# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AU GUST 1997 SESSIO N
STA TE OF TENN ESSEE, ) ) NO. 01C01-9608-CR -00384 Appellee, ) ) WILSON COUNTY VS. ) ) HON. J. O. BOND, JUD GE CHARLES W. SA NDERSON, ) ) (Aggra vated Burgl ary) Appellant. )

FOR THE APPELLA NT : FOR THE A PPELLEE : COMER DONNELL JOHN KNOX WALKUP Distric t Public Defender Attorney Gen eral and Repor ter
KA REN G. CH AF FIN JAN IS L. TURN ER Assistant D istrict P ublic Defender Assistant Att orney Gener al 213 North Cumber land St. 450 James Roberts on Parkway Lebanon, TN 37087 Nashvil le, TN 37243-0493 TOM P. THO MPSON, Jr. Distric t Attorney General H. DOUGLAS HA LL Assistant D istrict A

ttorney 111 Cherry

St. Lebanon, TN 37087-3609

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE2 O P I N I O N

On November 29, 1995, a W ilso n C o u n t yj u ryfo u n d d e fe n d a n t , C h a r l e s W. Sanderson, guilty

of aggravated burglary , a Class Cfelony. The tr ial court s entenced def endant to 15 years as a Range I II (45%) Per sistent Offender. D efendant challenges both the convi ction and sentenc e allegingthe followi ng errors :

(1) the failure of the tr ial judge to dismiss th e indictment for lack of a preli minary hear ing recor ding; (2) the tria l court’s in correct st ateme nt of t he law regard ing circumstanti al evidenc e; (3) the trial court’s impr oper definition of reasonable doubt; (4) the trial court’s denial of the request to exclude witnesses from the courtroom pr ior to voir dire ; (5) the failure to suppress defendant’s stat ement givi ng a false name to the officer; (6) allowingthe indictment i n the jury room; (7) the wrong ful admission of a sc rewdri ver into evidence; (8) improper final ar gument by thestate; (9) insufficiency of the evidence; and (10) an improper sent ence. We AFFIRM the convic tion and the sentenc e.

FACTS

Houston De dman, fa ther of the victim, saw a pick-up truck at the victim’s mobile home on October 7, 1994, the date of the crime. W hile his wi fe was call ing the victim at her workplace and then 911, Dedm an continued to watch from his back porch approximatel y 350 feet away. He saw a heav y-set, long-hair

ed man weari ng a white tee- shirt and blu e jeans go fir st to the front door

of the trailer

and then to the backdoor. The man entered the mobi le home and stayed inside five to ten minutes before exiting by the back door. The authori ties then arr ived on the s cene and apprehended the defendant and another sus pect. Dedman ident ified the defendant
as the same person he saw enter the mobile ho m e. Defendant’s f ingerprints were found on the back door of the mobile home. LieutenantKenny

Burns responde d to the 911 dispat ch. As he pull ed into the drive way, he saw a truck and a male with long hair standing close to the mobile home. He testified that defendant saw him and started to run toward thetruck. At3

that point, Burns made him stop and li e down on the g round. The man had on blue jeans and a white tee-shirt. W hen asked his nam e, th e def end ant ga ve Lt. Burns the false name of “Chuck Binkley.” Chuck Binkley was actual ly a female w ho was the
owner of the truck

and the wife of the other person appr ehended. Lt. Burns

identified defendant as the man he had appr ehended. Accordi ng to the TBI lab re port , a scr ewdrive r fou nd in the t ruck c ould have produced the p ry marks on the back door

frame, but there were not sufficient identifying characteri stics to show excl usion of all other prying devices. The victim t estified that no one had permiss ion to be on her property on that date, and all her do ors had been loc ked. She arrived shortly after the apprehension of the defen dant

and b efor e offi cers le ft the scene. The chai n on her back door had been broken. She went into he r house and found the bedr oom “ransacked”

with doors op ened and drawer s pulled out. The jewelr y box on the bed had all of i ts drawers pulled out. N othing had been t aken.

LACK OF RECORDING OF PRELIMINARY HEARING

The General Sessi ons Court jud gment shows that defendant was bound over on “attempt to commit aggrav ated burglar

y.” Defend ant claim s prejudici al error because the trial court refused to dismis s the indictment based on the General Sessions Court’s fai lure to make a recording of his prelimi nary heari ng in vi olation of Tenn. R. Cri m. P. 5.1(a). Butts v. State , 640 S.W.2d 37, 38 (Tenn. Crim. App. 1982), held that “the failure to p rovide a r ecording or

its equiv

alent may constitute harmless error. . . [when] th e trial ev idence so concl usively showed . . . guilt th at a record of the preliminar y hearing could not have aided the defense.” Defendant claim s his facts jus tify a different outcome. We do not agree. Proof of guilt was overwhelmi ng. Defendant has failed t o show any prejud ice. The failure to record the preliminaryhearing was harmless er ror. Tenn. R. App. P. 36(b); see also Stat e v. Bohanon , 745 S.W.2d 892, 896 (Tenn. Crim. App . 1987).1 The rule has now been amended to make seque stration before voir dire

discreti onary

with the tr

ial cour t.
4 TRIAL COURT

COMMENTS

Defendant argues that t he trial cour t erred in commenting incor rectly on the burden of proo f durin g voir dire , and that the cour t erred in i ts definition of reasonable doubt in comments made be fore voir dire

. A. The language cited by defendant is an eff ort by the t rial court during voir dire to illustrate the difference in di rect and circumstantial evidence. The language us ed bythe trial judge accurately paraphrases T.P.I. - Crim. § 42.03 (4th ed. 1995). T his issue is w ithout merit. B. Defendant complains the t rial court erro neously tol d the jury before voir

dire that: Beyond a shadow of a doubt is not the rule, beyond any doubt is not the rule. It’s simplybeyond a reas onable doubt. That ther e’s no other reasonabl e answer t o it other than just--rea sonable answ er. Althou gh the last phrase concer ning a “reasonable answ er” is v ague, no harm inured to the defendant. The stat ements concernin g “shadow of a doubt” and “beyond any doubt” a re accurate statements of the law . This issue is wit hout merit.

MOTION TOSEQUESTER WIT NESSES PRIORTO VOIR DIRE

Defense counsel requested s equestratio n of the witnes ses prior to voir dire

. The trial cour

t denied the request so

the potential j urors could determine if they knew any of the witnes ses. At the ti me of trial, Tenn. R . Evid. 61 5 provided th at sequestrati on was to be ef fec tive before voir dire if requested. 1 However, defendant has demonstrated no preju dice as a result of the failure to sequester prior to voir dire

.5

This is harmless error. Tenn. R. App. P. 36(b); State v. Antho ny , 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992).

MOTION TOSUPPRESS GIVI NG NA ME TO OFFI CER
Defendant cont end s the off icer’ s requ est f or de fen dan t’s na me sh ould have been prec ede d by Miranda warning s since defendant was in custody . Arequest for
a defendant’s name doe s not tri gg er t he ne cess ity of Miranda

warning s. See Pennsylvania v. Muniz , 496 U.S. 582, 601-602 (1990); State v . Williams , 623 S.W.2d 118, 121 (Tenn. 1981). This issue i s without merit.

INDICTME NT IN TH E JURY R OOM

Defendant contends the tr ial cou r t erred in al lowing the jury to take the indictment

into the jury room during deliberations. As a matter of cust om, many tria l courts allow

the indictment t o be taken to the jury room; however, there is no express legal authority

concerning this custom. Raybin, Tennessee Cr iminal Practice and Procedure , § 31.14 (1985). We see no prejudice to the defendant. The indictment was read to the jury at t he begin ning of trial. Th e trial jud ge properly instructed the jurythat the indic

tment was not evidence ag ainst the defendant and could not create any inference o f guilt. This issue is w ithout merit.

ADMISSION OF SCREWDRIVER INTO EVIDENCE

Defendan t conten ds the trial court erre d in allow ing evi dence about the screwdr iver

found in the vehi cle. Eve n though the sc ientific testi ng was n ot conclusive, the screwdrive r wa s fo und in a pl ace t hat, coup led wit h tria l test imon y, would all ow a n in fe renc e that it was a tool used t o pry the doo r of the residenc e. There is nothing in the record to reflect that its pro bative value was out weighed byits prejudice to defendant. This issu e is wi thout merit.6 PROSECUTOR’S CLOSING ARGUMENT

Defendant complains of the foll owing ar gument made by t he prose cutor in final argument: He [defense counse l] wan ts yo u to say, i f he was in th ere, he was just doing trespass, just little ole misdemeanor trespass is what he was doing. Convict him of that. You know, bring it down to trespass. The defendant did notrequest therange of punishment charge and c laims that the menti on of “misdemeanor” constituted prej udicial conduc t. The State did not advise the jury

of the range of punis hment. We find nothing improper i n telling the jurythat a parti c ular offense is a mi sdemeanor or a felony . This issue is wit hout merit.

SUFFICIENCY OF THE EVIDENCE

Defendant contends the ev idence is in sufficientto j usti fy the guilty

finding. In determining the sufficiency of the evidence, t his court does not reweig h or re-evaluate the evidence. State v. Ca bbage , 571 S.W.2d 832 (Tenn. 1978). Nor may this Court substitute its inferences f or those d rawn by the trier of fact from circumstanti al evidence. Liakas v. State , 199 Tenn. 298, 305, 286S.W.2d 856, 859 (1956). A jury verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the state

. State v. Bi gbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W .2d 54, 75 (Tenn. 19 92). On appeal, the State is entitled to the strongest legitimate view of the evidence and all legitimate or reasonab le inferences which may be draw n therefrom. Id . This Court will not disturb a verdict of gui lty due to the sufficiency of th e evidence unless the defe ndant demonstra te s that the facts contained in the recor d and the inferences which m ay be dr awn therefrom are insuffici e nt, as a matter of l aw, for a ra tional trie r of fact to find the accused guilty

beyond a reas onable doubt. State v. Brewer , 932 S.W.2 d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate co u rt’s duty to affirm the convicti on if the evidence, viewed under these st andards, wa s sufficient for any7

rational trier o f fact to have found the ess ential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e) ; Jackso n v. Virginia , 443 U.S. 307, 317 (1979); State v. Ca zes , 875 S.W.2d 253, 259 (Tenn. 1994). The evidence w

as clearly

sufficient to sust ain the conv iction of agg ravated burgl ary. The defendant was seen unlawfully entering and leaving the premises an d
was apprehended at the s cene. The premises were “r ansacked;” ther

efore, the jury could conclude therewas an intent to steal

. See State v. Ch risman , 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994). The fact that nothing was actually removed is

not determinative. This issue is wit hout merit.

SENTENCING

Fina lly, defendant contends th e trial court erred by imposinga 15-year sentence to run consecu tively to his pri or sentences. This Court’s review of the sentence imposed by the trial court is de novo wit h a presumption of correctness. Tenn. Code. Ann. § 4 0-35-401(d). This presumpti on is conditi oned upon an aff irm ative showing in the recor d that the tria l judge cons idered the senten cing principles

and all rel evant facts and c ircumstances. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991 ). The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing C ommission Comments. In conducting
our review, we are required, pur suant to Tenn. Code An n. § 40-35-210, to consider the fo llowing fa ctors in se ntenci ng:

(1) [t]he evide nce, if any , received at the trial and sentencing hearing; (2) [t]he pr

esentence report ; (3) [t]he princi ples of sentencing and arguments as to sentencing alternatives; (4) [t]h e nature and characteristics of th e criminal conduct invol ved; (5) [e]vidence a nd information offered by the part ies on the enhancement and mitigati ng fac tors in §40-35-113 and §40 -35-114; and(6) [a]ny state ment the defe ndant wishes to m ake in his own behal f abou t sente ncing.
If no mitigati ng factors or enhancem ent factors are present, Tenn. Co de Ann. § 40-3 5-21 0 pro vides that the p resu mpt ive sentence shall be the minimum sent ence8

within the applicabl e range. See State v. Fl etcher , 805 S.W.2d 785 (Tenn . Crim

. App. 1991). However, if such f actors do ex ist, a tri al court shoul d start at the minimum sentence, enhance t he minimum sentenc e w ithin the rang e for
e nhancement factors, and then r educe the sentence w ithin the rang e for th e mitigating factors. Tenn. Cod e Ann. § 40-35-21 0(e). No particular weight for each fa ctor is p res cri bed b y th e st atut e, as the weig ht g iv en toeach fact or i s le ft to th e discretion of the trial court as long as its findings aresupported by the record. State
v. Moss , 727 S.W.2d 229 (Tenn. 1986); State v. Santiago , 914 S.W.2d 116 (Tenn. Crim. App. 1995); see Tenn. Cod e Ann. § 40-35-210 Sentencing C ommission Comments. A. I n sentencing the defendant to the max imum Range III punishmen t of 1 5 y ears, the trial court found no mitig ating factors and four (4) enhanc ement fac tors
. The applicable enhanc ement factors found by the trial court were: (1) previous history of criminal conv ictions in addition to those necessary

to establish Range III puni shment under Tenn. Code Ann. § 40-35-114(1) ; (2) previous history of unwilli ngness to compl y wi th conditions of a se ntence invol ving release in the community under Tenn . Code Ann. § 40-35-114(8); (3) the defendant abused a posi tion of public tr ust when he committed this crime while on fu rlough under Tenn. Code Ann. § 40- 35-114(15); and (4) the crime was committed under circumst ances under which the potential for bodi ly injur y to a v ictim was great under Tenn. Code An n. § 40-35-114(16). Defendant contends the tr ial court er red in it s applicatio n of the last three enhancement factors. Defendant conce des he has prior convictions in addition to those necessary to establish Range III punishment . Mo re s peci fi cally, t he defendant has been
c onvicted of second degree burglary (enhanced to a l ife sentence as an hab itua l criminal), grand larceny (en hanc ed toa li fe sentence as an habi tual crimina l), three (3) separate counts

of third degree burglary and robbery b y use of a deadly weapon.9 The proof also established t hat defendant had two (2) prior parole revocations. Acco rdin gly, the court pro perly appl ied the enhancement factor relating to a previ ous historyof unwillingness to comply with the conditions of a sente nce involving release in the community

. The trial cour

t found that the def endan t was on a th ree-day f urlough when this offense was c ommit ted and, therefore, found t he defendant abused a posi tion of public trust. W e find no support f or the application of this f actor in t he co ntex t of a furlough. See State v. Seay , 945 S. W.2d 755, 766 (Tenn. C rim. App. 1996) (holding that this factor di d not apply t o a de fendan t who committ ed an offense while on probation). However, com mitting a crime while on furl ough for a felony q ualifies as an enhancement f actor under Tenn. Code Ann. § 40-35-114(13)(E). Furlough is a type of release intothe community under the indir ect superv ision of the Department of Corre ctio n or lo cal go vernm enta l aut hori ty. Accordingly, this enhancement factor should have be en applied inst ead of the public tr ust enhancement factor. The trial court found that this aggravated burglary was co mmitted under circumstances

under which the potential injury to the homeo wner was great . Th e homeowner

was not pr

esent at the time of the burglary

. The stat e con cede s and we agree that this factor

was err oneously appl ied. See State v. Avery , 818 S.W.2d 365, 369 (Tenn. Crim. App. 19 91). In spite of the misappl ication of the above-men t ioned enhancem ent factors,
we conclude under our de novo review that the maxi mum 15-year s en tence i s appropriate for t his defendant. B. The trial court ran this 15-year sentence consecutively t o the sentences for which defendant was on fur lough at the time of the offense. The tr ial court found that the defendant wasa professional c riminal and an offender whose record of criminal activity was ex tensive. See

Tenn. Code Ann. § 40- 35-115(b)(1) and (2). We further find that conse cuti ve sentencing is necessar y to protec

t the public ag ainst further crim inal cond uct b y the d efe nda nt an d tha t the cons ecut ive se nten ces re ason ably10

relate to the sever ity

of the offenses. See State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). We find no error i n the sentence.

CONCLUSI ON

For the reasons stated above, we AFFIRM the convict ion for aggrav ated burglary and the sentence i mposed.

JOE G. RILEY , JUDGE

CONCUR:

CURWOOD W ITT, JUDGE

JOE H. WALKER, III, SPECIAL JUDGE