# FILED
January 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9808-CC-00257 Appellee, ) ) WEAKLEY COUNTY VS. ) ) HON. WILLIAM B. ACREE, JR ., ANTHONY E. BRASFIELD, ) JUDGE ) Appellant. ) (AggravatedBurglary, Escape and ) Criminal Trespass)

FOR THE APPELLANT : CLIFFORD K. McGOWN, JR. 113 North Court Square P.O. Box 26 Waverly, TN 37185-0026 (On Appeal) JOSEPH P. ATNIP District Public Defender 111 Main Street P.O. Box 734 Dresden, TN 38225 (At Trial) FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter ELI ZABE TH T. RYAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 THO MAS A. THO MAS District Attorney General JAMES D. KENDALL Assistant

District Attorney General 121 West Main Street Dresden, TN 38225-0218

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION A Weakley County

jury convicted defendant of aggravated burglar y, aClass C felony; criminaltrespass, a Class C misdeme anor; an d escape , a Class E f elony. The trial court sentenced defendant as a Range III persi st ent offender on the aggravatedburglary an d escape convictio ns, for wh ich he rec eived con secutive sentences offourteen years and six years, respectively. F or criminal trespass he received a concurrent thirty-day sentence. In this appeal as o f right, d efendant raises two issues:

(1) whether the evidence w as sufficientto c onvict defendant of aggravated burgl ary; and (2) whether

the effective twenty-year sentence is excessive. This Court concludes the evidence was sufficient, and the sentences were proper. The judgments and sentences imposed by the trial court are AFFIRMED.

FACTS On August 1, 1997, Christie Sanders heard a noise from the enclosed back porch area of her home and went to investig ate. When she turned on the light, she
saw a black male inside the room. When he ran out, San d ers saw him get into a “small, red, boxy-type c ar. . .with backup li ghts in the middle” that was parked at the apartments next door. The car was identified as belonging t o d efendant. Defendant had recently b een relea sed from the peni tentiary, so as part of the investigation, Captain David Moore q uestione d def endant about his whereabouts that evening. Defendant denied any involvement in the incident. On November 29, 1997, around 4: 45 a.m., Officer Doug Hollingsworth spotted defendant’s red car at the apartments next door t o Christie Sanders’ residence. As a result, Officer Stacy Bostwick was sent to patrol the neighborhood. While on patrol, Bostwick h eard a noise coming from Dr. Victor Depta’s house. He shined his flashlight

and saw the defendant jump off Depta’s back porch. Bostwick arrested defendant for trespass and advised him of his Miranda rights. At approximately 6:00 a.m.,Christie Sanders call ed the police to report that3

the red car involved

in the inci dent at her ho me in August was agai n parked at the apartments next door. The police advised her that someone was already in custody. At the police station, defendant asked to spea k wit h Capta in David Moore who had questioned him in August regarding the incident at Christie Sanders’ home. When Moore got to the

station, he again advis

ed defendant of his rights. Defendant signed a rights waiver and gave Captain Moore a statementin which he admitted to the trespass on Depta’s pr operty and the earlier aggravated burglary of Sanders’ home. The statement also explained that defendant’s reason for prowli ng was to find money. While being booked into the Weakley County jail for trespass and agg ravated burglary, defendant asked to place a phone call. Jailer, Eric Gord on, remov ed defendant’s handcuffs to allow him to do so. While making the call, defend ant threw down the phone and ranout of the Sheriff’s office. Several officers pursued defendant on foot; he was captured abo ut ten minutes later.

SUFFICIENCY OF THE EVIDENCE Defendant avers the evidence was i nsuffi cient to support a finding of guilt
on the aggravated burglary charge. To support this claim he point s only to hi s own trial test imony. In determining the sufficiency of the evidence, t hi s Court does not re weigh
or reevaluate the evidenc e. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict

approved by the trial

judge accredits the

state’s witnesses and
re solves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be draw n therefrom. Id . This court will n ot disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the factscontained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational tri er of fact to4

find the accused guilty bey ond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, itis the appellate court’s duty to affirm the conviction if the evidence, view ed under these standards, was suffici ent for any rational trier of fact to have found the essent ial elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560, 572 (1979) ; State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Captain Moore testified that defendant adm itted his p rese nce in the utility
room of Christie Sanders’ hom e for the purpose of finding money. Defendant’s trial te stimony

contradicted this statement. The jury disbelieve d defendant’s tr ia l testimo ny. This was the jury’ s prerogative. Defendant’s testimony, standing alone, is insufficient to overcome the presumption of guilt established by the jury verdict. The evidence was sufficient to find def endant gu ilty of aggr avated bu rglary. This issue is without merit.

SENTENCING The trial court sentenc ed defendant as a Range III persis tent offender to fourteen years for the aggrav ated burglary and six

years for the felony escape . The trial co urt ordered them to run consecutively. A thirt y-day sentence for cri mina l trespass was run concurrently w ith these sentences. Defendant d oes not challen ge his persistent offender status, nor the imposition of thirty days for trespass. He does assert th at the ef fective tw enty-year sentence for the felony convictions is excessive. Therefore, our review wil l focus solely on those sent ences. This court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn.Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative s howing i n the record tha t the trial judge considered the sentencing principles and all relevant facts and circumstances. S tate v. Ashby , 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 Commissi on Comments.5 To create the presumption of correctness, the trial court is required, pursuant to Tenn. Code Ann. § 40-35-21 0, to consider th e following fact ors in sentencin g: (1) [t]he evidence receiv ed at the trial andthe sentencing hearing; ( 2) [t]he presentence report; (3) [ t]he principles of sentencing; (4) [t]he nature and characterist ics o f the criminal conduct inv olved; (5) [e]vidence and information offered by the parties on the enhancement an d mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]n y stateme nt the def endant wi shes to m ake in the defend ant’s own behalf abou t sentencing. If mitigating or enhancement factors exist, a t rial c ourt should start at the minimum sentence, enhance the minimum sentence w ithin the ra nge for
en hancement factors and then reduce the sentence w ithin the range for the mitigating factors. Tenn. Code Ann. § 40-35-210( e). No particular

weight for each factor is prescribed by

the statute , as the weight gi ven to each factor is left to the discretion of the trial court as long as the trial court compli es with thepurposes and principles

of the sentencing act and its fin dings are supported by the record. State
v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); Manning v. State , 883 S.W.2d 635, 63 8 (Tenn. Crim. App. 1994). The state established five prio r felony and five prior misdemeanor convictions. Furthermore, defendant had his pr o bation o r parole re voked on t wo separate occasions. Thus, the trial ju dge determined that, of the five enhancement factors requested by the stat e, only t wo were ap plicable: defendant had, one, a previoushistory of criminal convict ions or criminal behavior in addition to those necessary to establish the appropriat e rang e; and two, a previous his tory of
unw illingness to comply with the c onditions of a sentence involv ing release in th e commun ity. Tenn. Code Ann. § 40-3 5-114(1), (8). The defense offered no mitigating factors, and none were found. As for its determination of the length of the sen tences, the trial judge followed the applicable sentencing pri nciples . For the aggravat ed burglary convi ction, he started at the presumptive ten-y ear sentence, increased it b y four due to the enhancementfactors and s et it atfourteen years. For the es cape conviction, he6

began at the pre sumptive sentence offour years, increased it by two, and set it a t six years. Since there were no mitigatin g f actors, these sentences were entirely appropriate. Regarding the conse cutive nature of the sentences, the trial judge correctly noted that the escape statute mandates that any sentence receiv ed for an escape conviction be run consecutively to th e underlying offense. See Tenn. Code Ann. § 39-16-605(c). The trial judge in this case created an excellent sentencing record. Before handing down the sentences, he rev iewed the evidence on the record;enumerated the requirements for determinati on of the appropriate sentencing range; and recited the sentencing principles and considerations applicable to the case. Th e thorough findings and correct application of sentencing pr inciples by the trial

judge eliminate the need for any appellate inter vention in this case. This issue has no merit.

CONCLUSION Based upon the foregoing, the judgment of the trial court is AFFIRMED.

____________________________ JOE G. RILEY, JUDGE7

CONCUR:

______________________________ DAVID G. HA

YES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE