### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecem

ber 10, 200 2 STATE O F TENNESSEE v.TOMMY WILLIAM

DAVIS Direct Appeal from the Circuit Court for Cocke County No. 8427 Ben W. Hooper, II, Judge

No. E2002-00511-CCA-R3-CD February 28, 2003
The defendant, Tommy William Davis, was convicted of Class D theft of property over $1,000 and was sentenced to a

termof six years incarc eration, as a Range I I offender. O n appeal, he argues that the trial court should have granted a judgment of acquittal at the close of the state’s proof, and he challenges the length of his sentence as premised on an invalid enha ncement factor. Our review convinces us thatthe evide nce wassufficie

nt to support his conviction and that, although improper enhancement factors were a pplied, a sentence of six yea rs is appropriate. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.
J AMES C URWOOD W ITT , J R ., J., delive red the opinion of the court, in which G ARY R. W ADE , P.J., joined and J ERRY L. S MITH , J., filed a concurring opinion.
Edward C. Miller, District Public Defender; and Amber D. Haas, Assistant District Public Defe nder, for the A ppellant , Tommy

William Dav

is.
Paul G. Summers, Attorney Gene ral & Reporter; J. Ross Dyer , A ssistant Attorney Gener al; Al Schmutzer, Jr., District Attorney Gene ral; and James B. Dunn, Assistant District Attorney Genera l, for the Appellee, State of Tennessee.
OPINION

In the light most favorable to the state, the evidence at trial s howed tha

t on Augu st 13, 2000, Jenny Egert lef t her home in Newport around 11:00 a.m. to go to work. S he worked a twelve-hour

shift at her place of employ ment in Gatlinburg, and when she returned home a round 1:30 a.m. on August 14, she discovered that her residenc e had been burgla rized. Miss ing items included her clo thin g, a radio, guitar, numerous musical compact discs, and a compact disc player. At trial, Ms. Egert estimated that the value of the stolen items was slightly less than $2,000.
Later that same day, Ne

wport Police Officer Mark Strange wa s on patrol and noticed a blue Toy ota Tercel traveling in the opposite direction. The driver of the Toy ota, the defendant, and1 Th e defe nda nt was a lso cha rged with and conv icted o f crimina l impe rsona tion. See Tenn. Code Ann. § 39-16-

301 (Supp . 2002). He has not appealed that conviction. -2- the pass enger, Johnny Coleman, w ere known to Officer Strange . Aware that both men had outstanding warrants for their arrest, Offic e Strange began following the Toyota. When an other police unit came into clos e proximi ty, Office r Strange activated his blue lights to signal the defendant to stop. The defendant failed to y ield, and a chase through a reside ntial area ensued.
Officer Strange testi fied tha

t the vehicle chase ended when the Toy ota crashed on O'Neil Road next to the Pigeon River. The vehicle's occupants, howeve r, fled on foot andwere a

ble to escape at that time. Officer Strang e and other detectives who arrived at the scene after the wreck invento ried the vehic le and found a guitar in the trunk and a compact disc case in the floorboard behi nd th e driver's seat. The items were le ft inside the vehicle, and the vehicle was taken to an impoundmentarea. Neither the defendant nor his passenger wa s the registered owner of the ve hicle.
Detective Robert Ca

ldwell wit h the Cock

e County Sherif f’s D epartment testified that he interviewed the victim on August 14 about the items that were taken from her. L ater, Detective Caldwell requested that

the victim come to his office to view the guitar, the musical compact discs, and the c ompact di sc case that had been found in the vehicle driven by t he defe ndant. Th

e victim identified the property a s belonging to her, and after photographing the

items, De

tective C aldwell re tu rn ed th e v ic ti m’ s p ro pe rt y.

The defendant’s passenger, Jo hn ny Coleman, t estified for the d

efense at trial. Coleman said that h

e had spe nt the nig ht of Aug

ust 14 at the house o f his gir lfrie nd’s cou sin. Coleman testified that in the morning, the defendant came to the house, and the men borrowed the car of the g irlfrie

nd’s cous in to go to town. Coleman acknowledged that warra nts were outstanding for his arrest, that he and the defendant fled fr om Officer Strange, that

the car wrecked, and

that he and the defendant escaped on foot.

Regardingthe items in the veh icle, Colem an claimed that before going to the girlfriend’s co usin’s hous e, he “bought the items off a man beside of B rock’s” and that he “was planning on reselling the items.” Coleman testified that the purpo se of the

trip on the

fourtee nth was to “go to to wn and unl oad the st uff up at [his] house in

Brya ntTown and take it for resale to make more money off of it.” Colema n said that he did not inform the defendant of the pur

pose of th e trip or show him the items to be resold.

Oncross exam inati on, C olema n deni ed tha t he pa rtici pated , alon g with the defendant , in burglarizing thevictim’s home. He insisted th at he boug

ht the item s, althoug

h he could

not name the seller or offer more than a vag ue description of the man.
Ba sed o n the evidence, the jury convicted the defendant, as charg ed, with theft of property ove

r $1,000. See Tenn. Code Ann. §§ 39-14-103, -105(3) (1997). 1-3- On appeal, the defe

ndant com

plains tha

t the tria l court sh ould

hav e granted a judgment of acquittal on the theft charge, and he c ontends that his sentence was improperly enhanced on the basi s that he was a leader in the commission of an offense involving two or more cr

imina l actors. We reject both claims and affirm the defe ndant’s conviction and sentence. I. Motion for Judgment of Acquittal
Tennessee Criminal Procedure Rule 29(a) confers upon the trial court the

authority to en te r a ju dg me nt of

ac qu it ta l, wh en th e e vi de nc e i s i ns uf fi ci en t t o j us ti fy a conviction, either at the time the st

ate res ts or at the conclusion of all the evidence. Tenn. R. Crim. P. 29(a). When such a motion is made, the trial court is required to favor the state with the strongest legitimate view of the evidence, which includes all reasonable infe rences drawn therefrom, and t o discard any countervailing evidence. See State v. Price , 46 S.W.2d 785, 818 (Tenn. Crim. App. 2000).

The judgmen

t of acqu ittal stan dard “is , in essence , the same standard applicable on appeal when this court is called upon to determinethe sufficiency of the evidence after a conviction.” Id .; see State

v. Ball , 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). A jury ver dict of guilt removes the presumption of

innocence and replaces it with a presumption of g uilt. See State

v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). It “accredits the testimony of the witnesses for the State a nd resolves all conflic t in favor

of the theory of

the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appea l, the stat e is entitl ed to the stron gest legitima te view of the evide nce and any reasona ble inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978).

In det ermining the sufficiency of the co nvict ing evi dence, this court does n ot re- weigh or re-evaluate the evidence. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. S

tate , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956).
Without any

citation t o the record in this case, the defendant argues in his brief that the state “failed to provide even a scintilla of proof asto the knowledge or intent on the part of [the defendant].” Theref

ore he r easons, in a simila

r and con clusory fashion, that his the

ft conviction must be set aside.
Code se ction 39- 14-103 de fines the ft of pro perty as occur ring “i f, with int

ent to deprive the owner

of prope rty , the per son knowingly obtains or

exercise s control

over the propert y withoutthe owner's effective c onsent.” Tenn. Code Ann. § 39-14-103 (1997). With this statute, the legislatureeliminated the previous distinctions among the various criminal appropriations in favor of one theft statute. See id. § 39-14-101 (1997), S entencing Comm’n Cmts. (“ne

w gene ric offe nse of theft includes and replaces the traditional theft offe nses of embezzlement, false pretense, fraudulent

conversion, larceny , receiving or concealing stolen property, and shoplifting ”). Pursuant to the statute, theft by obtaining pr operty and thef

t by exercising c ontrol over the identical propert y are the same offense. See State v. Byrd , 968 S.W.2d 290, 292 (Tenn. 1998) (“theft of property may be accomplished in one of two manners: (1) taking or obtaining propert y w ithout con sent and with-4-

an intent to deprive; or (2) exercising control over property without consent and with the intent to deprive”); State v. Kennedy , 7 S.W.3d 58, 70 (Tenn. Crim. App. 1999)

Experience teaches that

intent is seldom subject to proof by direct evidenc e; in most instance s, it must be inferred from thesurrounding circumstances. See State v. Holland , 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). “This is particularly true in theft

offenses where the prosecution is initiated upon a theory of exercising control over stolen property .” State v. R ichard Crawford, No. W2000-00335-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, Mar. 14, 2001).

The def endant in this case appears to challenge the suffic iency of the e vidence that he k nowingl y obtained or exercised control over Ms. Egert’s stolen prope rty located in the ba

ck floorboard

and trunk of a borrowed automobile which he was operating and while accompanied by a passeng er who te stif

ied that the defendant had no knowledge of the property in the a

utomobile. Here, al though the e vidence was circumstantial, it was sufficient, in our opinion, to link the defendant to the crime and to establ ish his exerc ise of control over the stolen property with the requisite criminal intent. We base our conclusion on a confluence of surrounding circumstances and the reasona

ble inferences that the jury was e ntitled to draw from those circumstances. See gen erally State v. Carlos C. Beasley , No. W1999- 00426-CCA -R3-CD, sl ip op. at 5 (Tenn. Crim. App. , Jackson, May 2, 2000) (“ Other tha n the acc used stat ing wha t his or her purpose, intent, or thinking was at the relevant times, the trier of fact is left to determine the mental state by making inferences from the surrounding circumstances it finds to exist.”), perm. app. denied (Tenn. 2001). First, from the defendant’s presence in and ope ration of the b orrowed vehi cle, the jury was entitled to co nc lude that he knowingly exercised control over the stolen property contained therein. See State

v. Gonzal o Moran Ga rcia , No. M2000 -01760-C CA-R3-CD, slip op. at 37 (Tenn. Crim. App., Nashville, Feb. 20, 2002) (“a defendant’s ownership or control over a vehicl e inwhich the contraband is secreted will support a fin ding of constructive possession and, hence, knowing possession”), perm. app. granted (Tenn. O ct. 21, 20 01); State v . Brown , 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995 ) (“Kno wledge may be infer red fro m control o ver the v ehicle in which the contraband

is secre ted.”). The phra se “cons tructive possessio n” is ofte n seen in the context of prosecutions for the knowing possession of illegal drugs; in that context, constructive possessio n is shown when an individual has “the power and intention at a give n time to ex ercise dominion and control over . . . [the drug s] either d irectly or through others.” State v. Transou , 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996) (quot ing State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987)). The proscri

ption in the

theft sta tute of “ exercis[in g] contr ol” over the property

strikes us as the function al equiva

lent of “ constructive posse ssion,” th ereby allo wing ownersh

ip or, as in this case, control of the ve

hicle to assume particular

significance. I

ndeed, in State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995), the court referred to a stolen shotgun, retrieved f rom a ve hicle registered to the defendant’s girlfriend, as being in the defendant’s “constructive possession” based on evidence that the vehicle was parked at a r esidence where the defenda nt was present, that the defendant was see n driving the vehic le the day bef

ore the theft, and that the defendant admitted t

o the victim that he had taken the shotgun.-5- Second, the defe

ndant’s f ailure to submit to Officer Strange’s show of authority and th e defen dant’s escape after cra shing the Toyota vehicle on O’Neil Road are circumstance s from which the jury could infer guilty knowledg e. “A defendant's flight and attempts to evade arrest are relevant as circumstances from wh ic h, when c onsidered with the other fa cts and c ircumsta

nces in evidence, a jury

can prop erly

draw an infere nce of g uilt .” Sotka v. State , 503 S.W.2d 212, 221 (Tenn. Crim. App. 1972). In State v. George H arold Terry , No. 1060 (Tenn. Crim. App., Knoxville, Jan. 12, 1989), the defe

ndant, who was a

passeng er in a ve

hicle tha t harbor ed four s tolen aut

omobile tires, was convicted of burglary and larceny . The pertinent facts, recited in the opinion, are that [a] police officer who had been advised of the burglary an d w as watching Hixson Pik

e several miles from the scene of the burg lary saw an automobile proceeding slowly along Hixson Pike away

from the directio n of the G oody ear stor e and obs erved [de

fendant ] , who was a passenger, and his co-defe ndant, who was the driver, “looking around” in a suspicious manner.
The po lice officer

trailed t he vehic le which f

ollowed a n errat ic course, turning right or left at every intersection, and ran a stop sign. The driver r

efused t o stop when signaled by

the police officer

and a high speed chase with blue lights and siren ende d when the vehicle crashed into a police vehicle blocking an inter section. [Defenda nt] and Co-defendant fled from the wrecked

vehicle, we re pursued and taken into custody by the police off

icers. The stolen tires were in the rear of the vehicle.
After they were

apprehended

the defendants denied

knowing eachother and they de

nied knowing how the tires got into the vehicle.
At the trial [defendant] offered no proof. Co-defen d ant testified he bought th e tires about midnight from a friend whom he had been una

ble to find

at a locatio n which he could not remember and that his first awareness of the police was when one police vehicle crashed into the rea r of hi s auto mobi le caus ing it to strike the other police vehicle. He also stated that [ defend ant] had no knowl edge of where o r how Co-d

efenda nt acquir ed the tir es. Id ., slip op. at 1-2. Based on these facts, the court had no he sitation in concluding that the evidence “present[ed] questions of fact for the jury .” Id ., slip op. at 2. In particular, the c ourt pointed out that the jury was e

ntitled to draw an inference of guilt from the de fendant’s flight. Id ., slip op. at 3.
Last , the jury was e

ntitled to infer the defendant’s guilt based on the unexpla ined possession of stolen property shor tly after the bur

glary of Ms. Egert’s residence. The law is settled-6-

that the unexplained possession of recently stolen goods may w arrant the inference that the g oods were illegally received, meaning that the possessor ha d guilty kno wledge of the theft. Barnes v. United States , 412 U.S. 8 43-44, 93 S. Ct. 2357, 2 362 (1973 ) (desc ribing t h e inferenc e as “a traditional common-law inference deeply rooted in our law” and “the descendant of a presumption ‘running throu gh a

dozen cen

turies’” ; instruct

ion on infe

rence c omports with due pro cess); Tackett
v. State , 223 Tenn. 176, 443 S.W.2d 45 0, 451 (19 69); see State v. Anderson , 738 S.W.2d 200, 202 (Tenn. Crim. App. 1987). In Tennessee, an unsati sfactor ily e xplained po ssession o f very recent ly stolen propert

y ma y, in view of

the attendant cir

cumstanc es, support

a conviction for theft. See State v. Hatchett

, 560 S.W.2d 627, 629 (Tenn. 1987). This inference of guilt remains viable, even in the face of contradictory

evidence and

the defendant’s explanation. See State v. Land , 681 S.W.2d 589, 591 (Tenn. Cr

im . App. 1984). It is within the jury ’s province to weigh the significanc e of the inferenceagainst the defendant’s explanation. See Bush v. State , 541 S.W.2d 391, 395 (Tenn. 1976). This court

i s not entitled to displace, substitute, or nullify any such inferences the jury

may have drawn. See Liakas , 199 Tenn. at 305, 286 S.W.2d at 859.

The property

in this case clearly

qualifies as “recently

stolen.” It was recovered by Of ficer St ra ng e w it hi n 2 4 h ou rs of be in g r em ov ed fr om Ms . E ge rt ’s re si de nc e. “R ec en tl y” i s understood to be a relative concept that “depen ds upon the

nature o f the pro

perty and all of the fac ts and circumstances shown by the evidence in the case.” Anderson , 738 S

. W.2d at 202; Bush , 541 S.W.2d at 397 n.5. Common sense suggests that the brief interval of time undercuts the likelihood that Ms. Egert’s property

was transferred to an innocent third party

. The unexplained possession of stolen p roperty infe rence predates the curre

nt theft statute, Tenn. Code An n. § 39-14 -103 (199 7), which replac ed/conso lidated tr aditiona l theft of fenses, such as larc eny

and rec eiving o

r conce ali ng stole n property. As noted pr eviously, theft is now definedin terms of knowingly obtaining or exercising control over the proper ty. For the

“exercising control” method of

theft, it w ould appe ar illog ical to require an unexplained “actua

l” posses s io n before the infe

rence c ould aris e; other

wise, pro of sufficient to ra ise the infere nce could be more rigorous than proof necessary to establish exercising control, which can be shown by

constructive possession. For instance, in State v. D onald Richard H

armon, Jr

. , No. E200 1-01506- CCA-R3-CD (Tenn. Crim. App., Knoxville, May14, 2002), perm. app. denied (Tenn. 2002), two defendants were convictedof

theft in co nnection

with a stol en Harle

y- Davidson

motorcy cle. A thi

rd confederate testified for the state at

trial that one of the defendants, Charles Golden, stored the motorcyc le in the basement of a house

behind defendant Golden’s residence. Id ., slip op at 2. Other testimony showed that the storage residence wa s owned by Golden’ s mother and that the defendant had earlier resided at the residence. Id ., slip op. at 3. On appea l, defendant Gol den argued that the evidence w as insufficient

to sustain his theft conviction because t he state failed to establish “that he either possessed the motorcycle or had an y a

warene ss that i t was stolen.” Id. , slip op at 4. The court disagreed and explained,

According to the nei ghbors , the motorcycle wa s stored in a place over which Golden had

control. Possession or control over the premises may allow an inf

erence of possession of any c ontraband thereon. . .-7- . Unsatisf

actorily explained

possessio n of rec ently

stolen pr operty ma y, in the light

of surrounding circumstances, allow an infe rence of criminal intent. . . . Furthe r, it is with

in the pro vince of

the jury to accept or reject any

explanation of the possession or control of the property stolen.
Id ., slip op. at 5 (citations omitted).

Nor do we believe that the inference disappea rs or tha t the sufficiency of the convicting evidence is impugned beca use of Cole

man’s pr esence , as a pas senge

r, in the vehicle. See State v. Sidney

and Donald

McGlowan , No. 02C01-9706-CR-00225, slip op. at2, 8-10 (Tenn. Crim. App., Jackson, Apr. 22, 1999) (officer stopped vehicle and found stolen property in the pa ssenger seat and trunk; driver of vehicle and the passenger were brother s and found to be in joint possession of the stolen items); George H

arold Terry , slip op. at1-2 (defendant was passenger in car containing stolen tires; inference of guilt arising fr om possession was applied to defendant).
To be sure, mere presence in an area where stolen property is found or mere association with a per son who doe s, in fac t, contro l stolen pr operty is insuffi cient to e stablish theft beyond a reasonable doubt. The defendant in this case, how ever, was more than merely present in the area where the stolen goods we re found and more than just associated with Coleman. The defendant was in co ntrol of a

nd was ope

rating the autom

obile in wh

ich Ms. Eg ert’s prop erty was found. Part of the stolen p roperty was osten sibly

in plain vie

w in the fl oorboar

d direct ly behind the driver’s s eat. Th e defendant fled from law enforc ement, first in the car and later on foot. The defendant in t his case attempted to explain his possession of Ms. Egert’s property , asserting ignorance that he was operating a vehicle that c ontained stolen property; he offered Cole man’s testimonythat Coleman purchased the goods from an unnamed individual and that the defendant had no knowledge either of the existence of the g oods in the car or Colema

n’s plan t o resell them. The defendant never attempted to account for his presence at the girlfriend’s c ousin’s house.
Given the circumscribed nature of this court' s review concerning sufficiency

of the evidenc e questions, as well as the jury' s expansive province in determining facts and drawin g infere nces, we must

conclude that the evidence adduced at trial was sufficie nt for any ra

tional tried of fact to have found the essential elements of theft be yond a rea sonable doubt.
II. Senten cing
The defenda

nt in this ca se was a

Range II offender. He

was convicted of theft over $1,000, which is a

Class D fe

lony . The sen

tencing range for the d efenda nt, therefore, was four

to eight years. See Tenn. Code Ann. § 40-35-112(b)(4) (1997). The trial c ourt sentenced thedefendant to a terms of six years for

this conviction based on the presence of four enhancement factors and the absence of any mitiga

ting fac tors. The enhancement factors are “ a previous history of c riminal convictions or crimin al behav ior in add ition to those nec essary

to establish the appropriate range,”2 Eff ecti ve Jul y 4, 2002, t

he “e nhanc ement

fac tors ” code s ecti on 40 -35-114 wa s revi sed to add a new enhancement factor. Acts 2002, ch. 849. T he new enhancement factor, that the “of fe nse was an a ct of terr ori sm, or was relat ed to an act of t errorism,” was designat ed enhancement fac tor (1), and f ormer e nhanc ement

fac tors (1) t

hroug h (22) were redesignated (2) through (23). Tenn. Code Ann. § 40-35 -114 (Supp. 200 2). -8- id

. § 40-35-114(2) (Supp. 2002); 2 “a lead er in the commis sion of an offense involving two (2) or more criminal act ors” id . § 4 0-35-114(3); the felony was committed while the defendant was on work release, id . § 40-35- 114(14); and the “ felony was committed on es cape sta tus or whil e incarcerated for a fe

lony conviction,” id . § 40-35-114(15).
On appeal, the defendant arg ues that, althou gh he and Coleman were together, the e vidence at trial did not show that he “was the instigator or the leader in the c h arged crimina l conduct.” The defendant does not sugg est what sentence he rega rds as appropriate.
When there is a

chall enge to the len gth, ra nge, or manner o f servic e of a se ntence, it is t he duty

of this court to conduct a de novo review of the record with a presumption that the determinations made by the trial c ourt are correct. Id . § 40-35-401(d) (1997). T his presu mption is “conditionedupon the a

ffirmat ive showing in the r

ecord th at the trial court considered the sentencing principles and all rele vant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. K

elley , 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000). In this regard, the trial court is directed to “place on the record its rea sons for arrivi n g at the final sentencing dec ision, identify the mitigating and enhancement factors foun d, state the specific facts supporting eac h enhancement

factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence .” State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994); see Tenn. Code Ann. § 40-35-210(f) (Supp. 2002).

“The burden of showing that the sentence is improper is upon the appellant.” Ashby , 823 S.W.2d at 169. In the event the record f ails to demonstrate the require d consid eration by the trial court, r

eview of the sente nce is pur ely de novo

. Id

. If appellate re view, however, reflects that th e trial cou

rt prope rly consider ed all re levant f actors a nd its findings of f

act are adequa te l y supported by the rec ord, this court must affirm the sentence, “even if we would ha ve preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We have reviewed

a transcript of the defendant’s sentencing hearing that

is included in the rec ord. The

trial cou rt gave no reaso ns why

it applie d enhancemen t factor (3), that the defendant was a leader in the offense, or, for that matter, how the mitigating and enhancement fa ctors were evaluated and balan ce d in determining the sentence. We, therefore , cannot extend a presumption of correctness to the trial court’s sentencing determination.
Alth ough it is settle d that enh anceme nt facto r (3) ca n apply even if t he defe ndant is notthe sole leader, but rather “a” lea der, see State v. Hi cks , 868 S.W.2d 729 (Tenn. Crim. App. 1993), even the state appears at a loss on appeal to justify how this factor applies. We, likewise, are confronted with a dearth of proof on this issue.-9- Regardingth e o th er en ha nc em en t f ac to rs ci te d b y th e trial court at sentencing, the evidence is somewhat confusing. We are convinced that the record supports enhancement factor (2), that the defendant has a previous history of criminal convictions or

behavior. Despite his young age, the defendant has accumulated an impressively long lis t of prior convictions. Included in the present ence re port is inf ormation a

bout fifteen other

theft an d burgla

ry convicti ons.
Lessclear

to us is the application of enhancement factor (14) , that the felony wa s committed while the

defenda nt was on wor k relea se. At one po int d uring t he sen tenci ng heari ng, the state re

fers to th e defendant’s e scape st

atus at the time of the instant offense. Later, the trial court comments that

“Enhancement Factor # [(14)] can be a pplied be cause he

committed

the felo ny o f jail escape while he was on work release.” L ast, the defenda

nt, himself, a

dmitted to g oing to K

noxville one evening while he was on work relea se and not returning, although he insisted that he “ha d no intentions on escaping.” From these re marks, we glean that enhance ment factor (15), that the defendant was on escape status at the time of the offense, applies. We do not believe, however, tha t the sameis true for enhancement factor (14) because the def endant’s escape put an end to his work release.
In summary, our de n ovo review persuade s us that two enhancement factors have been shown: factors (2) and (15). In ou r opinion, these fa

ctors ar e entitle d to gre at weig

ht. As did the trial court, we discern no mitigating factors. Weighing thetwo enha ncement factor s, we conclude that a sentence of six year s, at the midpoint of the sentencing range, is appr opriate and altogether warranted.
Based

on the for

egoing , we are

unpersua ded that t he defe ndant’s c onviction

rests on insufficient

evidence or that the length of the defe ndant’ s sentence is improper. We, therefore, affirm t he judg ment of the

trial cou rt.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE