IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1996 SESSION FILED January 22, 1998
STATE OF TENNESSEE, ) Cecil Crowson, Jr. Appellate C ourt Clerk ) Appellee, ) No. 02C01-9506-CC-00169 ) ) Dyer County v. ) ) Honorable Joe G. Riley, Judge ) WILLIAM PAUL BOGUS, ) (First Degree Murder in the Perpetration ) of a Felony and Aggravated Burglary) Appellant. )
For the Appellant: For the Appellee:
Lyman Ingram Charles W. Burson P.O. Box 742 Attorney General of Tennessee Dyersburg, TN 38024 and (AT TRIAL) Michelle L. Lehmann Assistant Attorney General of Tennessee G. Stephen Davis 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P.O. Box 742 Dyersburg, TN 38025-0742 C. Phillip Bivens (ON APPEAL) District Attorney General and James E. Lanier Assistant District Attorney General Dyer County Courthouse Dyersburg, TN 38024
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The defendant, W illiam Paul Bogus, appeals as of right from his
convictions for first degree murder in the perpetration of a felony and aggravated
burglary, a Class C felony, that he received in separate jury trials in the Circuit Court for
Dyer County.1 The defendant received a sentence of life without the possibility of
parole for the murder and a Range II sentence of nine years on the aggravated burglary
conviction. Relative to the first degree murder in the perpetration of a felony, the
defendant contends that (1) the evidence is insufficient to support his conviction for
felony murder, (2) the trial court erred in refusing to grant a mistrial when a juror saw
the defendant being transported to the courthouse in a Department of Correction
vehicle, and (3) the jury abused its discretion in sentencing the defendant to life without
the possibility of parole. As for the aggravated burglary case, the defendant contends
that (1) the evidence is insufficient to prove that he had the intent needed for burglary
and (2) the nine-year sentence imposed by the trial court is excessive. We disagree
with the defendant’s contentions in both cases.
I. FIRST DEGREE MURDER IN THE PERPETRATION OF A FELONY
The defendant was charged with the first degree murder of his wife, Debra
Johnson Bogus. Nicole Moses, the victim’s work supervisor, testified that she had
worked with the victim on November 17, 1993, the evening before the murder. She
stated that she watched the victim count out thirty-one one-dollar bills in tips, and she
identified a Shoney’s tip receipt for thirty-one dollars. She testified that she took the
victim home at approximately 1:30 a.m. and that it appeared that someone had opened
the trailer door from the inside. She testified that to her knowledge, the victim had not
1 These sepa rate cases were never c onsolidated and separate notices of app eal were filed. However, the record on appeal prepared be low improperly comm ingles the pleadings, court papers and orders, and transcripts involving both cases so as to reflect a single appeal. A separate record on appeal should have been prepared for each unconsolidated case being appealed. Then, if a common question of law or common facts are involved, consolidation of the cases on appeal may be ordered by us upon o ur own o r a party’s m otion. T.R .A.P. 16(b ).
2 been called into work the next morning but was scheduled to work the next day at 5:00
p.m. On cross-examination, Ms. Moses stated that she and the victim stopped at the
Short Stop Market and that the victim purchased beer, cigarettes, and a cigarette
lighter.
Lisa Haymon, sister of the defendant, testified that on the night before the
victim was killed, the defendant came to her home and asked for money because he
needed a place to stay. He told her that he and his wife, the victim, had been fighting.
Ms. Haymon stated that she did not give the defendant money because she had
learned that he was on drugs. The next morning, the defendant called her and asked if
anyone had been looking for him. She stated that the defendant talked “crazy” in that
he wanted her to contact the Veteran’s Administration in order to plan his funeral
arrangements.
Joseph Lee, an acquaintance of the defendant, testified that about 11:00
p.m. on the night before the murder, the defendant came to his home and told him that
he had no money but that someone he worked with had cash and wanted to buy drugs.
Mr. Lee stated that he gave the defendant one rock of cocaine so that the potential
buyer could sample the drugs. At approximately 12:00 p.m., the defendant returned
with fifty dollars in tens and twenties, and Mr. Lee gave him three rocks. Mr. Lee saw
the defendant again at approximately 3:00 a.m. when the defendant returned with one
five-dollar-bill and twenty one-dollar-bills. At that time Mr. Lee sold the defendant more
cocaine. The defendant returned a fourth time with more money, but Mr. Lee had no
more drugs.
Mr. Lee admitted that he had been told that he would not be prosecuted
on any charges in relation to his testimony. When asked if he was still dealing drugs,
Mr. Lee replied, “No, sir.” When questioned as to whether he would tell the court if he
3 was dealing, he replied, “No, sir.” On cross-examination, Mr. Lee admitted that he gave
the defendant an “advertisement rock” when he came to his home at 11:00 p.m. so that
the defendant could sell Mr. Lee’s drugs to someone else. He also admitted that he
sold drugs to other people on the night of the murder.
John Connell, the defendant’s stepson, testified that he was attending
Dyer County Central School at the time of his mother’s death and that on the morning
following the murder, the defendant awakened him and told him to get ready for school.
The defendant would not let him enter his mother’s room and told him that his mother
had been called in early to go to work. He stated that the defendant then walked with
him to school.
On cross-examination, Mr. Connell admitted that the defendant told him
that he was going to Jr. Food Mart to get cigarettes on the morning in question and that
the school was located directly on the way to the store. He also admitted that he had
never seen the defendant strike his mother.
Dr. O’Brien Clary Smith, a specialist in forensic pathology, testified that he
examined the body of the victim at 8:00 a.m. on November 19, 1993, and concluded
that the victim had died as a result of strangulation in which compressive or “squeezing”
forces had been applied across the neck area. He also concluded that forces causing
the injuries could have come from a human hand. He stated that the strangulation
would have lasted at least two to four minutes before the victim lost consciousness.
Dontia Owens, another acquaintance of the defendant, testified that she
and another friend gave the defendant a ride from the east side of town to the west side
on November 18 at approximately 3:00 or 4:00 a.m. The defendant told the two women
that they were nice and should not “get on crack.” Later, Ms. Owens saw the defendant
4 again and gave him a return ride to his home. The defendant told the women that he
had been smoking crack all night and that if he got “geeked up enough,” he would
probably rob a store. He also told them that he hoped his wife would not be waiting up
for him. He asked the women if they would like to buy a deep freezer for three hundred
or four hundred dollars or if they knew anyone who would like to buy such a freezer.
Kim Kimmons, the friend with Ms. Owens, testified that the defendant told
the women that he had slipped out while his wife was asleep because she did not know
that he used drugs. She stated that at the time he got in the car, he had some change
and some one-dollar-bills in his hand. On cross-examination, she stated that she told
the officers about the one-dollar-bills in her statement made the day after the murder
but that part of the statement had apparently not been recorded.
Quinton Miles, the boyfriend of a neighbor of the victim, testified that he
pulled into the victim’s driveway at approximately 4:00 a.m. on the morning of the
murder and saw the defendant standing across the street. The defendant asked him if
he would like to buy a television, and Mr. Miles replied, “No.” The defendant showed
Mr. Miles the television that was inside the victim’s trailer anyway, and Mr. Miles then
moved his car. Don McElrath, a neighbor of the defendant and victim, testified that the
defendant came to his home at 6:00 a.m. on the day of the murder and attempted to
sell him a freezer for fifty dollars.
Larry Henning, an acquaintance of the defendant, testified that he was at
the home of Luther Ingram between 4:00 and 6:00 a.m. on the morning of the murder
and that the defendant was present. He stated that he and his girlfriend, Freida Jones,
noticed a blood spot on the defendant’s shirt and that Ms. Johnson had questioned the
defendant about the spot and the scratches on his neck. The defendant told them that
the scratches were old. On cross-examination, Mr. Henning admitted that he received
5 ten or fifteen dollars from Officer Jim Porter after he made a statement to the police, but
he denied that the money was paid in exchange for his statement. Ms. Johnson
testified, corroborating Mr. Henning’s testimony. Ms. Johnson admitted on cross-
examination that she was presently incarcerated on probation revocation charges and
that she and Mr. Henning had joined the defendant in smoking crack cocaine at Mr.
Ingram’s house.
Officer Jim Porter, an investigator with the Dyersburg Police Department,
testified that he participated in the investigation of the victim’s murder and that he was
present when the victim’s body was found wedged in a cavity in the bedroom closet of
her trailer. He stated that a tip receipt was found on a nightstand in the bedroom.
Pictures of the victim as she was found in the closet were introduced into evidence.
Officer Porter testified that the defendant was arrested at a different
location, and when he was questioned about another incident of which he was accused,
Officer Porter told him that he had reason to believe that the defendant had killed his
wife. The defendant answered that he “couldn’t hurt that girl,” but he never asked how
his wife had been killed or where her body had been found. Pictures of the defendant’s
wounds as they appeared when he was arrested were introduced into evidence. The
defendant gave no explanation as to how he had received puncture wounds and
scratches that appeared to have come from fingernails. On cross-examination Officer
Porter admitted that he gave Larry Henning ten dollars in order for Mr. Henning to assist
him in contacting Mr. Henning’s girlfriend.
Joey McDowell, another investigator with the Dyersburg Police
Department, testified that he also assisted in the investigation of the victim’s murder
and that the defendant had told him that he left home at approximately 10:00 p.m. on
the evening before the murder and did not return until 7:00 a.m. the next morning. Stan
6 Cavness, an officer with the Dyersburg Police Department, testified that he was asked
to locate the victim’s son and at that time the defendant became a suspect. When
Officer Cavness questioned the defendant concerning the defendant’s wounds and
scratches, the defendant told him to ask the defendant’s sister about them because he
had told her the night before the murder that he and his wife had been fighting. When
asked if it was his wife’s money he used to buy crack at 3:00 a.m. on November 18, the
defendant stated that he would not have to take money from his wife because she
would give it to him. When asked if it would be possible if he had used twenty to
twenty-five rocks of crack cocaine that he would do something crazy like kill his wife, the
defendant responded that he would not kill her on purpose.
Larry Bell, captain with the Dyersburg Police Department, testified that he
found the body of the victim behind the left door of a closet in a bedroom of the trailer of
the victim and the defendant. Her body was semi-covered with bed clothing. Lois
Montgomery, an investigator with the Dyersburg Police Department, testified that she
took the pictures of the defendant and taped the defendant’s second interview. The
tape of the interview was played for the jury, and the state rested its case.
James Collins, acquaintance of the defendant, testified for the defense
that he heard screaming in his mother’s home on the morning of November 18 and
entered the kitchen to find the defendant scuffling with Mary Ward. He stated that he
scuffled with the defendant in an area where glass had been broken. On cross-
examination, however, Mr. Collins stated that no blood had been found in the house
after the incident. The defendant chose not to testify. Closing arguments were heard,
the jury was instructed, and the defendant was found guilty of first degree murder in the
perpetration of a robbery.
7 A. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient to sustain his
conviction for first degree murder in the perpetration of a felony because the evidence
is entirely circumstantial and that no hard evidence actually links him to the crime. The
state contends that the evidence sufficiently shows that the defendant killed his wife in
the process of forcibly taking her money. We agree.
When the sufficiency of the evidence is questioned on appeal, our
standard of review is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we resolve all conflicts in the testimony and draw
all reasonable inferences from the evidence in favor of the state. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978).
At the time of the killing, the felony murder form of first degree murder
was defined as the unlawful “reckless killing of another committed in the perpetration of,
or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
kidnapping or aircraft piracy.” T.C.A. §§ 39-13-201(a) and -202(a)(2) (1991). 2 A person
“acts recklessly with respect to circumstances surrounding the conduct or the result of
the conduct when the person is aware but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-111-
302(c). The defendant was charged with recklessly killing his wife during the
2 We note that the provision defining felony murder was amended in 1995 to delete the reckles s me ns rea e leme nt. See T.C.A . § 39-13 -202(b) .
8 The proof viewed in the light most favorable to the state establishes that
the defendant had been attempting to obtain drugs on the night of the murder. He had
asked his sister for money and had obtained a rock of cocaine from his dealer. The
victim had received thirty-one dollars in tips that evening, and she had placed the roll of
one-dollar bills in her apron. She spent some of the money at a local store purchasing
beer, cigarettes, and a lighter. Someone let the victim into her trailer at approximately
1:30 a.m. At about 3:00 a.m., witnesses saw the defendant with a stack of one-dollar
bills. Somewhere between 3:00 a.m. and 5:00 a.m., other witnesses saw the defendant
with fresh scratches and blood spots on his shirt.
The victim’s body was found on the morning of November 18. The tip
money in one-dollar bills was missing. The autopsy showed that the victim had been
strangled, and the marks on the victim were consistent with the theory that she had
been strangled by human hands. On the morning following the murder, the defendant
would not allow his stepson to enter the victim’s room and falsely told him that his
mother had been called into work.
When police arrested the defendant on another charge, they noticed that
he had fresh scratches and fingernail marks on his person. W hen they questioned him
concerning the murder of his wife, he denied involvement, but he did not ask about the
circumstances of her death. When questioned further, he stated that he would not kill
his wife “on purpose.” Under these circumstances, a rational trier of fact could have
determined beyond a reasonable doubt that the defendant intended to rob the victim
and that the killing occurred during the robbery of the victim. See Mullendore v. State,
183 Tenn. 53, 63, 191 S.W.2d 149, 152 (1945) (evidence that the defendant took the
victim’s money and appropriated it to his own use permitted the jury to infer that the
defendant intended to rob the victim, although no prior intent to rob was otherwise
9 shown). We hold that the proof is sufficient to establish beyond a reasonable doubt the
defendant’s guilt for felony murder.
B. JURY PREJUDICE
The defendant asserts that his right to a fair trial was denied when one of
the jurors saw him being transported to the courthouse in a vehicle from Northwest
Correctional Facility on the second day of the trial. The defendant relies upon this
court’s decision in Willocks v. State, 546 S.W.2d 819 (Tenn. Crim. App. 1976), for the
proposition that the court should have given adequate instruction to the jury that the
restraint of a defendant should in no way affect their determination of guilt of lack
thereof when jurors are exposed to a defendant’s custodial status. The defendant
argues that the trial court’s failure to give an adequate instruction constitutes prejudice
to the judicial process and thus requires a reversal. The state counters that the
defendant was not inherently prejudiced because none of the jurors saw him in
shackles. It argues that the defendant’s claim must fail because he has presented no
evidence of actual prejudice.
On the morning of October 5, 1994, as the sequestered jurors were
walking to the courthouse, the defendant arrived at the courthouse in a transport car
belonging to Northwest Correctional Facility. A sheriff’s officer immediately went to the
vehicle and told the driver to circle the block because the jury had just arrived.
The incident was brought to the trial court’s attention, and the court
individually voir dired each of the jurors. All jurors save one told the court that they had
not seen the defendant in the car on the morning in question. Juror Phillip Toles,
however, testified that he had seen the defendant in the backseat of a “state car,” and
that he knew the car because he occasionally preached at the correctional facility. Mr.
Toles recalled that the car had a caged backseat. He stated that when he first saw the
10 defendant in the car, one of the sheriff’s officers stopped him and another asked the car
carrying the defendant to leave. He admitted that later that morning he told other jurors
that he thought the defendant was present because the jurors were wondering how
soon the trial would start that day. He also admitted that he had told other jurors that
he thought the defendant was being held at Northwest Correctional Facility because he
had seen one of the guards’ badges. The defendant moved for a mistrial, and the trial
court denied the motion, concluding that the fact that one juror saw the defendant in a
state car and concluded that he was possibly being held at a state facility was not
sufficient grounds for a mistrial.
The defendant contends that his due process rights were violated when
the juror saw him restrained in a car belonging to the Department of Correction. In
Willocks, this court recognized that the presumption of innocence, which is mandated
by due process, includes the right to the physical indicia of innocence. This court
reversed Willocks’s convictions because his mandatory appearance in shackles at trial
violated his due process rights when less drastic security measures could have been
used.
In Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697 (1976), the
Supreme Court recognized that it is a violation of due process for a state to compel a
defendant to stand trial before a jury in prison clothes. The Court reasoned that prison
clothing worn at trial is a constant reminder of the defendant’s condition and presents
an unacceptable risk of influencing a juror’s judgment. Id. at 504-05, 96 S. Ct. at 1693.
However, the Court concluded that the defendant’s due process rights were not violated
in Estelle because he was not compelled to wear prison garb.
Unlike a case in which a defendant is unjustifiably shackled or forced to
wear prison garb during his trial, the jury’s improper exposure to the defendant in this
11 case was minimal. A sole juror briefly saw the defendant while the defendant was in
the backseat of a state car. Under these circumstances, we do not believe that the
state’s practice of transporting the defendant in a state car was inherently prejudicial.
If a challenged practice is not inherently prejudicial and the defendant fails
to show actual prejudice, then his complaint must fail. Holbrook v. Flynn, 475 U.S. 560,
106 S. Ct. 1340, 1347-48 (1986); Carroll v. State, 532 S.W.2d 934, 936 (Tenn. Crim.
App. 1975). Because the defendant in this case has failed to demonstrate actual
prejudice, he is not entitled to relief.
C. LIFE WITHOUT PAROLE
The defendant asserts that the sentence of life without the possibility of
parole imposed by the jury was excessive under the sentencing considerations set forth
in T.C.A. §§ 39-13-204 and -207.3 The defendant contends that the jury abused its
discretion by failing to weigh and consider any mitigating circumstances. The state
argues that the evidence tending to support the mitigating circumstances was not as
overwhelming as the defendant claims, and accordingly, the jury did not abuse its
discretion. We agree.
When the state does not seek the death penalty but is seeking
imprisonment for life without possibility of parole and the jury finds the defendant guilty
of first degree murder, a separate sentencing proceeding must be had in which the jury
determines the punishment. T.C.A. § 39-13-207(a). If the jury determines that the
state has proven beyond a reasonable doubt at least one statutory aggravating
circumstance, it must fix the punishment as either imprisonment for life without
possibility of parole or imprisonment for life. T.C.A. § 39-13-207(c). The jury must be
3 Effective July 1, 1993, the punishments available for first degree murder are (1) death; (2) imp risonm ent for life witho ut poss ibility of parole; or (3) im prisonm ent for life. See T.C.A. § 39-13- 202(c). Before this enactment, the only available punishments were death and life with parole.
12 instructed that it must weigh and consider any statutory aggravating circumstances and
any mitigating circumstances.
In reviewing the sentence on appeal, pursuant to T.C.A. § 39-13-207(g),
this court must use the following standard of review:
When a defendant has been sentenced to imprisonment for life without possibility of parole, such defendant may appeal such sentence to the Tennessee court of criminal appeals. The court of criminal appeals shall first consider any errors assigned and then the court shall review the appropriateness of the sentence. A sentence of imprisonment for life without possibility of parole shall be considered appropriate if the state proved beyond a reasonable doubt at least one (1) statutory aggravating circumstance contained in § 39-13-204(i), and the sentence was not otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.
In our view, the sentence of life without possibility of parole is within the
jury’s discretion. The defendant concedes that the state proved beyond a reasonable
doubt the statutory aggravating circumstance that “[t]he defendant was previously
convicted of one (1) or more felonies than the present charge, whose statutory
elements involve the use of violence to the person.” T.C.A. § 39-13-204(i)(2). The
following three mitigating circumstances were also stipulated by the parties and
presented to the jury:
(1) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
(2) The capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected the defendant’s judgment; and
(3) Any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing.
T.C.A. § 39-13-204(j)(2), (8), and (9).
13 Although the defendant submits that the jury failed to consider any
mitigating circumstances, there is nothing in the record to support this assertion.
Rather, the proof undeniably shows that the defendant has been previously convicted
of five separate robberies and was on parole at the time of this conviction. Although the
record was replete with evidence that the defendant used cocaine excessively, the jury
could have reasonably concluded that the defendant could not conform to society’s
laws. Accordingly, this court cannot conclude that the jury abused its discretion in
imposing a sentence of life without possibility of parole.
II. AGGRAVATED BURGLARY
The defendant was charged with the aggravated burglary of the residence
of Pauline Cox and James Collins and with the robbery of Mr. Collins. Mary Ward
testified that on the morning of November 18, 1993, she was working as a night sitter
for Ms. Pauline Cox when the defendant knocked on Ms. Cox’s door and asked if Ms.
Cox’s son, James Collins, was awake. She stated that when she told the defendant
that Mr. Collins was not awake, he left. Then he returned a few minutes later and
forced his way inside the home, grabbing Ms. Ward around her collar. He dragged her
into the kitchen and searched through the kitchen drawers. Ms. Cox heard the incident
and started screaming for her son. Mr. Collins appeared and pulled the defendant off
Ms. Ward. The defendant began scuffling with Mr. Collins, and Ms. Ward left the room
to call 911.
James Collins, son of Ms. Cox, testified that on the morning of November
18, 1993, he was awakened by noises in the front of the house. When he came into
the kitchen, he saw the defendant. After Mr. Collins subdued the defendant, the
defendant said that he would leave. Mr. Collins stated that after the defendant left,
however, he discovered that his billfold was missing. He testified that the billfold
contained approximately sixty dollars. He stated that the defendant had apparently
14 taken his wallet during the struggle. Mr. Collins identified a small broken knife that he
had found on the floor after the defendant left.
Mr. Collins testified that he knew the defendant before this incident,
because he had bought two cartons of cigarettes from him for twenty dollars about two
and one-half months before. He stated that he owed the defendant no money and had
only seen him that one time before. He said that he did not see a knife in the
defendant’s hand. On cross-examination, Mr. Collins admitted that he and the
defendant had scuffled in the kitchen and that he had found the knife in the living room.
John Connell, the defendant’s stepson, testified that the knife admitted
into evidence was his knife and had been kept in a drawer in his mother’s house.
However, on cross-examination, he stated that his knife had some writing on it, but the
knife admitted into evidence did not.
Lois Montgomery, criminal investigator with the Dyersburg Police
Department, testified that she conducted an interview with the defendant on November
18 and that she taped the interview at the defendant’s request. A transcript of the
defendant’s statement was then admitted into evidence. The defendant had told Ms.
Montgomery that he had gone to the victim’s home to collect money owed to him for
cigarettes and that Ms. Ward had allowed him into the home. On cross-examination,
Ms. Montgomery stated that the defendant appeared to be under the influence of drugs
when she had spoken with him immediately after he was taken into custody on
November 18.
Cecil Marvin Ferguson, nephew of Pauline Cox, testified that Mr. Collins
told him on the day after the incident that the defendant had taken his billfold. With this
witness, the state rested its case, the defendant presented no proof, and closing
15 arguments were heard by the jury. The jury was instructed, and after deliberation,
found the defendant not guilty on count two, robbery, but guilty on count one,
aggravated burglary.
A. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient to sustain his
conviction for aggravated burglary. He maintains that in weighing the evidence, the jury
must have concluded that no property was taken from the victim or it could not have
found the defendant not guilty on the robbery count. He contends that if no property
was taken by the defendant it would be impossible for the jury to convict him of burglary
because the state did not prove beyond a reasonable doubt that his intent was to
commit a felony or theft when he entered the victim’s home without consent. Rather,
the defendant asserts that because the proof showed that he had smoked an excessive
amount of crack cocaine, the culpable mental state required to prove his intent to
commit a felony was negated. The state contends that the intent to commit a felony
was established by circumstantial evidence and that the defendant’s argument
concerning the negation of a culpable mental state due to drug use was presented to
the jury and rejected. We agree.
A person commits aggravated burglary by entering a habitation without
the effective consent of the property owner, with the intent to commit a felony, theft or
assault. T.C.A. §§ 39-14-402(a)(1) and -403(a). The specific intent may be established
by circumstantial evidence. Bollin v. State, 486 S.W.2d 293, 296 (Tenn. Crim. App.
1972). When one unlawfully enters an occupied dwelling that contains valuable
property, a jury is entitled to infer that the entry was made with the intent to commit a
theft. Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973).
16 In the light most favorable to the state, the proof shows that the defendant
forced his way into Ms. Cox’s home and physically assaulted Ms. Ward and Mr. Collins.
Although the defendant asserts that he went to the Cox home to collect on a debt, there
is no evidence that he told anyone that he was there to get money owed him. In our
view, the jury could have found, based on the evidence presented, that the defendant
entered the Cox home with the intent to rob the occupants of the home. We conclude
that there is sufficient evidence to support the jury’s determination of guilt beyond a
reasonable doubt for the crime of aggravated burglary.
B. AGGRAVATED BURGLARY SENTENCE
The defendant asserts that the sentence of nine years imposed by the
trial court for the aggravated burglary conviction is excessive. However, the defendant
makes only a general claim and does not assert how or why the sentence is excessive.
The defendant does not claim that the trial court improperly applied aggravating
circumstances, failed to apply mitigating circumstances, or otherwise misused the
sentencing laws. He also fails to show that the trial court improperly applied the
sentencing principles. In State v. Richard J. Crossman, No. 01C01-9311-CR-00394,
Wilson County (Tenn. Crim. App. Oct. 6, 1994), app. denied (Tenn. Jan. 3, 1995), this
court stated that when a defendant makes only a general claim that the sentence
imposed was excessive, “it is not our function to rummage through a record to glean
support for a defendant’s general claim of excessive sentencing and such a claim runs
a high risk of the sentence being summarily affirmed.” Slip op. at 12.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d). As
the Sentencing Commission Comments to this section notes, the burden is on the
defendant, as the appealing party, to show that the sentence is improper. We conclude
that the defendant has failed to meet this burden in this case. The weight to apply to
17 the enhancing and mitigating factors in this case is within the discretion of the trial court.
We view the sentence to be appropriate under the record before us.
In consideration of the foregoing and the record as a whole, we affirm the
defendant’s convictions and sentences for aggravated burglary and felony murder.
_________________________ Joseph M. Tipton, Judge
CONCUR:
__________________________ Paul G. Summers, Judge
__________________________ Jerry L. Smith, Judge