### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te mb er 23, 200 8

STA TE OF TEN NES SEE v. CH RIST OPH ER BRIA N K NIGHT

Appeal from t he Circuit Court for Je ffe rson County No. 8220 O’Duane Slon e, Judge

No. E2007-01456-CC A-R3- CD - Filed Fe bruary 9, 2009

Th e De fe nd a nt, Chr ist op he r B ri an Kni g ht, wa s convic te d of one c ount o f t he ft ov e r $ 10 ,0 00 , a

Cla ss C f elony

. The trial court sentenc ed him a s a Rang e I I
, multipl e offe nder to te n y ear s in the Depa rtment of Corre ction. I n this direct app ea l
, he ar g ues that (1) the trial cour t erre d in denying his moti on for a

continuance ; (2) the tria l court erre d in denying his motion for a mistrial; (3) he wa s de pr ive d o f a fai r tr ia l be fo re a n im pa rt ia l ju dg e ; ( 4) the State pr e se nte d e vid e nc e ins uf fi c ie nt t o

c on vic t hi m; ( 5) he wa s p re jud ic e d b y

the t ri al cou rt’ s f

a ilu re to c on fi rm

that he ha d p e rs on a lly decide d to waive his rig ht to testify ; and (6) the trial court imprope rly sentenc ed h i m to the

ma ximumse nte nc e . We c on c lud e tha t a ll o f t he se c on te nti on s la c k me ri t. We a c c or din g ly a ff ir m.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cir cuit Court Af firme d

D AVI D H. W ELL ES , J

. , d el i vere d the opinion of the court, in which J ER R Y L. S MIT H , J., joined. J OS EP H M. T I P TO N , P.J., filed a dissenting opinion.

R.B . Ba ir d, II I, Rog e rs vil le , T e nn e sse e , f or the app e lla nt, Christ op he r B ri a n K nig ht.

Rob e rt E. Coo pe r, Jr
., At torne y Ge ne ra l and Re po rt e r; Le sli e E. Pr ic e , Ass ist a nt Att or ne y G e ne ra l; Ja me s D un n, Di stric t A tto rn e y G e ne ra l; a ndCha rl e s L . M ur

ph y, As sis ta nt D ist

ri c t A tt o rn e y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound The a ctions g iving r ise to this case be g an on Jul y 22, 2004. On t hat day

J ames F ox , a selfemploy ed subcontra ctor, wa s working for the loc al g overnme nt on L eadval e R o ad in J eff erson County . Fox testified that on that day , as h e h ad fo r t he pre vious five day s, he planne d to use a backhoe to assist gove rnment worke rs in digg ing up a damag ed under g round phone c able ne ar the side of the r oad. On the morning of J uly 22, the six th day of the job, he dr ove his 1995 I nternational dump truck toward the job site, towing his bac khoe on a tr ailer be hind the truck. B eca use there was-2-

insufficient room ne ar the job site itself to park his truck, he par ked about a

quarte r-mile fr om the site. He then r emoved his backhoe fr om the trailer a nd drove it up a hill and a round a c urve in the

ro a d to the job sit e . The se e ve nts oc c ur re d be tw e e n 9:00 a

nd 9:3 0 a .m. F ox te sti fi e d th a t he c ou ld not see his truck f

rom the job site.

At about 11: 00 a.m., Fox returne d to wher e he had parked his truck a nd saw that it was g one. He f irst called his wife , told her his truck had been stolen, and aske d her to c all around N ewpor t and tell people to look for it. He the n called the police. Fox’s wife called their daug hter, L isa Calfee
, and informe d her of

the theft. Calfee testified t hat s he rece ived t he call at about 11:00 a.m., as she

arr ived for he r work- shift at the Rocky Top Gene ral Store, a g as station a nd convenie nce store about six miles from the si te of the apparent theft. Calfee w as explaining the situation to a co- worke r “not five mi nutes later” when she saw her father’s truck pull into t he store’ s parkinglot. Thinking that her pa rents we re pla

y ing a prac tical joke on her, a

nd there fore assuming she would find her f ather in t he dr ive r’ s se a t, s he wa lke d o ut o f t he sto re to i nv e sti g a te . Sh e a pp ro a c he d th e tr

uc k o n it s driver’ s side. When she was a bout twenty

fee t from the drive r’s door, she saw, in the side mirror, the re flec tion of someone other than her fathe r. She continued to approa ch. When she wa s about
ten to f ifteen fee t f

rom the door, the driver stuck his head out the ope n window and looked at her. After “a second or two,” he pulled his head ba ck into the truck a nd hurriedly

drove a way as Calfe e y elled, “G et out of my

daddy ’s truck! ” Calfe e did not rec og nize the driver.

Ca lf e e ra n ba c k int o the sto re , o n th e wa y a sk inghe r c o- wo rk e r t o c a ll the po lic e . O nc e in the store, she retrie ved her car key s. She ran back out of the store , started he r ca r, and dr ove down the roa d in pursuit of the truck. About this time, a deputy met Fox at t he si te of the theft, wher e F ox testified h e b eg an to fill out a repor t. Appare ntly

as a r esult of Calfee ’s co- worke r’s c all to the police, a messag e came throug h over the deputy ’s scanne r that Calfee had spotted F ox ’s truck a nd

wa s atte mpt ingto f

oll owit.

Some time later Calfee , unable to find the truc k, called he r co- worke r, who told her tha t the police we re cong reg ating on near by Emanuel Road, in Coc ke County . She drove the re a nd found that he r f a the r’ s tr uck had be e n r e c ov e re d. F ox a lso le arn e d th is a nd arr ive d th e re . Upo n a

rr iva l, Fox f ound his truc k with “ the switch

. . . pulled out of it a nd the g lass broke out o f i t

. ” H e and Calfee drove the truck a

way . Fox testified t hat he did not know the De fenda nt and did not give the Def endant pe rmission to use his truck. He also testified that the truck and tra iler we re w orth about $30,000.

Trac y I v y , at the time a de tective with the Jeffe rson County Sheriff’ s Depa

rtment, was

a ssi g ne d to the c a se a ft e r F ox and Ca lf e e re c ov e re d the tr

uc k. De te c tiv e I vy did no t or ig ina lly vis it the cr ime scene , althoug h he subseque ntly did so. I n his testimony
, Det. I vy first outlined the spatial relationship between re levant locations surr ounding the crime, using a map as an aid. He testified that, in his opini on, it would take about twenty minutes to drive a truc k from the location of the theft to the Rocky

Top Gene ral Store. He also pointed out the site wher e F ox ’s truck w as re cover ed, as well as the loc ation of the De fenda nt’s house, which w as within about a half-mile of the location of the the ft

.-3-

Detect ive I vy

also detailed the actions he took in his investigation. He did not take fing erpr ints from Fox’s truck. He spoke to Ca lfee one or two day s afte r the thef t and listened to her

acc ount of the incident. She de scribed the driver of the truc k as “s lim, 5 feet 8 inche s, 135-140
po un ds , e arl y

30 s, y oung .” She a lso sa id h e wo re a “ [t]an or g re e n G ill ig an- ty

pe hat.” B a se d on

thi s information, Det. Ivy

assembled a

photo arra

y of six potential suspects. Slightly more than se ven months later, Det. I vy showed Calfee the photo arr ay in her home, with two Cocke County Sheriff’ s De pa rtme nt e mpl oy e e s p re se nt a s w itn e sse s. De t. Ivy te sti fi e d tha t Ca lf e e “ ha d [th e ph oto arr a y ] in h e r h an d s f o r p r o b a b ly a mi n u te ” b e f

o r e s h e id e n ti f

ie d th e D e f endant. Ca lf

e e te s ti f ie d th a t “ [i ]t didn’t take [her] but just a few seconds

. . . [she] looked at it a nd [she] said, ‘That’ s him.’” Calfee had identified the Def

endant. She signe d her na me under the Def endant’ s picture a

nd dated it “3- 1- 05 2:35 PM.” At trial, s h e i d entified the D efe ndant, with “one hundr ed per cent” cer tainty , as the driver of her f ather ’s truck.

The De fenda

nt chose not t o testify
, but he presented thre e alibi witnesses. The first, J ames McCoig, te stified that he lived ac ross the stree t from the De fenda n t’s g randf

ather ’s house. The Def endant lived on his g randf ather ’s prope rty

at the time of the crime. Mc Coig said he reme mbere d,

on J uly 22, 2004, seeing a man operating a backhoe acr oss the street from him, in f ro n t o f t he De fe nd ant’ s g ra

nd fathe r’ s p ro pe rt

y . H e wa lke d a c ro ss t

he str e e t and

br ie fl y sp ok e to t he De fe nd a nt, in t he De fe nd ant’ s g ra

nd fathe r’ s dr ive wa

y , a bo ut the ba c kh oe

. Mc Coi g the n re tur ne d to his ho me to cook for his disabled wife and did not see the D efe ndant there afte r. B eca use he a lway s cooks for his wife at the sa

me time eac h day , McCoig r emember ed that these eve n t s o cc u rr ed five to ten minutes before 11:00 a .m. McCoig did not reme mber seeing the backhoe acr oss the street on a ny other da y besides Jul y

22, 2004.

J err y Rosenbaum, the next witness, had known the De fenda nt for seve n or eig ht y ear s. He testified that at about 9:00 a.m. on J uly 22, 2004, he arrived at some proper ty the Def endant owne d,

near the Def endant’ s g randf

ather ’s prope rty , for the pur pose of he lping the D efe ndant and a mason install some stone steps down a hill to the nearby river. The Defenda nt was present at the steps w hen Ros e nb a um arri ved . H e sta

y e d in or de r t o s ho w R os e nb a

um h owto m ix the mud

fo r t he ste ps , leavingat betwe en 10:00 and 10:30 a.m. The Def endant r eturne d twen t y o r t we nty -five minutes later, just bef

ore 11:00 a .m. He stay ed anothe r twenty or twenty -five minutes, c hecki n g on the
prog ress of the work. The rea fter, the Def endant was “bac k and forth” all day
, but ne ver g one fr om more than a

n hour or hour

and a ha lf. At the end of the day , the Def endant’ s g randf

ather came down
to t he ste ps and

a sk ed Ro sen ba

um a bo ut t he De fe nd ant’ s a c tiv iti e s e arl ie r t hat da y . O n c ro ssexamination, Rosenbaum admitted that he had never called the police with this alibi information and that he could not re member w hat he ha d done the da y befor e or a fter July

22, 2004.

Chris Cody , the Def

endant’ s third w itness, kne w the Def endant “to hea

r his name,” but not
persona lly
, on the day of the crime. He had since done some heating a nd air c onditioning work f or t h e De fendant. On J uly

22, 2004, Cody

was e mploy ed by

Renner H eatingand Cooling. That morning he was parke d, in his work vehicle, i n the R ocky Top Gene ral S tore pa rking lot, where he planned to mee t a customer. T hat customer soon a rrived. A s Cody beg an to f ollow the customer’ s vehicle out of

the par king lot, he notice d a wom an come out of the store “ scre aming and making-4-

noises” as she approa ched a near by dump truck. W h en she got within twenty to thirty fee t of the truck, it drove a

way . Cody

“figured it wa s a domestic dispute.”

The State then called J immy Calloway as a rebuttal witness. Calloway lived down the roa d from the De fenda

nt, and he ha d known him since the De fenda n t wa s a child. C alloway helped Ros e nb a um a nd the De fe nd ant b uil d th e ste ps do wn to the ri ve r, a lth ou g h h e c ou ld n ot s pe c if ic a lly

re call whether he had helpe d on J uly 22, 2004. Calloway

there fore did not know whether the Def endant ha d been pr esent that da y

. I n May 2005, howeve r, the De fenda nt approa ched Ca lloway and aske d him to testi fy

that he had worke d with the Def endant that e ntire day . Calloway could not

re c a ll any da

y of wo rk duri ng wh ic h the De fe nd ant ha d be e n c on sta ntl y pr e se nt; he co ul d at be st

rec all the Def

endant be ing pr esent on a

ny g iven day , during the three to f our we eks Calloway

helped with the steps, for a

couple of hours in the morning or eve ning. A s such, he de clined the De fenda nt’s
reque st. T h e De fendant then told Calloway that “somebody

would pay ” if he wer e convic ted. C al l o wa y p er ce i v edt h i s as a p er s o n al t h re at , al t h o u ghh e d i d n o tfi n d t h e D ef en d an tt h re at en i n g.

The De fenda

nt was tried on J anuar

y 25, 2007. On t hat day , and bef ore the trial beg an, the
court rece ived evidence that the Defenda nt had attempted to tamper with a member of t he jury pool named Susan B lancha

rd. On that ba sis, the court informe d the jury that “[t] here h as b een an alleg ation of som e jury tampering ,” and order ed each member of the j ury interviewe d by ag ents of the Tenne ssee B urea

u of Investig ation (TB I ).

The trial court also, out of t he jury ’s pre sence , conducte d a bond re vocation hea ring . During that hear ing, the State called T BI ag ent B rian F rale y , who testified t h at Bla nchar d had ca lled the cler k’s offic e the previous day to repor t that the Def

endant ha d approa ched he r. The c lerk’s of fice had appa rent l y co n t ac ted the district attorne y ’s offic e. In turn, the State conta cted the T BI for investigation

. Age n t Fr aley had spoken to B lancha

rd and obta ined from he r a w ritten, signe d
statement. Be cause Bla

nchar d could not immediate ly be located, Fr aley rea d her statement al o ud wi tho ut o bje c tio n f

ro m the De fe nd ant. I n it, Bl anc ha rd ind ic a te d she ha d k

no wn the De fe nd ant m os t of her life. Blancha

rd also rec ounted t hat at about 11:30 a.m. on J anuar y 23, 2007, two day s befor e the trial, th e De fenda

nt approa ched he r in the par king lot of a

Family Dollar store in Whi te Pine, Tenne ssee:

“ As Ipu lle d in to t

he pa rk inglot , I

no tic e d tw o d ark pic ku

p tr uc ks pa rk e d in the lot

. I parke d my car and as I was exit ing my vehicle, [t he Def endant] exit ed his truck a

nd
approa c h e d

me

. [H e ] s tate d
, qu o te , ‘ H e y , Su s an , y o u ’ r e ju s t t h e w o ma nI ’ v e b een looking f or. You’r e on the jury are n’t y ou? ’ End quote. He [ sic] replied, y es, I ’ve
g ot to go on Thur sday , and [t he Def endant] said, quote, ‘The y ’ve g ot something on me.’ End quote. I

continued wa lking towa

rds th e s t o re and [the Defe ndant] said,
qu ote , ‘Ca

n y ou ha ngthe jur y ? ’ E nd qu ote . I ke pt w a lki ngand

[the De fe nd ant] s a id that his buddy

was over there looking ove r the jury list. I proce eded towa

rds the store and [the Defe ndant] said a second time, quote, ‘ Can y ou hangthe j ury ? ’ End quote. And walke d back towa

rd his truck.”-5-

Rely ing on this testimony , the trial cour t revoke d the Def

endant’ s bond.

Ha vin g fo un d n o f

ur the r t a mpe ri ng , the tr ia l c on tin ue d. Th e jur

y fo un d th e De fe nd ant guil ty of one c oun t o f t h ef

t o v er $10,000. He wa s sentence d on April 7, 2007, to ten y ear s in the De pa rtme nt o f C or

re c tio n. He no w a

pp e a ls.

Ana lys is I. Denial of

Continu ance Upon lear ning of the exist ence and conte nts of Susan B lancha rd’s stateme nt, and af

ter the
tr ia l c ourt re vo ke d h is b on d, the De fe nd ant r e qu e st ed a contin ua nc e in o rd e r t o p re pa

re a de fe ns e ag ainst Bla

nchar d’s potential testimony

. The trial court de nied his motion. I t is well established that “a tr ial judge will not be put in err or for denying a continuance unless it is shown that he has abused his dis c re tio n in

do ingso

. . . .” Mo or e he a d v. Stat e , 409 S.W. 2d 35 7, 35 8 ( Te nn . 1 96 6) . “ An a bu se of dis c re tio n is de mon str a te d b y sh ow ingthat the fa ilure to g ra nt a c on tin ua nc e de nie d d e fe nd a nt a fair tr ial or that it could be r easona bly conclude d that a diffe rent re sult would have followed ha d the continuance been g rante d.” State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995).

Bla nchar d did not testify at t rial, nor was her s tatement int roduce d into evidenc e. W e ca nnot

c on c lud e that a diff

e re nt re su lt wou ld have fo llo we d at tri a l ha d th e De fe nd ant b e e n g ive n ti me to pr e pa re to r e bu t e vid e nc e that th e State did no t pre se nt. De fe ns e c ouns e l, in fa c t, not e d in r e sp on se to the court’s de nial of hi s pre- trial continuance motion that “I g uess that’s kind of what Iwas try ing to say . . . if [Blancha

rd] was allowed [t o testify ], t hen that’s whe n Iwould make the motion for a continuance .” She wa s not called a s a witness. This issue is theref ore w ithout merit.

II. Denial of

Motion for Mistrial Be fore J immy

Calloway

testified in rebuttal fo r t h e S t ate, the tr ial court he ld a jury -out confe renc e to deter

mine the admi s s i b ility

of Calloway ’s prospec tive testimony . Reviewing Calloway ’s pre vious statement, the cour t d et er m i n ed that C alloway planned to testify

that the Def endant ha d told him t hat “‘ if he,’ me aning the [ D]efenda nt, ‘had to do six y ear s somebody was g oin g to p ay

. . . .” Th e State no te d tha t “so me of the te sti mony may ne e d to be ta

pe re d b e c a

us e it mentions the jail sentence and I know we’ re not supposed to bringthat up in front of the jury .”

I n ma kin gits ru lin g , th e tr ia l c ourt fi rs t f ound the te sti mony

re le va nt becaus e it te nd e d to show that the Def

endant “had a motive to attempt to influence this witness to t estify falsely .” See Tenn. R. Evid. 401. The c ourt then consider ed whe ther the proof’ s probative va lue outweig hed the risk of unfair prejudice to the Def endant, se e Te nnessee Rule of Evidenc e 403, and f ound that it did:

“[T] he stateme nt doesn’t s ay any thing about a spec ific ra

ng e of punishment that he kn e w h e wa s g oin g to r e c e ive be c a us e of bei ng con vic te d f

or pr ior of fe ns e s. Just beca use [six y ea rs ] h ap p ens t o be the low e nd of this rang e is nothing that the jury has bee n or will be instructed w ith reg ard to. An d t h e jury will be instructed that punishment is a matter for the [c]ourt.”-6-

Havingdeter

mined the admissibilit y

of Calloway ’s testimony

reg ardingthe Def

endant’ s fea

r of g oing to jail for

six y ear s, the court br oug ht the jury back in. The rele vant portion of Calloway ’s
te sti mony pr oc e e de d a s f

oll ow s:

[S tate]: Do y ou reme mber [t he Def endant] talking to you on one occ asion that he ha d

so me be e r w ithhim ? [C alloway ]: Yea

h, he had some beer

that he had c arri ed u p o ver the re, a nd Iwas standing on my

porch a nd he was standing there telling me that if he had to g o back to prison for six more y ear s that somebody would – [Defense Counsel] : Iobject to that, y our Honor. [Court ]: Sus ta ine d. Th e jur y wi ll d isr e g ard

the wi tne ss’ s la st s ta te me nt. [Sta te ]: With ou t g oin g in to pr iso n o r t ho se ty pe of iss ue s, wh a t e lse did

he say to y ou? [Ca llo wa y ]: He jus t to ld m e that if he – tha t some bo dy wo uld pa y , is more or le ss – it w a s a – I kin d o f t oo k it

a s a thr e a t or it wa s dir e c te d tow ard me a s a thr e a t, b ut I

wa sn ’t thr e a te ne d b y

him

.

F oll ow ingthe State ’s dir e c t e xami natio n, the c ourt ins tr uc te d th e jur

y that “th e wi tne ss’ s c omm e nts about the [D] efe ndant didn’t want to g o back to the penitentiary , there is absolutely no evidenc e at all in the rec ord that would support a c omment or a stat ement from this wit ness like that. I t’s not in your r e c or d. Yo u s ho uld str ike it f ro m y our m e mor

y a s if it w a s n e ve r s ta te d. Th e re ’s a bs olute ly no evidenc e that this [D]efendant has been in the penitentiary befor e at all.” De fense counsel then conducte d his cross-e x amination and moved f or a mistrial there afte r, which the court de nied.

The De fenda

nt now contends that by sustaining h i s objection during Calloway ’s direc t examination the trial court “r ealized – albeit belatedly – the e rr o r o f i t s previous ruling that the statement would be a llowed into evidence .” In our view, this do es n o t accurately ref lect what

occur red at trial. The court’s ruling in the jury -out confe renc e bef ore Callowa

y ’s testimony

found admissible the Def

endant’ s statement that he did not want to g o to jail for a pa rticular pe riod of time, six y ear s. The cour

t then found inadmissible, duri n g C al l o wa y ’s direc t examination, not the De fe nd ant’ s f

e ar o f s ix y e ars of

inc arc e ra tio n, bu t hi s st a te me nt t

hat he did no t w ant t o “ g o b a c k to prison.” (Empha sis added). This intimation that the Defe ndant had b ee n i n carce rate d befor e prese nted a diff

ere nt issue than the one the tr ial court ha d ruled on pre viously

.

We will thus examine the court’s r ulings on both issues a

n d d e termine whe ther the D efe ndant

w a s e n ti tl e d

to a mi s tr ia l. I na

c r im in a l t

r ia l, a mi s tr ia l s h o u ld

o n ly b e d e c la r e d “in t he event of a ‘manife st nece ssity ’ that re quires s u ch ac t ion.” State v. Reid, 164 S.W .3d 286, 341 (Tenn. 2005) (quoting State v. Hall, 976 S.W .2d 121, 147 (Tenn. 1998)). “The purpose f or dec laring a mistrial is to corre ct damag e done to the judicia l proce ss w hen some event ha s occur red w hich pre cludes a

n impartial verdic t.” State v. W i l l i ams , 929 S.W .2d 385, 388. An abstra ct formula should not be applied mec hanica lly

in determini n g

wh e th e r a mi s tria l w a s n e c e s s ary , and all re levant cir cumstance s should b e ta

k e n in to a c c o u n t. St a te v

. M o u n c e , 8 5 9 S. W. 2 d 3 1 9
, 3 2 2 ( T e n n

. 1 9 9 3 )

. Wh e ther a-7-

mistrial should be gr anted is a de termination left to the sound discre tion of the trial cour t. Reid, 164 S.W .3d at 342 (citing State v. Smit h, 871 S.W .2d 667, 672 (Tenn. 1994) ). The tr ial court’s de cision sh ou ld n ot b e ov e rt

ur ne d a bs e nt an abu se of

dis c re tio n. I d. Ad dit ion a lly , th e pa rt y arguin g that a mis tr ia l sh ou ld h a ve be e n g ra nte d b e ars the burd e n o f e sta bli sh ingits ne c e ssi ty

. I d. (c iti ngWilli a ms, 929 S.W .2d at 388).

I n S t at e v. L awr ence Taylor, No. W2002-00183-CCA-R3-CD, 2003 WL 402276, at *4 (Tenn. Crim. App., J ackson, F eb. 14, 2003), this Court emphasized three non-exclusive fac tors that
may be evaluated in deter mining whether a mistrial was nece ssary beca use inappropr iate testimony
was pre sented to the jury : “ (1) whether the [S ]t ate elicited the testimony ; (2) whe ther the tria l court
g ave a curative instruction; and (3) the relative streng th or we akness of the State’s proof

.” I d. (citing State v. De me tr ius Ho lme s, No . E 20 00 -0 22 63 -C CA -R 3- CD , 2 00 1 WL 15 38 51 7, a t *4 (T e nn . Cr im. App., Knoxvil le, Nov. 30, 2001))

.

The trial c ourt’s admission of C alloway ’s t estimony that the Def endant wa s afr aid of g oing to jail for six y ear s did not warra nt a mistrial beca

use i t did not result in the presentation of ina pp ro pr ia te te sti mony . Se e id. Th e de te rm inatio n o f w he the r e vid e nc e is l og ic a lly re le va nt i s g overne d by

Tenne ssee Rule of E vidence 401. Trial cour ts have broa d discretion in assessing

re le v an c e , an d w e w il l n o t o v e rtu r n th e ir d e c is io n s a

b s e n t an a

b u s e o f d is c r e ti o n b e lo w. State v. Stinnet, 958 S .W.2d 329, 331 (Tenn. 1997); State v. Dubose, 953 S.W .2d 649, 653 (Tenn. 1997)

. The trial c ourt’s exercise of discre tion may not be re verse d unless the cour t “applied a

n i n co rr ect le g a l st and a rd , o r r e a c he d a de c isi on wh ic h is a g a ins t lo g ic or

re a so nin g tha

t c a us e d an inj us tic e to the par ty complaining .” State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997) . Evidence is releva nt if it has “any

tendenc y to make the ex istence of any fac t that is of conseque nce to the de termination of the a ction more proba

ble or less probable than it would be without the evidenc e.” T enn. R. Evid. 401. Only

rele vant evidenc e is admissible. See Tenn. R. Evid. 402. Calloway ’s testimony that the De fe nd a nt f

e ar e d g o i n g t o p r i s o n f

o r s i x y e ar s c an b e s e e n a s e n h an c i n g h i s d e s i r e t o a vo id incar cer ation, and ther efor e, incr easing the believability of the persona l threat Calloway perc eived. We c on c lud e that th e tr ia l c ourt did no t a bu se its dis c re tio n in fi nd ing thi s te sti mony re le va nt, a s it tends to rebut the c redibility of the De fenda

nt’s alibi witnesses.

The De fenda

nt also contends that the evidence, if found relevant, shoul d have been e x cluded be c a us e a da ng e r o f u nf a ir pr e jud ic e su bs tanti a lly

ou tw e ig he d it s p ro bativ e va lu e. S ee Tenn. R. Evid. 403. He de fines unfair prejudice as “an undue t endenc y to sugg est dec ision on an improper basis, commonly , though not necessa rily
, an emotional one.” State v. Ba nks, 564 S.W .2d 947, 951 (Tenn. 1978) . I n arguing f or such a tendenc y , howeve r, he only addr es s es C al loway ’s over ruled testimony that the Def

endant did not want to “g o back” to prison. This is not t he stateme nt the trial
court found admissible unde r Tenne ssee Rule of Evidence 403; a g ain, that statement wa s n ot admitted at all. Be cause the Def endant neg lects to a

rg ue that his “ six y ear s” statement wa s admitted in viol at i o n of Rule 403, and be cause we do not see how the De fenda nt’s belief that he might be i n ca rc erated for

six y ear s, as opposed to any other pe riod of time, could have prejudice d him, we conclude that the trial cour t did not a buse its discr etion in admitting this testimony . This statement the re fo re did

no t w arr ant a

mis tr ia l.T h e c o u rt u lti m a te ly c h o se n o t t o sh a c k le th e D e fe n d a n t. 1

-8- We next deter

mine whether

the trial court e rre d in failing to gr ant a mistrial af ter Calloway testified that the De fenda nt did not wish to “g o back” to prison. This inappropriate te stimony was h e ar d b y the the j ury

. As su c h
, w e tu r nto th e thr e e f

a c to r s n o te d

a b o v e

. Se e T ay lo r , 2 0 0 3 WL 402276, at *4. First, the State did not direc tly elicit Calloway ’s testimony . The improper statement was not in direc t response to a question. Second, the tria l court followed the Def endant’ s sustained objection with a cur ative instruction. Althoug h the State’s proof wa s n o t o verw helming, w e

c on c lud e tha

t th e tr ia l c ourt

did no t abu se its dis c re tio n in fa ili ng to g ra nt t he De fe nd ant a

mis tr ia l.

III. Deprivation of

the Right to a F air Trial “The rig ht to a fair tr ial befor e an impar tial tribunal is a fundame ntal constitutional right.” State v. Austin, 87 S.W .3d 447, 470 (Tenn. 2003)

. The Def endant next contends that his trial was not presided ove r by

an impartial judg e and that he was thus depr ived of a fair trial. As evidenc e for this claim he prese nts two statements. The first was made befor e the De fenda nt’s bond hear ing. T he
tr ia l c ourt , r e fe rr ingto Susa n Bl anc ha rd ’s state me nt al le g ingjur y tampe ri ng , s ta te d th a t “ it’ s c ome to the [c] ourt’s at t en tion that there a re a lleg ations and there is proof that’s be en pre sented to the [c] ourt – but we’r e g oing to a ctually conduct a hear ing at this time for the purposes of r evoking [t he Def endant’ s] bond.” I n the sec ond statement, made immediately afte r it had, in fac t, revoke d the Def endant’ s bond, the trial cour t considere d whether

to shackle the Def

endant, and stated that “[the

1 De fe nd ant] h a s atte mpt e d to inf lue nc e a t lea st one jur or

. We sus pe c t the re ’s mor e tha n tha t. As a matter of f

act, we have pr oof of some sor t of more than that
, s i r. S o , I d o n ’t know what [ the Def endant] is capable of doing .”

Th e State c or

re c tly no te s th a t th e De fe nd ant h a s w a ive d th is i ssu e by fa ili ngto r a ise it i n h is motion for a new

trial. See Te n n

. R

. Ap p. P. 3(e). We must theref ore tre at this issue as waived unless it is deemed to be plain err or. Tenn. R. A pp. P. 52( b). Plain e rror

require s that five fa ctors be esta blished: (1) “the rec ord must c lear ly establish what happene d in the trial court” ; ( 2) “a clea r

and un e qu ivo c a l r

ule of law m us t ha ve be e n b re a c he d” ; ( 3) “ a su bs tanti a l ri g ht of

the a c c us e d mu st have been adver sely aff

ecte d”; (4) “the acc used did not waive the issue for tactica l r easons” ; a nd (5) “conside ration of the e rror is nece ssary

to d o s u b s t an t i al justice.” State v. Adkisson, 899 S.W.2d 626, 641-42 (Te nn. Crim. App. 1994).

The De fenda

nt impli es that the trial judge should have rec used hi mself. Recusa l is warra nted “whe n a per son of ordinar y prudenc e, in the judge ’s position, knowing all of the fa cts known to the judge , would find a re asonable basis for que stioning the judg e’s impar tiality .” Alley

v. State, 882 S.W .2d 810, 820 (Tenn. Crim. App. 1994)

.

We conclude that the trial court did not breach this rule of law; conse quently , the Def endant has not established plain e rror . The De fenda nt conce des that both of the tria l court’s stateme nts were made outside the pr esenc e of the jury . I n arguing that the s tatements provide a basis for questioning the trial judge ’s impartiality
, he states that “it is clear that the trial cour

t had made his mind up on the culpability

of the [ D]efenda

nt.” We disag ree

. Whil e the trial court’s first statement may have-9-

been conclusory
, it related onl y to the Def

endant’ s alleg ed jury

tampering , not his guilt or innocenc e of theft. The trial court then proce eded to c onduct a bond hea ring in an impartial manne r, allowing both the State and the Def endant the opportunity

to examine witnesses and introduce evidenc e. The trial court’ s second state ment also does not indicate a ny impartiality with respe ct t o the theft c harg e; the trial cour

t, having just been pre sen ted with evidenc e that the De fenda nt was ca pable of jury
tampe ri ng , w a s c on c e rn e d th a t he mig ht be c a pa ble of fl ig ht or vio le nc e

. Th is issu e is w ith ou t me ri t.

IV. Suf fi ciency of the Evidence The De fenda

nt next contends that the State prese nted insufficient evidenc e of his identity as the driver of F ox ’s dump truck. Te nnessee Rule of Appella t e P ro ce dure 13( e) pr escr ibes that “[f]i ndings of

g uilt in criminal actions whether by t h e t ri al co urt or jury shall be set aside if the

e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the fi nd in gs by the tri e r o f f a c t of g uil t be y on d a

re a so na ble doubt.” A convicted criminal defendant who challeng es t he suff iciency of the e vidence on appea l be ars the burd e n of d e mon str a tin g wh y the e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the ve rd ic t, b e c a

us e

a ver dict of g uilt destroy s the presum p t i o n of innoce nce a nd imposes a pre sumption of guilt. See State v. Evans, 108 S.W.3d 23 1
, 2 3 7 (T enn. 2003); S tate v. Carr uthers, 35 S.W.3d 516, 557-58 (T e nn . 2 00 0) ; State v. Tu g g le , 6 39 S .W .2 d 9 13 , 9 14 (T e nn . 1 98 2) . T his Court mus t r e je c t a convicted c riminal defe ndant’s cha lleng e to the sufficiency of t he evidence if, afte r consider ing the evidenc e in the li g ht most favor able to the prosecution, we determine that a ny rational trier

of fa ct could have found the es s en t ial elements of the crime be y ond a re asonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On a pp e a l, t he State is e nti tle d to the str on g e st l e g iti ma te view o f th e e vid e nc e and a ll

rea sonable a

nd leg itimate infere nces w hich may be draw n there from. See Carruthe rs, 35 S.W .3d at 558; Hall, 8 S.W .3d at 599. A g uilty verdic t by

the trier of

fac t acc redits the testimony of the State’s wi tne sse s and

re so lve s a ll c on fl ic ts in the e vid e nc e in f a vo r o f t he pr os e c uti on ’s the or

y . Se e State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 199 7 ). Questions about the cr edibility of witnesses, the weig ht and value of

the evidenc e, as well as all fac tual issues raised by the evidence are r esolved by the trier of

fac t, and thi s Court will not re-w eig h or re -eva luate the e vidence . See Eva ns, 108 S.W .3d at 236; Bla

nd, 958 S.W .2d at 659. Nor w ill thi s Court substi t u t e i t s own infer ence s drawn f rom circ umstantial evidence for those dr awn by the trier of

fac t. See Evans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

The De fenda

nt was convic ted

o f o n e c ount of theft over

$10,000. Tenne ssee Code A nnotated section 39-14- 103 establishes that “a person c ommits theft of pr operty if, with intent to deprive the

owner of t he property
, the person knowing ly obtains or exercises c ontrol over the pr operty without the owner ’s ef

fec tive consent.” Theft is a C l as s C fe l o n y “if the va lue of the pr operty or ser vices obtained is ten thousand dollars or more but less than sixt y

thousand dollars.” Tenn. Code Ann. § 39-14-105( 4).

The De fenda

nt notes that the State o ffe red only one witness, L isa Calfee , to testify that he drove F ox ’s truck. H e also notes a number of r easons wh y he believe s Calfee ’s testimony lacke d

cre dibilit y , arguing that she could not have retaine d a clear picture of the driver’ s fac e, obscur ed as-10-

it may have be en by

the brim of a “ Gilligan- ty pe” hat, after

viewing it for only

one or two se conds and fr om ten to fifteen f

eet a way . He a lso ge nera lly

q u es t i o n s C al fee’s cr edibility based on the phy sical des cr iption she ga ve to Det. Ivy , which, althoug h she had only seen the driver’ s head, included an e stimate of hi s heig ht and weight. The Defenda nt’s two alibi witnesses, fur ther, plac e him either i n front of his g randf ather ’s property
, or working on his steps, at all times during w hich the theft c ould have be en committed. Fina lly , we note Cody ’s testimony that Calfee , when wa lking out of the Rocky

Top Gene ral Store, y elled at the dump tr uck’s driver when she was about thirty fee t

awa y , and per haps bef ore she could have seen his fa ce.

Al tho ug h n ot o ve rw he lmi ng , w e c on c lud e that the State ’s e vid e nc e is s uf fi c ie nt t o e sta

bli sh the De fe nd ant’ s id e nti ty

be y on d a re a so na ble do ub t. F ox te sti fi e d th a t he own ed the sto le n d ump truck and trailer and did not g ive any one consent to take them. The Def endant did not contest F ox ’s testimony that the t ruck and trailer were worth about $30,000 on J uly 22, 2004. As to the issue of identity , Calfee testified that she wa s 100% sure she saw the Def endant driving the truck, a nd she

eas i l y identified him near ly seven months af

ter the the ft. The jury

evidently

did not find the Def endant’ s alibi witnesses cre dible, a judgme nt w e must re spect. See Evans, 108 S.W.3d at 236; Bla nd, 958 S.W .2d at 659. A rational jury could have found that the De fenda nt intended to deprive F ox of the tr uc k, g ive n th a t he dr ov e it a numbe r o f m ile s awa y , in to a no the r c ounty , a

ba nd on ingit

on ly a ft e r b e ingsp ott e d. Th is i ssu e is w ith ou t me ri t.

V

. W a iv e r o f R ig htt o Te s t if y T h e D e f e n d an t n e xt c o n te n d s th a t th e tr ia l c o u rt e r r e d b y f a il in g to c o n f

ir m tha t he had
persona lly

waived his rig ht to testify

. See Momon v. State, 18 S.W .3d 152, 162 (Tenn. 1999). The State corr ectly

notes that the De fenda

nt failed to ra ise this issue in his motion for a new trial; we a re the re fo re lim ite d to pla in er ro r r e vie w. Se e Te nn . R. Ap p. P. 3 (e ), 52 (b ). Ag a in, a De fe nd ant m

us t establish five fa ctors in orde r to demonstrate plain err or: (1) “the record must clea rly establish what happene d in the trial court” ; (2) “a clea r and une quivocal rule of law must have been brea ched” ; (3) “a substantial r ight of

the ac cused must have been a dverse ly aff ected”; (4) “ the ac cused did not waive the issue for tac tical re asons”; and (5) “conside ration of the er ror is nec essar

y to do substantial justice.” Adkisson, 899 S.W.2d at 641-42.

The State c oncede s that no hear ing w as held be fore the close of proof at trial, pursuant to the mandate of Momon to de termine whe ther the D efe ndant per sonally waived his rig ht to testify . See 18 S.W. 3d

a t 16 2. I n M omo n th e Te nn e sse e Sup re me Cou rt he ld t hat th e ri g ht o f a

de fe nd a nt t o testify in his own behalf is a fundamental constitut ional rig ht that may only be wa ived per sonally

by a def endant. I d. at 161. The Def endant can thus satisfy

the sec ond and third fa ctors for plain err or revie w. The c ompleteness of the rec ord befo re u s establishes the first fa ctor; that re cord c ontains
no sug g estion that the Def endant waived the issue for tac tical re asons, establishing the fourth f actor

. We must t herefo re d et ermine whether c onsideration of the trial court’ s failure to confirm the Def endant’ s persona l waiver

of his rig ht to testify

is nece ssary

to do substantial just ice.

I n doing so, w e first note that the Momon court held that “the mere failure to follow [t he
proce dure se t forth in Momon] will not in and o f i t s el f support a c laim for depr ivation of the-11-

c on sti tut ion a l r ig ht t o te sti fy if the re is e vid e nc e in the re c or d to e sta bli sh that the ri g ht w a s o the rw ise
pe rs on a lly

wa ive d b y

the de fe nd ant. ” I d. a t 163. At no po int duri ngtr ia l di d th e c ourt

in t his c a se confirm that the D efe ndant had pe rsonally waived his rig ht to testify

. The c ourt had the f ollowing

conver sation with the sworn De fenda nt, his coun s el
, an d the State at the be g inning of the Def endant’ s sentencinghear ing, how ever :

[C ourt]: M r. Knig ht, are y ou under the influence of any intox icants rig ht now? [Defenda nt] : No. [Court ]: Do y ou

re me mbe r t

he da y of y our t ri a l? [De fe nd ant]: Ye s. [Court ]: Yo u e le c te d n ot t o te sti fy in your c a se ; do y ou

re me mbe r t

hat? [Defenda nt] : Yes, sir. [ C o u rt ] : D i d yo u an d yo u r l aw ye r d i s c u s s w h e t h e r o r n o tyo uw e r e g o i n g t o t e s t i f y? [Defenda nt] : Yes, sir. [ C o u rt ] : W h at we re y o u r d es i re s wi t h re gar d t o t es t i fy i n g o r n o tt es t i fy i n g? [De fe nd ant]: Ijus t de c ide d a g a ins t it

. [C ourt]: You do know that y ou had a r ight to testify in that trial; don’t y ou? [Defenda nt] : Yes, sir. [Court ]: Who se de c isi on

wa s it to t e sti fy or no t? [Defenda nt] : Mine. [C ourt]: Did y our lawy er a dvise y ou one wa y or the other ? [Defenda nt] : He just said, “I t would be best if y ou didn’t.” [Court ]: [De fe ns e c ouns e l] sa id i t w ou ld b e be st i f you did n’ t? [Defenda nt] : (Nods). [C ourt]: P ardon? [De fe nd ant]: Ye s. [C ourt]: And if I wer e to re mind y ou that y ou d i d have a rig ht to testify

in y our d e f e n s e , w o u l d

t h a th a v e c h an g e d

yo u r d e c i s i o ni nan y w ay? [Defenda nt] : I t probably

would. [C ourt]: I t probably

would? [De fe nd ant]: Ye s. [C ourt]: W hy

is that? I f I

had just said, Mr. Knig ht, y ou did know that y ou have the rig ht to testify

like that, that alone would have cha ng ed – [De fe nd ant]: Just the thi ngthat ha pp e ne d th e da

y of that tr ia l. [Court ]: No , I

a m ta lki nga

bo ut b e fo re the tr ia l. [Defenda nt] : Oh. [C ourt]: I am saying, if

I would have r eminded y ou while y ou wer e putting on your defe n s e , if

Iw o u ld h a v e s a id
, M r

. K

n ig h t, y o uh a v e th e r ig h t t o te s ti f y , w o u ld that have c hang ed y our mind? [De fe nd ant]: Ig ue ss. Ido n’ t kn ow , p ro ba bly no t. [C ourt]: Do y ou reme mber why it was that y ou elec ted not to testify ? You don’t have
t o t el l m e, I ’m j u s tas k i n g. [Defenda nt] : No.-12-

[C ourt]: As a matter of fa ct, I don’t want y ou to tell me. [Defenda nt] : Idon’t reme mber. [C ourt]: [ Def

ense c ounsel], is there any thing you want to ask hi m about his election

n o tt o t e s t i f

y? [Defense Counsel] : I f I

may , Ican state fo r t h e record, Y our [sic] Honor, it was discussed in detail eve n bef o re t h e trial and after

the State put on its proof. As alway s in that ty

pe of situation – I understood the signific ance of i t, we – of course
, this trial has been c ontinued sever al times. We ha d prepa red for this trial at lea st two other oc casions pre tty

much full and discussed it both time s , t o o . Of c ourse, I

e xpla ine d to him it w a s h is d e c isi on , b a sic a lly ; and , o f c ours e , I a s a lw ay s g a ve him
my advice of what Ifelt he should do. Of course , I , if I have a client that insists upon testify ing, of

course , Imake sure that that is broug ht before the Court’s attention. There was no proble m betwee n me and [the Def endant] at the time when w e sta rt e d in on our d isc us sio ns . O f c ours e , I c an’ t g o in to w hat w a s dis cus sed , but i t was discussed in de tail, and I can unde rstand the pr obl em on that date. [The De fe nd ant] m ay

no t r e me mbe r so me sp e c if ic s o f t hin g s at th is t ime , b ut I

c an s ta te that w e ha d th e m. [C ourt]: The Court is mindful that the State g ave notice of its intention of to use as imp e a c hin g e vid e nc e [the De fe nd ant’ s] pr ior fe lony c on vic tio ns ; is that r ig ht? [S tate]: Yes, sir. We had g iven him notice of that a nd – that was the ma in issue.

The Momon cour

t outlined four non- ex clusive fa ctors a r eviewingcourt should consider “whe n deter

mining whe ther de nial of the rig ht to te s t ify is harmless beyond a re asonable doubt.” I d. at 168. We need not r eac h these fa ctors, howe v er, be cause we c onclude that the r ecor d de mon str a te s th a t th e De fe nd ant, ra the r t ha n b e ingde nie d his rig ht to t e sti fy , p e rs on a lly wa ive d h is ri g ht t o do so. Th e De fe nd ant’ s dec isi on wo uld have be e n the same ha d the c ourt dis c us se d, a t tr ia l, his ri g ht t o te sti fy

in h is o wn

de fe ns e . We the re fo re c on c lud e that the tr ia l c ourt ’s e rr or in f a ili ngto fo llo w the dic tate s o f M omo n w a s h arm le ss, and thu s, that c on sid e ratio n o f t he c ourt ’s e rr or

is

unnece ssary

to do substantial just ice. The Def endant is not entitled to relief on this iss ue.

VI. Enh ancem ent of Sentence The De fenda

nt does not contest his status as a Rang e I I , m u l t iple offe nder f or sentenc ing purposes. H e d o es contend, howe ver, that the trial court imper missibl y sentenc ed him to the maxi mum sentence , ten y ear s, for his theft. See Tenn. Code Ann. § 40- 35-112(b) (3).

Be fore a trial c ourt imposes a sentenc e upon a convicted criminal defe ndant, it must consider (a) the evidenc e adduc ed at the tr ial and sente ncing hear ing; ( b) the pre sentenc e re port; (c) the principles of se ntencingand ar g uments as to sentenc ing a lternatives; (d) the nature and char acte ristics of the cr iminal conduct involved; (e) evidenc e and inf ormation offe red by

the par ties on the enha

nceme nt and mitigatingfac tors set forth in Tenne ssee Code A nnotated sec tions 40-35- 113 and 40-35- 114; and (f) any stat em en t the defe ndant wishes to make on the defe ndant’s ownW e not e t hat t he l egi s l at ure has r ece nt l y am ended s ever al provi s i on s of t he C r i m i nal Sent enci ng Refor m A ct 2

o f 1 9 8 9 , sa id c h a n g e s b e c o m in g e ff e c tiv e J u n e 7 , 2 0 0 5

. H o w e v e r, th e D e fe n d a n t’s c rim e in th is c a se o c c u rr e d p rio r to J une 7, 2005, a nd t he D ef enda nt di d not el ec t t o be s ent enc ed under t he pr ovi s i ons of t he A ct by exe cut i ng a w ai ver of hi s e x pos t f ac t o pr ot ec t i ons

. Se e 2005 Tenn. Pub. A ct s ch. 353, § 18. Ther ef or e, t hi s c as e i s not a f f ec t ed by t he 2005

am en d m en t s, and t he s t at ut es ci t ed i n t hi s opi ni on ar e t ho s e t hat w er e i n ef f ect at t he t i m e t he i nst ant cr i m e w as

c o m m itt e d

.
-13- behalf about sentenc ing. See Tenn. Code Ann. § 40-35-210( b); State v. I mfeld, 70 S.W .3d 698, 704 2 (T e nn . 2 0 0 2 )

. T o f

a c i l i t a t e a p p e l l a t e r e v i e w , t h e t r i a l c o u rti s r e qu i r e d t o p l a c e o nt h e r e c o r d

i ts

rea sons for imposing the sp ec i fi c sente nce, inc luding the ide ntification of the mitigating a nd enhanc ement fa ctors found, the spec i fi c fa cts supporting e ach e nhance ment fac tor found, and the

me tho d b y

wh ic h th e mit ig a tin g and e nh anc e me nt f

a c tor s h ave been eva luate d a nd ba lanc e d in deter mining the se ntence . See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challeng e to the s entenc e im posed, t his Court has a duty to conduct a de novo revie w of the sente nce w ith a presumption that the determinations made by the trial cour t are corr ect. See Tenn. Code Ann. § 40-35-401( d). Howe ver, this pre sumption “is conditioned upon the affir mative sh ow ingin the re c or d tha t the tr ia l court c on sid e re d the se nte nc ing pr inc ipl e s and a ll re le va nt f a c ts and cir cumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . I f our r eview r efle cts that the trial cour

t followed the statutory

sentenc ing pr ocedur e, that the court imposed a lawf ul sentence afte r havingg iven due c onsideration and pr oper w eig ht to the fac tors and princ iples s et out under the sentenc ing la

w, and that the trial court’s finding s of fac t are adequa tely supported by

the re cord, then the pre sumption i s appli ca b l e, an d we may not modify

the sentenc e eve n if we w ould have pref err ed a dif

fer ent re sult. S ee State v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). We will uphold the sentenc e imposed by the trial court if (1) the se ntence complies with the purposes and princ iples of the 1989 S entenc ing Act and (2) the trial court’s findings are a dequate ly supported by the re cord. See State v. Arne tt, 49 S.W .3d 250, 257 (Tenn. 2001) . The burde n of showing that
a sente nce is improper

is upon the appea ling party

. See Tenn. Code Ann. § 40-35-401, Sente ncing Commi ssion Com ments; Arnett, 49 S.W.3d at 257.

Although he fails to mention in his br ief any mitigating fac tors that he believes should have applied, the De fe n d an t did argue at se ntencingthat his theft of the dump truck ne ither ca used nor thr e a te ne d s e ri ou s b od ily

inj ur y . Se e Te nn . Co de Ann. § 40- 35 -1 13 (1 ). Af te r he ari ng thi s argume nt, and af ter discussing the Def

endant’ s prior c o n v i ct i ons and cr iminal conduct, the cour t said that “[p] rimarily

due to his ext ensive criminal history
, in addition to that nece ssary to establish his rang e, the [ c]ourt does enhance [t he Defenda nt’s] sentenc e to ten y ear s. Now, consider ing the mitigating fac tors.” I m m ediately

there afte r the trial c ourt eng ag ed in a be nch conf ere nce r equeste d by

the Def endant. The court then c ontinued: “Now
, the [c]ourt wil l consider mitigating f actor s. The [c] ourt finds they

apply .” The court then pr ocee ded t o s entenc e the De fenda nt to ten y ear s in the Depa rtment of Corre ction as a Rang e I I , multipl e off ender

.

On t h i s b asi s, the Def

endant e ssentially

argues that the re cord c ontains no aff irmative showing that the trial cour t considere d any mitigating fac tors when se ntencinghim. W e disag ree

. Although the trial court’ s consideration was ce rtainly not exhausti ve, it did state that i t had found-14-

applicab l e t h e De fenda

nt’s sug g ested mitigating f actor s. I n sentenc ing the Def endant to the

ma ximumof

te n y e ars , th e tr ia l c ourt

e vid e ntl y de c ide d th a t t

h os e mit ig a tin g fa c tor s h a d li ttl e we ig ht, a dec ision wi t h i n its discretion. See State v. Mar shall, 870 S.W .2d 532, 541 (Tenn. Crim. App. 1993). We there fore conclude that trial court considered the sentenc ing pr inciples and a ll releva nt fac ts and circ umstances. See Ashby , 823 S.W .2d at 169. A cc o rd ingly , the Def endant is re quired
to overc ome the pre sumption of corre ctness we must afford the trial court. I d.

The pre sentenc e re port ref lec t s that the Def

endant wa s thirty -five y ear s old at the time of

se nte nc ing , w a s unma

rr ie d, and had no c hil dr e n. He wa s a hig h s c ho ol g ra du a te , a

nd ha d s ome history of employ

ment with his father’ s surveying busi n es s

. The De fenda nt’s history

of cr iminal convic t i o ns and cr iminal behavior wa s set forth in the pre sentenc e re port and at the sentenc ing hear ing. H is criminal hi story includes a 2001 guilty plea in the United States D istrict Court for the Eastern D is tr ic t o f T e n n e s s e e to o n e c o u n t o f c o n s p ir a c y to d is tr ib u te c o c a in e an d ma r ij u an a, one count of c onspiracy

to commit offenses a g ainst the United States, and one count of operating a “chop shop.” The rec ord reflec ts that the “chop shop” convic tion involved approxi mately twenty vehicles being stolen and dismantled over a time period of approximately

two y ear s. The total value of the
sto le n v e hic le s w a s b e tw e e n $ 50 0, 00 0 a nd $8 00 ,0 00 . T he D efen da nt d oe s n ot c on te st t

hat th is evidenc e is sufficie nt to support the trial court’s use as an enhanc ement fac tor its finding that he “ha s

a pr e vio us his tor

y of c ri min a l c on vic tio ns or

c ri min a l be havio r, in a dd iti on to t ho se neces sary

to establish [hi s Rang e I I , multipl e off ender status] .” See T enn. Code Ann. § 40- 35-114(1)

.

The De fenda

nt argues that the trial court acte d improperly in enhanc ing his sente nce be fore consideringany

mitigating fac tors. The ve rsion of the Sentenc ing Re form Ac t under w hich the Def endant wa s sentenced outlines exactly this process, howe ver, statingthat “[s] hould there be enhanc e me n t a

n d mi ti g a ti n g f

a c to r s f o r a Cl a s s B
, C, D
, o r

E f e lo n y , th e c o u rt m

u s t s ta rt at t he minimum sentenc e in the ra ng e, enha nce the sentenc e within t h e ra n ge as appropriate f or the enhanc ement fa ctors, then r educe the sentenc e withi n the ra ng e as a ppropriate for the mitig ating fac tors.” Te nn. Code Ann. 40-35- 210(e) . Acc ording ly , we a ffirm the D efe ndant’s sente nce.

Conclusion Ba sed on the for eg oing a

uthorities and re asoning , we affirm the Def endant’ s conviction and
sentenc e.

______________________________ DAVI D H. WE LLES, JUDGE