# FILED
December 10, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-96 1 1-CC-0048 2 ) vs. ) Coffee County ) BILL TEAL, ) Hon. Gerald L. Ewe ll, Sr., Judge ) Appellant. ) (Burglary, Theft Over $1,000) )

FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY S. O'NEAL (Trial) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter P.O. Box 555 Winchester, TN 37398 ELIZABETH B. MARNEY Assistant Attorney Gener al GREGORY D. SMITH (Appeal) Criminal Justice Div ision Attorney at Law 450 James Robertson Parkwa y One Public Square, Ste. 321 Nashville, TN 37243-0493 Clarksville, TN 37040 C. MICHAEL LAYNE District Attorney General STEPHEN WEITZMAN Assistant

DistrictAttorney General P.O. Box 147 Manchester, TN 37355
OPINION FILED: ____________________

AFFIRMED CURWOOD WITT JUDGE1 This was the defendant's second trial, the first having ended in a mistrial. 2 OPINION The defendant, Bill Teal, stands convicted of aggravated burglary and theft over $1,000, following trial by a jury of his peers in the Coffee County Circuit Court. 1 Th e court sentenced Teal to serv e ten years for aggrav

ated burglary and eig ht years for theft. The sentences w ere imposed concurrently to each other bu t consecutivelyto other sentence s the defendant is serving, the d efendant having been found in other proceedings to have violated parole on other offenses. In this direct appeal, the defendant challenges the sufficienc y of the convicting

evidence and the court's imposition of max imum sentences and fines upo n him. Following
a review of the record

and briefs an d having h eard argume nts in the matt er, we affirm the judgment of the trial cour t.
During the daytime hours of October 3,1994, t he home of Nelson Johnson was burglariz

ed. The burglary was

discovered by

Dr. Johnson's daughter, who returned to the hou se in the aftern oon hours. D r. Johnson r eturned home shortlyafter his daughter and alerted the Coffee Cou nty Sheriff's Department of the intrusion. The Johnsons di scov ered several items miss ing, including a w ooden hope chest with a padded cloth top and which contained family mementos, an Apple computer

and peripherals, three

videocass ette reco rders, a t elevision and jewelr y. At trial, Dr . Johnso n estimated the value of the stol en property at $4,800. In addit ion, h e testified the door and frame through which the burglar or burglars gained entrance was damaged and cost $600 to $650 to replace. Doctor Johnson further testified the hope chest which was taken was full of photo graphs, dolls and other family mementos and was very heavy. He had required the assistance of his son to move the chest from one room to anothe r.2 Holdaway's first name is spelled "Sean" in the transcript as well as in

Exhibit 9, the transcript of his guilty plea. It is spelled "Shawn" in documents in the technical record, which indicate he was a co-defendant of Te al prior to his guilty plea s. Not havin g the bene fit of t he indict ment rela ting to Hol daway, we have elected to use the latter spelling of his name, as it appears in the Motion to Consolidate and the Order Gr anting State's Motion to C onsolidate. 3 On the afternoon of the burglary,Sgt. Rodney Ba nks of the Coffee County Sheriff's Department observed the defendant driving reck lessly and stopp ed him. He intended to give Teal a citation, but Sgt. Banks discovered he did not ha ve his citati on book with him so he rel eased Teal with a warni ng. Sergeant Ba nk s testified this took place about 3:05 p.m. While he was talking with the defendant, Sgt. Banks noticed a cloth top h ope che st, an Apple computer and peripherals, coaxial cable, and a videocassette recorder in the back of the g ray S-10 Chevrolet pickup truck the defe ndant was driving. According to Sgt. Banks, the items were not placed into the truck in a m anner as he would m ove them i f they were his prope rty. He also noticed Shawn Holda way 2 and Karen Alter sitting in the cab of the truck. Sergeant

Banks observed Teal to act n ervously, and he r ecounted that Teal told him they were moving

thing s fo r a friend and were in a hurry. Sergeant Banks recalled the truck may have had a red stripe on the side.

