince the
mind beyond a reasonable doubt that [the defendant] is the one who committed the
crime.” Tharpe, 726 S.W.2d at 896. Moral certainty as to each element of the offense
is required, but absolute certainty is not. Tharpe, 726 S.W.2d at 896. While following
these guidelines, this Court must remember that the jury decides the weight to be given
4 to circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence are questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958); State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v.
State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).
In the case at bar, two eyewitnesses identified the defendant as the man
fleeing the scene of the crime. The eyewitnesses also described the man’s vehicle as
a red Chevy Cavalier, the same type of car driven by the defendant. In addition, the
glass found in the driver’s seat of the defendant’s Cavalier was consistent with the glass
from the broken window of the victim’s vehicle. One witness identified the t-shirt found
by police at the defendant’s residence as the same shirt worn by the man fleeing the
scene of the crime. After a review of the record, we find the evidence sufficient for a
rational trier of fact to find the defendant guilty beyond a reasonable doubt. Furthermore,
although the defendant points to apparent inconsistencies in the testimony of several trial
witnesses in support of his claim of insufficient evidence, we note that questions
concerning the credibility of witnesses as well as factual issues raised by the evidence
are resolved by the trier of fact, not this Court. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). As such, this contention is without merit.
The defendant next contends that his sentence of one year and three
months for the burglary of an auto is excessive. The defendant argues that the trial court
erred in applying enhancement factors (1), that the defendant has a previous history of
criminal convictions or criminal behavior, and (8), that the defendant has a previous
history of unwillingness to comply with the conditions of a sentence involving release into
the community. T.C.A. § 40-35-114(1), (8). The defendant further contends that the trial
court erred in denying him some form of alternative sentencing.
5 When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “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). We find the presumption applicable in this case.
In conducting a review of the defendant’s sentence, this Court must
consider the evidence received at the trial and the sentencing hearing, the presentence
report, the principles of sentencing and arguments as to sentencing alternatives, the
nature and character of the offense, applicable mitigating and enhancement factors, any
statement the defendant wishes to make in his own behalf about sentencing, and the
potential for rehabilitation or treatment. See T.C.A. § 40-35-103, -210; State v. Holland,
860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
The defendant’s conviction for burglary of an auto is a Class E felony.
T.C.A. § 39-14-402. As a Range I standard offender convicted of a Class E felony, the
defendant’s sentencing range was one to two years. T.C.A. § 40-35-112(a)(5). The
Sentencing Reform Act of 1989 provides that in the absence of enhancing and mitigating
factors, the minimum sentence within the range is the presumptive sentence for Class
B, C, D, and E felonies. T.C.A. § 40-35-210(c). If there are enhancing and mitigating
factors, the court must start at the minimum sentence in the range and enhance the
sentence as appropriate for the enhancement factors and then reduce the sentence
within the range as appropriate for the mitigating factors. If there are no mitigating
factors, the court may set the sentence above the minimum in that range but still within
the range. The weight to be given to each factor is left to the discretion of the trial judge.
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
6 The defendant argues that the trial court improperly applied enhancement
factor (1), that the defendant has a previous criminal history. T.C.A. § 40-35-114(1). The
presentence report indicates that the defendant has previously been convicted on two
counts of reckless driving, two counts of speeding, and one count of driving without a
license. As this is a history of criminal behavior and convictions, we find no error in the
trial court’s application of this factor. See State v. Troy L. Noles, No. 01C01-9710-CR-
00470, Macon County (Tenn. Crim. App. filed October 19, 1998, at Nashville); State v.
Jerome D. Upman, No. 03C01-9402-CR-00052, Hamblen County (Tenn. Crim. App. filed
August 2, 1994, at Knoxville); see also State v. Jerry Lynn Walde, No. 03C01-9603-CC-
00109, Sevier County (Tenn. Crim. App. filed December 23, 1997, at Knoxville).
The defendant next challenges the trial court’s application of enhancement
factor (8), that the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community. T.C.A. § 40-35-114(8). The
trial court based the application of this factor on the presentence report which indicates
that the defendant was convicted of reckless driving and placed on six months of
probation. While on probation, the defendant was convicted of speeding. This could be
considered as some history of an unwillingness to comply with conditions of a sentence
involving release in the community. See State v. Michael Adams, No. 289, Hamblen
County (Tenn. Crim. App. filed August 7, 1989, at Knoxville)(holding enhancement factor
(8) applicable where the defendant was convicted of driving on a revoked license while
on probation); State v. Randal A. Thies, No. 02C01-9708-CC-00299, Tipton County
(Tenn. Crim. App. filed April 24, 1998, at Jackson)(holding enhancement factor (8)
applicable where the defendant was convicted of speeding while on probation for DUI
and had previously been convicted of DUI while on probation for a separate DUI).
The trial court found one applicable mitigating factor, that the defendant’s
criminal conduct did not cause or threaten serious bodily injury. T.C.A. § 40-35-113. The
7 record also indicates that the trial court considered the fact that the victim requested
leniency for the defendant. The trial court subsequently enhanced the minimum
sentence of one year for a Class E felony to a sentence of one year and three months.
In light of the applicable enhancement and mitigating factors, we find no error in the trial
court’s sentence.
The defendant next contends that the trial court erred in denying him an
alternative sentence. T.C.A. § 40-35-103 sets out sentencing considerations which are
guidelines for determining whether or not a defendant should be incarcerated. These
include the need “to protect society by restraining a defendant who has a long history of
criminal conduct,” the need “to avoid depreciating the seriousness of the offense,” the
determination that “confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses,” or the determination that “measures less
restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1).
Additionally, the legislature established certain sentencing principles which
include:
(5) In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incar- ceration; and
(6) A defendant who does not fall within the parameters of subdivision (5) and is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
8 legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
The defendant in the case at bar is presumed to be a favorable candidate
for alternative sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-
102(6). However, militating against alternative sentencing are circumstances indicating
that measures less restrictive than confinement have recently been applied
unsuccessfully to the defendant, that confinement is necessary either to protect society
from a defendant with a long history of criminal conduct or to avoid depreciating the
seriousness of the offense, or that the defendant lacks the potential for rehabilitation.
See T.C.A. § 40-35-103(1), (5); Ashby, 823 S.W.2d at 169.
In denying alternative sentencing in the present case, the trial court relied
on a number of factors. The trial court first noted the defendant’s prior criminal record.
The trial court further noted the defendant’s “prior offense while on probation” indicating
that measures less restrictive than confinement have recently been applied to the
defendant without success. T.C.A. § 40-35-103(1)(C). The trial court mentioned the
need for deterrence. The trial court also noted the defendant’s history of alcohol abuse
indicated in the presentence report. This history is relevant to establish the defendant’s
potential or lack of potential for rehabilitation. T.C.A. § 40-35-103(5). The trial court also
pointed to the fact that the defendant had never admitted his guilt in this case and instead
“lied to the jury about it.” The fact that the defendant has taken no responsibility for his
criminal activity and was untruthful suggests a lack of potential for rehabilitation. T.C.A.
§ 40-35-103(5).
9 Thus, we conclude that the factors cited above are sufficient to overcome
the presumption of eligibility for alternative sentencing. The defendant has failed to carry
his burden of demonstrating that the evidence preponderates against the trial court’s
findings. The defendant has also failed to carry his burden of demonstrating that his
sentence was improper. This issue is therefore without merit.
Accordingly, we affirm the defendant’s conviction and sentence.
_________________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ DAVID G. HAYES, Judge
______________________________ JOHN EVERETT W ILLIAMS, Judge