State v. Loren Pierce

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

AUGUST SESSION, 1997 FILED March 5, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9704-CC-00146 ) Cecil Crowson, Jr.

Appellate C ourt Clerk

Appellee, )

)

) BENTON COUNTY

VS. )

) HON. JULIAN P. GUINN

LOREN JOE PIERCE, ) JUDGE )

Appe llant. ) (Direct Appeal-Aggravated Arson)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. LEONARD JOHN KNOX WALKUP 9 North Co urt Square Attorney General and Reporter P. O. Box 957 Camden, TN 38320 ELIZABETH T. RYAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

ROBERT RADFORD

District Attorney General

TODD A. ROSE

Assistant District Attorney P. O. Box 94

Paris, TN 38242

OPINION FILED ________________________

CONVICTION AFFIRMED; REMANDED FOR RE-SENTENCING JERRY L. SMITH, JUDGE

OPINION

Appellant Loren Joe Pierce was convicted on June 5, 1996 by a jury in the Benton County Circuit Court of one count of aggravated arson, a Class A felon y. As a Range I standard offender, Appellant received a sentence of fifteen years with the Tennessee Depa rtmen t of Co rrection . The tr ial cou rt orde red this sentence to run consecutively to Appellant's prior sentence for aggravated kidnapping. Appellant presents two issues for our consideration on this direct appe al: (1) whether the eviden ce wa s sufficie nt to su stain A ppella nt's conviction for aggravated arson; and (2) whether the trial court erred in failing to act as thirteen th juror a nd gra nt App ellant a new tria l.

After a review of the reco rd, we affirm the judg ment of the trial court, but remand for a new sentencing hearing.

I. FACTUAL BACKGROUND

The proof shows that on July 15, 1995, Appellant started a fire on the second floor of the Benton County Jail by throwing a burning piece of pape r onto a pile of garbage in the hallway outside the cell. At the time of this offense, Appellant was incarcerated as a pre-trial detainee on the aggravated kidnapping.

At trial, Leland Randolph Stoutt and Stanley Malin, Appellant's fellow inmates, testified that Appellant became angry with the jailer because there was no toilet pape r. Mr. Stou tt testified that A ppellant s tated, "W ell, I'll show him, it

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will be a fire in a minute." According to Mr. Malin's testimony, Appellant said, "Get rea dy, I'm fixing to set this plac e afire."

Stacey Tharpe, another inmate, testified that around mealtime, Appellant walked through the jail and said, "Everybody eat because when you get through it's going to be a fire." A couple of minutes later, Mr. Tharpe saw Appellant light a piece of paper with a match and toss the paper onto a pile of garbage in the hallway of the ja il.1 The garbage consisted primarily of Styrofoam which immediately began to burn.

Depu ty Lucas Kennon testified that upon being informed that there was a fire on the seco nd floo r of the ja il, he gra bbed a fire extin guish er and imm ediate ly extinguished the blaze. Deputy Kennon stated that the smoke was almost unbearable and described it as being strong, white, and thick.

Sher iff Bobby Shann on testified that on the date of the incident, appro ximate ly forty inmates resided in the jail and that seven to eight employees were inside the building.

Depu ty Morris Rogers testified that he and other deputies escorted all the inmates on the seco nd floo r outdo ors for th eir safety. Johnny Hayes, an arson investigator with the Tennessee Fire Marshall's Office, arrived at the jail after the fire had been extinguished. The debris had been removed by the time that Mr. Hayes arrived. H owev er, he n oticed smo ke on the ce iling an d walls and scorch ed and peeling p aint.

1 Mr. Th arpe exp lained that the m atches were given to the inm ates by the jail.

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II. SUFFICIENCY OF THE EVIDENCE Appe llant's first contention on this dire ct app eal is th at the e videnc e is insufficient to sustain his conviction for aggravated arson. We disagree.

This Court is obliged to review challenges to the sufficiency of the convicting evidence according to certain well-settled principles. A verdict o f guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's witnesses and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). A lthough an accu sed is orig inally cloake d with a pre sump tion of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests w ith Appellant to demonstrate the insufficiency of the convicting evidenc e. Id. On ap peal, "th e [S]ta te is en titled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571 S.W.2d 832, 83 5 (Ten n. 1978 )). Wh ere the s ufficiency o f the evid ence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W.2d

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776, 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal actions wheth er by th e trial co urt or jur y shall be set aside if the evid ence is insufficient to support the findings by the trier of fact of guilt beyon d a rea sona ble doubt." See also Matthews, 805 S.W.2d 776, 780.

Tenn . Code Ann. § 3 9-13-30 3 provide s in part:

(a) A person commits arson who knowingly damages any personal property, land, or other property, except buildings or structures covered under § 39-14-301, by means of a fire or explosion:

(1) Without the consent of all persons who have a pos sessory or proprietary interest therein;

(2) With intent to destroy or damage any such property for any unlawful purpose.

Tenn. Code Ann. § 39-14-302 provides in pertinent part: "(a) A person comm its aggravated arson who c omm its arso n as d efined in § 39-14-3012 or § 39-14-303: (1) When one (1) or mo re perso ns are p resent th erein." Te nn. Co de Ann . § 39- 14-302(a)(1 ). The State is required to prove each and every element of the charged offense. In the indictment, Appellant was charged with setting fire to garbage for the unlawful purpose of creating a fire in the Benton County Jail at a time when one (1 ) or mo re pers ons w ere pre sent a t the jail.

The proof shows that Appellant set the garbage on fire; that the trash burned and created dense, white smoke; and that approximately forty inmates and se ven em ployees were pre sent at the time of the incident.

Appellant complains that the proof showed Stacey Tharpe was not in a position to see Appellant light the fire. However, any inconsistencies or

2 Tenn. C ode Ann . § 39-14 -301 de als with arson o f a structure. Ho wever, Ap pellant was no t charged w ith this offense.

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contradictions in the evid ence were r esolve d by the jury in convicting Appella nt. Therefore, the evidence was sufficient to sustain Appellant's conviction for aggravated arson.

III. TRIAL COURT’S THIRTEENTH JUROR REVIEW Appellant contends that because the trial court expressed dissatisfaction with the required senten ce, the co urt erre d in de nying h is mo tion for n ew trial. We disagree.

T ENN. R. C RIM. P. 33(f) provides, in part, "The trial court may grant a new trial following a verdic t of guilty if it disagrees with the jury about the weight of the evidence ." Id. This rule imposes a duty upon the trial judge to act as the thirteenth juror in every criminal c ase. State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996) (citing State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)). An appe llate court has no ind epende nt authority to serve as the thirteenth juror and to assess the propriety of the jury's verd ict. State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim . App. 1993 ). Only in those cas es where the trial judge ov errules a motion for new trial without comm ent will this Court presume that the trial court approved the verdict as the thirteenth ju ror. State v. Moats , 906 S.W .2d 431 , 435 (T enn. 19 95); State v. Dankw orth, 919 S.W.2d 52, 57 (Tenn . Crim. A pp. 199 5). In Moats , the Tennessee Supreme Court reiterated the well-settled rule that "an appellate court must grant a new trial when the record contains statements by the trial court expressing dissatisfaction or disagreement with the weight of the eviden ce or th e jury's verdict, or sta temen ts indicating that the trial court misunderstood its responsibility or authority to act as the thirteen th juror." Id. at 435-36.

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In overruling Appellant's motion for new trial, the trial judge expressed his conce rn that the s entenc e was to o stringen t:

I thought the charge, the penalty under the facts of the case were unduly ha rsh. I am o f the opinio n, howe ver, that the evidence that was prod uced was more than sufficien t to support the jury's verdict. And, in fact, I can find no grounds as thirteenth juror to not approve that, notwithstanding the harshness of the pun ishme nt. I find and approve that verdict as the trial judge.

The trial cou rt's une quivoc al rem arks in dicate only its belief that the prescribed sentence for the offense was too harsh. Because the record is devoid of any statem ents wherein the trial judge express es dissa tisfaction or d isagree ment w ith the verdict, we find no erro r in his refusal to grant Appellant's motion for new trial.

IV. SENTENCING

Although not raised by e ither party , we have noted as plain error two problem s with resp ect to sentencing in this case. First, the trial court be gan its sentencing procedure in the belief that Tennessee Code Annotated Section 40- 35-210(d) required the cour t to consider the minimum sentence for a Range I offender of a Class A felony, i.e. fifteen years, as the presumptive sentence for Appe llant. How ever, in State v. Robert Willis Chance, No. 02C01-9605-CC- 00178, opinion filed January 31, 1997; this Court held that despite the literal language of Tennessee Code Annotated Sections 40-35-210 (c) and (d), the presum ptive sentence for a Class A felon y is always the m id-point of the sentence range. In this case the presumptive sentence for Appellant should be twenty rather than fifteen years.

Second ly, the trial court stated at the sentencing hearing that Ap pellan t’s sentence must by law be served consecutively to the sentence for the aggravated

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kidnapping charge in which he was a pre-trial detainee when he committed the arson in the present case. We are unaware of any provision of law that requires consecu tive sentencing in a situation such as that presented in the instant case. Indee d, this C ourt ha s note d that it is som ewha t ironic th at while the legislature has manda ted consec utive sente nces for felon ies com mitted while the offender is on parole, see Tenn. Code Ann. § 40-28-123(a), the General Assembly has not mandated cumulative sentencing for offenders who commit additional felonies while incarcera ted. See , State v. Michael Blazer, No. 03C01-9405-CR-00185, opinion filed February 3, 1995, at Knoxville. The trial court on remand should therefore consider whether the instant case warrants consecutive sentencing.

According ly, the judgm ent of conviction is affirm ed. Th e sen tence is reversed and the case remanded for re-sentencing in accordance with this opinion.

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JERRY L. SMITH, JUDGE

CONCUR:

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DAVID G. HAYES, JUDGE

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THOMAS T. WOODALL, JUDGE