# FILED April 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1995 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9410- CC-00212 ) Appellee, ) ) ) FAYETTE COUNTY VS. ) ) HON. J ON KERRY BL ACKWOOD BRIAN KE ITH MARTI N, ) JUDGE ) Appe llant. ) (Aggravated Burglary)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF FAYETTE COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : RICHARD G. ROSSER CHARLES W. BURSON 102 Eas t Court Squa re Attorney Generaland Reporter Somervill e, TN 38068 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 ELIZAB ETH RICE Distri ct Attor ney General CHRISTOPHER MAS HBURN Assistant Distri ct Attor ney General 302 Market Street Somervill e, TN 38068
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code A nn. § 39-14-403(a). -2- 

# OPINION

The Defendant, Bri an Keith Marti n, appeals as of right pur

suant to Rule 3 of the Tennessee Rules of Appell ate Procedure. He was convicted by a Fayette County jury

of aggravated burglary. 1 The trial court sent enced him as a Range II multipl e offender to eight year s in the Depart ment of Correct ion. In this a ppea l, the Defend ant pres ents five issu es for r eview: (1) That the evid ence supp orting h is conviction is legally insu fficient; (2) tha t the trial c ourt er red by failing to cond uct a ju ry-out h earin g re garding the admissibi lity of poli ce testi mony about potent ia l crimin al cha rges o ther tha n the o ne for w hich h e was on trial; (3) that the State improperl y questioned a w itness a bout the Defendant’s prior convi ctions or bad acts; (4) that the trial co urt erred in allowing th e State to present testimony t hat he refused to make a statement to police; and, (5) that the tri al court erred i n sentencing him to eight years as a Range II multiple offender. After carefully review ing the record, we conclude the Defendant’s i ssues lack merit an d affirm the judgm ent of the tria l court.

We begin wit h a brief s ummary of the relevant f acts. On November 3, 1993, the home of Smith and Eva Bowl ing, located on H ighway 59 i n Fayette County, was burglari zed. Smith Bowling r eturned to hi s home in the middl e of the day to find that the bac k door had been pri ed open. As he was looki ng through his home to determine i f anythi ng was missing, he received a telephone call from
an e mployee of the Fi rst Tennessee Bank in Bartlet t, Tennessee regar

di ng a check presented for

payment at thei r drive-thru window. Bar tlett i s l ocate d in ShelbyCounty, just west of Fayet te County. Bowling inf ormed the bank tel ler that his hom e had recentl y been burglar ized and his c heckbook was missing. The-3-

bank teller

called th e poli ce, who ar rivedminutes l ater and arrested two individu als in the ca r at the d rive-thru windo w, the D efend ant an d his girlf riend, Tina Carter. A sear

ch of the car revealed many items from t he Bowlings’ home, includi ng a shotgun, a l eatherjacket , a bottle of prescri ption medicat ion, a j ar of change, and several pieces of j ewelry. Police of ficers alsodiscovered a loaded 9mm Smith & Wesson handgun which was no t alleged to have been taken f rom the Bowlings’residence.

Tina Carter co nfesse d to breaking into and taking items from the Bowlings’ home. At the Defendant ’s tri al, she testifi ed that the Defendant slept while she committed the offense. According to her testi mony, the coupl e was travel ing from Pennsylvan ia toward Memphis. The Defendant dr ove for seven or eight hours, and then Carterbegan drivi ng to all ow him to sleep. Carter became lost and stopped at the Bowlings’ home to ask fordirections . She pa rked on the street, exited the car, andapproached the house, all whi le the Defendant remained sleeping in the passenger seat. Fi nding no one home, Carter returned to t he car, retri eved a pry bar, and broke into the house thr ough the back door. She took a number of items and returned to the car, pi ling thestolen i tems on the back seat. The Defenda nt woke up as she drove away. Upon discovering the stolen items, he chastised her

and asked her to r

eturn them. She r

efused to do so, fearing t hat she migh t be ca ught. T hey ev entua ll y ma de their way to the Fir

st Tennessee Bank in Bartl ett. Asser ting her rightagainst self-incrim ination, C arter dec lined to answer most questions concerning what had occurred at the bank.
Kelly Dunn, the tel ler at t he drive-t hru window of the First

Tennessee Bank in Bartlet

t, test ified t hat sh e observed Carter and the Defendant at the window-4-

earl y on the afte rnoon of November 3, 1993. Carter was drivi ng and the Defendant was awake in the pass enger sea t. Carter presen ted a check made payab le to her fr

om the acco unt of Sm ith Bowling
. She had endorsed the check and included her

dr iver’s li cense number. Dunn call ed Smith Bowling, learned thathis checkbook was miss ing, and cal led the pol ice. The Defendant never spoke to Dunn durin g the enti re episode.

In his first

issue on appeal, the Defendant argues that t he evidence supporting his convi ction i s legall y insuff icient . He contends t hat there i s no directevi dence li nki ng hi m to t he bu rgl ary of t he Bo wli ngs’home . He asse rts t ha t, in fact , the uncont radicted testimony of Ti na Carter established t hat he neither particip ated in nor was aware o f the burg lary. Citing Cleveland Wrecking C o. v. Butl er , 57 Tenn. App. 570, 421 S.W.2d 380 (1967), t he Defend an t contends that where testim ony is not contrad icted by dir ect proof or circumstancesincon sisten t with its tru th, it must be taken as tr ue. The Defendant do es adm it that po sses sion o f recen tly stolen good s gives rise to a n in ferenc e thatthe posse ssor ha s stolen th e good s. Howe ver , qu oti ng f rom Bush v. S tate , 541 S.W.2d 391, 395 (Tenn. 1976), he argues that the infer

ence is a “f iction of the law” and an “assumption of convenience” t hat disappear s when “refuted by positive testimon y.” Thus , the inferen ce arising from his p ossess ion of th e Bowlings’ recently

stolen i tems disappeared i n ligh t of Carter’s u ncontradicted testimony

that he was not

involved in the burgl ary, th erebyleaving abs olutely no evidence to s upport his convicti on.

When an accused challenges the su fficie ncy of the convicti ng evidence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble-5-

to the prosecut ion, any r ational trier

of fact could have found the es sential eleme nts of the crime beyond areason able do ubt. Jack son v. V irginia , 443 U. S. 307, 319 (1 979). Q uestio ns co ncern in g the credibil ity of the witnes ses, the weightand value to be given the evidence, as well as al l factua l issues r aised by the evidence, ar

e resolved by

the tri er of fact , notthis court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cri m. App. 1987). Nor may this cour t reweigh or reevalua te the evide nce. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdi ct approved by t he tri al jud ge accredi ts the State’ s wi t nesses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn . 1973). O n appe al, t he Sta te is entitled to the stronge st legitima te viewof the evidence and allinf ere nces the ref rom. Cabbage , 571 S.W.2d at 835. Because a verdict of guil t removes the pr esumption of i nnocence and replaces it with a presumption of guil t, the accused has the burden in this court of illustrati ng why the evi dence is insuf ficien t to support the verdict returned by

the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W.2d at 476.

The evidenc e estab lished tha t t he Bo wlings’ residence had been burglari zed and that sever al items had been stol en. The proof fur ther establ ished that theDefendant was at t he scene at the t ime of the crime. He was travel ing with his girlfrie nd, T ina Ca rter, wh o adm itted to c omm itting the crime s. W ithin a few hours after

the burglar

y, theDefen dant wa s arreste d as he sat in the ca r with his girlfriend at a ba nk’s dr ive-thru win d ow after she had attempted to pass a-6-

forged check taken from th e burglari zed residence. Numerous otheritems taken during the burg lary were found in the vehicle with the D efendant an d Carter.

Carter was call ed as a wi tnes s for the Defendant. She test ified t hat the Defendant stayed in the car and slept whi le she burgl arized the house. She s aid thathe knew nothing about her breaking into the h ouse and steali ng the vari ous it ems until he woke up after she drove aw ay from th e resid ence . Wh ile it is
accur ate to say that

her testi mony that the Defendant was asleep and thu s unaware of the burgl ary was uncontr overted, certain ly the jury was not requi red to give her testimo ny any credibil ity, and obviousl y the jur y chose not to do so.

It is well established i n Tennessee that th e possession of recently stolen property gives ri se to an inference that t he possessor ha s stole n it and may, in light of surroundi ng circumstances, suppo rt a convictio n for burg lary. See, e.g. , State v. Hamilton , 628 S.W .2d 742 , 746 (T enn. C rim. App . 1981) (ci tations omitted); see also , State v. Land , 681 S.W.2d 589, 591 (Tenn. Cri m. App. 1984) (citat ion omitted). T he Defendant cites Bush v. S tate , 541 S.W.2d 391, 395 (Tenn. 1976), for

the proposi tion that the infer

ence a rising f rom proof of possession of recently stolen property is a “fi ction of the law” and an “as sumption forconvenience”which disappear s upon the introduct ion of cont rary proof . The Defen dant, howeve r, is quoting fro m a se ction of Bush in which t he court was attempting to clarify the of ten confused terms “presumption” and “inference ,” as used in case s involvin g pos sess ion of re cently stolen pro perty. Immediately af ter this explanati on, the Bush court c learly an d suc cinctly stated th at “the inference arising from the proven fact of possession of recently stolen pro per ty is not destroyed by contra dictory evide nce, even the positive testimon y of witness es....”-7-

Bush , 541 S.W.2d at 395 (emphasis added) . The court went on to hold t hat the force of the inference does not vani sh upon the offering of an explanati on by the defend ant. Rather, the infer ence “remain s to be weighed by thejury agai nst the evidence offered by defendant in ex planation of his possess ion of the rec ently stolen property.” Id. ; see also Land , 681 S.W.2d at 591.
Ap plying that sound reasoning to the case at bar, we believe it was th e jury’s province to weigh the evi dence presented by the State, includi ng the inference arising from the Defendant ’s possessi on o f recently stolen prop erty, against the explanat ion offer ed b y the Defend ant. The jur y did so i n this case, by rejecting the exp lanation o f the Defenda nt’s actions and find ing him guilty. From a review

of the recor

d, we con clude tha t the eviden ce pres ented, a long with the inference which may properly be drawn from the possession of the Bowlings’
recen tly stolen pro perty, is sufficie nt to supp ort the De fendan t’ s convicti on of aggravated burgla ry beyo nd a re ason able d oubt. T he De fenda nt’s first is sue is therefore without m erit.

In his secon d iss ue, t he De f endant argues t hat the trial court erred by faili ng to conduct a j ury-out hearing regardi ng the admissibilit y of policetestimony about poten tial crim inal ch arges other th an the one fo r which he wa s on tria l. In particular, the Defendant complai ns about the testimonyof two officers, How ard Doyle and David Appleber ry, concer ning the rea son each came to the bank and
one s pecific item, a 9mm handgun, found during the se arch o f the D efend ant’s
car.2 The Defendant was initial ly rep resented by an assistant

public def

ender. The assist

ant public def

ender fil ed a number of pretri al motions, includi ng a typi cal motion i n limine re questing a hearing pursuan t to State v. Morgan , 541 S.W .2d 3 85 (T enn . 197 6), be fore testim ony by t he S tate’s witnesses about

any pri or convict ions or bad act s of the Defendant . The Defendant’ s present counsel was eventuall

y substituted for

the assist

ant publi c defender and fi led additional pr etrial motions, includi ng a motion in l imine seeking to restri ct the potentialtesti mony of police officers regarding forgery o r possession of a firearm by a felon. -8- The Defendant filed a host of pretr ial moti ons. Among them was a motion in limine req uesting that the trial co urt order th e State’s witnesse s not to tes tify concerning evidence of other potent ial criminal charges, with specifi c reference to forgery and possession of a firearm by a felon. 2 The trialcourt took this moti on under advisement and re served rul ing on its merits unt il faced with a spe cifi c instance of such testi mony at tri al. At t he same time, however, the tri al court’ s orderind icat ed that no State’s witn ess should test ify concerning “any pr ior bad acts of the Defendant” untilthe admissibili ty of such testimony was determined at a jury-out heari ng.

Officer Doyle test ified prior to Off icer Appleber ry. Befor e Doyle testif ied, the Defendant’s trialcounsel asked to approach the bench. At that bench conference, the Defendant’s c ounsel vo iced his concern that t he police of ficer would testify

“regarding a forgery , or poss ession of firearms, espe cially by a felon.” Counsel contended that such statem ents were irrel evant for purposes of t he charged offense and would be unduly prejudici al. The assistant di st ric t attorney responded that

he would notask if the Defendant “ was charged wit h that offense ,” but inte nded to ask Office r Doyle what it ems were discove red in the car. The trial court instru cted th e p rosecutor not to eli cit testimony regar ding the Defe ndan t’s prior

criminal record or status as a fel on. The Defendant’ s counsel voiced no fur

ther concerns, and the bench confer ence was concluded.-9- After the bench confer

ence, the assistant

distri ct attorney questioned Officer Doyle as fol lows: Q. We re yo u called to the First Tennessee Bank Branch at the corner o f Highwa y 64 and 70 in Ba rtlett? A. Yes, sir. Q. Okay . Could you tell the jury the nature of t he call, and what you did in res ponse? A. The c all cam e out fro m dis patch as a fo rgery, w it h t he subject stillon the scene in t he drive- out lane. At this poi nt, the Defendant moved for a mistri al based on unfair pr ejudice ar ising from the mention of

“forgery.” The trial court deni ed the motion but instructed the jury to disrega rd Office r Doyle’s testimony concerning thereason he came to the bank. Later in his test imony, Offi cer Doyle descr ibed the items found in the car after the arre st of the Defe ndan t and T ina Ca rter. Do yle testif ied that a loa ded 9mm Smith & Wesson handgun was discovered during the sea rch of the car. The handg un was not allege d to have been taken f rom the Bowlings’residence.

The Defenda nt made n o contem poraneou s objection to O fficer Doyl e’ s t est imo ny abou t the ha ndgu n. After cross -exam ining D oyle, the Defe ndan t’s counsel again ap proach ed th e benc h. At this point, h e obje cted to Doyle ’s testimony

about the 9mm handgun, contending t hat it was irrel evant for

purposes of the Defe ndant’s a ggravate d burgla ry trial. The tr ial cour t overrul ed the objecti on.

Officer David App leberry testified imm ediately after Officer Do yl e. The assistant dist rict attorney questioned Appleberry as fol lows: Q. Did you rec eive a ca ll to come to First Tennessee Bank at the corner of Hi ghway 64 and 70, on November 3r d, 1993? A. Yes, I di d. Q. An d how did you receive the ca ll?-10- A. I received the cal l to come to the First T enne ssee Bank , in regards to a subjec t attemp ting to cas h a stolen check, is w hat I was referred to by the ba nk teller that called the B artlett Dispatcher. The Defendant made no contemporaneous objection to this t est imo ny. Appleberry testifie d furth er that a 9mm Smith & Wesson handgun was discover ed in the car. Again, the Defendant made no contemporaneous obj ection.

On appeal , th e De f endan t argues that the trial co urt erred b y failing to conduct a jur

y-out heari ng regarding t he admissibil ity of police testimony about both the9mm handgun and being cal led to thescene of a “forgery” or an attempt “to c ash a s tolen check, ” especial ly sincethe tri al court’ s pretri al motion or der implied thatsuch a hea ring wo uld be held. The Defendant is presumably

relyi ng on Tennes see Rule o f Evidence 40 4(b) a s well as t he general rel evance and prejudice principl es contained i n Tennessee Rules of Evi dence 401, 402 and 403. We point out that this issue do es not involve a Morgan hearing probl em bec ause we a re not face d with imp eachm ent evide nce offer ed purs uant to Tennessee Rules of Evi dence 607, 608 an d 609. See State v. Morgan , 541 S.W .2d 385 (Te nn. 1976).

After careful considerati on, we find no reversi ble error with reg ard t o the trialcourt’s m anner o f handling the police testi m ony about potent ial cri minal charges not conta ined in the indictme nt. Althoug h the tr ial j udge’ s order concerning the Defendant’ s pretri al motions i s somewhat con fusi ng, it see ms reaso nably clear

that he reserved ruli ng on the motion in limine to r estrict pol ice testimony

about other potential crimin al cha rges u ntil the D efend ant’s concerns regarding unfair prejudi ce were implicated. Prior to Officer Doyle’s testimony, t he trialcourt conducted a bench conference, at whi ch time the Defenda nt voiced-11-

concerns about testimony regard ing forg ery or p osse ssion of a firea rm, es pecia lly by a felon. The trial court instructed t he prosecutor not to eli cit testimonyabout the Defendant’ s status as a f elon.

We be lieve that if the Defendant had a ny li ngering concerns i n the wa k e of the trial c ourt’s in structio ns at th e ben ch co nferen ce, it was h is duty to request
a jury-out he aring to ad dress tho se con cerns, m aking ap propriate referencesto any authorit

y thatsuppo rted his po sition. See Tenn. R . Evid. 404(b)(1); Neil P. Cohen et al., Tennessee Law of Eviden ce § 40 4.7 (3rd e d. 1995 ); see also State
v. Copenny , 888 S.W.2d 45 0, 456 (Tenn. Crim . App. 1993 ) (citations omitted). Obviously, the trialjudge beli eved he had addressed t he Defendant’s concerns a t the bench conference. Absent a request by the Defendant , we find no error with the tri al court’ s fail ure to conduct a jury- out hearing af ter havi ng alread y considered t he Defendant’s i ssue at the bench conference.

In any event, the trial court sp ecifically instructed the jury to disre gar d Officer Doyle ’s testimony concerning thereason he came to the ban k, namely the “forgery” call. I n the absence of proof to the contr ary, we must presume that t he jury followe d the tria l c ourt’s cu r ative instruc tion. See State v. Compton , 642 S.W.2d 745, 74 6 (Ten n. Crim. A pp. 198 2); Frazier v. State , 566 S.W.2d 545, 551 (Tenn. Crim. App. 1977) (citat ions omitted). Thus, we concl ude that the tri al court’s limit ing inst ruction c ured any error rega rdi ng Officer

Doyle’s testimony about forgery.
Moreover, although the Defen dant co mplain s of App leberry’s re ference to
a subject “attempting to cash a stol en check” on appeal, he did not object to the-12-

testimony

at trial, no r did he request a jury-out heari ng at the bench conference im med iately prior to the test imony. Furt hermore, he did not request a l imiting instruct ion even though it seems reasonable to conclude that thetrial cou rt would have given one si milar t o the inst ruction given after Officer Doyle’s testimony concerning forgery. We conclude that the Defendant cannot now complai n about O ffi cer Appl eber ry’ s te sti mony in li ght of h is own f

ail ureto o bje ct at t he t ime Appleberry testified. See T.R.A.P. 36 (a); Teag ue v. State , 772 S.W.2d 915, 926 (Ten n. C ri m. App. 19 88); State v. Killebr ew , 760 S.W.2d 228, 235 (Ten n. C ri m. App. 1988 ).
Likewise, the Defendant made no contemporaneous objecti on to the testimony

from both officers concerning t he 9mm handgun discovered duri ng the search of the car. Both officers tes tified about the han dgun as the y w er e describi ng the items retrieved fr om the car. Neit her offi cer offer ed any detail ed testimony

about the f irearm. On cros s-examinati on of the State’s wi tnesses, t he Defendant elicited testim ony tha t the ha ndgu n was discov ered u nder th e drive r’s side seat. Furthermore, Tina Carter testifi ed that thehandgun belonged to her. She stated th at she had borrowed the handgun from a friend i n Pennsylvani a and was carrying it f

or protection purposes.
Although the handgun evi dence may have been irr elevant and t he trial court may have erred in adm itting tes timon y abou t the firea rm, we can o nly conclude thatany error was harmless beyond a r

easonable doubt. The handgun
e vid ence was certai nly not criticalto the case. In fact , the Defendant was effective ly distanced f rom the wea pon thro ugh the testimon y of both Tina Carter and witnesses for the State. We are satisfi ed that the jury woul d have convicted3 A portion of defense counsel ’s statements to the court were marked as “indi scernibl e” in the record. I t is reason ably cl ear, however,that he moved to dismiss the case at t he bench conference. -13- the Defenda nt even in the absence of the testi mony about the 9mm handgun. See T.R.A.P. 36 (b); Tenn. R . Crim. P. 52(a).

From a review of

the record, we conclude that the trial court committed no
revers ible error

in fai ling to condu ct a jury-ou t hearing regardin g the ad missibility of police testimony about other potent ial cri minal charges. The Defendant had amp le opportun ity to request such a hearing when faced with testimony which implicated his conc erns, bu t never did so. Add itionally, none of the testi mony complained of affirmatively a ppears to have a ffected the result of the trial. The Defen dant’s se cond iss ue is there fore witho ut merit.

In his thi rd issue, the Defendant ar gues thatthe St ate im prope rly questioned a witne ss ab out the Defe ndan t’s prior convict ions or bad acts. Tina Carter test ified for the def ense. On direct

examination, she testi fied asfollows: Q. Did Brian Mart in go into the Smith Bowli ng house? A. No. Q. Did he help yo u burglari ze that house? A. No. As a matter of fact, we got into a fight, after he f ound ou t what I did. Q. W hy is that? A. Because he had al ready be en in some troubl e, and he wanted me to take the st uff back to the house, and I was af raid if I did, I’d be caugh t. You kn ow, I did n’t get caught i n the house when I left , so I didn’t figure I’d get in any trouble for it. This testimony concluded dir ec t exami nation. The ass istant d istri ct attorney began cross-examinat ion by aski ng, “Mr. Mar tin had a lready

been in some trouble?”

Carter replied, “In h is past. That w as befo re I knew him.” At this point, the Defen dant’s co unsel as ked to approach thebench and ap parently m oved to dism iss the case. 3 The trialcourt deni ed the motion but , stati ng that the-14-

Defe ndan t’s character was not at i ssue, instructed the assistant dist rict at torney not to go anyfurther

into hi s prior r

ecord. No li miting i nstructi on was requested, nor was one given.

After reviewi ng the record, we agree with t he Defendant that the assistant district attorney ’s questi on was impr oper. See Tenn . R. Evid. 40 4(b). W e believe, however, t hat the err or was harmless in t he context of the present case. Tina Carter’s testimony was f irst el icitedby the Defendant on directexamination. The a ssist ant dis trict attor ney’s im prope r ques tion m erely re peate d Car ter’s previous testimony. Thecolloquy added no signif icant i nformation bey ond that which had been brought forth duri ng direct ex amina tion. As a result, we are satisf ied that the D efenda nt w oul d have been convic ted even wit hout the improperquestion, and the er ror in as king th e que stion d oes n ot affirm atively appear to have affected the res ult of t he trial . We therefore concl ude that the
error was ha rmless beyond a reaso nable d oubt. See State v . Wil li ams , 851 S.W.2d 828, 83 3 (Tenn. Crim. App. 19 92); T.R.A. P. 36( b); Ten n. R. Crim. P. 52(a). T he De fendan t’s third issue lacks m erit.

In his fourth issue, the D efendant arg ues that the trial court erred in allowingthe State to prese nt testimo ny that he had refu sed to make a statement to the poli ce upon his arre st. He contends tha t references by two police officers to his refusal to make a statement violated his r ight against sel f-incr iminati on secured by the Fift h and F ourteenth Amendments to the United States Constitut ion and Arti cle I, Section 9 of the Tennessee Constit ution.-15- The testimony at

issue came from Officers David Appleb erry and Don Pugh. Officer Appleberry testified on di rect examination as fol lows: Q. All right. W h en you arrested the subjects, incl uding the defend ant, did they make any statements to you, or did you engage them in conversation? A. The conversati on was limited. We mainly secured the scene . ... Q. And the defendant did not make any statement s to the Ba rtlett Police? A. To my rec ollectio n, I don ’t recall. The Defendant made no object ion to thetestimony. After conduc ting c rossexamination of Appleberr y, theDefendant moved to di smiss the case based on the assistant

distri ct attorney’s questi ons about whether he had made a statementto poli ce upon arrest. The trialcourt deni ed the motion but i nstructed the assis tant district atto rney not to ask que stions “ab out any s tateme nts.”

Officer Pugh testif ied after

Officer Appleberry. Officer Pugh gave the followi ng testi mony on direct ex amination: Q. Okay. Now, after the Fayet te County Sheri ff’s Depar tment took the defendant and Ms. Carte r into cu stody, d id you ascertain w here the y ha d co me fr

om? A. I did. Q. Oka y. Wh ere was that? A. Carlis le, Pennsyl vania. Q. Both of t hem? A. I thin k so. I’ d have to look back on my note s. I t alked to Mr. Martin first, and advise d him of his r ights, a nd about the extent of our conversati on, I asked hi m how long they had been on the road, and he told m e appro ximately tw o weeks. I asked h im, “Was that the reason you broke i nto the house?” And he did not an swer tha t, and refused to talk anymore on the advice o f his attorney. At this poi nt, theDefendant objected and again moved to di smiss the case. The trialcourt deni ed the motion.

It is well-established thata defe ndan t has a cons titutiona l right to re main silent in the face o f accu sation , not on ly during trial but a lso up on arre st and while-16-

in custody. The prosecution may not use at trial the fact that a defendant cl aimed the privilege. See Miranda v. Ariz ona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Brade n v. State , 534 S.W.2d 657, 66 0 (Ten n. 1976 ); Wa re v. State , 565 S.W.2d 906, 908 (Ten n. C ri m. App. 19 78). Furth ermor e, a defen dant’s po starres t silence ordina rily cann ot be u sed to impe ach h is testim ony at tr ia l. Se e Doyle v. Ohio , 426 U.S . 610, 96 S .Ct. 2240, 49 L.Ed.2d 9 1 (1976); Honeycu tt v. S tate , 544 S.W .2d 912, 917 -18 (Tenn . Crim. App. 19 76). Simply put, when a d efendan t exercises his consti tutionalright to remain sil ent, the f act that h e or she does so genera lly cannot be use d against him or her.

On ap peal, the Defendant argues t hat the testimony about hi s refus al t o make a statement vi olated hi s right aga inst sel f-incr iminati on and thatthe the trial court erred in ad mitting the testimon y. W e bel ieve that the assi stant distri ct attorne y’s questions to O fficer Appleberry we re improp er. See, e.g. , Hone ycutt , 544 S.W.2d at 917. The Defendant, howeve r, did not make a contemporaneous objec tio n to the testim ony of O fficer Ap plebe rry. Mor eover , Apple berry’s testimony

indicated only that

he did not recall whet her the Defendant had made
a statement. It appears to this C ourt that A pplebe rry’s testimo ny was n ot a
r eference to the ref usal of t he Defendant to make a statement, bu t rather a comment on the li mited nature of both his dut ies at t he scene and h is interact ion with the D efenda nt.

With regard to Officer Pugh, i t is clear t hat his comments s pecifi cal ly concerning the Defendant’s r efusal to make a statementwere ina ppropria te. W e note th at the assi stant di strict attorney

did not el icit that test imony, nor was t he questioni ng so broa d and s ugges tive as to ris k eliciting improper tes timony.-17-

N evertheless, Pugh ’s testim ony infr inged upon the De fenda nt’s co nstitutio na l right to rem ain silent. Id.

We believe, ho wever, tha t any error in the adm ission of the testi mo ny of Officers Appleberry and Pugh was harmless b eyo nd a re ason able d oubt. It is important

t o note th at the assi stant di strict attorney

made no comment whatsoever

on the Defendant’s post-arrest silence d uring arg umen t. In this way, the case at bar is disti nguishable from cases such as State v. Mabe , 655 S.W.2d 203 (Ten n. Crim . App. 1 983), w herein the prosecutor’s cl osing argumentfocused heavily upon the defendant ’s fai lure to m ake a s tatement upon arr est and resulte d in the reversal of the defe ndant’s conviction . Moreover, the trial court gave a jury ins truction regard ing the Defe ndan t’s r ight to r emain silent

and the fact thatn o inference can be drawn from such si lence. We must presume that th e jury followed the trial cour t’s instruction s. See State v. Locke , 771 S.W

. 2 d 132, 138-39 (Tenn. Crim. App. 1988) (citi ng Ford v. S tate , 101 Tenn. 454, 458, 47 S.W. 703, 705 (18 98)). I n the absence of pr ejudici al comments by the assistant

distri ct attorney, we conclu de thatthe tri al court’ s instruc tions cured any possibility of h arm f rom t he testimony of Officers

Appleberry andPugh in the context of the pres ent case
. See State v. Flanagan , 223 Tenn. 134, 138-39, 443 S.W.2d 25, 27 (T enn. 19 69); see also Johns on v. Sta te , 596 S.W .2d 97, 104 (Tenn. Crim . App. 1 979). T he De fenda nt’s fou rth issu e is therefore without m erit.

In his fifth iss ue, the Defe ndan t argue s that th e trial co urt erre d in sentencing him to eight years as a Range II multip le offender. When an accused challenges t he length, range, or t he manner of service of a sente nce, this court has a duty to conduct a de novo review of the sentence wi th a presumpti on that-18-

the determinati ons made by the tri al court ar e correct. Tenn. Code Ann. § 40-35- 401(d). This presum ption is "conditioned upon the affirm ative show in g in the record that the tri al co urt con sid ered the senten cing prin ciples and al l relev ant facts and circums tances ." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a se ntenc e, this court must consider: (a) the evidence, if any, r eceived at t he trialand the sen tenc ing hearing; (b) the presentence report; (c) the principl es of sentenc ing an d argum ents as to sentencing alternat ives; ( d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement thatthe defendant made on his own be half; a nd (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having gi ven due consider ation and properweight to t he factors and principa ls setout under the sentencing l aw, and thatthe trial c ourt's fin dings of fact a re ade quate ly supported by the record, then
we ma y not mod ify t he sentence even i f we would have pr eferred a di fferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The Defendant has thr ee specifi c complaints abou t his sentence, the first of whi ch i nvo lv es t he State ’s not iceof i nte nt to se ek s ent enci ng as a mu ltipl e offender. The Defendant contendsthat the State’s notice was defective because it did not include pr

operly cer

tifi ed copies of his conv iction s from Pennsylvania.4 At the sentencing heari ng, the Stat e offered proof

of seven Pennsyl

vania convi ctions. One of them, a misdemeanor theft charge all eged to have occurr ed on February 18,1990 to which the Def end ant p leade d guilt y on Ju ne 5, 1990 (#60 1 Crim inal 19 90(B -1)), w as no t listed on th e Sta te’s notic e to s eek enha nce d pun ishm ent. A s su ch, w e will no t con side r that c onvic tion in revie wing this issue. -19- As a result, he argues that the tri al court er red in senten cing him as a Ra nge II multiple offende r.

The Defendant was tr ied on April8, 1994. On November 24, 1993, m ore than four months pri or to tr ial, t he State fi led its notice to seek enhanced punish ment. In that notice, the State listed s ix prior c onvicti ons from Pennsylvani a. 4 The not ice set forth t he date of convi ction, t he nature of t he convicti on, and the cour t of convi ction.

The Defenda nt arg u es that the State’s no tice did no t comp ly with T ennes see Code Annotated secti on 40-35-202(a) in that it did not incl ude prope rly certif ied copies of t he Pennsylvani a convicti ons. We do not beli eve that Tennessee Code Annotated section 4 0-35-20 2(a) requ ires the S tate to incl ude certif ied copies of conv iction s when fil ing its notice to seek enhanced punish ment. The on ly requirem ent in term s of conte nt of the notice is that it “must set fort h the nature of the prior

felony conv iction s, the dat es o f the convicti ons and the ident ity of the courts

of the convi ctions. ” Tenn. Code Ann. § 40-35-202(a) (19 90). It is clear that the State’s noti ce in the present case complied with thos e requirements. Accordingl y, we concludethe D efenda nt’s first allegation of senten cing erro r lacks m erit.

In his second al legation of sentenci ng error, the Defendant contends that the copies of t he Pennsylvani a convicti ons introduced at his sentenci ng hearing-20-

were not pro perly ce rtified. W e belie ve the D efend ant’s c onten tion is cle arly without merit. Each of

the convicti ons introduced by the State at the sentencing hearing is

certif ied as a tr ue copy from the r ecords of the Clerk of the Courts of Cumbe rland County, Pennsyl vania. A Deputy Clerk signed t he copies and affixed the seal of the Cumberland Count y Courts. We therefore conclude t hat the certi fied copies of t he Defendant’s prior convi ctions were properly admitted pursuantto Tenne ssee Rules of Evi dence 902. The Defendant’ s second allegation of a sente ncing err or is withou t merit.

In his thi rd allegat ion of a sentencing error , the Defendant conten ds that the trialcourt i mproperly appl ied and weighed enhancement and mitigat ing factors. The sentencing hear ing took place on Apri l 28, 1994. The State’s pr oof establi shed that the Defendan t had at least th ree prior felony conv iction s and qualifi ed as a Ra nge II m u ltiple offende r. See Tenn. Code Ann. § 40-35- 106(a)(1). The appropriate sentencing r ange for aggravated burglary, a class C f elony, was six to ten years . At the conclusion of the hearing, the trial cou rt sentenced the Defendant to eight year s imprisonment. The trialcourt later entered an order

reflect ing what had occur red at the se ntencing hear ing.

The record i s so mewha t unclear as to wh ich enhanc ement fac tors were applied. There is no dou bt that the trial c ourt appli ed the “prev ious history of criminal behavior i n additi on to that n ecessary to establis h the sentenci ng range” enhan ceme nt factor. See Tenn. C ode Ann . § 40-35-114 (1).

The trial court

also applied as a n enhancem ent factor that the offense involved “more than one actor .” This l anguage does not correspond to any of the-21-

statutory enhancement fact ors set fort h at Tennessee Code Annotated sec tion 40-35-114. From a review of th e argum ent prior to the i mposition of

sentence, however, it appears that t he trial co urt was referri ng to the “l eader in the commission of an offen se involv ing two or more ac tors” enha ncem e nt factor. See Tenn. C ode Ann . § 40-35-114 (2).

In addition, i n the sentencing order entered after the imposition of sentence at the sentenci ng hearing, t he trialjudge stated that he appl ied the enhancement factor for a “felony com mitted while on p arole.” See Tenn . Code Ann. § 40-35- 114(13)(B ). As he impose d sentence at t he hearing, howev er, the t rial j udge stated that

he was not considering whether t he Defendant was on parole at t he ti me of the prese nt offen se. Th is state men t cam e in res pons e to the Defe ndan t’s objection to the he arsay in the prese ntence repo rt concerning his parol e status from two burglar

y convict ions in Pennsylv ania. Given the Defendant’s object ion to that aspe ct of the pre sentence report and the tri al court’ s recognit ion of that objecti on at the sente ncin g hearing, we wi ll not consider Tennessee Code Annotated section 40- 35-114(13)(B) as an enhancement factor in our r eview of this i ssue.

It is clear fr

om the record that

the tri al court ap plied onl y one mitigat in g factor, nam ely that th e “con duct n either c ause d nor th reaten ed se rious b odily injury.” See Tenn. Code Ann. § 40-35-113( 1). The Defendant of fered sever

al oth er mit igating fac tors for con sideration , all of which th e trial court re jected. It is also clear

that thetrialcourt found that theenhancement factor s outweighed the mitigating factor.-22- We find no erro r with regard to t he trialcourt’s applicat ion of the“previo us history of crimi nal behavior ” enhancement factor. The State int roduced proof of multip le misdemeanor convict ions in addi tion to th e felony co nvictions u sed to support sentencing t he Defendant as a Range II mul tipl e offend er. Li kewise, we find no error wi th regard to the t ri al court’ s applicat ion of onl y one mitigat ing factor, that the Defendant’s conduct “neither

caused nor threatened serio us bodily injury.”

From our review of t he record, ho wever, we co nclude that the trial cou rt erred in applying the “leader in the commissi on of the of fense” enhancement factor pursuant to Tennessee Code Annotated secti on 40-35-114 (2). T he Defe ndan t’s convicti on rested on t he circumstances d iscovered upon his arrest at the bank and the inference arising from possession of recently stolen prop erty. The State offered no proof at trialor at the s entencing hearing from which the tri al court could have reas onably concl uded that the Defendant quali fied as a leader in the com mission of the off ense. As a result, it was e rror for the trial c ourt to apply that enha nceme nt factor.

Yet we believe t hat there wasanothe r approp riate enhancement factor not applied by the tri al court. The certif ied copies of convicti ons from P enns ylvania clearly reve al t hat t

wo of the Defendan t’s prior felony convictions for bu rglary, numbe rs 601 Criminal 1990( A-2) and 19 28 Cr imina l 1989 , were c omm itted “wh ile th e defendant was on par ole or other

wise out of

jail .” Given t hat eviden ce, w e believe that trial c ourt co uld ha ve properly found that the Defendant has a5 We point out that we are not consi dering wheth er the Defendant was on parole f rom those Pennsylvania burglary convicti ons (numbers 601 Criminal 19 90(A-2) and 1928 Cri minal 1989) at the time of the of

fense involved in the case sub judice , as i s all eged in the present ence repor

t. Rat her we are consideri ng the fact,establi shed by the cer tifi ed copies of t he Pennsylvan ia convictions int roduced at the sentencing heari ng, that the Defendant committed those two Pennsylvania burgl aries whi le he was on some form of release int o the community from pri or convict ions.

-23- “previous

history of un willingness to comply with the conditi ons of a sentence involving release into the comm unity.” See Tenn. C ode Ann . § 40-35-114 (8). 5
Having reviewed t he applicabl e enhancement and mitiga ting f actors, we conclude that the t rial cour t did not err in sentencing t he Defendant to t he midrange sentence of ei ght years i mprisonment. Alt hough the tri al judge incorre ctly applied the “lea der in th e com miss ion of th e offen se” en hanc eme nt facto r, he did not apply the appropriate “ previous h isto ry of unwilling ness to c omply w ith release into the communi ty ” enhancement factor. Because we fi nd no other sente ncin g errors, we be lieve tha t the trial c ourt’s s enten ce of e ight yea rs is adeq uately supported by the re cord. T hus, th e Def enda nt’s fifth is sue is without merit.

For the reasons set forth i n th e discussion above, we concl ude that the Defe ndan t’s issues on appeal lackmerit. We therefore affirm the ju dgme nt of the trial court.-24- ____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JERRY S COTT, SP ECIAL JUDGE