Investigator

Tracy Ale xander responded to the Johnson home and took a report of the burglary . He was unable to locat e any fingerprints. Within a few hours, he had din ner wi th Sg t. Banks, and they d iscussed the John son burgla ry. During the conversation, Alex ander commented that it was unus ual for someone to steal a hope chest, and Banks told him about stopping the defendant earlier in the day and seeing a hope chest in the back of his truck. The two then returned to the Sheriff's office, called Dr. Johnson, and obtained a detailed des cription of the stolen hope chest, which matched the one Sgt. Banks saw in the defend ant's truck.

Cindy Alter testified Teal and Holdaw ay came by her house trai ler4

about 2:30 or 3:00 p.m. on October 3, 1994 in a small gray truck. They invited her to accompany

them to McMinnville, and she agreed to go along. While they were
on their way, Teal drov e "sort of fast" and they were stopped by Sgt. Banks. Alter
saw Teal take awatch off and throw it behind the seat before going to meet Banks behind the truck. After Banks w arne d Teal about his driving , Teal and Holdaway
were nervous and confessed to Alter that they had taken the watch and the property in the ba ck of th e truck from the home of the high scho ol principal, Dr. John son. Alter recalled seeing a hope chest with a lifting

top, a computer mon itor and some wiresin the back of the truck. She identi fied the hope chest and computer she saw
as bei ng identical to like i tems in photographs taken in the victim's home. Alte r further testified she had initially giv en an unsworn statement that w as inconsistent with a later statement andh er trial testimony. She further admitted she had ori ginal ly been charged as a co-defendant with Teal and Holdaway, but those charges had bee n dropped. Further, she w as on probation at the time of the offenses, although she is no longer on probation. She denied her probationary term had been shortened as a r esult of her cooperation in thi s case. Finally, s he admitted she had been convicted o f DUI.
Willie Pittman, an elderly neighbor of the Johnsons, testi fied he saw
a gray Chevrolet pickup truck without stripes at Dr. Johnson's house between 1:30 and 2:0 0 p.m. on t he date of the burglary. H e saw two young,white men in the truck. One was driving and the other was sitti ng in the bed of the truck holdi ng an object. Mr. Pittma n thought the two mu st have been students from the high school who had been sent by Dr.Johnson to retrieve it ems from his home.

Willi am A. Vau ghn, Dr. Jo hnson's neighbor and fat her-in-la w, saw a small, gray pickup truck pass his house sometime after 1:00 p.m. and again 10 to 15 minutes later. He saw two young white men inside the truck. He i dentified Teal3 The transcript of Holdaway 's plea hearing, whi ch was entered into evidence, indicates the hope chest and a few of the item s in the back of Teal's truck were stolen from the Johnson home. Holdaway denied there was any coaxial cable, computer, television or vi deocassette recorder belong ing to the Johnsons in the back of the truck when they were stopped by Sgt. Banks, however. He testifie

d at the plea hearing he borr owed Teal's truck w

hile Teal was visiting with his parole officer and committed the crimes by himself. He admitted, however, that Teal was aware the proper

ty was stolen. 5 as looking like one of themen in the truck, though he admitted he was not certain.

Shawn Holdaway, a pris oner from the Department of Correcti on, testified he is currently ser ving three incarcer

ative sentences, two of which arose from the burglary of the Johnson home.He entered a guilty plea to the t wo crimes related to the burglary so he could get a "red flag" taken off the compu ter, which he said would allow him to be paroled. He testified he had, in fact, recently been given
a parole date approximately two months after this trial. Holdaway was hostile with the prosecutor, initially asserti ng hi s Fifth Amendment privileg e when asked who committed the b urglary of the Johnson home and later denying many of the admissionshe made at the pleahearing, even when the assistant district at torney general provided him with a co py of the transcr ipt of that he aring. 3 Further, he said he could not recall making several of the admissions. He said Teal was not guilty of the burglary or theft. Although his evasiv eness was at times incons istent, h e apparently attempted to convey that he c ommitted the burglary either by himself or with someone other than Te al whose identity he could not recall. When asked whether he would "snit ch" on his buddy, he repli ed, "I would snitch on a person in
a heartbeat if it got me ahead, if it got me out of thesys tem. I play dirty poo l." Holdaway

