### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 7, 200 6

STA TE OF TEN NES SEE v. CH AR LES IV ORY SM ITH

Appeal f romthe Circ uit Court for Madison Cou nty No. 05-118 Roy B. Mor gan, Jr., Judge

No. W2005-01959-C CA-R 3-CD - F iled April 21, 2006

A Madison County

Circuit Court jury

convicted the defe ndant, Charles I vory Smit h, of burg lary

and evading arr est. The trial court imposed a twelve- y ear sentenc e for burg lary and an eleve n-month and twenty -nine-day

sentenc e for

evading ar re s t an d order ed the de fenda nt to serve the se ntence s

consec utively

as a c are er offende r i n the Department of Correc tion. The defenda nt asserts that the evidenc e wa s insufficient to support his convictions and that the tria l co u rt err ed in orde ring

consec utive sentenc es. We aff irm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , J
., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Geo rge Morton Goog e, District Public Def ender ; J oseph T. Howe ll and Chris R. W hittaker, Assistant Publ ic Def

ender s, for the a

ppellant, Charles I vory

Smit h.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; C. D a nie l Lins, Assis ta nt A tto rn e y Ge ne ra l; J ames G. Woodall, District Attorney Gene ral; and Jody

S. Pi ckens, A ssistant Di s t rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case rela tes to the defe ndant’s unlawf ul entry into a buil ding at Dudley ’s Recy cling . A Madison Countyg rand jury indicted the def

endant f o r burg lary , theft of pr operty under $500, a nd evading arr est, but the defe ndant was a cquitted of thef t. At the trial, J ackson Police Offic er Shane Ric ha rd s te sti fi e d th a t he wa s th e c hie f p ilo t of the a viatio n u nit

fo r the Jac ks on Pol ic e De pa rt me nt. He sa id that he flew a helicopte r known a s Air One f or the police department and that the helicopter was equipped with a thermal infrar ed camera and a spotlig ht, which allowed him to see at nig ht. He

sa id h e fl e w the he lic op te r w hil e a no the r o ff ic e r o pe rate d th e c a me ra

sy ste m.

Offic er Richa

rds testified that on Nove mber 20, 2004, at approximately 10:00 p.m., he was on patrol in the helicopte r and r ece ived a c all to Dudley ’s Recy cling beca use the sec urity

alarm had-2-

be e n a c tiv a te d. He sa id the y we re able to g e t to Du dle y ’s Re c y c lin g wi thi n two to t wo a ndon e -h a lf minutes. He said that whe n they arrived at the scene , they conducte d a thermal imag ery sear ch of the property

. He said that they did not detec t any movement on the first orbit around the perimete r but that on the second or

bit, they saw the defendant leaving the bui lding. He sa id that when he sa w the defe ndant, he told Ser g eant Phill ip Stanf ill to press the re cord button on the c amer a. He said the de fe nd ant wal ked acro ss the pa rking lot a ndsli d th ro ug h th e fe nc e wh e re the g a te s w e re he ld toge ther by

a cha in. He said the defe ndant beg an running east along the ra ilroad trac ks. He said he notified Off

icer Chris King, a

responding office r, of the de fenda nt ’s l o cation. He said it then appea red the defe ndant was holding something or had picked something up. H e said he was ke eping his distance fr om the defe ndant while trying to ke ep him contained until more of fice rs could re sp ond. He sa id he was a

ble to see the defe ndant from two or three miles away

with the came ra.

