### FILED September 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1999 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9811-CR-00401 Appellee, * SULLIVAN CO UNTY VS. * Hon. Phyllis H. Miller, Judge KYLE ROBERT BALL, * (Aggravated Burg lary and Appellant. * Theft Under $500.00)

For Appellant : For Appellee : Julie A. Ri ce, Atto rney Paul G. Summers P.O. Box 426 Attorney General and Repor ter Knoxville, TN 37901-0426 (on appeal) Marvin S. Blair, Jr. Assistant Attorney Gener al Richard A. Tate Criminal Justice Div ision Assistant Public Defender 425 Fifth Avenue North Second Judicial District Nashville, TN 37243-0493 P.O. Box 889 Blountville, TN 37617 Barry P. Staubus (at trial) Assistant District A ttorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Robert Kyle Ball, was convicted of aggravated burglary and one count of theft under $50 0.00. The trial court imposed a Range II sentence of ten years on the aggrav ated burglary and elev

en months and twenty-nine days for the misdemeanor theft. Fines imposed t otaled $2,000.00. The sentences are to be served consecutively to each other and consecutive to a prior sentence for which parole had been revoked.

In this appeal of right, the de fendant challenges the sufficiency of the evidence and contends that the s entence is excessiv

e. We affirm the judgment of the trial court.

On the evening of July 4, 1997, there was a break-in at the Kingsport apartment of the victim, Dex ter Carl Morelock, J r., during which an AMT Mark III .30 caliber carbine pistol, a reloading die, and two boxes of .30 caliber ammunition were stolen from a bedroom closet. Ear lier that afternoon, between 6: 00 and 6:30 P.M., the defendant, who "was drink ing pretty heavil

y," stopped as he drove hi s vehicle by the apartment of the victim. The victim, who was standing in the front yard, had just returned from a shooting practice range and had in his pos session the AMT pistol. The weapon was unusual becaus e it fired rifle cartridges. The victim, who had known the defendant for fifteen or twent y years, had not seen hi m for two or three years prior to the meeti ng at the apartment. When the defendant saw the pist ol, he asked the victim if he w ould sell it, to whi ch the victim replied,"No, sir." The defendant then asked permission to use the victim's bathroom and di d so, after which the victim invited the defendant to a July Fourth picnic at his wife's mother's residence. During the time before the victim and his wife left to go to the picni c, the defendant persisted in his effort to pur chase the pistol. Although the victim agreed3 to purchase a televisio n from the defendant for $75.00, the victi m was adamant that the pistol was not for sal e. By then, the victi m had placed the pistol, a rel oading die, and two boxes of ammunition in a bedroom closet. The defendant again as ked for and received permission to use the restroom. When he did not return for s everal minutes, the victim looked for the defendant and discovered hi m coming out of the bedroom where the pistol w as stored. At that point, the v ictim directed the defendant to leave the bedroom wher eupon both men left the apartment to attend a picnic.
The defendant stayed at the picnic for only a short period of time. Later, when the victi m discovered that he had forgotten fireworks he had inten ded to display, he returned to his apartment. As he approached the apa rtment building, he saw a vehicle which resembled that of the defendant. W hen he walked to the back door of his unit, he found that the door w as ajar. The outside light had been turned off and a stone had been used to break the gl ass. When the victim checked the inside of his apartment, he disc overed that only his pistol, the ammunition, and the reloading die were mi ssing. Several other guns, which wer

e also stored inside the apartment, had not been stolen.

The victim reported the crime to the Sullivan County Sheriff's Department and Officer Joe Delp investigated. On the fo llowing Monday, the victim and his wife drove thr

oughout Kingsport looki ng for the defendant. When they saw him walking along Center Street, the defendant ran but the victim caught up with him in his car. According

to the victim, the defendant immedi ately apologized for stealing the pistol and offered $60 0.00 in restitution. When the victim s tated that he would rather have the gun, the defendant remarked that he did know whether he could get it back. The defendant nev er returned the gun and nev er compensated4 the victim for his loss

.

The defendant did not testify and offered no proof at the trial.
Initially, the defendant claims that the state failed to prov e beyond a reasonable doubt that he burgl arized the apartment or that he took the items with the intent to deprive the ow ner thereof, as required by the theft statute. The defendant contends that the evidence di d not exclude the possibil ity of another having burglariz

ed the apartment and having tak en the pistol, the ammunition, and the reloading die. He ar gues that the failure on the par t of the victim to identify the defendant as a suspect when the matter was first reported to th e police supports his argument that the evidence is insufficient. The def endant submits that the victim was motivated to lie by the lack of insurance coverage for the items stolen and his desire to identify a suspec t with a prior cri minal record in order to extort a settlement.
On appeal, the state is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Te nn. 1978). When the suf ficiency of the evidence is challenged, the relevant question is whether, after a review in the light most favorable to the state, any rational trier of fact could ha ve found the essential elements of the crime beyond a rea sonable doubt. State v. Williams , 657 S.W.2d 405 (Tenn. 1983); Tenn. R. App. P. 13(e ). This court may neither reweigh nor reevalua te the evid ence. Nor may a court substitu te its inf erences f or those d rawn by the trier of fact. Likas v. State , 286 S.W.2d 856 (Te nn. 1956).

Tenn. Code Ann. § 39-14-402 provi des that a "person commits5 burglary who, without the effective consent of the property owner ... (3) [e]nters a building and commits or att empts to commit a felony, theft or ass ault .... The offense is aggravated w hen the burglary is committed in a place of "habitation." Tenn. Code Ann. §§ 39-14-401 to -403.

A misdemeanor theft is committed when the value of the property is $500.00 or less if the perpetrato r "with the intent to depr ive the owner of propert y ... knowingly obtains or exercises control over the property without the owner's effective consent." Tenn. Code Ann. §§ 39- 14-103, -105.

In this instance, there w as circumstantial evi dence that the defendant entered the apartment of the victi m without his consent and for the purpose of committing a theft. Here, of cour se, the jury was entitled to accredit the testi mony offered by the witnesses of the state and reject the de fense theory. The record shows that the state offered proof against the defendant of each of the elements of theft: (1) an intent to depriv e the owner of the property ; (2) knowingly obtaining control of the property; and (3) a failure to gain the c onsent of the owner. It wa s the jury's prerogati

ve to accept the testimony of the victim who clai med that the defend ant ackn owledged h aving stole n and the n having so ld the pis tol. Certa inly, the accompanying circu mstances proved by the s tate at trial tend to corr oborate the claim.
Next, the defendant complains that the trial court erred by imposing the maximum sentence possible for aggravated burgl ary and by ordering the sentences to be served cons ecutively.
When there is a challenge to the length, range, or manner of servi ce of6 a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the trial court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court app lies inappropriate factors or other wise fails to follow the 1989 Sentencing Act, the presumption of correctness falls ." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provi de that the burden is on the defendant to show the impr opriety of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial court made adequate findi ngs of fact.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later,in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however,1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 7 additional words of caution :

[C]onsecutive sentences s hould not routinely be impos ed . . . and . . . the aggre gate maxim um of co nsecutive terms must be reasonably r elated to the severity

of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances arising from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n;8 (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in t he statu te, othe r conditi ons must be presen t: (a) that the crime s involve aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938.

Initially, the defendant conce des that the trial court, w hich found five enhancement factors applicable, pro perly determined the prese nce of four enhancement factors under Tenn. Code Ann. § 4 0-35-114: (1) a previ ous criminal history of criminal con

victions ... in additi on to those necessary to es tablish the appropriate range; (8) a previous history of unwillingness to c

omply with the conditions of a sentence invol ving release in the c

ommunity; (13) (B) the fel ony was9 committ ed while on ... parol e; and (20 ) that the defend ant was ad judicate d to have committed a delinquent act as a juvenile that would have constituted a felo ny if committed by an adult.

The defendant argues that he did not v iolate a position of priv

ate trust, as adjudged by the trial court, because, in fact, the victim did not actually entrust the victim with the items stolen and was so s uspicious of his behavior that he sought out the defendant after the latte r's second trip to the restroom. The defendant also contends that the trial cour t did not give sufficient w eight to a mitigating

factor, Tenn. Code Ann. § 40-35-113(1), that "the defendant's criminal conduct ne ither caused nor threatened serious bodil y injury."
As a Range II offender, the defenda nt could have received a sentence as little as six y

ears and as much as ten years . The record demonstrates that the trial court carefully

considered each of the enhancement factors and expressed particular concern about th e defendant's prior criminal history and his failure,on a number of occasions, to comply with a sentence invol ving release into the community. Those factors, in our view, would w

arrant an enhanced sentence. Moreover, there wa

s a violation of priv

ate trust. The defendant and the vic tim had been in high school togeth er and had known each other for over twenty y ears. The victim invited the defendant into his home based upon their l ong acquaintanceship, consented to his use of the restr oom facilities, and invit ed him to attend an Independence Day picnic at h is mother-in-law's residence. The defendant, in our view, took advantage of the knowledge he had acquired through the relationship both to identify the items he des ired and to enter the apartment to commit a theft at a time he knew the victim and his wife would be absent. While the record demonstrates that the trial court gave little weight to the trust factor, this court10 concludes that there was sufficient evidence of a viol ation of private trust.

Furtherm ore, the record sh ows that th e trial cou rt did, in f act, give some weight to the mitigating factor identified by the defendant (i.e., the absence of serious bodily harm) but concluded that that should not l essen the sentence from ten years. That, in our view, was a proper exercise of discretion. The conclusion is presumptively corr

ect and one that this court w ill not disturb.
Finally, the defendant arg ues that the trial court er red by determining that the defendant was a professional criminal and by finding his prior record of criminal activity

was so extensiv

e as to warrant consecutive sentences. The defendant submits that the trial cou rt erred by concludin g that the public requi red a period of long-term protection from the def endant and that the effective ten-year, eleven month and twenty- nine day sentence reasonably related to the severity

of the offenses.
The defendant's criminal history included a number of felony convictions and spanned ov er a period of thirteen year s. There were sever

al convictions for automobile b urglary and felony theft and two prior aggr avated burglaries. The defendant had been fo und guilty on prior occasions of vandalism and escape. Whereas the evidence did not suppor t the trial court's conc

lusion that the defendant had "knowingly devoted [his] life to cri minal acts as a major sourc e of livelihood," it is no netheless apparent that the defendant q ualified as "an offender whose record of criminal activity is ex

tensive...." Tenn. Code Ann. § 4 0-35- 115(B)(1) & (2). Despite the fact that the criminal offenses committed by the defendant were, as argued by the defendant, "non-violent, non-threatening property offenses," the statute does not limit the term "extensive criminal activity" to purely11 violent crimes. Her

e, the defendant's record was clearly extensiv e. In that regard, he qualified for a consecutiv e sentence. In our view, the trial court acted w ithin its discretion when it dete rmined that the aggregat e sentence imposed fit the entirety of the circumstances.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ David H. Wel les, Judge

_____________________________ Joe G. Riley, Judge