# FILED

October 29, 1999

Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENNESSEE AT NASHVILLE

MAY 1999 SESSION
STATE OF TENN ESSEE, * No. 01C01-9807-CC-00304 Appellee * WILLIAMSON COUN TY V. * Hon. Henry Denmark Bell , Judge MICHAEL A. BRA

SWELL, * (Aggravated Burg lary, Theft) Appellant. * For Appellant For Appellee Eugene J. Honea Paul G. Summers Assistant Public Defender Attorney General and Repor ter P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493 Elizabeth B. Marney Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Derek Smith Assistant District A

ttorney P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED:
AFFIRMED IN PART; JUD GMENT MODIFIED NORMA MCGEE OGLE, JUD GE1 Mr. H atch er ch ose to als o sub mit to the ju ry the is sue of his guilt or innoc enc e of th eft of prop erty. 2 OPINION On December 11, 1997, the appellant, Michael A. Braswel l, pled guilty in the Williamson County Circuit Court to one count of theft upon the unders tanding that the trial court would determine his sentence. The following day a jury additionally found him guil ty of aggravated bur

glary. Follow

ing a sentencing hearin g on July 24, 1998, the trial court imposed concurrent sentences of four years incarceration in the Tennessee Department of Correction for the aggravated burglary conviction and two years incarceration for the theft conviction. On appeal, the appellant challenges the sufficiency of the evidence under lying his convi ction of aggravated burglary and also appeals his sentences for both aggravated burglary and thef t. Followin g a thorou gh review of the recor d and the parties’ briefs, we affirm the judgment of the trial court in the aggravated burglary case and aff irm in part and modify the judgment of the tr ial court in the theft case.

I. Factual Background The appellant and his co-defendant , Jasper Hatcher, were tried jointly for the aggravated burg lary of Charles Craw ford’s home. 1 The evidence adduced at trial established that, on April 10, 1997, Charles C rawford returned to his B rentwood home in Williamson County after work to find that several tools were missing from his garage, includi ng an electric drill , a sheet or palm sander, a belt sander, a circular saw, a jigsaw, a reciprocating saw, a chain saw, and a battery charger.

At the ap pellant

’s tria l, Mr. Crawfo rd test ified th at he lives wi th his w ife and three children. His house is built into the side of a hill and has three levels, including the garage, which serves primarily as a basement and contains laundry facilities, various h ousehold items, and Mr. Cr awford’s tools. The gara ge has garage doors leading

outside and also a door leadin g into the Crawford’s living quarters. Mr. Crawford testified that, prior to the burglary of his home, the family habitually neglected to lock these doors.3 On the day of the appellant’ s offenses, Mr. Crawford left his home through the garage. At that time, he noticed that his tools were in their customary location. Mr. Craw

ford left the garage door open behi nd him, because several family members were sti ll inside the house. Mr . Crawford testified that, a s a general rule, the last member of his family to leave the house closed the garage door. However, when he returned home that evening at 5:30 or 6:00 p.m., nobody w as home, the gara ge door was open, a nd his tools were mi ssing.

Mr. Crawford notified the Williamson County Sheriff’s Department of the burglary and prov

ided serial identification numbers and descriptions for the stolen items. Roddy Parker, a detective with the Sheriff’s Department, subsequen tly recovered five of the stol en items from two pawnshops located in Davidson County. The recovered tools incl uded the circular saw,the jigsaw, the rec iprocating saw, the belt sander, and the chain saw . Mr. Crawford positively identified thes e items at trial.

Mr. Crawford additiona lly related to the jur y that he had known the appellant for six or sev en years. The appellant w as a friend of his son, Justin, had visited the Crawfor

d’s home on numerous occasions, and had been inside the garage. Mr. Craw

ford further indicated that the appel lant’s co-defendant, Jasper Hatcher, was also an ac quaintance of his son, but Mr. Crawford did not recal l that Mr. Hatcher had ever visited his home. Mr. Crawford concluded that he had never given either the appellant or Mr. Hatcher permission to take any tools from his garage.

In addition to Mr. Craw ford’s testimony, the State al so presented the testimony of Autumn Alley, the appellant’s girlfri end. She testified that, on the morning of April 10, 1997, she a nd the appellant were at her home in Unionville, Tennessee, when the appellant’s co-defendant, Jasper Hatcher, pa ged the appellant. After the appellant tel ephoned Mr. Hatcher, he and Ms . Alley drove in the appellant’s car to Mr Hatcher’s residence in Davidson County. According to Ms.4 Alley, Mr. Hatcher

indicated that Justin Cr awford had stolen his car radio. He asked the appellant to provide directions to the Crawford residence in order that Mr. Hatcher could search Justin’s car for the radio. The group then proceede d in Mr. Hatcher’s car to Justi n Crawford’s house. Ms . Alley asserted that no one stated any intention to steal any it

ems from the Crawford residenc e.
Ms. Alley further rec

ounted that, when the group ar rived at the Crawford residence, they did not see Justin’s car. She asserted that, whil e she and the appellant waited insi de Mr. Hatcher’s car,Mr. Hatcher got out of the car and approached the garage door, which was closed. Mr. Hatcher opened the door and went inside the garage, quickly reemerging with several tools. After placing the tools in the trunk of his car, he returned to the garage for more tools. Following his second trip, Mr. Hatcher got back into his car and drove the group back t o Davidson County . Again , Ms. Al ley in sisted at tria l that ne ither s he nor th e appell ant eve r left Mr. Hatcher’s car w

hile at the Crawford res idence.
After the burglary, the group drove to sever al pawnshops on Nolensville Road in Davidson County. M s. Alley related that, at the first pawnshop, both the appellant and Mr. Hatcher attempted to pa wn the chain saw. However, because they were unable to operate the saw, the paw nshop refused to accept the item. They then drove to another pawnshop, where both the appellant an d Mr. Hatcher successfully pa wned several items. When they returned to the car, the appellant handed Mr. Hatcher approximately $60.00. F inally, the group dr ove to one last pawnshop. This time, M r. Hatcher entered the shop al one, stating that he knew someone inside the shop. Afterw ards, the group returned t o Mr. Hatcher’s house, and the appellant and Ms. Alley proceeded to Ms. Alley ’s orthodontist appointment.

Ms. Alley conceded that she never informed anyone w hat had happened until the appellant w as arrested. She testified that she was in love w

ith the appellant and explained that the appellant assisted Mr . Hatcher in pawning the tools only because Mr.Hatcher did not possess adeq uate identification. Ms. Al ley5 maintained that the appellant never received any portion of the m oney obtained in return for the various tools. She also testified that, sometim e after the appellant’s offenses, the appellant expressed regret for his coop eration with Mr. Hatcher, because he and Justin had been friends.

Mark Wiedeman, the manager of Cash America Paw n of Nashville, testified that his shop’s busi ness records reflect that, at 1:39 p.m. on April 10, 1997, Michael Braswell pawned a circular saw, a reciprocating saw, and a belt sander in return for seventy dollars ($70.00). The appellant presented a Te nnessee driver’s license for the purpose of identification. Mr. W iedeman explained that customers are required to present some form of identificat ion, usually a driver’s license, in order to pawn any item.The customer’s identity and a description of the pawned item are then routinely pr ovided to the police department.
Alexander O’Kieff, the manager of Easy Money Pawn & Loan, also testified on behalf of the State . He stated that his shop’s business records reflect that, at 2:19 p.m. on April 10, 1997,Jasper Hatcher sold a cha in saw and a jigsaw for forty dollar s ($40.0 0). Mr . Hatche r provided pro of of his i dentity

in the fo rm of a valid driver’s

license. Mr. O’Kieff also personally recalled

that both the appellant and Mr. Hatcher entered his shop on the date of these of fenses. He stated that, to his knowledge, no one in the s hop knew Mr. Hatcher.However, he recog nized the appellant as a former customer.

The State concluded its proof wi th the testimony of Detectiv e Roddy Parker of the Williamson County Sheriff’s Department. Detective Park er testified that, upon his assignment to th is case, he was able to quickly recov er several of the stolen tools, because the serial identification numb ers provided by the victim matched the numbers recorded on a pawn ticket furnishe d to the police by Cash America Pawn of Nashville. As a result of information obtained f rom this establishment, Detective Parker obtained an arrest w arrant for the appellant.6 On April 22, 1997, Detectiv e Parker executed the arr est warrant at the appellant’s home. Detective Parker testified that the appe llant did not resist arrest and, after being advised of his Miranda rights, agreed to pr

ovide a statement to the police. The appellant indicate d in his statement that, on the day of his offenses, a “Jay Thatcher” called him and requested his assistance in locating Justin Crawford’s house. Mr. “Thatcher” ex pressed his belief that Justi n Crawford had stolen his car radio and stated that he intended to break into Justin’s car in order to retriev

e the radio. Later that morning,Mr. “Thatcher” drov e to the appellant’s home in Dav idson County and picked up the appellant and Ms. Alley. The group drove to the Crawford residence, but did not see Jus tin’s car. The appellant informed Mr. “Thatcher” that Justin sometimes parks his car in the garage. Ac cordingly, Mr. “Thatcher” looked into the garage throug h a window but again did not see Justin’s car. The appellant then suggested that the radio was inside the garage and informed Mr. “Thatcher” that the Crawfords did not lock the garage door. Mr. “Thatcher” opened the door, entered the garage, and soon r eemerged with vari ous tools. According to the appellant, Mr. “Thatcher” completed a total amount of two tri ps into the garage.

Immediately thereafter, the gr oup drove to a pawnshop w here the appellant pawned three items. The appellant asserted in his statement that Mr. “Thatcher” could not pawn the items, because his identificat ion was “washed out.” The appellant obtained seventy dollars ($70.00) in return for the three tools and gave the proceeds to Mr. “Thatcher.” The group then s topped briefly at a McDonald’s restaurant befor e returning to the appellant ’s residence. The followi ng day, Mr. “Thatcher” i nformed the appellant that he had pawned the other items at another pawnshop. The appellant also recounted th at, more recently, Mr. “Thatcher” visited his home and the appellant observed the stolen ba ttery charger in the rear seat of Mr. “Thatcher ’s” car.
On April 23, 1997, Detectiv e Parker again questi oned the appellant, because he could not locate any “Jay Thatcher.” The appell ant stated that he was unsure of his companion’s surname. Moreover, the appellant indicated that he7 wished to change sev

eral items in his orig inal statement. First, he conceded that he and Ms. Alley drov

e to Mr. Hatcher’s home on the morning of the offense. Second, he admitted that he did get out of Mr. Hatcher’s car at the C rawford residence, but maintained that he never entere d the Crawford’s gara

ge. Third, the appellant admitted that, on April 10, he al so accompanied Mr. Hatcher to Easy Pawn & Loan, where Mr. Hatcher pa

wned the chain saw and the jigsaw.

Upon providing this

additional information, the appell ant directed Detective Parker to Easy Pawn & Loan. Due to information obtained from this establishment, Detective Parker was able to arrest Mr. Hatcher. Following Mr. Hatcher’s arrest, Det

ective Parker recov

ered the stolen battery ch arger from the trunk of Mr. Hatcher’s car.

The appellant declined to testify at trial. Howev

er, Mr. Hatcher electe

d to testify. Mr. Hatcher stated that he was twenty-one years old and did not possess a criminal record, other than several traffic vi olations. He is a hig h school graduate and was employed by N ew Beginnings Cr edit Association on the date of the i nstant offenses. He earned five dollars ($5.00) to nine dollars ($9.0 0) per hour. Moreover, he did not owe any sig nificant debts.

According to Mr. Hat

cher, he first met the appellant in February of 1997, several months before these offenses. He also knew Justi n Crawford, but not as well as he knew the appellant. Mr. Hatcher had been to Justin’s house sev eral times, although he had never met Justin Crawford’s father and had never been inside the Crawfords’ garage. Mr. Hatcher asserted that he knew the di rections to Justin’s house from his ow n house and did not require di rections from the appellant. He did concede that, prior t o these offenses, he and the appellant disc ussed the Crawfords’ habit of leav ing their garage unl ocked.

According to Mr. Hat

cher, on April 10, 1997, the appe llant telephoned him and informed him that the appellant w as coming to his house. The appel lant2 Mr. H atch er de nied t hat h e wis hed to go to the Craw ford resid enc e bec aus e he s usp ecte d Jus tin of steali ng his car rad io. Mr. Hatcher explai ned that hi s car radio was st olen whil e his car was i n a repair sh op in Bre ntwood , and he h ad no re ason to believe tha t Justin ha d com mitted th e theft. According to Mr. Hatcher, he r eported the theft to t he Brentwood pol ice.

3 According to Mr. Hatcher’s st atement to the pol ice, t he appellant informed him that he was taking the tool s in repay ment for the damage to hi s tire rims. 8 arrived at his house one and one half hours later, accompanied by Ms. Alley. The appellant asked Mr. Hatcher to drive him to Justin’ s house in order to retri eve the keys to his tire ri ms, which he believed were in Justin’s ca r. The appellant additionally complained that Justin had previousl y borrowed his ti re rims and had damaged them. In any event, M r. Hatcher agreed to dr ive the appellant to the Crawford residence. 2

When the group arrived at the Craw ford residence, Justin’s c ar was not there. The appellant got out of the car, looked into the gar age through a window, opened the gar age door, and entered. Mr. Hatcher next observe d the appellant walking from the rear of the Crawford res idence. He assumed that the appellant had entered the Crawford’s living quarters and had exited the house through another door. The appell ant again entered the garag e and began carrying out numerous tools, which he placed primarily i n the rear of Mr. Hatcher’ s car, on the floorboard. At the appellant’ s request, Mr. Hatche r then drove the appellant a nd Ms. Alley to Mr. H atcher’s house, where th e appellant had parked his car. Upon retrievin g his driver’ s license from his car, the a ppellan t directe d Mr. Hatch er to drive to several pawn shops, where they pawned the stolen tools.

Mr. Hatcher asserted at trial that, at the time of the offenses, he assumed that the appellant had permissi on to take the tools and paw

n them. 3 Addition ally, he te stified that he p awned the chain saw a nd the jigs aw at Easy Pa wn & Loan because the appellant did not know how to operate the c hain saw in order to demonstrate its condition to the pawnshop employee. W ith respect to the battery charger recovered fro m his car, he asserted that he was not aware that the appellant had left the item in his car, although he admitted that h e probably moved the battery charger from the back seat of his car to his trunk at some point followi ng9 these offenses. Mr. Hatcher deni ed knowing the locatio n of the electric drill an d the palm sander, neither of whic h tools were ever r

ecovered by the polic

e. Finally, he asserted that he did not receive any proceeds from the pawning or sale of Mr. Crawford’s tools.

II. Analy sis A. Motion for Judgment of Acqu ittal

The appellant contends that, with respect to his convi ction of aggravated burgl ary, the trial court erroneously denied his motion for a judgment of acquittal at the conclusi on of the State’s proof. A trial c ourt must grant a motion for a judgment of acquittal if the ev idence is legally insufficient to sustain a conv iction of the charged offense. Tenn. R. Crim.P. 29. In making this deter mination, the trial court may not address the w eight of the evidence, but must afford the State the strongest legitimate view of the evidence, including all reasonable inferences which may be drawn from the evi dence. State v. Blanton , 926 S.W.2d 953, 957-958 (Tenn. Crim. App. 1996). An appel late court applies the same st andard as the trial court when resolvi ng issues predicated upon the grant or denial of a motion for judgment of acquittal. State v. Ada ms , 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). See also State v. Smith , No. 02C01-9506-CR-00157, 1999 WL 162958, at *2 (Tenn. Crim. App. at Jackson, March 25, 1999).

Tenn. Code. Ann. § 39-14-403 (1997) provides that a person commits aggravated burglary who, without the effective consent of the owner, enters a habitation with the intent to commit a theft. See also Tenn. Code. Ann. § 39-14- 402(a)(1) (1997). Mor

eover, in the instant cas e, the trial court instr

ucted the jury on criminal responsibili

ty for the conduct of another purs uant to Tenn. Code. Ann. § 39- 11-402(2) (1997), which provides,

A person is criminally responsible for an offense committ ed by th e conduc

t of anoth er if: * * * Acting with intent t

o promote or assist the commiss ion of the offense, or to benefit in the proceeds o r results of the offense, the person solicits, dir ect, aids, or attempts to aid another person to commit the offense .

. . .10 The appellant first contends that the State failed to present any pr oof that the appellant entered the Cr awford residence. How ever, this assertion does not absolve the appellant of cri minal responsibility . Assuming that Mr. Hat cher entered the garage, the appellant i s criminally respon sible for the aggrav ated burglary if he acted with the intent to as sist Mr. Hatcher in committing the offense and if he provided assistance to M r. Hatcher. Tenn. Code. Ann. § 39-11-402(2).

The State’s proof clearly established that the appellan t assisted Mr. Hatcher in entering the Crawford residence. Ac cording to his own s

tatement to the police, the appellant direc ted Mr. Hatcher to the Cr awford residence and informed Mr. Hatcher that the gar age door was unlocked. Thus, the only question i s whether the appellant intended to assist Mr. Hatcher in enteri ng the Crawford resid ence for the purpose of committing a theft.

A crime may be established by the use of circumstantial evidence alone. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn.1987); Marable v. State , 313 S.W.2d 451, 456-457 (1958); State v. Knight , 969 S.W.2d 939, 941 (Tenn. Crim. App. 1997). Moreover, in all criminal cases, the one element which is most often proven by circumsta ntial evidence is the culpable mental state of the defendant. State v. Smith , No. 02C01-9602-CR-00051, 1997 WL 291179, at *3 (Tenn. Crim. App. at Jackson, June 3, 1997). As in the case o f direct evidence, the weight to be giv

en circumstantial evid ence and “‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’” Marable , 313 S.W.2d at 457 (citation omitted). See also State v. Katz , No. 03C01-9704-CC00150, 1998 WL 33 4378, at *3 (Tenn. Crim. App. at Knoxville, June 25, 1998), perm. to appeal denied , (Tenn. 1999).

Viewing the State’s pr

oof in a light most favorable to the State, the appellant in this case knew the Crawfords and had prev iously visited their home. Specifically, Mr. C rawford testified that the appel lant had been in the garage fr om11 which the tools wer

e stolen. Moreover, th e appellant was aware that the Crawfords kept the garage door unloc ked and provided this information to Mr. Hatcher. On the day of the offense, the appellant prov ided Mr. Hatcher wi

th directions to the Crawford residence. While he and Ms. Alley waited outsi de, Mr. Hatcher entered the garage and retrieved numerous tools. The group then proceeded im mediately to several pawnshops where they pawned or sold the items for cash. At one pawnshop, the appellant conduct ed the transaction without the assistance or presence of Mr. Hatcher. F inally, in pleading guilty to theft prior

to his trial for the charge of aggravated b urglary, the appella nt admitted that he was aw are that the tools were stolen when he assisted in the sale or pawning of Mr. Crawford’s property.
Generally, when a per son enters an occupied dwel ling which contains valuable property, w

ithout the permission of the ow ner, a jury is entitled to infer that the entry was made w

ith the intent to commit a theft. State v. Chrisman , 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994); State v. Burkley , 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990); State v. Bogus , N o. 02 C0 1- 95 06 -C C- 00 16 9, 19 98 WL 22031, at *9 (Tenn. Crim. App. at J ackson), perm. to appeal denied , (Tenn. 1998). However, the appellant argues that both he and Ms. Alley testified concerning their belief that Mr. Hatcher w as looking for his car r

adio at the time he entered the garage. In essence, the ap pellant asks this court t o conclude that, as a matter of law, this testimony

was credible and therefor e outweighed the State’s strong circumstantial evidenc

e to the contrary. We decline this i nvitation. The weig hing of the testimony of the appellant and his girlfriend, on the on e hand, and the State's strong circumstantial

evidence against the appel lant, on the other, was a q uestion of credibility for the j ury, not the trial cour t, to resolve. State v. Bel lamy , No. 03C01-9612-CR-00476, 1998 W L 88426, at *3 (Tenn.Crim.App. at Knoxville, March 3, 1998). This issue is w ithout merit.

B. Sufficiency of

the Evidence12 The appellant additionally challenges the sufficien cy of all the evidence adduced at trial to support hi s conviction of aggr avated burglary. We have already noted that, with respect t o the State’s proof, the appellant’ s guilt depended upon the jury’s assessment of his credibility and the credibility of Ms. Al ley. Moreover, the appellant concedes that Mr. H atcher’s testimony only presented another issue of credibility for the j ury to resolve.

In reviewing a challenge to the sufficiency of the evidence, as in resolving issues predicated upon the grant or denial of a motion for judgment of acquittal, this court will not re-we igh the evidence adduced at trial. Questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

all factual issues raise d by the evidence, are r esolved by the trier of fact, and not the appellate c ourts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). On appeal, the burden i s upon the appellant to establis h that no “reasonable trier of fact” co uld have found the essential ele ments of the charged offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). We conclude that the appell ant has failed to carry thi s burden.

Nevertheless, the appell ant argues that the jury ’s conviction of both the appellant and Mr. Hatcher conclusively demonst rates that the jury’s verdict in the appellant’s case was a p roduct of “speculation and conjecture.” In other wor ds, the appellant contends that the ver dicts are inconsistent. We note in passing that verdicts need not be consistent between co-defendants as lon g as the evidence supports the verdicts. State v. Graham , N o. 02 C0 1- 95 07 -C R- 00 18 9, 19 99WL 225853 , at *4 (Te nn. Crim. App. at Ja ckson, Ap ril 20, 19 99). In an y case, we ha ve previously conclu ded that the strong circums tantial evidence adduced by the State supported the jury’s finding that both the appellant and Mr. Hatcher are crimina lly responsible for the burglary of the Crawford residence. This issue is likewise without merit.4 The appellant testi fied at the hearing t hat he fai led to pay restit ution i n that case.

5 The appellant

also admitted abuse of marijuana as a juvenil e. However, onl y those del inquent acts tha t would co nstitute a fe lony if com mitted b y an adult m ay be con sidered to enhan ce a se ntence

. State v. Haywood , No. 02C01-9707-CR-00289, 1998 WL 855436, at *16 (Tenn. Cri m. App. at Jackson, De cembe r 11, 1998). 13 C. Sentencing

The trial court conducted a hear ing on July 24, 1998, in order to determine the appellant’s sentenc es for theft and aggravated bur glary. At the sentencing hearing, the State relied upon the pre-sentence repo rt. The report reflects the appellant’s history of criminal convictions as an adult, including his conviction on July 18, 1996, of worthless checks and his conviction on Sept ember 16, 1997, of misdemeanor theft. According to the report, the appellant w as placed on probation pursuant to his conviction of worthless checks. His probationary sentence was subsequentl y revoked. 4 Additionally, as a j uvenile, the appellant w as adjudic ated on M arch 11, 1992, to have co mmitted ten counts of bur glary of a residence. 5

The appellant testified on his ow n behalf at the sentencing hearin g. He stated that he was tw enty-three years ol d. He related that, whi le he was incarcerated at Woodland Hills Youth Development Center pursuant to his juvenile adjudications, he obtained his GED and also attende d classes at the Nashville Technical Institute. At the ti me of the sentencing hearing, he was working for Haywood Pool Products, where he had been employed since June 1997. He also worked on weekends for Myers Realtors and had been employed by that agency since March 1997. He stat ed that he currently w

orked a total amount of sixty to seventy hours per w

eek.

With respect to his previous wor k history, the appellant

testified that he had worked for Exxon from August 1996 until March 1997. During the summer of 1996, he visited a family member in California and briefly worked for Subway and A & J Studios. Finally , from October 1994 until Marc h 1996, he worked as a manager for Sub Depot.14 With respect to the appellant’s history of criminal convictions and behavior, the appellant indicated that his offe nses as a juvenile stemmed from his drug and alcohol abuse. He asserted that he successfully underwent drug and alcohol treatment in 1991 or 1992. Yet, he conceded th at he had engaged in criminal behavior si nce completing his treatment.

In addition to his convi ctions as an adult of worthl ess checks and misdemeanor theft, the appellant added that he had previously been c harged as an adult with the theft of more than one thousand dollars ($1,000.00) from S ub Depot. The charges, however,were retired in r eturn for the appellant’s agr eement to pay two thousand and two hundre d dollars ($2,200.00) in r estitution to his former employer. At the sentencing hearing in this case, the appellant indicated that he had in fact paid one thousand and six hundred dollars ($1,600.00) to Sub Depot, although he still ow

ed six hundred dollars ($600.00). The appellant denied st ealing any money from Sub Depot, asserting that the company only held him responsib le for the theft of the money due to the appellant ’s position as a manager at the time of the theft. The appellant also supplemented the pre-sentence report w ith the information that in 1997 he attempted to s teal a pair of shorts from a Castner Knott department store. Although the appellant confirmed his guilt of the offense, he noted that the resultant charg e of theft was retired.

With respect to the instant of fenses, the appellant acknowledged his responsibility by

stating that he “was

there” and there was “ nothing [he] could do about it.” The appellant also ex plained that, at the time of these offenses, he was “going through a toug h time.” He continued to deny any knowledge that M r. Hatcher intended to steal Mr. Cra wford’s tools at the time of M r. Hatcher’s entry into the Crawford’s garage . In any event, the appell ant concluded that he and his gi rlfriend had agreed that he would no longer engage in criminal behavior, and he stated his willingness to abi de by any conditions of pr obation or a community corr ections sentence.15 At the conclusion of the sentencing hearing, the trial cour

t found the following enhancement factors pursuant to Ten n. Code. Ann. § 40-35-114 (1997): (1) the appellant’s prev ious history of crimina l convictions or behav ior; (8) the appellant’s previous hi story of unwilling ness to comply with a sentence involving release in the community; and (20) the appellant was adjudicated to have committed delinquent acts as a juv enile that would constitute felonies if committed by an adult. The trial court concluded that these factors outweighed any mitigating facto rs supported by the record.

As a Range I offender, the appellant w as subject to a sentence of not less than one nor more than tw o years incarcerati on in the Tennessee Department of Correction for the offense of theft of property worth more than five hundr ed dollars ($500.00). See Tenn. Code. Ann. § 39-14-105 (2) (1997) and Tenn. Code. Ann. § 40 -35-112 (a)(5) (19 97). The trial cour t impose d a maximu m senten ce of two years incarceration.For the aggravate d burglary convi ction, the appellant was subject to a sentence of not less than three nor more than six years incarceratio n. See Tenn. Code. Ann. § 39-14-403(b) and Tenn. Code. Ann. § 40-35-112(a)( 3). The trial court imposed a mid- range sentence of four years i ncarceration. Additionally, the tri al court denied the appellant any form of sentencing alternativ e to incarceration, particul arly noting the appell ant’s poor potential for rehabi litation.

On appeal, the appellant challeng es both the length of his sentence s and the trial court’s deni al of a sentencing alternativ e to incarceration. Appell ate review of the length,range, or manner of servi ce of a sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers the following factors: (1) the evidenc e, if any, received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentenc ing and arguments as to sentencing alternatives; (4) the nature and characteristi cs of the criminal conduct invol

ved; (5) evidence and information offered by the parties on enhance ment and mitigatin g factors ; (6) any sta tement b y the def endant o n his own behalf; and (7) the potential for r ehabilitation or treatment. Tenn. Code. Ann. § 40-16 35-102, -103, -210 (1997). See also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to dem onstrate the impropriety of his sentences. Tenn. Code. Ann. § 40-35- 401, Sentencing Commission C omments. Moreover, if the record reveals that the trial

court adequately consi dered sentencing principles and all rel evant facts and circumstances , this court will accord the trial court’s determinations a pr esumption of correctness. Id. at (d); Ashby , 823 S.W.2d at 169.

i. Excessive Sentences

With respect to the length of his sentences, the appellant initially asserts that the trial c

ourt’s sentencing determi nations do not warrant a pr esumption of correctness because the trial court failed to make sep arate findings for each offense. Moreover, the appellant asserts that, in the absence of such findings, a maximum sentence for the theft convi ction and a mid-range sentenc e for the aggravated burgl ary conviction ar e inconsistent. We must agree.

In State v. Ma yo , No. 01C01-9308-CC-00287, 1994 WL 585420, at *5 (Tenn. Crim. App. at Nashv ille, October 20, 1994), the trial court similar

ly declined to make separate findings for each of the de fendant’s convictions. It appeared from the record that the trial court had found one enha ncement factor, which was equally applicable to all of the defendant’s o ffenses. Id. The trial court found no mitig ating factors. Id. Nevertheless, the trial court impos ed both minim um and mid-ran ge sentences. Id. This court remanded the case for r e-sentencing, observi ng that, unless a trial court att

aches a different weight to the enhancement factors applied to one offense in comparison to another offense, the s ame factors cannot support a minimum sentence for one offense and a mid-rang e sentence for another. The same logic applies to mid- range and maximum sentences. However, in contr ast to this court’s opinion in Mayo , we do not find it necessar y to remand this case for resentencing.

The statutorily prescr ibed pro cedure fo r deter

mining the leng th of a17 felony se ntence is set fort h in Tenn . Code. An n. § 40-35 -210. Th e presum ptive sentence for both class E and C felo nies is the minimum sentence in the range. Id. at (c). However, if there are enhancement and mitigating factors, a court must start at the minimum sentence in the rang e, enhance the sentence as appropri ate for the enhancement factors, and then reduce the s entence as appropriate for the mitigating factors. Id. at (e).

With respect to enhancement factors, we agr ee with the State that factors (1), (8), and (20) are equally applic

able to both of the appellant’s conv ictions. Tenn. Code. Ann. § 40-35-114. The appell ant concedes, as he must, that the application of factor (8), conc erning the appellant’s hi story of unwilling ness to comply with the conditions of a sentence involving release in the community, is appropriate. Moreover, we reject the appellant ’s argument that applicati on of both enhancement factor (1) and enhancem ent factor (20) constitutes double enhancement. Rather, a court may only consider adult convictions and adult criminal behavior in enhancing a sentence pursuant t o Tenn. Code. Ann. § 40-35- 114(1). State v. B rown , No. 02C01-9710-CC-00419, 1998 WL 742350, at *2 (Tenn. Crim. App. at Jackson, October 26, 1998). In contrast, a sentencin g court may only consider juvenile adj udications, that would hav e been felonies if committed by an adult, in enhancing a sentence pursuant to Tenn. Code. Ann. § 40-35- 114(20). Id. Accordingly, the appl ication of each factor in this c ase is supported by different evidence presented at the sent encing hearing. The reco rd reflects adult convic tions or criminal behavior

including a 1996 wor

thless checks convic

tion, a 1997 misdemeanor theft conviction, and the appellant’s attempt in 1997 to steal a pair of shorts from a Castner Knott department store. Th e appellant’s juvenile record includes ten previous burglaries.

With respect to mitigating factors, w e agree with the appell ant and the State concedes that the appellant’ s conduct in committing both offenses neither caused nor threatened serious bodily injury to another within the meaning of Tenn.6 Arguably, the tri al court d id affordsome consideratio n to thi s factor, remarking that t he factor helpe d the appe llant m ore th an it hu rt him

. 18 Code. Ann. § 40-35-113(1) (1997). 6 State v. Cobb , No. 01C01-9802-CC-00054, 1998 WL 798962, at *4 (Tenn. Crim. App. at Nashvi lle, November 13, 1998). Moreover, we agr

ee with the appellant than Tenn. Code. Ann. § 40-35-113 (9) and (10) have some applicatio n to both offenses. The record does reflect that, following his arrest, the appellant as sisted Detective Park

er in locating some of the sto len tools. In deed, th e appella nt provide d Detecti ve Parker wit h directi ons to Ea sy Pawn & Loan. This information, in turn, enabled Dete ctive Parker to locate Mr. Hatcher, the appellant’s co-defendant. That hav ing been said, we also

agree with the State that the appellant’s assista nce was motivated lar gely by his desi re to exculpate himself.

Our de novo review of the record has uncovered no other enhancement or mitigating facto rs of significant weig ht. As to the aforementioned factors, we conclude that the enhancement f actors outweigh the mitigating factors and justi fy mid-ra nge sente nces for both of the appe llant’s o ffense s. Accord ingly, we affirm the appellant’s sentenc e for aggravated burg lary and modify the appellant’s sentence for theft to one year and f our months.
ii. Sentencing Alternative to Incarceration The appellant next argues that the trial court should have granted him a sentencing alternativ e to incarceration. We initially note that the trial court fail ed to state on the recor d whether it applie d the pres umption in favor o f altern ative sentencing set forth in Tenn. Co de. Ann. § 40-35-102 (6). Nev ertheless, even assuming that the appellant i s entitled to the presumption, w e conclude that “evidence to the contrar y” not only over

comes the presumption but militat es in favor of the appellant’s confinement.

The appellant received sentences of less than eight years for his convictions of aggrav

ated burglary and theft and, a ccordingly, is el igible for probation. Tenn. Code. Ann. § 40-35- 303(a) (1997). Moreov er, the appellant meets7 At the senten cing heari ng, the appel lant argue d that hi s successful completi on of his drugand alcohol treatment and his steady em ployment dem onstrate his amenab ility to rehabilitati on. However, as no ted b y the tria l cour t, neith er ac com plishm ent h as de terre d the appe llant fr om enga ging in criminal behavior. 19 the eligibility criteria for alternativ e sentencing under the Community Corrections Act. Tenn. Code. Ann. § 40-36-106(a) ( 1997). Nevertheless, the appellant’s sentences of confinement are appropriate due to his lengthy history of criminal conduct, his failure to respond to measures l ess restrictive th an confinement, and his lack of amenability to rehabilitation. Tenn. Code. Ann. § 40-35-1 03(1)(A) and (C), (5).

We accord particular weight to the appellant’s poor potential for rehabilitation. The appellant’ s credibility and w illingness to accept r

esponsibility for his crimes are circums

tances germane to his rehabi litation potential. State v. Zeolia , 928 S.W.2d 457, 46 3 (Tenn. Crim. App. 1996). In this case, the appellant’s credibility at the s

entencing hearing w

as undermined by his lapses in honesty. For example, with respect

to the appellant’s theft of a pair of sh orts from Castner Knott, the appellant at the sentencing hearing initially denied stealing the shorts, only admitting his guilt after further questioning by the prosecutor. W e also note that, in his statement to the probation officer who prepared the pre-sent ence report, the appellant denied that he accompanied Mr. Hatcher into Easy Pawn & Loan. This statement was flatly cont radicted at trial by Mr. O’Kieff, who testified th at both the appellant and Mr. Hatcher e ntered his pawnshop on Apri l 10, 1997, and that he had recognized the appellant as a former customer. The appellant’ s lack of candor on this point reflects the inadeq uacy of his purported acceptan ce of responsibility for the instant offenses. Indeed, when as ked at the sentencing hearing why he committed the offenses, the appellant informed the trial court that he “w as there” and there was “nothing [he] could do about it.” The appellant also cited “ha rd times” as an excuse for his conduct. 7

Finally, the appellant argues that the trial co urt’s denial of an alternative sentence is inconsistent with the trial court’s suspension of Mr. Hatcher’s sentence. We simply conclude that the rec ord justifies the disparit y in sentencing. See, e.g. , State v. Willia ms , No. 02C01-9711-CR-00439, 1998 WL 902586, at *68 The State asserts in its brief that the record is devoid of sentencing information relating to Mr. Hatch er. The State is inco rrect. Mr. H atcher’s senten cing hea ring is include d in the rec ord in its entirety. 20 (Tenn. Crim. App. at Jackson, December 29, 1998). 8

III. Conclusion For the foregoing reasons, we affirm the judgment of the trial court in the agg ravated burgl ary cas e and affi rm in par

t and modi

fy the j udgment

in the t heft case to reflect a sentence of one year and fou r months.

Norma McGee Ogle, Judge

CONCUR:

David G. Hayes, Judge

Jerry L. Smith, Jud ge