# FILED
April 3, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1997 SESSION

STATE OF TENN ESSEE, ) ) No. 01C01-9604-CC-00160 Appellee, ) ) DICKSON COUNTY VS. ) ) Hon. Robert E. Burch, Judge BILLY JOE BAGGETT, ) ) (Aggravate d Burglary) Appellant. )

FOR THE APPELLANT : FOR THE APPEL LEE : DAVID D. WOLFE CHARLES W. BU RSON 304 East College Attorney General and Repor ter Dickson, TN 37055 EUGENE J. HONEA Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 DAN MITCHUM ALSOBROOKS District Attorney General JAMES W. KIRBY Assistant

District Attorney General 105 Sycamore Street Ashland City, TN 37015

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The appellan t, Billy Joe Baggett, wa s convicte d by a jury of aggrava te d burglary. The trial cou rt se ntenced him to fifteen (15) years as a Range III, Persiste nt Offe nder. On a ppeal, h e presen ts ten (10 ) issues f or our revie w: (1) whethe r the ev

idence w as sufficient to s upport a fi ndin g of guilt beyond a reasonable doubt for aggravated burg lary; (2) whether the trial court erred in allow ing the state to introduce tape recordings of four(4) telephone conversati on s betw een Baggett and a state informant; (3) whether the tri al court erred in allow ing the st ate to introduce a prybar into evide nce; (4) whether the t ri al court erred in allowingthe state to use prior convictions for impeachment purposes; (5) whether the trial c ourt erred in allowing the st ate to present evidence of B aggett’s escape from jail; (6) whether the trial court erred in not granting a mistrial f ollow ing a state witness’ prejudicial remarks; (7) whether the tri al court erred in allow ing evidence of Baggett’s preferential treatment while in jail; (8) whether the cha rge to the jury as to reasonable doubt was un constitutional; (9) w hether the trial court erred in sentencing Baggett; and (10) whether the delay in hearing the motion for new trial vi olated his right to a speedy appeal. We affirm the judgment of the trial court.

FACTS

The proof at trial showed that Detective Mark Coul on was contacted by Darryl Dooley, who was

incarcerated at the

Cheatham County Jail, w ith some information regarding Billy Joe Baggett

. He informed Detective Coulon that Ba ggett was try

ing to set up a b urglary and was asking for Dooley’s help. Detective Coulon then contacted TBI Special Agent M ike Breedlove with this information. With the consent of Tom G rogan, Special Agent Br eedlove planned a burglary of the Grogan residence

. Breedlove arranged for Dooley to contact Baggett with information on how and when the burglary would take place. Dooley agreed to allow the TBI to tape record telephone conversa tions between himself and Baggett. During these conversations, Dooley and Baggett disc ussed the details of the upcoming burglary. Dooley gave Baggett the addr

ess of the Grogan residence and told Baggett when Gr

ogan would be out of town and w hat to look for when he got3

inside the house. Law enforcement officers monitored the Grogan residence. Bag gett and a co-defendantwere spotted entering the garage of the Grogan residence and were arrested inside th e garage by t he offi cers. Bagge tt was wearin g latex sur gical glovesand was carrying a pair ofpl iers, a small flashlig ht and a pocket knife. Another flashlight was found in the area where Bagget t was apprehended. Although the officers did not search the garage for any “bur glary tools” at th at time, Grogan later found a prybar underneath a desk in the garage and turned it over to the officers. After a jury tr ial, Ba ggett was found guilty of aggravated bur glary. He was sentenced to the maximum of fifteen (15) years as a Range III, Persistent Offender.

SUFFICIENCY OF THE EVIDENCE
Baggett claims that the evidenc e is i nsufficient to support a guilty verdict beyond a reasonable doubt. He testifie d at trial that

the reason for his being in the Grogan household was to collec t money Grogan owed to D ooley because Dooley owed Baggett

money for

marijuana. Therefore, he contends tha t this negates the state’s proof that he had the intent to commit theft when he entered the residence, a requisite element of burg lary. See T.C.A. § 39-14-402(a)(1). Greatweight is giv

en to the result rea ched by the jur y in a criminal tri al. A juryverdict accredits

the state's witnesses and resolves all confli cts in favor of the state. State v. Will ia ms , 657 S.W.2d 405 (Te nn. 1983). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be draw n therefrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). More over, a g uilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a pre sumption of guilt on appeal. State v. Grace , 493 S.W.2d 474 (Te nn. 1973). The appellant has the burden of overcoming this pres umption of guilt. Id

. Where sufficiency of the evidence is challenged, the rel evant question for an4

appellate court is whether, after viewing the evidence in the light most favorable to the prosecutio n, any rati onal trier of fact could h ave found the e ssential el eme n ts of the crime or crimes bey ond a reasonable doubt. Ja ckson v. Virginia , 443 U.S. 307 (1979); State v. Duncan , 698 S.W.2d 63 (Ten n. 1985); T.R.A.P. 13(e). The mere fact that

Baggett’s testimony

provided the jury w

ith another reason
as to why he was i n the Grogan residence does not make the evidence insufficient. Obviously, the jury did not belie ve his testimony. The wei ghtand credibility of the witnesses' testimony are matters entr usted exclusively

to the jury as the tri ers of fact. State v. Sheffield , 676 S.W.2d 542 (Tenn. 1984); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim

. App. 1978). Therefore, because w e find thatotherwise the record clearlysupports a verdict of g uilty beyonda reasonable doubt, this issue is without merit.

ADMISSION OF TAPE RECORD INGS
Baggett next contends that

the trial court erred i n admitting into evidence four (4) tape recorded conversations between Dooley and himself. He claims that there
were as many as fourteen (14) conv ersations that were not tap ed. Therefore, he maintains that because all of the conversations betw een Baggett

and Dooley could not be introduced, none should hav e been presented t o the jury because of the danger of misleading or

confusing the jury purs uant to Rule 403 of the Tennessee Rules of Evidence. The determination whether or not evidence is admissible is left to thesound d isc retion of the trial court. State v. Hill , 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994); State v. Baker , 785 S.W.2d 132, 134 (Tenn. Crim

. App. 1989). This Court will not disturb that finding abs ent a showing o f abuse of discretion. Id . We find that the trial judge did not abuse his discretion. The taped conversations were relevant to the burglary charge. Evidence is relevant if it “h as a tendency to make the exi stence of any fact that is of consequence to the action more probable or less probab le than it would be without5

the evidence.” State v. Harris , 839 S.W.2d 54, 71 (T enn. 1992), T.R.E. 401. There is no constitutional viol ation to tape record a conversation before the defendant is charged. State v. Branam , 855 S.W.2d 563, 568 (Tenn. 1993). Additionally, there
was no unfair prejudice to Bagg ett as he testified to what w as discussed during the other conversations. As

there is no showing

of abuse of discretion, the tapes were properly admitted. Baggett further contends that

the tapes should have been ex cluded because of some discussions regarding Baggett supplying Doole ywith marijuana while Dooley was incarcerated in the Cheatham County Jail. As a general rule, evidence of other crimes or

bad acts would not be admiss ible. State v. Parton , 694 S.W.2d 299 (Tenn. 1985); T.R.E. 404(b). How ever, under the circumst ances of th e case , any error was, at best, harmless because Baggett testified that Dooley owed him money for supplying Do oley with marijuana.Accordingly, thi s issue has no merit.

ADMI SSI ON O F PR YBAR
Baggett’s next argument concerns the admiss ion o f a prybar which w as found by Grogan while he was cleaning his garage about thirty days after the incident. Grogan found the prybar under neath a desk which was within a foot or so from where Baggett’s ac complice was standing at the time of his arrest. As the prybar was not his, Grogan turned it overto the police. Be cause it had a rou gh exterior, the police did not test the pr ybar for fingerprints. The prybar was subsequently introd uced in to evidence as a “burg lary tool.” Bagg ett claims that because o f the laps e of time and the lack of any finger print testing, the pry

bar should have been excluded as it was highly prejudicial. The mere fact that evidence is prejudicial to the defendant does not make it inadmis sible as a matter o f law. State v. Dulsworth , 781 S.W.2d 277, 287 (Tenn. Crim. App. 1989). The prybar was relevant as it show

ed the intent of Baggett on the nightof the inc ident. See State v. Harris , 839 S.W.2d at 71. Th e jury could reasonably infer that the prybar w as used in the burglary. Thi s is more a question6

of the weight of the evidenc e rather than its admissibi lity. Thetrial judge properly admitted the prybar into ev idence.

ADMISSION OF PRIOR CONVICTIONS
Baggett’s next contention is that the trial court improperl

y allowed the

state to use his prior convictions of receiving and concealing st olen goods for impeachment purpose s. Because of the similarity between the prior conv ictions and the charge of burglary, he claims that the prejudice outweighed any probative val ue for truthfulness. Upon learning that Baggett intended to testify at trial, the trial court conducted
a hearing on the issue of admitti ng his prior convi ctions. After determining that the probative value on credibility outweighed any unfair prejudice to Baggett, t he trial court ruled that the state could use the prior convictions for receiving and concea ling stolen property for impeachment. As a result, defense counsel asked Baggett about these prior convicti ons on direct examination. Rule 609(b)(3) of the Tennessee Rules of Evidence provides that in order to impeach a witness who is the defendant in a criminal prosecution with prior crimi nal convictions, the court must determine t h at the “conduct’s probativ e value on credibility

outweighs its unfair prejudicial effect on the substanti ve issues.” In making the determination as to whether the probative value outw eighs the prejudice to the defendant, the trial court should (a) assess the s imilarity between the

crime
on trial and the crime underlyin g the impeaching convi ction and (b) analyz e the relevance the impeaching conviction has to the issue of credibil ity. State v. Farmer , 841 S.W.2d 837, 83 9 (Tenn. Crim. App. 1992). Alth ough the convictions for rec eiving and concealing

stolen goods ar

e some whatsimilar to the burglar y charge, the prior

convictions are probati ve o f dishone sty. This Court has previo usly held that it is n ot error to admit prior convi cti ons that involve dishones ty, even though the pri or convictions and the pending charge are relatively similar. State v. Wright , 836 S.W.2d 130 (Tenn. Crim.7

App. 1992). We find that it was proper to admit the prior convictions.The convictions for receivingand conceali ng stolen goods are relevant t o Baggett ’s credibi lity. The trial judge balanced the probative v alue against any prejud ice to the defenda nt. Two larceny convictions were

excluded because the tr ia l court believed that the prejudice outweighed any probative val ue as to credibility.The trial court properl y allowed evidence of Baggett’s prior convictions

for receiving and concealing stolen goods.

ADMISSION OF

JAIL ESCA

PE
Baggett next argues

that evidence that

he escaped from jail whil e awaiting trial should have been excluded because it happened six (6) months after his arrest

. Evidence that an accused has escaped from custody is admissible for the purpose of “establishing the

accused’s guilt, consciousness of guilt, or knowledge of guilt.” State v. Burton , 751 S.W.2d 440, 450 (Tenn. Crim. App. 1988). Contrar y to Baggett’s position, the length of time bet ween the commissionof the offense and the escape is irrelevant. Craig v. State , 455 S.W.2d 190 (Tenn. Crim. App. 1970). This issue has no merit.

MIS TRI AL
Baggett contends that a mist rial should have been decl ared based on a statement that he was wel l known to law enforcement . Specifically, Bagg ett claims that it was er

ror for the trial court t

o allow the following

exchange on the prosecution’s direct ex

amination of TBI Special Agent Bree dlove: Q: “Why, Agent Breedlove, was M r. Baggett, to use the term that’s been used before, I think, ‘targeted’ in this particular offense? W hy did you set your sights on Billy Joe Baggett?”. A: “Well, Mr. Baggett is well-known in the law enforcement--”. At this point, defense counsel obj ected and the trial judge pr omptly sustained the objection. The trial judg e further instructed the jur y to disregard the s

tatement.8 The decision whether to g rant a mistrial is w ithin the discretion of the tr ial judge, whose action will not be disturbed on appeal unless there was an abuse of that discretion. State v. Millbrooks , 819 S.W.2d 441 (Tenn. Crim. App. 1991). Objections inte rposed by defe nse counsel were su stained, and t he trial judge gave a curative i nstruction to the jury . It is presumed that the jur y followed the trial judge’s instr

uctions not to consider inadmi ssible evidence. Id . This issue is without merit.

PREFERENTIAL TREATMENT
Baggett next argues

that evidence of alleged pr eferential treatment in the Cheatham County Jail shoul d have been excluded because it was irrelev ant and highly prejudicia l. Determinations as to the relevance and probativ e value of evidence are within

the sound discretion of the tri al court. State v. Leath , 744 S.W.2d 591,593 (Tenn. Crim. App. 1987); Gray v. State , 235 S.W.2d 20 (Tenn. 1950). Baggett called a jail or at the Cheatham County Jai l as a witness to introduce certain jail log records. On cros s examination, the state w as allowed, over objection, to ques tion the jailer about alleged preferential treatment that Baggett received w

hile incarcerated. The tri al judge conducted a jury out hearing to determine the relevance of the questioning. The state ar gued and the trial court agre ed that t he testim ony conce rning pref erential treatme nt was prob ative as to the credibility of the jailor. The trial judge further limited the prosecution’s questions to those only concerning treatment from that par ticular jailor. The record in this case suppor ts the trial court findings; therefore, this issue is without merit.

JURY CHARGE
Baggett next argues

that the trial court’s reasonable doubt instruction was9

unconstitutional. He contends jurors could find guilt based on a degree of proof below that required by

the Due Process Clause. The tria l court gave the foll owing instr uctions t o the jury: The State has the burden of proving the guilt of each defendant beyond a reasonable doubt, and this burden never shifts but remains on the State throughout the trial of the case. The defendant is not required to prove his innocence. Reasonable doubt is that doubt eng endered by an investiga tion of a ll the pro of in the case and an inabil ity after such investigati on to let the mind rest easil y as to the certainty of guilt.Reasonable doubt does not mean a capricious, possible, or imaginary doubt. Absolute certainty of gui lt is not demanded by law to convict of any criminal charge, but moral certainty is required, and this cert

ainty is required as to every proposition of proof requisite to constitute the offense.
Taken in the context of the entire jury charge, use of the phrase “moral certainty” in a reas

onable doubt instruction is constitutional. See Nichols v. State , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993). This issue is without merit.

EXCESSIVE SENTENCE
Baggett next contends tha t the sentence imposed by the tr ial court was excessive. The trial court sentenced Baggett, a Range III, Persistent Offende r, to the maximum sentence for aggravated burglary. Baggett argues the trial court should have given more weight to mitigating factors. When there i s a chal lenge t o the len gth, ra nge or m anner of s ervic e of a sentence, it is the duty o f this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-401(d). The presumption of correctness which attach es to the trial court’s action is conditioned upon an affirmative showing in the record that the trial court10

considered appropriate sentenc ing principles and all

relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Accordingly, the defendant has the burden of sho wing that the sentence is improper. State v. Holland , 860 S.W.2d 53 (Ten n. Crim. App. 1993). When conducting our de novo review, relev

ant factors to consider are: (1) the evidence, if any , received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternativ

es, (4) the nature and charac teristics of the criminal conduct, (5) any mitigating or statutory enh ancement factors, (6) any st atement that the defendant made on his own behalf, an d (7) the potential for rehabi litation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210. In calculating the sentenc e for Class B, C, D, or Efelony convictions, the presumptive sentence is th e minimum within the rang e if there are no enhancement or mitigating facto rs. T.C.A. § 40-35-210(c) ; State v. Smith , 926 S.W.2d 267 (Tenn. Crim. App. 1995). If there are enhanc ement factors but no mitigating

factors, the

trial cour

t may set th e sentence abo ve the mini mum. T.C.A. § 40-35-210(d). A sent ence involving both enhancement and mitigating factors requires an assi gnment of relative wei ght for the enhancement factors as a means of increasing the sentenc e. T.C.A § 40-35-210(e). So long as the trial court complies with appropriate sentencing principles and its findings are supported by the record, w eight to be afforded an existin g factor is in the discretion of the trial cour t. See State v. Moss , 727 S.W.2d 229 (Te nn. 1986). Baggett was convi cted of aggravated burg lary, a Class C felony. The trial court found Baggett to be a Range III, Persistent Offender. As su ch, Baggett could receive a sentence between ten and fifteen years. B ased on the presentence report, the tri al court found Baggett had a pr ior conviction for escape, two prior conv ictions for grand larce ny, two convicti ons for passing worthless checks, a c

onviction for second-deg ree burglary, and tw enty prior convictions for possessi on of stolen property. The tri al court also noted that Baggett was on probation for several offenses when he committed th e burglary11

in this case. The trial court properly found only one mitigating factor in that Baggett’s criminal conduct did not cau se or threaten serious bodi ly injury. T.C.A . § 40-35- 113(1). Given Bagg ett’s extensive cr iminal history, the co urt had the discretion to give it littl e weight. See State v. Santiago , 914 S.W.2d 116 (Tenn. Crim. App. 1995). The record in this c ase supports the fifteen-year s entence imposed by the trial court.

SPE EDY APPE AL
Baggett finally contends that a delay in hearing his motion for new trial violated his Sixth Amendment right to a speedy tr ial. On February 16, 1 994, defense counsel for Baggett req uested and the trial court or dered that a transcript be prepared and pr oduced for use prior to argu ment on the motion for new trial. The sentencing judge had initially set the hearing on the motion for a new trial on May 9 , 1994. On September 6, 1994, defense counsel wrote a letter to the circuit court clerk indicating that he had been contacted by the court reporter preparing the transcript and was adv ised the motion for new tri al was reset for September 12, 1994, because s he had not completed the transcri pt. By July 17, 1995, the motion for new trial had not been heard nor had Baggett received the trial tr

anscript. Baggett then filed a motion to set motion for new trial and compel production o f the transcript. Our courts have adopted the four factor speedy trial analysis set forth in Barker v. Wi ngo , 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101 (1972) . See State v. Baker , 614 S.W.2d 352, 353 (Tenn. 1981); State v. Bishop , 493 S.W.2d 81, 83-85 (Tenn. 1973). Howev er, the Barker

factors have not, until rece ntly, been applied to appellate delay cases alleging v

iolation of the Sixth Amendment right to a speedy tri al. In United States v. Smith , 94 F.3d 204, 208 (6th Cir. 1996), the Sixth Circuit transplanted the Barker factors in analyzing

violations of the right to a speedy tr ial, with slight

modifications, as the framework for12

evaluating appellate del ay cases. In doing so,the Court recognize d that an excessive delay in the appellate process may also rise to the level

of a due process violation. Id . at 207. The court must examine the conduct of the government and the defense to deter mine whether a violati on of defendant’s due process right to a prompt appeal has occurred. In this process the court balances four factors: (1) leng th of delay; (2) reason for del ay; (3) whether defendant asserted his right; and (4) whether defendant w as prejudiced by the delay. Id

. We have examined these various factors relative to the delay in hearing the motion for new trial. We find no viol ation, especially cons idering the failure of defendant to demonstrate any prejudi ce.
The judgment of the trial court is AFFIRMED.

JOE G. RILEY, JUDGE13

CONCUR:

DAVID H. WELL ES, JUDGE

JERRY L. SMITH, JU DGE