admitted he and Teal had been at Alter's trailer for an hour and a half to two hours on the afte rnoon of October 3 . Holdaway a ttacked Alter's cr edibilit y, saying she had been "up all night w ith her girlfriend" and w

as "high, drunk" when he and Teal arrived. He claimed he drank "a few beers" with her that afternoon bef ore they left her trailer. Further, he testified he had a short wooden dresser that looked6

like a hope chest, a duffel bag, and unidentified "other items" in the back of Teal's truckthat afternoon. He denied that he or Teal had admitted to Alter that they had taken anything from the Johnson home.

The defend ant prese nted the testimo ny o f William Teal, the defendant's u n cle. Mr. Teal testified he had received word from "R odney," presumably a reference toSgt. Banks, that on Oct. 3 hi s nephew had been stopped drivinga gray S-10 Chevrolet pickup truck registered to Mr. William Teal. Mr. Teal said this was impossible because his truck did not smell of smoke, as it would if Bill Teal, Holdaway and Alter had been riding in it, and further, some papers he had in the cab we re not dis turbed wh en he next drove the truck. Further, he testified his truckhas a six inch red st ripe and says "Sport" on it. He admitted Bill Teal also has
a gray pickup truck, though Bill Teal's truc k is a darker color g ray and, Mr. Teal thought, did not have red de tailing. Mr. Teal believed the investigating officers suspected him of the crimes at first, though he was nev er asked if he had seen any of the p roperty.

Charlotte Teal, the defendant's mother, testified she bought her son
an Apple computer 12 or 13 year s ago and paid $300 to $400 for it. She paid cash and did not think she retained a rec eipt. Additionally, s he recalled that her son broughthome a hope chest a few months before the burglary of the Johns on home. Her son bought this hope

chest in Knoxvill e, where he was w orking at the time. It had drawers that pulled out, although it had a flowered top which did not lift up. The dr awers had round knobs, rather than handl es on them. Mrs. Teal admitted sh e did not know where either the computer or the hope chest was on the day of trial.

The defendant's father, Winfred Teal, testified he was ho me on October 3. He sa id Holdaway spent the previous night in the Teal home. That7

morning, Bill Teal left the home about 10:30 t o go to an appointment in Tullahoma. He returned about 12:00. Holdaway r emained at the Teal house while Bill Teal was g one. Bill Teal and Holdaway decided to go to McMinnv ille that afternoon, and Win fred Teal helped Bill load a four-drawer chest and Apple computer into Bill's truck. According to Winfred Teal, the computer had been a gift Bill receive

d from his mother when he was 10 or 11 years old. Winfred Teal did not know how much moneyhis wife had paid for the computer. The chest, w hich Winfred Teal testified had dr op-down pulls rather than round knobs, had been purchased by Bill Teal while hewas working in Knoxville and had been in the Teal home for two t o three months. Winfred Teal a ssumed his s on was taking these items to his girlfriend's home in McMinnville. Bill Teal and Holdaway le ft the Teal home around 2:00 or 2:15 p.m. Finally, Winfred Teal said he had no photographs of Bill Teal receiving the computer at Christmas, and he d id not know where the computer and hope chest were on the day of trial.

With this evidence in hand, the j ury found the defendant guilty of aggravated burgl ary and theft of property v alued at over $1,000.

At the sentencing hearing, the defendant's parole officer, Debo ra h Riddle , testifie d for the state. She confirmed that the d efendant met with her between 11:00 and 11:30 a .m. on the day of the crimes. He w as under her supervision for three M arion County convic tions for aggravated r

obbery. Prior to
trial, Ms. Riddle filed a vi olation report on the defenda nt b ecause he had been terminated from his job. She had previouslywarned him not to get fir ed again after he ha d been fired from a previous job. S he confirmed the firing by s peaking with Vickie Gilley

of Gilley Constructi on Company. Further, she r eported, he had tested positive f or mari juana on two occasions after he was charged with the instant4 The presentence report reflects that there are actually three convictions

of aggrava ted robb ery, two fro m Marion Co unty and o ne from Rutherf ord Count y. 8 offenses. The defendant reported being arres ted for burglary and

told her he had receipts for the items whi ch were found in the back of his truck.

Laura Prosser, who prepared the p re sentence report on the defen dant, te stified Teal had a juvenile adj udication for grand larceny, in addition to convictions for public intoxication and "indictments" for three cou nts o f aggravatedrobbery, all with different dates and victims. 4 She further testified that the defendant had been fired from two jobs and worked for his father for a time.

The presentence report filed by the sta te also reflects that the defendant quit school in the tenth g rade but obtained his G.E.D. certif icate while incarcerated in the Department of Correction. He received su bs tance abuse treatmentin late 1995, a few months prior to the trial and

the sentencin g hearing. The "family information" sect ion of the report indicated several adult family members livin g in the community. A vi ctim impact statement attached to the presentence report reflected that seve ral family mementos whic h could not be replaced were taken from Dr. Johns on, and he had been deprived of the opportunity to hand these heirlooms down to his children. In addition to the fa mily items which had no monetary value, Dr. Johnson had not received r eimbursementfor $240 of the loss fr

om his insurance company. F urther, the Johnson home had been vandalize d during th e burglary.

The defendant presented the testimony of his wife, Mary Teal, at th e sentencing hearing. S he is a stude nt at Motlow State Comm unity Colle ge and would like to ha ve the defendant ho me with her and her tw o children of a previous marriage, who consider the defendant to be their father. The defendant has liv ed9

up to his family obligati ons, tho ug h he would be better able to do so outside of prison where he could work to support his family. Mrs. Teal would encourage him to receive alcohol or other treatment, as would hi s parents. She related that her husband had completed an anger control class in prison and was cur rently taking drug and alcohol classes.

Vickie Gilley, the manager and owner of Gilley Constructi on Compa ny, testified the defendant had worked for her on several occasions. She did not have any problems with his w

ork an d did not r ecall having fired hi m. She admitted
someone else, possibly the defendant's brother, may have fire d the defendant, although she could not remember.

The trial court found the defendant a Range II o ffender. After consideringthe enhancement and mitigating factors, it sentenced thedefendant to maximum sentences of ten years and eight y ears for aggravated bur glary andtheft of property

over $1,000, respectiv ely. The court also set the fines at $10,000 and $5,000, respecti vely.

I

Teal's first challenge is to the sufficiency of the convi cting evidence. When an accused challenges the suffici ency of the evidence, an appellate court’s st andard of review

is whether, after consi dering the evidence i n the light mo s t favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Vi r ginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979) ; S tate v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to find ings of guilt based upon direct evide nce, circumstantial evidenc e, or a combination of direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim

. App.10

1990).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevaluate the evi denc e. State v . Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses, the weight and value of the evidence , as well a s all factual issues rais ed by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298 , 305, 28 6 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn . Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

Moreover, a crimina l offe nse may be established ex clusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an accus ed may be

convic ted of a
cr iminal offense based upon circumstantial evidence a lone, the facts an d circumstances

"must be so strong and cogent as to ex clude every other

reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In oth er wor ds, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw no other reasonable inference sav e the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

Aggravatedburglary

is commi tted w hen "[a] person . . . without the11

effect ive consentof the property owner: ( 1) Enters [a habitation] .. . with the intent to commit a felony, theft or assault [or] . . . (3) Enters [a habitation] and commit s or attempts to commit a felony, theft or assault ." Tenn. Code Ann. § 39-14-402 to -403 (1997). Thef t of property is committed where "[a] per son . . . with the intent to deprive the owner of property . . . knowin gly obtains or exercises contr

ol over the property without the owner's e ff ective consent." Tenn. Code Ann. § 39-14-103 (1997).

Teal's challenge to the sufficiency of the evidence as to these crimes is primarily an argu men t of wit ness cred ibility. He claims th e jury shou ld have rejected the unreliable testimony of Alter in favor of that of H oldaway, Winfred Teal and William Teal, Holdaway having maintained the def endant's inno cence and Winfred and William Teal being respected members of th e co mmunity whose testimony

the defendant interprets as exculpatory. As noted above, it is not the duty of this court to revis it questions of witness credibility on appeal, that function being the province of the

trier of fact. We decline the defendant's invitation to overturn his convictions

by making a different choice than the jury made about whose testimony the jury should have ac credited.
Moreover, we find the defendant's convictions t o be well-supported by the evidence of record when it is consideredin the light most favorab le to the state. The defendant wasseen driving a truck erratically wi th the victim's stolen property in the back. The truck matched the description of the truck two neighbors sa w leaving the victim's ho me loaded with the stolen goods. The traffic stop occurred
a short time after the neighbors saw the truck leav ing the victim's home. It has long been the law in this state that proofof the possession of recently stolen goods, if not satisfactorily explained, gives rise toth e inference that the possessor has stolen them, Bush v. State , 541 S.W.2d 391 (Tenn. 1976 ); State v. Land , 681 S.W.2d12

589, 591 (Tenn. Crim. App. 1984), an d has committed theburglary antecedent to the theft. State v. Hamilton , 628 S.W.2d 742, 746 (Ten n. Crim. App. 1981) (citationsomitted). In this case, the jury was certainly w ithin itsprovince in rejecti ng the defendant 's evidence that the property was the victim's, not his. The state's evidence also included the fact the defendant behav ed nervously when s

topped by
a sheriff's deputy for a traffic v iolation, as well as his admis sion of the burglary and theft to Cindy Alter. A r

ational jury, as the

jury in this case, could have ac cepted the state's evidence, rather than the defen dant's evidence, determined it w ove a web of guilt unerringly

around th e defenda nt, and found him guilty of agg ravated burglary and theft of property beyond a reasonable doubt . Acco rding ly, the evidence is sufficient to support the convictions.

II Next, the defendant contends the trial cour t erred in imposing maximum sentences and fines for his crimes. In deter mining whether the

trial court has properly sentenced an ind ividual, this court engagesin a de novo review of the record with a presumption the tr ial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1990). This pres umption is "condi tioned u pon the a ffirma tive showing in the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91). In conducting our de novo review, we must consider the ev idence a t sent encing, the presentence report, the sentencing principles, the arguments o f counsel, the statements of the defendant, the nature and c haracteristi cs of the offense, any mitigating and enh ancement factors, and the defendant’s amenabil ity to rehabilitation. Tenn. Code Ann.§§ 40-35-210(b), 40-35-103( 5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellan t has the burden of showing the
sen tence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentenci ng Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.5 The defendant has conceded in his brief that our review should

be de novo with the presumption of correctness. 13 Our revie w of t he record leads us to conclude that the trial court complied with its statutory obligations, and as such,its determination is afforded the presumption of correctness. 5

The record of the sentencing hear ing and the court's order reflect that the court fo und the p resence of both enh ancement and mitigating factors . The enhancement factors were (1) The defendant has a previous histor y of crimina l convictions or criminal behavior in addition to those necessary to establ ish the appropriate range . . . ( 2) The defen dant wa s a leade r in the

commiss ion of an offens e involving two (2) or more criminal actors

. . . (8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community

. . . (13)(B) The felony was committed while on . . . [p]arole. Tenn. Code Ann. § 40-35-113 (1997). The mitigating factors were the defendant's criminal conduct neither c aused no r threate ned serio us bodily i njury, the defendant
was supp orting his family, was a long-time resident of Coffee County, has strong family ties, has a supportive family, and has obtained a G.E.D. while incarcerated. Tenn. Code Ann. § 40-35-114(1), ( 13) (1997). In addition to th e mitigatin g and enhancementfactors, the court announced in its sentenci ng order b ut not on the record at the sentencing hearing that one of the "prime considerations" i n imposing maximum sentences was "the multitude of daylight bur glary offenses

which occur in unpop ula ted areas of Coffee County of which this Court may take judi cial knowledge."

The defendant does not challenge t h e specific enhancement and mitigatingfactors relied on by the t rial court. Rather, he argues the court erred first6 Further, the defendant, a Range II off ender, was not presumptively

entitled to an alternativ e sentence. Tenn. Code Ann. § 40-35-1 02(6) (1997).

14 in taking sua sponte judicial notice of the day light burglar

y problem in Coffee County, and second in imposing a maximum sentence despite a finding of mitigating factors.

In considering the particular crime problem in the county, the court
was essentia lly conside ring the ne ed for gen eral dete rrence with in the com munity. See Tenn. Code Ann. § 40-35-103(1)(B ) (1997). The need forgeneral deterrence is not an enhancement factor which may be considered in lengthening a sentence,
see Tenn. Code Ann. § 40-35-114 (1997), though it is a factor to beconsidered in determining whethe r the def e ndant sh ould receive alternati ve sentencing. See Tenn. Code Ann. § 40-35-103(1)(B) (1997); State v. Hartley , 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). In o rder for the court to consider the need for general deterrence, however, there must be some actual proof su pporti ng it the record. See, e.g. , State v. William Mitchel l , No. 03C01-9411-CR-00418, slip op. at 5-6 (Tenn. Crim. App., Knoxvil le, July 24, 1995); State v. Ernest Myers, Jr. , No. 03C01- 9404-CR-00162, slip op. at 7-8 (Tenn. Crim. App., Knoxville, Feb. 7, 1995), perm. app. denied (Tenn. 1995); State v. David Edward Tiffin, Jr. , No. 01C01-9308-CR00254, slip op. at 6 -7 (Tenn. Cr im. App., Nashville, M ay 5, 1994); Hartley , 818 S.W.2d at 375. As such, the co urt should not have considered this factor in sentencing the defendant. 6

The questions which remain are whether the defendant's sentence is improper given the trial court's impertinent consi deration of general deterrenc e and the imposition of a ma

ximum sentence in the pr esence o

f m itiga ti ngfa ctor

s. We begin our inqui ry by noting that, contrary to the defendant's ass ertion, we do not view the court's statement of the need for general deterrence as r eflecting solely on7 The facts which fit under factor ( 13) are that the defendant was

supporting his family, was a long-time res ident of Coffee County, has strong family ties, has a supporti ve family, and obtained a G.E. D. while incarcer ated. See Tenn. Code Ann. § 40-35-114(13) (1997). 15 the length of the sentence, t hough we believe the c ourt may have considere d deterrence to some extent in determining the

defendant should receive a max imum sentence.

As such, the issue becomes whether the le ngth of t he defendant's sentence is justified given the enhancement and mitigating fact ors app licable to him. Contrary to the defendant 's argument, he is not entitled to less than a maximum sentence simply because the court found mitigating factor s existed. In State v. Boggs , 932 S.W.2d 467 (Tenn. Crim. App.), perm. a pp. den ied (Tenn. 1996), this court held that a max imum sentence may be justified eve n in the presence of mitigating ev idence. There we noted, The appella nt's se ntence is not determined by the mathematical pro ce ss of adding the sum total of enhancing factors present then subtracti ng from this figure the mitiga ting factors present for a net number of years. Rather, the w eight to be afforded an existin g factor is left to the trial court's discretion so long as the court complies with the purposes and p ri nciples of the 1989 Sentencing Ac t and its findings are adequately supported by the record. Boggs , 932 S.W.2d at 475-76 (citations omitted); see State v. Franklin , 919 S.W.2d 362 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996). Thus, the trial court may, in making its sentenc ing deter minatio n, give the mitigating factor(s ) only slight weight in comparison with the enhancement factors and arri ve at a ma ximum sentence.

In the case at bar, the re cord explicitly re flects t hat the c ourt gave mitigatingfactor (13) slight w eight 7 and impli citly refl ects that the court gave mitigatingfactor (1) little weight in comparison to the gre at we ight given the enhancementfactors . As such, t his is not a case wh erein we may interpose our8 The transcript of the sentencing hearing does not reflect that deterrence

was considered by the

trial court in settin g the sentences. The reference to deterrence appears in a sentenc ing order subsequently entered by the court and could plausibly be v

iewed as surplusage.
9 Th e r ecor d d oe s n ot

refl ec t a n o rd er

ap po in ti ngco un se l p ri or to tria l. We therefore presume the defendant did not cl aim or was not found to be indigent prior to trial and retained his trial counsel through his own means or those available to him. 16 judgmentin place of the trial c ourt’s, e ven if we might prefer a different result. State
v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Althoug h the trial court mayhave deviatedfrom the statute and considered a non- statutory enhancement factor, we find that the record supports the lower court’s sentences, apart from the non-qualifying

factor of deterrence , 8 espec ially in view of the defendant’s prior criminal history. Accordingly, w e will not disturb the sentences imposed by the tr ial court.

The final iss ue is whet her the defendant was excessively fined. He urges that the trial

court should have waived the fines because he is indigent. He cites no authority in support of his a rg ument, and in support of his indigency he refers us to an order entered sev eral months after the sentenc in g hearing which finds him indigent for pu rpos es of appointing appellate counsel. 9 Though the defendant has waived the issu e by failing to cite authority in his bri ef, see Tenn. R. App. P. 27(a)(7); Tenn. R. Ct.Crim. App. 10(b), we find the issue nevertheless without merit.

In reviewing fines imposed in conjunction with s entencing, we look to “the amount of the fine, the defendant’s ability to pay that fine, and other factors of judgmentinvolvedin setting the total sentence.” State v. Bryant , 805 S.W.2d 762, 766 (Tenn. 1991). Although the defendant’ s ability to pay a fine is not necessarily
a controllingfactor, an oppressive fine can disrupt future rehabilitation and prevent17

a defend ant from becomin g a produc tive memb er of soc iety. State v. Marshall , 870 S.W.2d 532, 542 (Tenn . Crim. App.1993). A si gnificant fi ne is not auto ma tica lly precluded, however, simply because it works a sub stantial hardship on the defendant. Marshall , 870 S.W.2d at 542.

In this case, the jury or

dered and the court imposed fines of $10,000 foraggravated bur

gla ry and $5,000 for theft. Both are the maximum allowed for these offenses. See Tenn. Code Ann. § 40-35-111(b)(3 ), (4) (1997).

While the defendant may well be indi gent, ther e is no indication he
was indigent at the time the cour t imposed the fines. Further, the recor d reflects he i s physically able to work, although it will be impossible for him to work in a jo b whi ch will p ay "street wages" w hile he is incarcerated in the Department of Correction. In addition, he has a wi fe and step-children who rely on him for support. These facts indic ate a large fine may impede the defendant's rehabilitation. Further, the defend ant has made some effort toward productive living since returning to the Department of Correction by enroll ing in self-help classe s and competing his G.E. D. On the other hand, the defendant's p rospects for rehabilitation are di minished by his history of theft-related convictions and his considerable experience with the law despite his relative ly young age of 23 at the time of sente ncing.

The case before us presents anextremely close q uestion; however, in view of the pr

esumpti on of corr ectness afford ed the tri al court' s judgmen t, we cannot say the court erred in imposing these fines.

The judgment of the trial court i s affirmed.18 _______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE