# FILED
June 20, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1997 SESSIO N

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9605-CC-00179

) ) Hardin County v. ) ) Honorable C. Cree d McGinley, Judge ) TIMOTHY SCOTT PORTER, ) (Burglary) ) Appellant. ) For the Appellant : For the Appellee : Guy T. Wilkinson Charles W. Burson Public Defender Attorney General of Tennessee and and Richard DeBerry M. Allison Thompson Assistant Public Defender Assistant Attorney Gener al of Tennessee P.O. Box 663 450 James Robertson Parkwa y Camden, TN 38320 Nashville, TN 37243-0493 G. Robert Radford District Attorney General P.O. Box 686 Huntingdon, TN 38344-0686 and John Overton Assistant District A

ttorney General Main Street, P.O. Box 484 Savannah, TN 38372

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Timothy Scott Porte r, appeals as of right from a jury conviction in the Cir

cuit Court of Hardin County for burglary, a Cl ass D felony. The defendant was sentenced as a Rang e I, standard offender to four years in the custody of the Department of Correction to be served consecutively to an earlier senten ce for a felony theft conviction. In this appeal, he contends that the evidence is insufficient to support his convictio n and that the trial court w as not correct in its us

e of enhancement factors in setting the length of his sentence. W e disagree and affirm the trial court’s judgment of conviction.

Jason Durham testified that he and Amy McClearn were w

alking towards the swings at the Mi ddle School on March 21, 1995, at approximately 10:00 p.m. w hen the school’s alarm went off. He stated that when he turned t o look at the school, he saw someone leaving t he building and the door sl amming behind. According to Durham, the person was car rying a book satchel over one shoulder. He s aid that he yelled, but the person ran behind the school. Durham stat ed that he then ran to McClearn’s car. He said that the person ran in front of the car, pausing mome ntarily when he turned on the headlig hts before running down a s treet away from the school

. Durham testified that although h e could not tell who the per son was earlier, he recognized the person as being the defendant when he ran in front o f the car. He stated that he got out of the car and tried to run after the defendant but w as unable to do so because he was wear ing sandles. Durham rec alled seeing the defendant turn on a flashlight near the woo ds before he went out of his sig ht. He said that he then we nt to a hotel and called the police.

Durham also testified that after th e police and the principal arrived, they discovered several

packs of ball cards and a scr ewdriver near the w

oods where the3

defendant disappeared. Durham also s aid that he told Officer Donald D err that the person he saw exit th e building was the defendant a nd that he identified the defendant from a photographic lineup. On cross-examination, Dur ham admitted that the identification could have been approximately three da ys after the offense. He stated that he had known the defendant for a long time . He also admitted telling some people that he was not sure w hether the person was the defendant but explained that he made the comment because he did not want to talk to them about it.

Amy McClearn testified t hat she was with Dur ham at the Middle School on the night of the offense. She recalled hearing a loud banging noise that sounded like a door slamming coming from the s chool around 9:30 p.m. She stated that she heard an alarm immediately after the noi se and saw someone running from the school. She testified that she obtained a good look at the person as he passed in front of her car’s headlights approximatel y six to eight feet aw

ay. She identified the person as the defendant and stated that she had seen him on ear lier occasions. McC learn stated that she saw the defendant carry ing a backpack. She said t hat they drove towar ds the woods and that Durham exi ted the car and tried to run after the defendant who disappeared in the woods. She testified that they then called the police. McClearn said that she later talked to Officer Derr at the police stati on a couple of days later and identified the defendant from a photographic lineup as the person she saw leaving the school. On cross-ex

amination, McClearn admitted that she did not recogniz e the defendant as the person who came out of the school until he ran in front o f her car. She denied seeing the defendant run behi nd the school and claimed that the defendant never left her sight unt il he entered the woods.

Officer Jim Davis testifie d that he responded to an alarm cal l between 9:00 and 10:00 p.m. at the Middle School. He stated th at at least two of the doors were open and that there were some s cratches on one of the doors. Officer Davis testified4

that both Durham and McClearn identified the defendant as the person they saw exiting the building and described him as being a small man with short, light brown hair, wearing blue jeans, a

red shirt and a cap, and car rying a black knaps

ack. He said that they told him that the defendant w as carrying w

hat appeared to be several box es of baseball cards and a flashlig ht. Officer Davis testifie d that he discovered sev eral packages of baseball cards and a screwdriver i n the area where the defendant ran.According to Officer Davis, the school is normally locked after school hours. On crossexamination, Officer Davi s conceded that no one reported any thing being missing

from the school.

Officer Donald Derr of the Sav annah Police Department testified that he spoke to Durham and McClear n as part of his investig ation. He said that both of them gave a written st

atement naming the defendant as the person they saw leaving the school. He stated that D urham and McC learn also i dentified the defendant from a photographic lineup. On cross-examination, Officer Derr conceded th at McClearn said that she “believed” the pe rson was the defendant and that the person ran out of the school and went behind South El ementary School. He also stated that he attempted to obtain fingerprints from the baseball cards but none were identifiable. Officer Derr also testified that a theft was not r eported in conjunction wi th the burglary of the sc hool.

Pam Brown testified that she al ong with her husband and s ome other people were playing

basketball at North Elementar y School from approximatel y 6:00 p.m. to 11:00 p.m. She stated that the defendant was present also. She r ecalled sending the defendant to her house at 10:3 0 p.m. to tell her babysitter that they would be late. Brown said that a few days later, the defendant p ulled her over and told he r about the charges and informed her that the offense occurred on the night that he was playing basketball w

ith them. Brown testified t hat she plays basketball at the school on a regular basis.5 Jason Brown testified that he had known the defenda nt for approximately six years. He s

tated that he and the defendant were at North Elementary School playing basketball from approximately 6:00 p.m. to 10:00 p.m on March 21, 1995. Brown recalled seeing

the defendant a few days later w ho told him about the charges. He said that he told the defendant that he could not have committed the crime because he was playing bas ketball with him. He said that he often played ball a t the school.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction. He arg ues that there is insufficient ev idence because the testimony of the state’s witnesses contradict each other and are also contradicted by defen se witness’ testimony that the defendant was playing basketball at the time of the offense. He also asserts that the state’s w itnesses never identified the person coming out of the school but instead identified the defendant as so meone they saw running from behind another school building.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favora ble to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
In the light most favorable to th e state, the de fendant was se en carrying a backpack and running aw ay from the school after setting off the school’s alarm and6

slamming a door as he left. The defenda nt refused to stop when Durham yelled at him and instead ran into the wood s. Several packages of baseball cards and a screw driver were found in the location w here the defendant ran. Also, the door to the school showed several scr

atches. The school was nor mally locked after school hours, and there was no evidence t hat the defendant had permission to be i nside the school. Both Durham and McClearn positi vely identified the defendant as the person they saw running away from the s chool. Under these circumstances, we hold that the ev idence establishes the defendant’s gui lt for the offense of burglary bey ond a reasonable doubt.

II. SENTENCING Next, the defendant claims that t he trial court incorr ectly used enhancement in determining the l ength of his sentence. He contend s that considering the mitigating factors found to be applicable by the tri al court, the maximum, Rang e I sentence of four years for a Clas s D felony should not have been imposed. In response, the state asserts that the trial court proper ly applied the enhancement and mitigating factors and deter mined that the enhancement factors should be given great weight.
Significantly, the defendant does not argue that the trial court improperly applied enhancing and mitig ating factors. Rather, he e ssentially asserts that the trial court should have giv

en more weight to the appl icable mitigating factor s. However, the trial court is granted the discretion to determine the weight to be given to applicable factors, see T.C.A. § 40-35-210, Sentencing Commission Comments, and its dec ision will be upheld absent an abu se of that discretion. See State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

The presentence report reflects that the then twenty-one-year-old defendant had previous convic tions for public intoxi cation, vandalism, and felony theft.7

The present offense was committed w hile he was on probation for the theft. Also, the record reflects that the defendant had violated his probation c onditions aside from the present offense. Although the tria l court found that the defendant’s conduct neither caused nor threatened injury nor resulted in property damage, it concluded that h is criminal history, h istory of unwilli ngness to comply wi th conditions of release, commission of the crime whil e on probation and commission of the cr ime on school property justified the max imum sentence. The record supports the sentence imposed.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.
Joseph M. Tipton, Judge

CONCUR:

David G. Hayes, Judge

William M. Barker, Judge