Offic er Richa

rds testified that ra ilroad boxcars we re parke d on the railroad trac ks and that the defe ndant went underne ath the car s. He sa id they could see the def

endant looking at them in the helicopter . He sa id the defe ndant continued g oing e ast underne ath the ca rs. He sa id the defe ndant left the ra ilroad trac ks and walked down the middle of Va nce Stre et. He sa id he was dire cting the responding office rs to the ar ea of the def endant’ s location. He sa id that t h e re s p o n ding of fice rs drove ma rked police car s and that appr ox imately eleve n or twelve office rs responde d. He sa id that when some of

the offic ers be g an to ar

rive in the a

rea , t h e defenda nt beg an to run, “ zig-zag g ed”

acr oss three or

four ba cky ards, dodg ed a f ew d og s, and hid behind one of the houses. He said he noti f ie d O f f ic e r D a n ie ll e Jo n e s th a t th e d e f e n d a n t w a s to h e r im me d iate r ig h t b u t that as she approa ched him, the de fenda nt ran we st to a house on L en o i r S t re et . He sa id that he saw the defe ndant on the porc h of the house and t h at t he def endant disappe are d from view. H e said he notified offic ers that the defe ndant was either in the hous e or underneath it. He said that they circ led the re sidence while offic ers surr ounded the house but that they had to leave beca

use the he licopter’s fuel leve l was low.

On cr oss-examination, Office r Richar ds acknow ledg ed that he c ould not recog nize the individual who left the building beca use he saw only

the heat image from the infr are d came ra. H e

a c kn ow le dg e d th e vid e o s ho we d th e de fendan t wa lki ng a lon g the bu ild ing bu t di d n ot s ho w h im leave the building. He explained the y wer e having problems with the ca mera and had to pr ess the

rec ord button sever al times for it to start rec ording . He a cknowledg ed that he r adioed to the other of fi c e rs that he sa w the su sp e c t le a ve a re ar ba y do or of Du dle y ’s Re c y c lin g c arry ing so me thi ng in his hand, which he believed to be a bag . He a lso acknowle dg ed that the de fenda nt appea red to pick up a ba g or so me thi ng fr om a brus hy are a ne ar the railr oa d tra c ks bu t th a t th e de fe nd a nt dro pp e d it

on Va nc e Str e e t.

J ackson Police O ffice r Da nielle J o n es t estified that she r esponded to a n alarm call on November

20, 2004, at approx imately 10:00 p.m. She said that Offic er Richa rds, who wa s patrolling in Ai r One
, saw the de fe nd a nt e me rg e fr om a re ar b a y do or a ndthat sh e wa s li ste nin g to r a dio communications for the defe ndant’s location. She said that based on the i nstructions she re ceive d from Of fice r Richar ds, she was a

ble to locate the defe ndant on Vanc e Street. She said the def endant was be hind a house. She said that she came around the side of the house , that she dre w her wea pon, and that she told the de fenda nt to ge t down. She said she cha sed the de fenda nt to a vacant house at-3-

210 L enoir Stree t. Sh e s ai d t he def endant we nt underne ath the house a nd remained hidden ther e. She said that other officer s responde d to the hous e including t he dis trict serg eant, Ser g eant Slack,

a ndthat Se rg e a nt S la c k u se d “ Cle ar- Out” to g e t th e de fe nd a nt t o le a ve the c ra wl sp a c e . Sh e sa id Clear- Out is simi lar to pepper spray or t ear g as. She said Serg eant Slack put two c anisters of ClearOut under the house, causing the defen d an t t o come out approx imately fiftee n to twenty

minutes later. She identified the def endant a s the man who wa s under the house and the man upon w hom she drew her w eapon. She sa id they found no one e lse underne ath the house.

On cross-e x amination, Offic er J ones testified that Of fice r Richar ds reported see ing a black male lea ve the ba y

door ar ea of

Dudley ’s Recy cling car

ry ing a bag . She said Off

icer Ri char ds reported that the def

endant plac ed the ba g under one of the boxcars.

Jac ks on Pol ic e Se rg e a nt G re g Sla c k tes tif ie d tha t on Nov e mbe r 20, 20 04 , he re c e ive d a c a ll from Offic er Richards rela ting to this case. He said he pa rked his patr ol car

on Peabody

Street and beg an wa lking we stbound al ong the ra ilroad trac ks. He said he encounte red the defe ndant nea r Vanc e Stree t. He said that as he appr oache d the def endant, he stated he w as a police office r and tha t the def enda n t s t o p p ed
, looked at him, and ra n. He sa id that when the de fenda nt started running

e a stb ou nd , th e de fe nd a nt d ro pp e d a du ff e l ba g a ndran b e tw e e n th e ho us e s. He sa id that he los t contac t w ith the defe ndant afte r a brief chase but that he picked up the duffe l ba g

. He said the duffe l bag contained a

crow bar, a

hammer, a pry ing device
, a scre wdriver
, and a pair of w ire c utters. He said those tools classified as bur g lary tools.

Se rg e a nt S la c k te sti fi e d th a t he wa s dir e c te d to go to an aba nd on e d hou se on L e no ir Str e e t, wh e re the de fe nd a nt wa s las t see n. He sa id the of fi c e rs se t a perime te r ar ou nd the ho us e

. He sa id that the scre en door w as locke d and that they did not find any one inside the house. H e said that on the back side of t he house there was a cra wl space and that it looked like a se ction of the c raw l space h a d b e e n m o v e d

. H e s a i d t h a t t h e y l o o k e d u n d e r n e a t h t h e h o u s e b u tt h a ti tw a s v e r y d ark a n d d i r t y. He sa id he spray ed che mical ag ents into eac h corne r of the house and rolled a can of Clear -Out under the house, but the defe ndant did not come out. He said he then spray ed a se cond can of Clear -Out under the house, which ma de the de fenda nt come out. He ide ntified the def endant a s the man that he saw on the stree t, that he saw dr op the bag o f b u rgl ar y t ools, and that he “ g assed out” f rom underne ath the house. He said they found no one else unde rneath the house. On c ross-examination, Serg eant Slack a cknowledg ed that none of t h e tools had been te sted for f inge rprints. He sa id he

rec overe d no other phy sical evide nce.

B ob by Joe D ud le y

te sti fi e d th a t he ow ne d D ud le y ’s Re c y c lin g a nd that it wa s e qu ipp e d w ith an ala rm sy stem on the doors and motion detec tors upstairs. He said that on November 20, 2004, he was called to his business to determine if anything had been taken. He said that when he arrived, the front door

was “ wide open” and the doo r t o h i s office was ope n. He sa id that the alarm was beeping , that the ca sh drawe r wa s open, and that a hole ha d been c ut throug h the side of the me tal wall. He said his key s and approx imately $60 in chang e were miss ing. H e said he did not give the defe ndant permission t o be inside the building

.-4-

On cr oss-ex am i n ati on, Mr. Dudley stated that the fr ont door had a deadbolt lock on it and that it had been ope ned fr om the inside. He e x plained that the hole in the metal wa ll was beside the roll-up door and that the hole had been “hac ked throug h

. . . with a hammer or snips . . . somebody had just g rabbe d a’hold of it and just ripped it.” H e said his alarm sy stem did not have vi deo surveillance

.

Jac ks on Pol ic e I nv e sti g a tor Pa ul Whit e te sti fi e d that he wa s a n in ve sti g a tor wi th the pr op e rt y crimes unit and that he was first made awar e of the burg lary at Dudley ’s Recy cling on the Monday

morn in g f

o ll o w in g th e Satu r d a y w h e n th e b u r g la r y o c c u rr e d

. H e s a id th a t h e w a lk e d a long the

ra i l ro ad t ra ck s wh er e h e w as t o l d t h e d ef en d an th ad wa l k ed an d t h at h e w as l o o k i n g fo r t o o l s , a b ag, and chang e. He said that he did not find anything but that the box car s on the trac ks the night of the burg lary wer e no long er pr esent. On cross-examination, I nvestig ator W hite acknow ledg ed that no fi ng e rp ri nts we re take n f

ro m D ud le y ’s Re c y c lin g a ndthat ne ith e r the c ha ng e no r any oth e r p ro pe rt y from Dudley ’s Recy cling was e ver f ound.

The de fenda nt contends that the evidenc e was insufficient to support the jury ’s ver dict on the bu rg lary c ha rg e a ndthat th e imp os iti on of c on se c uti ve se nte nc ing wa s e xce ssi ve . T he state a sse rt s the evidenc e at the trial was c lear ly sufficie nt to support the defe ndant’s burg lary conviction. The state also asse rts the trial court properly imposed consec utive sentenc ing.

I. SUFF ICIENCY OF THE E VIDENCE

Th e de fe nd a nt c on te nd s th e e vid e nc e wa s in su ff ic ie nt t o s up po rt

the jury ’s ve rd ic t of

g uil t on th e b u r g la

r y c h ar g e

. H e a s s e r ts th a t a lth o u g h O f f ic e r Ri c h ar d s lo c a te d th e d e f e n d a n t w ith the helicopter ’s infra

red e quipment, the equipment did not sh o w t h e d ef endant inside the building at Dudley ’s Recy cling . He a lso asserts Mr. Dudle y was not at the business a nd could not identify the person who e ntere d the building. He asserts that no witnesses saw him inside the building a nd that

no wi tne sse s sa w h im t ake a nythi ng fr om the bu ild ing . H e a sse rt s th a t when he wa s ta ke n in to

cu s t o d y , he did not have the money or key s alleg edly

stolen from Dudley ’s Recy cling and that no phy sical evide nce e x isted to link hi m to Dudle y ’s Recy cling or to the burg lary tools. The defe ndant contends that the jury

found him g uiltyof burg lary but not g uilty of theft and tha t these ver dicts are inconsistent.

The state c ontends that the evide nce pr esente d at the trial wa s sufficient to s u p p o rt the defe n d an t ’s burglary

conviction. The state asser ts Office r Richar ds testified that he saw the defe ndant exit t he building thr oug h a door on the eastside of the building a nd that he used the inf ra re d c a me ra

to v ide ota

pe the de fe nd a nt w a lk a c ro ss the pa rking lot a ndsli de thr ou g h the c ha in link gates. The state asserts that O ffice r Richards followed the defe ndant in the air to the house at 210 L enoir Stree t where the def endant was arr ested and that he directed the office rs to the location. Th e state a sse rt s a rat ion a l trie r o f f a c t c ou ld h a ve e a sil y

de te rm ine d th e pe rs on fo un d u nd e rn e a th the h o u s e a t 2 1 0 L e n o ir Str e e t w a s th e s a me p e r s o n O f f ic e r Ri c h ar d s s a w le a v in g Dudley ’s Recy cling . The state a sserts the def endant’ s arg ument reg arding a lac k of phy sic al evidenc e does not neg ate an y

elements of the crime of burg lary . The state a sserts that the ver dicts are not i n c o n s i s t e n ta n d t h a tt h e c o n s u m m a t i o n o f t h e i n t e n d e d f

e l o n y i s n o tn e c e s s ar y t o p r o v e b u r g l ar y.-5-

Our standa

rd of r eview w hen the de fenda nt questions t h e s u fficiency of the e vidence on appe al i s “w h et her, a fter vie wing the evidenc e in the lig ht most favorable to the prosec ution, any

ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ). W e do n o tre we i gh the evidenc e; rathe r, we presume that the jury has resolved all conflicts in the testimonyand dra wn all rea sonable inferenc es from the evidence in favor of t he st ate. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 83 2
, 835 (Tenn. 1978) . Questions about witness cre dibilit y wer e resolved by the j ury

. See State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997).

I n o rd e r f or the state to h a ve pr ov e d th e de fe nd a nt g uil ty of bu rg lary be y on d a

re a so na ble doubt, it had to satisfy

the eleme nts of Tenne ssee Code A nnotated sec tion 39-14-402. The

app lic able su bs e c tio n s ta te s in pe rt ine nt p art :

(a) A person commits burg lary who, without the eff ective c onsent of the prope rty

owner : (1) Ente rs a building other than a habi t at ion (or any

portion
t h e r e o f ) n o to p e n t o t h e p u b l i c , w i th t h e i n t e n tt o c o m m i ta f e l o n y, the ft or a ssa ult

.
T.C.A. § 39-14-402( a)( 1).

At th e tria l, O f

f ic e r Ri c h ar d s te s ti f

ie d th a t h e r e s p o n d e d to a n a la r m c a ll a t D udley ’s Recy cling . He sa id that he saw the heat imag e of thesuspect lea ve the building throug h a re ar bay do or . H e fol lo wed th e suspe c t in his he lic op te r a s th e su sp e c t w a lke d a c ro ss the pa rking lot , s lid throug h the g ates, wa lked down the r ailroad tra cks, we nt underne ath boxcars, ra n from the police
, a n d s to p p e d a t 2 1 0 L e n o ir Str e e t. O f

f ic e r s f o ll o w e d O f

f ic e r Ri c h ar d s ’ d ir e c ti o n s to th e s uspect’s loc a tio n. Th e y

de te rm ine d th e su sp e c t wa s un de rn e a th the ho us e a nd us e d Cle ar- Ou t to g e t hi m to come out. No one was found inside the house, and the defe ndant was the only person found underne ath the house. Serg eant Slack testified that as he a pproac hed the de fenda nt on the railroa d
trac ks and told him to stop, the defe ndant dropped a bag and ran. Ser g eant Slack pic ked up the ba g and found the bag contained bur g lary tools. Mr

. Du d l eytestified he did not g ive the def endant permission to b e i n s i d e his buildi ng . Mr. Dudley said that a hole ha d been c ut in the side of the building and that money and key s wer e missing. We conclude that a rational juror could have found bey ond a re asonable doubt that the defe ndant committed t h e burg lary and eva ded ar

rest. The defe ndant is not entitled to relief on this issue.

II. SE NTENCING

N o w it n e s s e s te s ti f

ie d a t th e s e n te n c in g h e ar in g , b u t th e s tate e n te r e d th e d e f e n d a n t’ s prese ntence report and ce rtified copie s of the def endant’ s prior convic tions. The prese ntence report

r e f l e c t s t h a tt h e d e f

e n d a n tw a s f

o r t y

- s e v e n y e ar s o l d a n d t h a t h e h a d a n e i g h t h

- g r a d e e d u c a t i o n

. It shows that the last job the defe ndant held wa s in 2003, w orking for a pallet business making $6.50 an hour a nd that he had one previous job working at a s aw m i l l making $6.00 an hour. The
prese n te n c e r e p o r t a n d c e r ti f ie d c o p ie s o f th e d e f

e n d a n t’ s c o n v ic ti o n s r e f

le c t th e d e f

e n d a nt hadW e n ot e t h at on Ju n e 7, 2005, t h e G en er al A s s embl y a men ded T en n es s ee Code An n ot at ed s ec t i on 40- 35- 401. 1

S e e 2 0 0 5 T e n n . P u b . A c ts c h . 3 5 3 , § 8

. H o w e v e r, the a m e n d e d c o d e s e c tio n is ina p p lica b le to th e d e fen d a n t’s ap p e a l.

-6- twenty felony convictions for burg lary
, a felony conviction for theft over $500 but less than $1000, a fe lony conviction for va ndalism, and sever al m i sdemea nor convic tions. The prese ntence report also re fl ec t s t h at the def endant’ s parole w as re voked in 1986, 1998, and 2003. The defe ndant reported that he use d coca ine daily and had ha d a drug problem since 1993.

The state a nd the def

endant we re in a g reem en t t h at the def endant qua lified as a c are er offe nder. The trial court se ntence d the def endant a s a caree r offender to a twelve- y ear sentenc e for the bu rg lary c on vic tio n a nd a n e le ve n- mon th a nd tw e nty -n ine -d a y se nte nc e fo r the e va din g a rr e st conviction and or dere d the sentenc es to be served conse cutively . The trial c ourt stated that

consec utive sentenc ing is appropriate in this case just because of y our te rribl e , te rribl e re c or d a ndthe c ir c ums ta nc e s un de r w hic h th e statut e allows me to consider

it because of y ou r fa i l ure to c onform in the past. You’ve just proven that y ou can’ t obey the l aw whe n y ou’re not incar cer ated.

Th e de fe nd a nt c on te nd s c on se c uti ve se nte nc ing wa s e rr or be c a us e c on c ur

re nt s e nte nc ing is

more a ppropriate and should have been imposed. The defe ndant notes t h at i n S tate v. Holt, 691 S.W .2d 520, 522 (Tenn. 1984) , the supreme court he ld that “[m] ultiple offens es m ay more appropriately

involve concur

rent se n t en ce s if the crimes are rela ted.” He arg ues that the burg lary and eva ding arre st convictions were “inextricably rela ted” a nd that the sentenc es should be ser ved

concur rently

.

The state responds that the trial court proper ly imposed consec utive sentenc es based on the de fe nd a nt’ s e xten siv e c ri min a l re c or d of a t le a st tw e nty prior fe lon y c on vic tio ns . T he state a sse rt s th a t i t d idn o t f

in d th e q u o te in H o lt

u p o n w h ic h th e d e f

e n d a n t r e li e s a n d th a t H o lt o n ly s a y s “ [i ]n many instances, c oncurr ent sentenc ing may be appropriate.” The state notes that Holt involved the crimes of possession with i n t ent to sell marijuana and manufa cturing marijuana , which ar e more

c los e ly -r e la te d tha n the c ri me s of bu rg lary a nd e va din g arr e st. Th e state a sse rt s tw o o f the c ri te ri a of Tenne ssee Code A nnotated sec tion 40-35-115(b) a re a pplicable to this ca se: that the def endant is a profe ssional c riminal who has knowing ly devoted his life to criminal acts as a ma jor source of livelihood and that the def endant’ s rec ord of c riminal activity is ex tensive. The state asserts that

a lth ou g h th e tr ia l c ou rt

didno t c ite se c tio n 40 -3 5- 11 5 wh e n o rd e ri ng c on se c uti ve se nte nc ing , it did ref er to the de fenda nt’s “ter

rible, terrible rec ord.”

Appellate r eview of

sentenc ing is de novo on th e re cord w ith a presumption that the trial court’s de terminations are corr ect. T.C.A. § 40-35-401( d) (2003)

. As the Sentenc ing Commission 1 Com me nts to this se c tio n n ote , th e bu rd e n is no w o n th e de fe nd a nt t o s ho w that th e sen tence is improper

. T h i s means that if the tria l court followed the statutory sentenc ing pr ocedur e, made finding s of fa ct t hat are adequately supported in the re cord, a nd g ave due consideration and proper-7-

we ig ht t o th e fa c tor s a ndprinc ipl e s th a t are re le va nt to se nte nc ing un de r the 19 89 Se nte nc ing Ac t, we may not disturb the sentence even if a diffe rent re sult were pr efe rre d. State v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). Concurre nt or consec utive sentenc ing is lef t to the sound discretion of the trial court. State v. Ha stings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999).

Consecutive sente ncing is guide d by T en n es s ee C o d e A n n o t at ed s ec t i o n 4 0 -3 5 -1 1 5 (b ), wh i ch

s t a t e s i n p e r t i n e n tp ar t t h a t t h e c o u r tm a y o r d e r s e n t e n c e s t o ru n c o n s e c u t i v e l y i f i tf i n d s b y a pr e po nd e ra nc e of

the e vid e nc e that th e de fe nd a nt is “a n off e nd e r wh os e re c or d o f c ri min a l a c tiv ity is ex tensive.” T. C

. A. § 4 0 -35-115(b)(2). Rule 32( c)( 1) of the T ennesse e Rules of Criminal Procedur e re quires t h at t he trial c ourt “spec ifically rec ite the re asons” be hind its i mpositi on of a

consec utive sentenc e.

The state a sserts the trial c ourt prope rl yimposed consec utive sentenc ing be cause the “def endant is an of

fende r whose r ecor d o f cr i m i n al activityis ex tensive.” See T.C.A. § 40-35- 115(b)( 2). We ag ree with the state. Althoug h the trial court did not refer specific ally

to section 40- 35 -1 15 , it state d c on se c uti ve se nte nc ing wa s a pp ro pria te ba se d o n th e de fe nd a nt’ s “ te rribl e , te rribl e

rec ord.” The prese ntence report shows that the defendant had twenty -two prior f elonies and tha t the defe ndant’s par ole was r evoked thr ee times. On September 21, 2004, the def

endant wa s relea sed from the De partment of Corr ection bec ause the sentenc e he was serving expired. Two months later, the def endant c ommitt ed the pr esent off enses. We conc lude that the re cord justifies conse cutive
sentenc ing be cause the defendant had an ex tensive criminal history and that the tria l court did not abuse its discre tion.

Additionally , t h e s t ate a sserts that the trial c ourt proper ly imposed consec utive sentenc ing beca use the “ defe ndant is a prof essional criminal who has knowing ly devoted such def endant’ s life
t o c r i m i n a l a c t s a s a m a

j o r s o u r c e o f l i v e l i h o o d

. ” S e e T

. C

. A

. § 4 0

- 3 5

- 1 1 5 ( b ) ( 1 )

. W e n o t e tha t in
most ca s es wh er e the classification as a profe ssional criminal is affirmed, the state pr oved the defe ndant had a

substantial cr i m i n al hi story in addition to si g nificant a ssets or income but wa s without legitimate e mploy ment to substantiate that income. S ee State v. Gre g Har ris, E2003-02834- CCA-R3-CD, Sull ivan County
, slip op. 21-22 (Tenn. Crim. App. Fe b. 23, 2005) (r eviewing case s supporting the conclusions that the def endants we re pr ofessional c riminals).

The pre sentenc e re port shows that the forty -seve n-y ear -old defe ndant had twe nty -two prior fe lon ie s, inc lud ing tw e nty bu rg lary ty pe of fe ns e s, be tw e e n 197 8 an d 199 8. Th e re po rt a lso re fl e c ts that th e de fe nd a nt w a s in a ndou t of ja il fr om 19 78 un til Se pte mbe r 2 1, 20 04 . T he re c or d r e fl e c ts that th e de fe nd a nt r e po rt e d hold ing on ly tw o jobs , one in 2 00 3 at a pa lle t sh op a ndon e a t a

sa wm ill
, though he could not rec all the time f rame he worke d there

. The defe ndant’s step-mother r eporte d the def endant a lso worked at a furniture company . The r ec o rd re flec ts that the defe ndant ea rned $6.00 to $6.50 pe r hour and that he reported using cocaine on a daily basis, an addiction he ha d since 1993. The re cord shows the defe ndant had a leng thy criminal history

involving mostly

burg lary offe ns e s , b u t it is d e v o id o f a n y e v id e n c e s h o w in g th a t th e o f f e n s e s p r o v id e d a ma

jo r source of income or that the defendant maintaine d assets of substantial value . There fore , we a ffirm the tria l court’s de cision to impose consecutive se ntencing based only on its f inding that the de fenda nt’s-8-

rec ord of c riminal activity was e x tensive. See T.C.A. § 40-3 5 -1 1 5 (b )(2). The def endant is not entitled to relief on this issue.

CO NC LU SION

B a se d o n th e fo re g oin g a nd the re c or d as a wh ole , we a ff ir m the jud g me nts of

the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE