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

Briefs O ctober 29, 2002
STATE OF TENNESSEE v. CH ARLES NATHA N WADDLE
Direct Appeal from the Criminal Court for G reene County No. 01-CR-177 James Edward Beckner, Judge

No. E2002-00688-CCA-R3-CD

May 2, 2003

A Greene County

jury convicted the D efendant of aggr avated burglary

and theft of

pr op er ty. The trial court imposed an effective sentence of six years to be served in the Tennessee Depar tment of Correction. On appeal, the Defendant challenges the suff iciency of the convicting evidence and the appropr iatenes s of the se

ntencesimposed. H e also argues that the trial court should have declared
a mistrial when evidence of other crimes by the Defe ndant was introduced at trial. Because we conclude that the e

vidence is suffic ie nt, the sentences are appropriate, a nd a mistrial was not require d, we af

firm the c onviction s. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G. R ILEY , J., joined.
Douglas L. Pay

ne, Greeneville, Tennessee, for the appellant, Charles Nathan Waddle.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; C. Berkeley

Bell, Jr., District Attorney Gene ral; and Cecil C. Mills, Jr., Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

I. FACTS

David Fontaine , the vict

imof the aggravated bur

glary and theft of property , lived in Greene County, Tennessee, with his adult son, Steve Fontaine. Steve Fontaine lived with David Fontaine because Steve was seriously ill and unable to care for h imself. At the time of the trial, Steve Fontaine was deceased. I

n September, 2001, David Fontaine learned that certain items were missing from his residence, including an RCA color television set, a Sony VCR, a Mitchell rod and reel, a Shakespearerod, a Ma

g Li te flashl ight, a Hewlett-Packard computer, and a 15- inch color computer monitor. Based u

pon David

Fontaine ’s te stimony , the total value of the missing property was-2-

$1,910. David Fontaine testified that he had given no one pe rmission to take any

of these items from his home.

Jim Ellison, a

detectiv e with the

Greene County Sheriff ’s Depa rtment, te stified th a t on September 13, 2001, he went to the Fontaine residence to investigate a burg lary and thef t that had occurred there. T he follow ing day

Detecti ve Ellison

search ed the hom

e of the D efenda

nt and his brother, Brandon Waddle, on Wilhoit Road in Greene County. D etective Ellison found numerous items of stolen

propert y, i ncluding

the prope

rty sto len from Da vid Fontaine’s home. Detective Ellison testifie d that he o bta ined t he consent of the Defendant’s brother pr ior to searching the residence. Detective Ellison contacted David Fontaine, who retr ieved the stolen items. After advising the Defendant of his Miranda rights, Detective Ellison interviewed the Defendant concerning the Fontaine burglary and theft and obtained a tape-recor ded statemen t from the Defend ant. The tape-recorded statement of the Defendant was admitted into evidence and play ed in court.

The Defend ant, Charles Nathan Waddle, testified that he was acquainted with Steve F ontaine butthat he had only known him for a bout three months. He claimed that Steve Fo ntaine ow ed him money for marijuana and Lor

tabs. The Defendant stated that Steve Fontaine proposed to repay the Defendant

by a llowing h im to take items of pe

rsonal pr operty from the Fontaine home. According to the Defe

ndant, Ste ve Fonta ine assist ed the De fendant in loading items of pe

rsonal pr operty into boththe Defendant’s car and Steve F ontaine’s car, and that all of the items were then taken to the Defendant’s house. The Defendant testified that he did not believe that he or Steve F ontain e was stealing these items. The Defendant reported that he intended to give the items back to Steve Fontaine when Stev e Fonta ine paid h imthe money owed. The Defendant asserted that he did not intend to steal the property or permanently de

prive anyone

of the property . The Defendant admitted that he had been convicted of forg ery twice

. Based upon this evidence, the jury convicted the D efendant of agg ravate d burgla

ry , a Class C felony, and thef

t of property va

lued ov er$1,000, a Class D felony. F ollowing a sentencing hearin g, the tri al court sentenced the Defendant to six y ears for the agg

ravated burglary

and four yearsfor the th

eft of pr operty , with th e senten ces to be served concurrently in the Tennessee Department of Correction.

II. AN ALYS IS A. Sufficiency

of the Evidence

The Defendant ar gues that the e vidence was insuf

ficient t o support h

is convic tions. Aggravated

burglary occurs when, without the effect ive consent of the property owner, a person enters a habitation with intent to commit a felony, theft, or a ssault. Tenn. Code Ann. § 39-14-403. “A person commits theft of property if, with intent to deprive the owner of property , the person knowing ly

obtains or exercises control over the property without the owner’s effective consent.” Id. § 39-14-103. Theft of property is a Class D felony

if the value of

the property obta

ined is more than-3-

One Thousand Dollars ($1,000), but le ss than Ten Thousand Dollars ($10,000). Id. § 39-14- 105(a)(3). The value of the propert y is its fair market value at the time and place of the offe nse. Id. § 39-11-106(a)(36)(A)(i).

When an accused challenges the sufficiency

of the evidence, an appellate court’s standard of review is whether, after

considering the evidence in the light most favorable to the prosecution, any rational trie

r of fact could have f

ound the e ssential e

lements of

the crime bey ond a rea sonable doubt. Tenn. R. App. P. 13( e); Jackson v. V irginia , 443 U.S. 307, 324 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Te

nn. 1985) . This rule

applies to

fin dings of guilt based upon direct evidence, circumstantial evidenc e, or a c ombination of both dir

ect and c ircumsta

ntial evidence

. State v. Penderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not r e-weig h or re- evaluat

e the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. A p p. 1990). Nor may this Courtsubstitute its inferences for those drawn by the trier of fact

from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956) . Questions concerning the credibility of the witnesse s, the weight and value of the evidence, as w ell as all factu al issues raised by the e vidence are resolved by

the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well as all reasonable infe rences which may

be drawn from the evidence. Statev. Evans , 838 S.W.2d 18 5, 191 (Te nn. 1992) . Beca

use a ver dict of g uilt aga inst a defendant
removes the p resumption of innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showing that the evidenc e was leg ally insuffic ient to sust

ain a gu ilty verdict. Id.

We conclude that

sufficient evidence was presented for a rational jury to find

the Defendant guilty of aggravated bur

glary and theft of propert

y valued over $1,000. Certain items of personal propert y were m issi ng f

rom the victim’s residence, and the same items were late r recovered from the Defendant’s residence. The victim testified as to the value of the missing property, w hich totaled $1,910. The victim testifie d that he, rather than his son, owne d all of the items of pe

rsonal pr operty and that he hadgiven no one permission to take the items from his home. The Defendant admitted taking the p rop erty, but stated that the son of the victim proposed that the Defendant take the propert y an d k ee p i t p en di ng th e p aym en t o f a de bt ow ed to th e D ef en da nt . T he ju ry, as they were entitled to do, obviously chose not to believe the De fendant’s version of these events. The evidenc e was clea rly sufficie nt to suppor

t the ver dicts of th e jury . This issue

is without me

rit.

B. Evidence of Other Crimes

The Defendant argues on appeal that a mistrial should have been declared by the trial court
on two occasions during the trial when evidence of other crimes by

the Defendant was introduced. Ernestine Jenkins, an employee of Mountain View Ma rket Restaurant

and Deli w as the fir st

witness calledby t

he State. She testif

ied that th

e Defe ndant ask ed her to cash a check signed by

St e ve P. “Fontana” in the amount of $35. Jenkins testified that she showed the check to a manager and asked-4-

the manager about cashing the check. Jenkins reported that the m anager made a phone c all after seeing the check. At this point in the trial, a jury-out hearing ensued and the trial court de termined that testimony about the

check w as not relevant to the char ges for which the

Defend ant was o n trial. Jenkins was excu sed pri or to the jury’s re turning to the courtroom, and the trial court gave the fo ll ow in g c ur at iv e i ns tr uc ti on to th e j ur y: Members of the jury, I

had begun to question the relevancy of the check was the
reason I sent you out. Upon further looking into it, it just can’t be introduced as part of this case. It’s not relevant a s part of this ca se, and you ca n’t consider it for any purpose. You can’t ma

ke any infere nce fro m it as to the guilt of the defendant, what littleyou heard

about it. You can only try the case on the evidence that’s introduced that relates to the burglary

and the theft. So you must not conside r any ev idence about the check that y ou heard for any purpose.

Later during t he trial, Detective Ellison testified that numerous items of stolen property w ere f ound during the search of the Defe ndant’s home, including the property allegedly stolen by the Defendant

from the Fontaine home. Some of the other al legedl

y st olen itemswere included in the photographs that were admitted into evidence and shown to the jury

. However, the trial court ag ain gave th e jury a curat ive instru ction, wh

ich was a s follows: And, members of the jury , anything tha t’s notin the indictment, that’s in there is not for your considera

tion as to any stolen

propert y. T he thing s in the indictment, if you will remember, are the Hewlett-Packa rd computer, a 15-inch color monitor, an R.C.A

. color T.V., Sony V.C.R., Mitchell reel, a Shakespeare rod and reel, a ma g light flashlig ht. Those are all the things that are - - the de fendant’s charged

with theft of , a nd th os e t hi ng s a nd th os e t hi ng s o nl y.
The trial cou

rt reco gnized on

both occa sions that t

he evide nce off ered by the State was not relevant and potentially prejudicial to the De fend ant. The tria

l court g ave the j ury

an immedia

te curative instruction on each occasion. I t is well settled that a jury is presumed to follow t he trial court’s instructions. State v. Blackm on , 701 S.W.2 d 228, 233 (Tenn. Cri m. App. 198 5); State v. Compton , 642 S.W.2d 745, 746 (Tenn. Crim. App. 1982). In our view, neither the very brie f testimonyo f Erne stine Jenkins nor the additional items of allegedly stolen pr operty in the photographs constituted grounds for a mist rial. The determin ation of w

hether t o gran t a mistria l rests within the sound discretion of the trial court. State v. Smith , 871 S.W .2d 667, 672 ( Tenn. 1994). The reviewing court should not overturn that decision absent an abuse of discretion. State v. Brown , 53 S.W.3d 264, 284 (Tenn. Crim. App. 2000). The burdenof establishing the necessity for mistrial lies with the party see

king it. State v. Will

iams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). No abstract formula should be mechanically applied in making this determination, and all circumstanc e s should be taken into account. State v. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993).
Considering the strong case against the Defenda nt and the curative instructions by the trial court, we conclude

that the trial court did not abuse its discretion in deny ing a mistrial on the two occasio ns compla

ined of by

the Defe ndant. Th

is issue is without mer

it.-5- C. Sentencing

The Defendant

contends that the trial court erred in imposing the maximum sentence for each of his two convictions. When a criminal defendant challenges the l engt h, range, or manner of service of a sent

ence, th e reviewing court must co nduct a de novo revie w of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35- 401(d). This presumption, however, “is conditioned upon the affirmative showing in the record tha t the trial court considered the sentencing princ iples and all relevant facts and circumstances.” State
v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1 991). In the event that the record fails to show such consideration, th e r ev ie w o f t he se nt en ce is pu re ly de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing de terminat ion, th e trial co urt, at the conclusion of the sentencing hearin g, determines the range of sentenc e and then determines the specific sentence and the pr opriety of sentenc ing alte

rnative s by

consid ering ( 1) th e evidence, if any , received at the trial and the sentencing hearin g, (2) the p resente nce rep ort, (3) the princ iples of se ntencing and arg uments as to sentencing alternatives, (4) the nature and char acteristics of the criminal co nduct invol ved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statement s the defendant wishes to make in the defendant' s behalf about sentencing, and (7) t h e potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-21 0(a), (b), -10 3(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumpt

ive sente nce to be imposed by

the trial court fo r a Class B , C, D or E felo ny i s the minimum with

in the app licable

range unless the

re are enhanc ement or

mitigati ng fac tors pre sent. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitiga ting factors, the court

must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then reduce

the sente nce in the range as appropriate f or the mitigating factors. Id. § 40-35-210(e). The weight to be given eac h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. However, the sentence must be adequatel y supported by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific f indings of fact

on the record supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record sho uld als o include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court mus t state

its reasons on the record. The purpose of recording the court’s reasoning is to guara ntee the preparation of a p roper record for appe llate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Becau se the record in th is case ind icates th at the tri al court

adequa tely considered the enhancement and mitigating factors as well as the underl

yin g fact s, our review is de novo with a pre sumption of correctness.

Enhancement

factors must be “appropriate f o r the offense” and “not themselves essential elements of the offense.” Tenn. Code Ann. § 40-35-114.1 We note tha t i n 2002, t he l ist of s tat utor y enh ancemen t f

actor s t o be use d in sentenc ing was ame nde d. See Tenn. Code A nn. § 40-35-114 (Sup p. 2002). Therefore, the enh ancemen t factor n umb ers use d by the trial cou rt in sentencing the Defendant differ from those n ow in u se. Ho weve r, the sub stance of the en hanc eme nt factor s app lied in this case was no t chang ed b y the 20 02 a men dme nt.
-6- The obvious pu r pose of these limitations is to exclude enhancement factors which
are not relevant to the offense and those based on facts which are used to prove the offense. Facts w

hich esta blish the e

lements of

the offe nsecharged

may not also be the ba sis of an enhancement factor increa sing punishment. The legislature, i n determining th e ranges of punishm ent within

the clas sificati ons of off enses, necessarily

took into account the culpability inhere nt in each offense. State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994).

If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due consideration and pr oper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sentence “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

In sente ncing the Defendant, the trial court applied two enhance ment factors: (1) “[t]he defendant has a pre vious histo

ry of crimin al convictions or crimin al behav io r in additi on to those necessary to establish the appropr iate range,” Tenn. Code Ann. § 40-35-114(1), and (8) 1 “[t]he de fendanthas a previous history of unwillingness to comply with the conditions of a sente nce involving release in the community ,” id. § 40-35-114(8). In apply ing enhancement

factor (1), the trial court described that factor as “ver y weig hty. I t carries a great deal of weig ht.” The application of enhanc ement fa

ctor (8) is amply

supported by the record, which indicates that the Defendant was revoked from alternative sentences on two prior occas ions and had twice committed criminal offenses while on probation.

The trial court applied mitigating factor (1), that “[t]he defendant’s criminal conduct neither caused nor threatened serious bodily injury.” See id. § 40-35-113(1). Finding no other mitigating factor s, the trial court then ordered maximum but concurrent

sentenc es for e ach of th

e two off enses.
On appeal, the Defendant arg ues that the trial court should have applied as an additional mitigating factor the fact that th e D ef en da nt ha d a ss is te d a ut ho ri ti es in re co ve ri ng th e s to le n p ro pe rt y. Id. § 40-35-1 13(10). T

he State a rgues t hat “it is unclear from therecord that any assistance was ever given.” We agree with the State. Based upon our carefulreview o f the re cord, we find no er

ror in the trial court’s decision not to apply this par ticular mitigating factor.

Fi na ll y, the Defendant asserts that the trial court considere d an improper enhancement factor in de te rm in in g h is se nt en ce . S pe ci fi ca ll y, the Defendant alleges that the trial court relied upon the-7-

Defendant’s lack of potential for rehabilitation as an enhancement factor. A careful review of the
re cord revea ls that the trial court was properly considering Tennessee Code Annotated § 40-35- 103(5), which sets forth as a sentencing considera tion the potential or lac k of poten tia l for the rehabilitation or tre atment of the Defendant as a consideration in deter mining the sentence alternative
or length of a term to be imposed. The tria l court de termined that the D efenda

nt in this ca se lacks the potentia

l for reh abilitatio n. The re cord supp orts this finding. This issue is without merit. In our view, the trial court follow ed pr oper sentencing procedure s and imposed lawful sentences after consider ing the f actors a nd sentencing pr

inciples.

Accord ingly , we AFF

IRM the judgme

nts of the trial cou rt.

___________________________________ ROBERT W. WEDEMEYER, JUDGE