1 The de fendant was trie d separate ly from his co-d efendants, Lo uisa Mar tin and Da ryel Huey.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 2000 SESSION
STATE OF TENNESSEE v. BARRY WATERS ROGERS
Direct Appeal from the Circuit Court for Giles County

No. 7677 Robert L. Jones, Judge

No. M1999-01358-CCA-R3-CD - Filed September 15, 2000

The defendant, Barry Waters Rogers, was indicted for arson, conspiracy to commit arson, and vandalism. The jury ac

quitted the defen

dant on the charg

e of conspiracy

to commi t a rson but, on the arson charge, returned a guilty ve rdict on the lesser included offense of facilitatio n of arson. Although the jury also returned a guilty verdict for facilitation of

vandalism, the trial court later set that aside. The trial court imposed a Range I sentence of three and one-half years in the Department of Correction, with probation to be granted after the fi rst year of ser vice. In this appeal of right, the defend ant challenges the sufficiency of the evidence and complains that he was improper l y sentenced. We find no error and affirm the judgment of the trial court.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.

G ARY R

. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined. Hershell D. Kog

er, Pulaski, Tenne

ssee, for the app

ellant, Barry

Waters Rogers.

Paul G. S ummers, Attorney General & Repo

rter, David H. F

indley, Assis

tant Attorney

General, Mike Bottoms, District Attorney General, and Robert C. Sanders and Richar d H. Dunava nt, Assistant District Attorneys General, for the appellee, State of Tennessee

.

OPINION

At approximately 8:30

P.M. on October 15, 1995, Corporal Randy King of the Pulaski Police Department

discovered a fire in a dental office owned by Dr. E dwardSisk. He saw a truck parked approximately

15 feet from thebuildin g. After contacting the fire department, Corporal King identified the defendant 1 as the single occupant of the truck. He also noticed another individual who appeared to be hiding near the building. The individual fled the area on foot and got into a waiting
car which sped away from the scene. Because the defendant had been drinking, he was placed under2 Portions of the record refer to Ms. Martin as Louisa, Loulisa, or Lisa Martin. The record refers to bot h Daryel Huey and Daryel H ooie.
-2- arrest for public intoxication.

About 10 minutes after the fire department arrived, Of ficer Melissa Thomas noticed what appeared to be a slight amount of

gasoline in the bed of the defendant's truck. She swabbed the liquid with gauze so it could be analyzed. Jerry Dickey, an arson investigator with the Department of Commerce andInsurance, was notified of the fire while he was at his residence in Columbi a. When he arrived at the scene, Investigator

Dickey fou

nd a melted plastic

jug, a piece of

cloth, some

strips of masking tape, and a hatchet at the fire's point of origin. He also detected the odor of gasoline emanating from the plastic jug. Investigator Dickey, who was a ssisted by a trained canine, found the remain s of som e vi nyl window blinds outside of the burned building. When he inspected the defendant's truck, Investigator Dickey discovered a pla

stic lid which smelled like gasoline and appeared to fit a plastic jug like the
one found inside the bu

rned dental offi

ce. He also found

a partial roll of t

he same type of masking tape found inside the dental office. It was his opinion that the plastic jug, the towel, and gasoline hadbeen fashioned i

nto a Mo lotov cocktail and that the hatchet, which had been taped to the container, was used as a weight to break the window.

Officer John Dickey of the Pulaski P olice Departmen t interviewed the

defendant immedi

ate l y following his arrest. When first questioned, the defendant denied any knowledge of or involvement in the fire. When Officer Dickey found the bl ack plastic container lid on the dashboard of the defendant's truck and learne d of the tape and th

e me lted c ontainer, he chose to interview the defendant a second time. In that

interview, on the day following the fire, the defendant stated that he had met other individuals in a parking lot, purchased some gasoline, and set fire to the dental office. The def

endant specific

ally identif

ied Fred Simmons as

one of the partic

ipants.
Later, when Officer Dickey could not locate anyone named Fred Simmons, he interviewed the defendant a th

ird ti me. As he did so, Officer Dickey advised the defendant that he w as aware that the defendant ha

d been with Dary

el Huey and

Louisa Martin

. 2 The defen dant then acknowledged

that the co-defendants, Martin and Huey, had been with the def endant drinking, talking, and driving on theday of the f ire when Ms. Martin remarked that her dentist, Dr. Sisk, had refused to provide her with adequate pain medication for her teeth. The defendant stated that Huey wantedto retaliate in some way and that the three bought some gasoline and placed it i n a plastic container. The defendant, accompanied by Huey , then drove his truck to Dr. Sisk's office. Ms. Martin followe d in her car. Th e defendant stated that Huey used tape to attach the hatchet to the plasticcontainer. The defendant contended that when he became aware of H uey's intent to burn

the office building, he warned hi m not to do so and did n ot believe that he wou ld actuall y follow throu gh withthe threat. He recalled that Huey, as he left the truck, dir ected the defendant to drive away. The defendant stated that he observed Huey walking towards the dental office and, moments later, saw flames. He remembered "seeing a car take off throug h the four-way stop . . . but couldn't tell if it was-3-

Louisa's." By that time, he was being quest ioned by Corpo ral King.

Mark Bender, a crim

inal investigato

r with the Burea

u of Alcohol, Toba

cco & Firear

ms, assisted in the interrogation of the defendant. Investigator Be nder confirmed that the defendan t swore to his second statement wherein he claimed that someone by the name o f Fred Simmo ns committed the crime.
John McOwen, a forensic chemist, determined that the window blind found outside of the building contained gaso

line, as did the re

mains of th

e towel and plastic c

ontainer wrappe

d with masking tape. He further dete rmined that both the

gauze used to col

lect the liquid foun

d in the bed of the defendant's pickup truck and the black plastic lid found in the truck contained gasoline.

The defendant's mo

ther, Josephine Rog

ers, testifie

d for the state. She stated that between two andthree hours before the fire, she saw the defendant with Huey and Mar tin. Ms. Rogers had returned from a walk and saw the defendant drive away from her residence

. She testified that she "almost went berserk be

cause he had detached fr

om them about six months b efore that." O

n crossexamination, Ms. Rogers explained thatthe defendant had broken off his relationship with the codefendants,

implying that they had

been a bad influence. The night of the fire, she said, w

as his first contact with them in months.

Dr. Edward Sisk did not know the defendant. At trial, he testified that there had been approximately $40,000.00 in damage to his building and $120,000 in damage to thecontents. He testified that Ms. Martin hadbeen a patient at one time and had asked for pain medication which he thought was not warranted. Dr. Sisk testified that she was upset as a result of the conversation and that he had "let her go . . . asa patient." He also recalle d that Huey h

ad called to compl

ain about his failure to prescribe pain medication for Ms. Martin. Dr. Sisk described Hue y' s demeanor as "l ess than desirable." Dr. Sis k al so r ecal led rece ivi ng a p hon e me ssa ge fr om C arol yn Curry, Ms. Mart in's mother, who said, "If you do not give Lisa six or eight Loratab 7.5, I'm going to call a lawyer."

The defendant testified on his own behalf. He recal led that the co-defendants, Huey and Martin, had come by his residence at approximately 5:30 P.M. on the day

of the fire and that he had gone fora drive with them. They had been drinking both beer and whiskey before Marti n complainedabout Dr. Sisk's failure to prescribe more pain medication for her teeth. The defendant recalled that Martin, who hadbeen having pa in due todental problems, remark ed about Dr. Sisk, "I think they ought to suffer like we do." Eventually , the three returned to the defendant's residence. The defendant drove

Huey to a convenience market. Martin followed in her vehicle. Huey returned withan antifreeze container and asked the defendant to drive down the alley behind Dr. Sisk's office. The defendant claimed that he did not know what Huey had planned and that Huey told him to leave when he go t ou t of the tru ck. The defe nda nt c ont end ed t hat nei the r Hu ey n or M artin had ever mentioned burning Dr. Sisk's office. Forty-four

years old and single, the defendant stated that he had never been

married and had
no children. The defendant testified that he h ad no prior criminal record and had lived in Giles-4-

County his entire life except for five years he spent in Kn oxvi lle working at the University of Tennessee in preventive maintenance. At the time of the fire, the defendant had been employed for
over five years as a forklift operator at the Sun Drop Bottling Company

. Prior to that,

he had worked at a furniture store for 12 years.

The defendant conceded that the rag, the tape, and the ha tchet u sed to make the Molotov cocktail were alr eady in his t

ruck. He claimed that while he knew that Huey planned to do something, he did not know specifically what it was.

Init ial ly, the defendant claims that the evidence, which was entirely circumstantial from his perspective, was insufficient to support the conv

iction. He maintai

ns that the state fa

iled to prove that he was aware that his co-defendants intended to c omm it the crime of arson and that he had knowingly furnished substantial assistance.
Tenn. Code Ann. § 39

-11-403 defines

facilitation of a

felony as f

ollows:
Criminal responsibility for facilitation of felony. –(a) A person is criminally

responsible for

the facilitation of a felony if, knowing that
ano ther intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly

furnishes substantial assistance in the commission of the fel ony. (b) The facilitation of the commission of a felony is an offense of the class next below the felony facilitated by the per son so charged.

Arson of any structure other than a place of worship is a Class C felony. Tenn. Code Ann. § 39-14- 301(b)(1).

Whether the evidence is direct or circumstantial, or a combination of both, the same rules app ly. State v. Matthews , 805 S.W.2d 776 (Tenn. Crim. App. 1990). A crimina l offense may be establishedexclusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 237, 241 (Tenn. 1973). A guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and resolves all

conflicts in

the proof in favor of the state's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is entitled to the strongest legitimate view of the evidence, and a

ll reasonable inf

erences which m

ay be draw

n therefrom. State v. Cabbage , 571 S. W.2d 832, 835 (Tenn. 1978). A verdict against the defendant removes the presumption o f innocence and raises a presumptionof guilt upo n appeal. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). Findings of guilt in criminal actions will not be set aside unless the evidence is insufficient to support the finding by the trier of fact of guilt bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini

a , 443 U.S. 307 (1979).

The proof established

that the defendant was present while Huey, having expressed an intent to retaliate against Dr. Sisk, concocted a M oloto v cocktail. The defendant transported Huey to a-5-

conveniencemarket, where he purchased the gasoline and placed it in a plastic container. The tape
an d hat chet, which were necessar y to construct the Moloto v cocktail , came from t he defendant 's truck. The defendant drov e Huey to the dental office and was parked only a few fe et away when flames could be seen com ing from the buildin g. The statement that the defendant made to police conflictedwith his claim at trial that he was un aware t hat Hu ey inte nded t o burn the bu ildi ng. In our view, a rational trier of fact could have found the e ssential elements of facilitation of arson. That is , a rational trier of fact could have found that the defendant was aware that Hu ey intended to commit arson and the defendant knowingly furnished substantial assistance in the crime.
Next, the defendant

complains that the three- and-one-half-year sentenc e is excessive, based upon the applicable r

ange of betwe

en two and four y

ears, and that he was entitled to an alternative sentence. He specifically submits that the state failed to overcome his presumptive favorability and that the trial court should have granted immediate probation rather than ordering a sen

tence of split confinement.

When there i s a challenge to the length, range, or manner of service of 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 presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all 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 applies ina

ppropriate fac

tors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctn ess falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review require

s an analysi

s of (1) the eviden

ce, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sen tencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics 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 . Cod e Ann. §§ 40-35-102, -103, -210; Statev. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial court made adequate findings of fact.

In calculating the

sentence for a C

lass B, C, D, or E fe

lony convic

tion, the presump

tiv e sentence is the minimum in the range if there are no enhancement or mitigating fac tors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-2 10( d). A sentence involving both enhancement and mitigating factors requires an assignmen t o f relative weight for the enhancement factors as a means of increasing the sentence

. Tenn. Code Ann. § 40-35- 210(e). The sentence must thenbe reduced within the range by any weight assigned

to the mitigating factors present. Id.

In determining the length of the sentence, the trial court foundthree applicable enhancement-6-

factors as set out in Tenn. Code Ann. § 40-35-114:

(6) That

the amount of damag

e to property

was particularl

y great; (9) That

t he defendant possessed an explosive device in the commission of the offense; and
(10) That

the defendant had no hesitation about committing the crime when the risk to human life was high.

The trial court pointe

d out the magnitude

of the financial

loss incurred

by Dr. Sisk, emphasized that the Molotov cocktail was constructed in the defendant's truck, and noted that the dental office was loc atedin a row of building s that shared adja

cent walls and wa

s near several p

rivate resid

ences , which were at risk if the fire had spread.

The trial court also determined that there were three applicable factors in mitigation as set out in Tenn. Code An

n. § 40-35-113: (9) The defendant assisted the authorities in uncovering offenses committed by other pe

rsons o r in d etecting or apprehending other persons who

had committed the o

ffenses; (10) The defendant assist e d th e authorities in locating or recoveringany property or person involved in the crime; and
(13) The defendant had no prior criminal record.

Because the trial court assigned little weight to (9) and (10) o f the mitigating f actors, it determinedthat the enhancement factors outweighed the factors in mitigation and that the defendant merited"a s entence towa rd the high end of

the range." I

n imposing sentenc

e, the trial cour

t also observed that the defendant had no t held regular employment for more than a y ear and had not been employed at all for a period of eight months between trial and the imposition of sentence. The trial court placed special empha si s on the seriousness of the offense and concluded that the length and the manner of the term was consistent with the principles of the sentencing legislation.

At the time of the sentencing hearing, the defendant was hopeful that he would rece ive a fulltime job at R ich lan d St eel . He agre ed t o se rve a s a w itn ess for the sta te i n th e tr ial of H uey a n d expressed remorse for t he damage and suffering caused Dr. Sisk. The defendant argues that the trial court misapplied enhanc

ement factor (6

), that the amount o

f damage to pro

perty was particularly great; misapplied

factor (9) because an explosive device was inherent in the offense of arson; and misapplied enhancement factor (10), a considerable risk to property and human life, because the fire did not spread and no one's life was threatened. The defendant also argues that sever al additional mitigating factors should apply, citing in particular Tenn. Code Ann. § 39-15-113(1), (2), (3), (4),-7-

(11), and (12), as well

as several other circumstances which would fall within the general categor y authorized in factor (13).

The defendant also c

omplains that the tr

ial court denied p

robation becaus

e of the seriousnes s of the offense and the necessity to prevent crime and promote re spect for the law. He points outthat there was no ev idence of d eterrence and argues that he

should have been g

ranted immediate probation.

In our view, the trial court correctly applied each enhanc ement factor. None

were elements of the crime. The damage to property was particularly great. There was risk of damage to the adjoining property and, possibly, nearby residences. I

n classifyin

g the damage a

s particularly

great, the trial court merely mentioned that if arson was graded by

the level of loss, a

s are other prope

rty crimes, the conviction here, a Class D felony, would have qualified as a Class B felony. There was nothing impr oper about that. Possession of an explosive was not an element of the crime of facilitation of arson and, thus, was pro perly applied as an enhancement factor. Factor (10) may be appliedwhen persons other than the victim are nearby and mi ght be subjected to injury. State v. Sims , 909 S.W.2d 46 (Tenn. Crim. App. 1995). This court has specifically found factor (10) applicable

in arson cases be

cause of the dan

ger to fire fighters, law enforcement officers, and others at the scene. See State v. Aaron Eck ard , No. 01C01-9610-CC-00429 (Tenn. Crim. App., at Nashville, Dec. 12, 1997); State v. Ronald D. B lair , No. 01C01-9406-CR-00191 (Tenn. Crim. App., at Nashville, Dec. 22, 1994).

In our view, the trial court also properly rejected Tenn. Code Ann. § 40-35-113(1), that the defendant's conduct neither caused nor threatened serious bo dily injury. The d efendant's claims that mitigating factors (2), (3), (4), (11), a nd ( 12) apply is based upon his contention that he was intoxicated and mere ly acquiescing to the desires of his friends. There was, however, simply no proof that the defendant acted under strong provocation, that

grounds existed te

nding to excuse his conduct, or that hisrole, although p erhaps less culpa

ble than Huey

's, was minor. The circumstances of the offense wer

e not sounusual as to prec lude a sustained in

tent on the part of

the defendant to violate the law; in fact, the necessary preparations for the crime required some amount of time. The defendant hadample opportunity to reconsider his participation. Furthermore, there was no proof that the defendant merely acted under duress or under the domination of Huey or Martin.

Fin all y, while acceptance of responsibility and the expression of

remorse may

be a solid basis for a successful rehabilitation, there is no requirement that either be included among the mitigating factors s et out in the catch all provision of Te

nn. Code Ann. § 40-3 5-113(13). The c laim that th e defendant's work history

should be a miti

gati ng consideration is also in question. While the trial court has the discretio

n to consid

er a solid w ork history as a mitigating circumstance, it is not required to do so, especially, as in this case, where the defendant has not worked f or over a year since committing the crime. The tr ial court, in our a

ssessment, acted within it s authorit y in imposing a three-year, six-month sentence when the maximum possible was four y ears.
It is our vie w that the trial co urt also acted wit

hin its authority

in denying

immediate-8-

probation. While granting a prob ati onary sentence after the service of one y ear, the trial court deemed immediate probation as inappropriate due to the seriousn

ess of the crimina

l act. There was substantial damage to the dental office and a grant of immediate probation might have depreciated the egregiousnes s of the def endant's level of participation. By finding the defe ndant guilty of facilitation of arson rather than arson, the jury affor ded some degree of leniency. I

t was, therefore, appropriate to deny immediate probation due to the nature and circumstance s of the crime. Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE