IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 9, 2013

STATE OF TENNESSEE v. DWAYLAN DUPREE HOUSE

Appeal from the Circuit Court for Lauderdale County

No. 9123 Joseph H. Walker, III, Judge

No. W2012-01272-CCA-R3-CD - Filed June 21, 2013

The Defendant, Dwaylan Dupree House, contends (1) that the evidence presented at trial was

insufficient to support his jury convictions, (2) that the trial court erred in denying his motion

for judgment of acquittal and motion for new trial, and (3) that the trial court’s imposition

of a ten-year sentence and $2,882.22 in restitution was excessive. Following our review of

the record and the applicable authorities, we affirm the Defendant’s convictions for

vandalism and burglary, reverse the sentence imposed, and remand for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in

Part, Reversed in Part, and Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and JEFFREY S. BIVINS, JJ., joined.

Robert L. Thomas, Jackson, Tennessee, for the appellant, Dwaylan Dupree House.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; John Wesley Carney, Jr., District Attorney General; and Julie K. Pillow, Assistant

District Attorney General; for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Defendant was indicted on October 3, 2011, for burglary of a building and

vandalism, over $1,000 but less than $10,000, both Class D felonies. A trial was held, and

the following evidence was presented.

Dwayne Johnson testified that he had been an employee with the United States
Department of Agriculture (USDA), Natural Resources Conservation, for thirty-seven years.

He testified that he was the sole employee in his office building, the USDA Service Center,

on June 16, 2011, when the instant offenses occurred. Mr. Johnson explained that he was

working late and was waiting on his wife to pick him up when it began to storm outside. The

wind and rain increased, and the lights went out. The emergency lights, two spotlight-like

lights at each end of the approximately 100 foot-long hallway, came on shortly thereafter.

Some time later, he heard a crash-like noise. Mr. Johnson said that he assumed that the storm

had knocked over some garbage cans located in the back of his building and that he did not

think much of it. Then, Mr. Johnson heard a “rattle racket” sound and thought it was

strange, so he decided to go check it out. Investigating the sound, he proceeded down the

hallway of his building, which he shared with the Farm Services Agency (FSA). After

walking approximately seventy-five feet down the hallway, on the FSA side of the building,

he saw a window; the blinds were moving, and he saw a leg – from the thigh down – coming

through the broken window. He explained that he decided to leave the building to call the

police because he was afraid that he would be heard if he called the police from inside. In

exiting the building, he paused at the door to scan his surroundings and ensure that no one

else was outside. He said that there was a white car parked directly in front of the steel door;

the headlights were not on nor was the engine running, and no one was inside the car. He

did not recognize the car as belonging to any one employed at the USDA or surrounding

buildings. Mr. Johnson explained that the only other cars left in the parking lot were

government vehicles that the employees were not allowed to take home.

Mr. Johnson walked to a funeral home, located adjacent to the USDA building, and

called 911. Minutes later, a Ripley police car arrived, and the officer spotlighted the

building. Mr. Johnson did not approach the officer because he did not think it was a good

idea; instead, he observed the USDA building from the awning area of the funeral home. Mr.

Johnson saw the suspect exit the FSA side door. The suspect stood for a few seconds,

looking around, then he got in the white car and came in Mr. Johnson’s direction. The white

car came around the back of the building, and the officer began trailing the car. Mr. Johnson

said that the officer pulled beside the car, and after a short conversation, the white car left.

A second officer arrived, and Mr. Johnson did approach this officer, informing him that the

burglary suspect was the man in the white car and that he was getting away. The officers

attempted to catch up with the white car but were unable to do so. When the officers

returned, they, along with Mr. Johnson and the owner of the building, walked through the

premises to identify any damage: the window was broken, and a fire-proof file cabinet

labeled “deposits” had also been “broken into.” The file cabinet did not have any cash in it

but contained bank account numbers, social security numbers (SSNs), etc.

Mr. Johnson testified that he was certain that the man in the white car was the one

who broke into the building because he had “full view” and never lost sight of the suspect

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once the man left the building. He described the suspect as an African-American man, slim

build. Mr. Johnson testified that he never gave anyone consent to break into the building or

vandalize the cabinet.

Officer Renaldo Maiden, employed with the Ripley Police Department, testified that

he was the first officer to arrive at the USDA building after being dispatched to a robbery in

progress. He spotlighted the building and saw taillights. Officer Maiden pulled behind the

car, activated his blue lights, and ran the tag number. The computers were down, so he did

not get a response on the tag, but he called it in. He then pulled up to the car and spoke with

the driver, later identified as the Defendant. According to Officer Maiden, the Defendant

said that “he was just coming by to pick up his daughter’s vehicle because she didn’t want

to drive in the rain.” Officer Maiden asked him what was going on, and the Defendant said,

“I don’t know. It’s something going on in the back back there, somebody tried to break in

or whatever.” The Defendant told Officer Maiden that he did not have any identification

because he had just “got up”; he explained, “It started storming, she said she didn’t want to

drive in the rain, and I just come down here to pick up -- just to get the vehicle.” Officer

Maiden thanked the Defendant and allowed him to leave. Officer Maiden then drove around

to the back of the building to meet his lieutenant who had arrived on the scene during their

conversation.

Officer Maiden testified that he did not know the Defendant was the burglary suspect

until after he spoke with his lieutenant. He attempted to find the Defendant, thereafter, but

was unable to do so. Officer Maiden testified that the Defendant was the only person he saw

around the area, that the Defendant was the only person in the car, and that there was “no

question” that the Defendant was the driver of the white car. Using the tag number Officer

Maiden had reported on the night of the burglary, the car was later identified as belonging

to a female named Ms. Blue, who Officer Maiden believed was incarcerated at the time of

the burglary. The Defendant was identified as Ms. Blue’s stepfather.

Donna Neal, a program technician at FSA located in the USDA building, testified that

FSA’s Fire King four-drawer lateral cabinet was damaged and a window was broken during

the June 16, 2011 burglary. According to Ms. Neal, the file cabinet was labeled “direct

deposits” and stored names, addresses, SSNs, and bank and savings account numbers; the

cabinet was locked at all times when it was not in use. She testified that the file cabinet

could not be repaired and that it cost $2,882.22 to replace. Ms. Neal also testified that she

had seen the Defendant at the office prior to the burglary. He had come in to see if anyone

was interested in his car cleaning services approximately three to four weeks prior to the

burglary and left a sign containing his contact information and advertising that service. Ms.

Neal further testified that she saw the Defendant at the office again on the day of the

burglary. He again asked about interest in his car cleaning services. Ms. Neal said that she

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had a deposit on her desk at that time and that he asked her for change, to which she

explained that she did not have “that type of change.” She testified that she had not seen the

Defendant since his visit on the day of the burglary.

The jury found the Defendant guilty of the offenses as charged.

A sentencing hearing was held in which the trial court considered letters of support

from the Defendant’s mother and his pastor. The Defendant also gave a statement in which

he apologized and took full responsibility for his actions. He asked the trial court not to

allow him to “be a product of recidivism” and requested its consideration of an alternative

sentence. The Defendant said that he would pay for all the damages sustained as a result of

the burglary.

The trial court found that the Defendant had five prior convictions and, as such, he

must be sentenced as a persistent offender. Additionally, the trial court found that

[t]he Defendant has, in enhancement, convictions in addition to those

necessary to establish the appropriate range.

In mitigation, that he didn’t cause any harm to anyone.

And also I have read the statement submitted by Reverend Reese and

the defendant’s mother, Ms. Meux, and they both feel that he, in mitigation,

that he has a potential for rehabilitation with good moral character.

The trial court sentenced the Defendant to serve ten years on each count, concurrent,

but the instant sentence was to be served consecutively to a prior Hardeman County

conviction because the Defendant was on parole when the instant offenses were committed.

Granting alternative sentencing, the trial court “suspend[ed] a portion of the time, suspend

eight years, requir[ing] 24 months service on the sentences that are consecutive to the parole

violation.” The trial court’s sentencing order also provided that “[i]nformation explaining

the sentence imposed [wa]s available upon request. T.C.A. 40-35-210.” The Defendant was

ordered to pay restitution in Count 1 to Big Properties in the amount of $350 and, in Count

2, $2882.22 to the U.S. Government.

ANALYSIS

In this appeal, the Defendant contends (1) that the evidence presented at trial was

insufficient to support his jury convictions, (2) that the trial court “failed to act as thirteenth

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juror” in denying his motion for judgment of acquittal and motion for new trial because of

said deficiencies in the evidence, and (3) that the trial court’s imposition of a ten-year

sentence and $2,882.22 in restitution was excessive. The State responds that the trial court

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properly denied the Defendant’s motions for judgment of acquittal and new trial because the

evidence presented at trial was sufficient to support his convictions and that the mid-range

sentence imposed by the trial court was not excessive.

I. Sufficiency of the Evidence

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the State.

See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); see also State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

defendant has the burden of illustrating why the evidence is insufficient to support the jury's

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of

[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93

(Tenn. Crim. App. 1999).

Our supreme court recently clarified that circumstantial evidence is as probative as

direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the

supreme court rejected the previous standard which “required the State to prove facts and

circumstances so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.

Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct

and circumstantial evidence should be treated the same when weighing the sufficiency of

such evidence.” Id. at 381. To that end, the duty of this court “on appeal of a conviction is

not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all

Because the Defendant did not support his restitution challenge with argument or citations to the record or 1

any legal authority supporting his position that the imposed amount is excessive, he has waived appellate

review of this issue. Tenn. R. Crim. App. 10(b). Furthermore, we note that at sentencing, the Defendant

stated that he would pay restitution for all damages caused by the burglary.

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reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60,

67 (Tenn. 2011).

Rule 29 of the Tennessee Rules of Criminal Procedure governs motionsfor judgments

of acquittal. It provides, in relevant part, as follows:

On defendant’s motion or its own initiative, the court shall order the entry of

judgment of acquittal of one or more offenses charged in the indictment,

presentment, or information after the evidence on either side is closed if the

evidence is insufficient to sustain a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). This rule gives the trial court authority to direct a judgment of

acquittal, either at the close of the State’s proof or at the conclusion of all the evidence, when

the evidence is insufficient to support a conviction. See State v. Gilley, 297 S.W.3d 739, 762

(Tenn. Crim. App. 2008). In determining whether to grant a motion for judgment of

acquittal, “the trial court must favor the opponent of the motion with the strongest legitimate

view of the evidence, including all reasonable inferences, and discard any countervailing

evidence.” Id. (citing Hill v. State, 470 S.W.2d 853, 858 (1971)). The trial court applies the

same standard employed on appeal when analyzing the sufficiency of the evidence. Id.

A. Burglary Conviction

Burglary is defined in Tennessee Code Annotated section 39-14-402. It states, in

relevant part,

(a) A person commits burglary who, without the effective consent of the

property owner:

(1) Enters a building other than a habitation (or any portion thereof)

not open to the public, with intent to commit a felony, theft or assault;

. . . .

(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

Tenn. Code Ann. §39-14-402(a)(1), (c). Entry is defined as an “[i]ntrusion of any part of the

body; or [i]ntrusion of any object in physical contact with the body or any object controlled

by remote control, electronic or otherwise. See State v.Johnson, M2010-02664-CCA-R3CD,

2012 WL 1648211, at *4 (Tenn. Crim. App. May 10, 2012)(proof that a defendant’s whole

body made entrance into the building is not necessary; entry of a hand or an instrument is

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sufficient)(citing State v. Crow, 517 S.W.2d 753, 754 (Tenn. 1974)). The intentional element

required for the offense of burglary may be established by circumstantial evidence. Johnson,

2012 WL 1648211, at *4 (citing State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App.

1993); Bollin v. State, 486 S.W.2d 293, 296 (Tenn. Crim. App. 1972). “Generally, when a

person enters an occupied dwelling which contains valuable property, without the permission

of the owner, a jury is entitled to infer that the entry was made with the intent to commit a

theft.” State v. Michael A. Braswell, No. 01C01-9807-CC-00304, 1999 WL 994043, at *7

(Tenn. Crim. App. Oct. 29, 1999)(citing 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)); see also

Bollin, 486 S.W.2d at 296.

The evidence presented at trialshowed that Mr.Johnson observed a man matching the

Defendant’s description entering the USDA building via a window, at which time Mr.

Johnson called the police. He then observed this man get into a white car, the only nongovernment vehicle on the premises, and drive toward the street. Next, Mr. Johnson saw

Officer Maiden pull this white car over and converse with the driver. Unaware that the

driver of the white car was the burglary suspect, Officer Maiden let him go but did call in the

tag number on the car. The car was identified as belonging to Ms. Blue, who was identified

as the Defendant’s step-daughter. Both Officer Maiden and Mr. Johnson testified that driver

of the white car was the only other person on the premises and that he was the sole individual

in the white car. Officer Maiden also testified that the Defendant was the driver of the white

car on the night in question. The proof further established that the Defendant did not have

permission to enter the building and that a file cabinet valued over $2,000 was damaged. It

is for these reasons that we conclude that the evidence was sufficient to support the

Defendant’s conviction for burglary of a building and that the trial court did not err in

denying the Defendant’s motion for judgment of acquittal.

B. Vandalism Conviction

Vandalism is defined in Tennessee Code Annotated section 39-14-408. It states, in

relevant part,

(a) Any person who knowingly causes damage to or the destruction of any real

or personal property of another or of the state, the United States, any county,

city, or town knowing that the person does not have the owner’s effective

consent is guilty of an offense under this section.

Tenn. Code Ann. § 39-14-408(a). “A person acts knowingly with respect to a result of the

person’s conduct when the person is aware that the conduct is reasonably certain to cause the

result.” Tenn. Code Ann. § 39-11-302(b). Whether a defendant acts knowingly is a question

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of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000).

In a light most favorable to the State, the evidence showed that the Defendant

burglarized the USDA building, breaking a window on the FSA side of the building and

entering the room in which the file cabinet labeled “direct deposits” was located. The file

cabinet at issue had been pried open, was irreparable, and cost $2,882.22 to replace. The

Defendant had visited the USDA building three to four weeks before the burglary and again

on the day of the burglary. During the latter visit, he observed Ms. Neal processing a deposit

on her desk and asked her for change. Despite the Defendant visiting her office twice prior

to the burglary, Ms. Neal had not seen him again prior to trial. For the foregoing reasons, we

conclude that the evidence was sufficient for a rational trier of fact to conclude that the

Defendant was guilty of vandalism, over $1,000, and that the trial court’s denial of the

Defendant’s motion for judgment of acquittal was not in error.

II. Thirteenth Juror

Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may grant

a new trial following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.” This is the modern equivalent of the thirteenth juror rule and “imposes upon a

trial court judge the mandatory duty to serve as the thirteenth juror in every criminal case,

and that approval by the trial judge of the jury’s verdict as the thirteenth juror is a necessary

prerequisite to imposition of a valid judgment.” State v. Biggs, 218 S.W.3d 643, 653 (Tenn.

Crim. App. 2006) (quoting State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)) (internal

quotation marks omitted). “[W]hen a trial court overrules a motion for new trial without

comment, an appellate court may presume that the trial court approved the verdict as the

thirteenth juror.” Id. (citing Carter, 896 S.W.2d at 122). However, “where the record contains

statements by the trial judge expressing dissatisfaction or disagreement with the weight of

the evidence or the jury’s verdict, or statements indicating that the trial court absolved itself

of its responsibility to act as the thirteenth juror, an appellate court may reverse the trial

court’s judgment.” Carter, 896 S.W.2d at 122.

Here, the trial court denied the Defendant’s motion for new trial without making any

comment. As such, there is no basis for the Defendant’s assertion that the trial court failed

to act as thirteenth juror. The record is devoid of any indication that the trial court did not

agree with the verdict, and therefore, we presume that the trial court approved the verdict.

See Biggs, 218 S.W.3d at 653. Accordingly, we conclude that the trial court properly

fulfilled its duties as the thirteenth juror in this case.

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II. Sentencing

Before a trial court imposes a sentence upon a convicted criminal defendant, it must

consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the

nature and characteristics of the criminal conduct involved; (e) evidence and information

offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts asto Tennessee sentencing practicesforsimilar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical

that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated

section 40-35-210(e)” and articulate in the record its reasons for imposing the specific

sentence. See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).

Currently, upon a challenge to the sentence imposed, it is the duty of this court to

analyze the issues under “an abuse of discretion standard of review, granting a presumption

of reasonableness to within-range sentencing decisions that reflect a proper application of

the purposes and principles of our Sentencing Act.” Id. at 707. Those purposes and

principles include “the imposition of a sentence justly deserved in relation to the seriousness

of the offense,” Tennessee Code Annotated section 40-35-102(1), a punishment sufficient

“to prevent crime and promote respect for the law,” Tennessee Code Annotated section 40-

35-102(3), and consideration of a defendant’s “potential or lack of potential for . . .

rehabilitation,” Tennessee Code Annotated section 40-35-103(5). State v. Carter, 254

S.W.3d 335, 344 (Tenn. 2008). The burden of showing that a sentence is improper is upon

the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also

State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The 2005 amendments also rendered

advisory the manner in which the trial court selects a sentence within the appropriate range,

allowing the trial court to be guided by – but not bound by – any applicable enhancement

factors when adjusting the length of a sentence. Bise, 380 S.W.3d at 706. In accordance

with the broad discretion now afforded our trial court’s sentencing decisions,

misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as

amended in 2005. So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence

imposed by the trial court within the appropriate range should be upheld.

Id.

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As a preliminarily matter, we deem it necessary to address a line in the trial court’s

sentencing order that states, “Information explaining the sentence imposed is available upon

request. T.C.A. [§] 40-35-210.” This court is aware of no authority which authorizes the

trial court to offer its reasons for imposing a particular sentence only upon request, and the

statute cited above authorizes no such action. As our supreme court stated in Bise, it remains

critical that the trial court articulate on the record its reasons for imposing the specific

sentence. Bise, 380 S.W.3d at 705 n.41 (emphasis added). The order also states that “the

findings on the record are incorporated herein.” Hence, the statement that an explanation of

the sentence was available upon request was erroneous. Moreover, it was unnecessary

because the trial court explained the sentence on the record.

Turning to the issue at hand, the Defendant argues that his ten-year sentence is

excessive. The Defendant’s sole basis for the argument is that “the trial court erred by not

giving him a sentence at the low end of the applicable sentencing range.” Under Bise,

sentencing decisions are afforded broad discretion, and within-range sentences consistent

with the purposes and principles of sentencing will be upheld. See Bise, 380 S.W.3d at 706.

The ten-year sentence imposed by the trial court was within the eight to twelve year range

of punishment for the Defendant’s convictions, and the trial court’s basis for the sentence as

announced from the bench is consistent with the purposes and principles of the sentencing

act. Therefore, this argument is without merit.

Although appellate review generally will extend only to those issues presented for

review, this “court may in its discretion consider other issues in order, among other reasons:

(1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3)

to prevent prejudice to the judicial process.” Tenn. R. App. P. 13(b). It is under this

authority that we review the propriety of the alternative sentence imposed by the trial court.

Sentencing the Defendant to an effective ten-year sentence, the trial court ordered twentyfour months of that sentence to be served in the DOC with the remainder to be completed on

probation.

Tennessee Code Annotated § 40-35-306 governs split confinement, and it states, in

relevant part,

(a) A defendant receiving probation may be required to serve a portion of the

sentence in continuous confinement for up to one (1) year in the local jail or

workhouse, with probation for a period of time up to and including the

statutory maximum time for the class of the conviction offense.

Tenn. Code Ann. § 40-35-306(a)(emphasis added). The Code grants no authority to extend

the confinement portion of a split confinement sentence beyond 365 days. See State v.

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Matthew I. Tart, E2009-01315-R3-CD, 2010 WL 1610515, at *3 (Tenn. Crim. App. Apr. 21,

2010); see also State v. Kilby, E2011-02462-CCA-R3CD, 2012 WL 3793435, at *1 (Tenn.

Crim. App. Sept. 4, 2012)(sentences resulting in a confinement period of over one year runs

afoul of section 40-35-306(a)). The trial court’s imposition of a ten-year sentence and

requiring twenty-four months of which to be served in the DOC created an illegal sentence

because it contravenes section 40-35-306(a), and it must be reversed. Therefore, we remand

this case to the trial court for resentencing in accordance with this opinion.

CONCLUSION

Based on our review of the record and the applicable law, we affirm the Defendant’s

convictions for vandalism and burglary, reverse the sentence imposed, and remand for

resentencing.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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