# FILED
February 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9611-CC-00471

) ) Bedford County v. ) ) Honorable Charles Lee, Judg e ) ANTHONY JASON MERLO, ) (Aggravated burg lary, theft of property v alued Appellant. ) over five hundred dolla rs but less than

) one thou sand dol lars, and theft of property ) valued less than five hundred dollars) For the Appellant : For the Appellee : Andrew Jackson Dearin g, III John Knox Walkup 117 South Main Street Attorney General of Tennessee Shelbyville, TN 37160 and Ellen H. Pollack Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Willi am Michae l McCown District Attorney General 215 College Street, P.O. B ox 904 Fayetteville, TN 37334 and Robert Crigler Assistant District A

ttorney General One Public Square Shelbyville, TN 37160

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Anthony Jason Merlo, appe als as of right from his convictions by a j ury in the Bedford County Circuit Court for tw

o counts of aggravated burglary, a Class C felony, theft of property valued over five hundred dollars but less than one thousand dollars, a Cl ass E felony, and theft of property valued five hundred dollars or less, a Cl ass A misdemeanor. The defendant was s entenced as a Range I, standard offender to five years and four months in the custody of the Department of Correction and fined ten thousand do llars for each aggrav ated burglary conv

iction. For the felony theft of property conv iction, the trial court

imposed a Range I sentence of three years and six months in the custody of the Department of Correction and a threethousand-dollar fine. The trial court also sentenced the defendant to eleven months and twenty-nine day

s and imposed a fine of two thousand fiv e hundred dollars for the misdemeanor theft conviction. The court ordered th e defendant to serve his aggravated burgl ary convictions c onsecutive to each other for a n effective sentence of ten years and eight months. The defendant con tends that (1) the evidence is insufficient to support his conv ictions and (2) the tri al court erred by orde ring consecutive sentences. We disagree and affirm the trial court’s ju dgments of conviction.
This case relates to the burg laries of two homes on separa te days. On June 27, 1995, the residence of William Leath wa s broken into and a .22 rifle and a twelve-gauge s hotgun were taken from his home. Later, on July 5, 1995, a television, a VCR, and a rifle were t aken from the home of McKinley Fl oyd. The defendant and Parker Lee Merlo, the defendant’s brother, were jointly indicted for the of fenses.

William Leath testified that on June 27, 1995, he and his wife left their home on two occasions. He said that they first left at about 10:30 a.m. and returned at3

11:30 a.m. and left again at approx imately 4:00 p.m and returned ap proximately one hour later. Mr. Leath sta ted that when he returned to the house at 5:00 p.m., he discovered that a .22 semi-automatic W inchester and a twelve-gauge shotgun were missing from his bedroom. M r. Leath testified that he did not see any signs of a forced entry, although he conceded that he did not lock the doors when he left. He stated that he did not give anyone permission to be inside his house or to take the guns. M r. Leath said that on July 6 he identified two guns recov ered by the police as the o nes missing from his home. He stated that he had tr aded an old gun for the shotgun and had owned the shotgun for approx imately ten to fifteen years, although he did not know how much the gun was worth. Mr. Leath testified that he also could not place a mone tary value on the Winchester rifle, but he said that he had owned the rifle si nce 1947.
On cross-examination, M r. Leath testified that he did not know the defendant and that he did not see the defendant take anything from his house. He admitted that he initially told the officers that a Remingt on rifle, not a Winchester rifle, was stolen, but he testified that he had been mistaken. He identified a couple of holes on the receiver of the .22 semi-automatic W inchester as those he had made for a scope. Mr. Leath said that hi s shotgun was unusual i n that it had a stock-fed magaz ine.

McKinley Floyd t

estified that he left his home to go to work at 6:00 a.m. on July 5, 1995. He said tha t when he returned at approx imately 3:50 p.m., he noticed that drawers had been emptied into the floor and the mattresses had been thrown off the beds. He also testified that other items, including a clock and a box of ba seball cards, had been moved from where he normal ly kept them. Mr. Fl oyd stated that a televi sion, a VCR, and a .22 rifle wer e missing. Mr. Floy

d testified that the next morni ng, he went to the jai l and iden tified t he prope rty taken f rom his ho me. He sai d that he did not give the defendant or anyone else permission to ente r his home or to take his property. Mr. Floyd desc ribed the televisio n as a 28-i nch Sharp that he h ad purch ased abo ut two4

years earl ier. In Mr. Floyd’s op inion, th e televisi on was worth approxim ately five hundred dollars. He estimat ed that the value of the VCR w as about two hundred fifty dollars and that the value of the rifle was between one hundred and one hundred fifty dollars. Mr. Floy

d stated that there was no damag e to his house and that entry hadapparently been made through a window located near the back door. On crossexamination, Mr. Floy

d testified that he did not know the defendant and that he did not see the d efenda nt break i nto his ho use and t ake his pr operty.

Richard Vincent, Jr., M cKinley Floyd’s neighbor, testified that on Jul y 5, 1995, he received a call at work from his brother shortly before 12:00 p.m. and th at in response to the call, he drov e home, picking up his gi rlfriend in Wartrace on the way. He stated that as he turned onto th e road to his house, he saw a tan Ford Tempo similar to one described by his brother coming tow ards him in the direction o f Wartrace, driving approxi mately thirty miles per hour. He said that he s aw only one man inside the vehicle, and the man w as shirtless and wear

ing a red bandana around his hea d. Mr. Vincent said that he sa w the license tag number of the car as it passed, and he stopped and wrote down the number. He testified that he then s aw two men walki ng down the road across from M r. Floyd’s house approx imately one hundred and fifty yards from the house. He stat ed that both men were slender and one was approxim ately six fe et tall an d had lon g hair. Mr. V incent te stified that he th en drove home and called the police. He said that on his way back to work about thir ty-five to forty minutes later, he passed the same Ford Temp o driven by the same person in Wartrace. Mr. Vincent stated that when he got of f work at 5:00 p.m., he went to Mr. Floyd’s house wher

e he spoke to the police and gav e them a description of the car he saw and the car’s lic

ense tag number.

On cros s-exam ination , Mr. Vi ncent te stified that he c

ould not identif y either the driver or

the other two men because they were too far away. He conceded5

that he did not see anything in the hands of the men he saw w alking along the road. He also admitted that he told the officers that the Ford Tempo was br own but explained that he meant light brown.He stated that he could no long er remember the license tag number, but he acknowledged that the police report show ed that he said that the number was “997-QDW.” He explai ned on redirect examination that even though the number on the report was one digit off, the car with the license tag number 977 -QDW appeared to be the same car he saw

.

Tina Merlo, the defendant’s gir lfriend at the time of the offenses and present wife, testified that s he and the defendant were liv ing together when the offenses occurred. She stated that at the end of June 1995, Parker Lee Merl o, the defendant’s brother, came to her house with a gun, and the defendant g ave him a BB gun. Ms. Merlo testi

fied that at that time, she owned a tan, 1984 Ford Tempo with the license tag number 977-QW. She stated that on J uly 5, 1995, she drove he r car to work at 6:00 a.m. and retur ned during her break at 9:30 a.m. Ms. Merlo testified that the defendant drove her back to work, borrowing the car until 3:00 p.m. to go to his mother’s house. She said that th e defendant’s brother, Jerry Thompson, and Wayne Freeman were with th e defendant when he picked her up at 3:00 p.m. Ms. Merlo stated that she did not know w here the defendant was from 9:30 a.m. unti l 3:00 p.m. She testified that when they ar rived at their home, the defendant along with the three men came inside. She said tha t the defendant had twenty dollars, a nd she saw s ome marijuana. Ms. Merlo stated that the defendant an d the men left in a different vehicle after approximately one hour. She testified that at approx imately 6:50 p.m., Detectiv es David Adams and Steve El liot of the Bedford County Sheriff’s Department came to her house, and she gave them the mari juana. She said that the defendant w as present when the officers arriv

ed.6 On cross-e

xamination , Ms. Merl o testified t hat when she returned hom e from work at approximatel y 3:30 or 4:00 p.m. on July 4, 1995, the defendant’s brother was there and had some Nintendos with him. She said that she, the def endant and his brother went to Davi d Henley’s residence later that evening, w here a trade was made for the Nintendos. She said that while inside Henley ’s residence, she saw

a television, a VCR, and five guns similar to the ones taken from the victim’s homes. Ms. Merlo also testified that the defendant is employ ed by the Auction Barn to r epair televisions and VCRs, and she said that it was not uncommon for the defendant to bri ng home four or five items at a time to repai r. Ms. Merlo stated that during June or July , Henley came to their house and tried to kic k their door in and threatened to kill her and the defendant with a gun. She said that Henley had sold drugs for approximately two years. Ms. Merlo testified that since July 5 while at her house, she had overheard Fr eeman and Thompson make statements regarding burglaries that took pl ace in Bedford County.

On redirect-examinatio n, Ms. Merlo testified that the defendant was working on four or fiv

e televisions and tw

o or three VCRs at home w hen the offenses occurred. She said that she was wrong on dir ect examination when she said that the defendant and the three men were pres ent when the defendant picked her up from work at 3:00 pm. on July 5. She stated that only the defendant and her daughter were in the car that day. Ms . Merlo testified that the defendant’ s brother, Freeman and Thompson did come to her house after they arrived home and stayed for about one hour. She said that the defendant w as not present when the officers arrived that evening and searched her home. On recross-examination, Ms. Merlo admitted th at she was confused about what happened o n July 5.

Kathy Prater, a Bedford County court clerk, testified th at she conducted a title search for an automobile w ith the license tag number 977-QDW. She said that the vehicle was a 1984, four- door Ford Tempo belonging to Ms. Merlo.7 Officer Robert Filer of the Bedford County Sheriff’s Department tes tified that he respo nded to a call regarding

a suspicio us vehicl e at approxi mately 11:4 0 a.m. on July 5, 1 995. He sa id that on the way to th e locatio n, he pas sed a sma ll brown vehicle. He stated that by the time he turned around, the vehicle was no lo nger in the area. Officer Filer testified that he then went to McKi nley Floyd’s res idence where he was approached by Ric hard Vincent, Jr., who described the car he saw in the neighborhood as a small brown car with the license tag number 997-QDW . On crossexamination, Officer Filer testified that he arrested Dav id Henley for kicking

in the door of the defendant’s home.

Bedford County Sheriff Roger Par ker testified that on July 5, 1995, when he learned of the license tag number suspected to ha ve been involved in the offenses, he drove to look for a suspec t. He said that at approx imately 6:50 p.m., he passed a tan Ford Tempo with the lic ense tag number 977-QDW, one digit different from th e tag number information given to him. Sheriff Parker testif ied that he pulled the car over, and he said that the defendant was driving the car and Ms. Merlo was a passenger. He stated that later that evening, he obtained a search warrant for David Henley’s residence. He said that a s earch of the residence reveal ed the items stolen from the victim’s homes in additi on to marijuana individual ly packaged.

David Henley testi

fied that he had known the defendant and Par ker Lee Merlo for approximately two years. He con ceded that he sold marijuana. H enley stated that approximately a w eek or a week and a half before Jul y 5, 1995, either the defendant or his brother called him and told him that they had s omething they wanted him to see. Henley testified that he went to the defendant’s hous e, and the defendant and his brother showed hi m the guns in the defendant’s shed. He said that he shot the rifle in the backyard to see if it worked. He s tated that they then agreed t o trade the8

guns for marijuana. He said that the defendant and his brother came over to his house later to pick up the marij uana and to bring him the guns . Henley testified that a few days before July 5, the defendant and his brother and wife als o traded some Nintendos.
Henley stated that around noon on July 5, 1995, the defe ndant and his brother and wife came to his house. He said that they as ked whether he would l ike to buy a television, a V

CR, and a .22 gauge rifle.Henley testified that they brought the television and the VCR inside when he told them that he wanted to see them, and he along with the defendant and his brother went out to a cr eam-colored Ford Tempo to look at the g un. Henley stated that i n exchange for the items , he gave t hem some marijuana and fifty dollars. Henley identified the v ictim’s property as those items traded by the defendant and his brother and wife. Henley testified tha t the defendant and his brother were acting

together in the deals.
Henley sai d that he was not present when the offic ers searche

d his home on July 5, 1 995. He st ated tha t he learn ed that h is house h ad been s earched on July 6 while he was ridi ng around with the defendant’s brother. Henley testi

fied that he became angry at the defendant and his brother beca use he believed that they got him in trouble because the items he traded for marijuana were s tolen. He admitted that he went to the defendant’s home armed w ith a gun, knocked on the door,and tapped open the door with his foot. He said that he left after discov ering that the defendant was no t home but stated that he was later arrested when he stopped at a store. Henley testified that he was charged w ith burglary for bre

aking into the defendant’s home, poss ession of marijuana for resale, possession of a f irearm where alcohol is served, and public intoxication. He sai d that he pled guilty to possession of marijuana for resal e and received a two-y

ear sentence. He stated that as part of the plea agreement, the remaining charges w

ere dismissed in exchang e for Henley testifying against the defendant.9 On cross-examination, the defendant testified that he had serv ed seven months of his two-year s entence before being released on pr obation. He claimed that he would have testified against the defendant despite the state’ s offer to dismiss the other charges against him. Henley denied tradi ng marijuana for merchandise w ith anyone except the defendant and his brother. On redirect ex amination, Henley testified that he gave a statement to the police immediately after his arrest but before the state’s plea offer was made, telling them that he traded marijuana for the mer chandise in the possession of the defendant and his brother. He also claimed that the one hundred and two grams of marijuana found i n his house were for his o wn personal use.
Detectives David Adams and Steve Elliot of the Bedford County Sheriff ’s Department testified regardi ng their investig ation of the crimes. They rel ated that attempts to take fingerprints at McKinley Floy

d’s residence were uns uccessful. They also stated that the defendant’s w ife gave them permission to search her residence and that she showed them marijuana sitting on an end table. D etectives Adams and Ellio t testified that when they w ent to David Henley’ s residence on July 5, 1995, no one was home but that they saw thr ough open venetian blinds a television and a VCR matc hing the description of the property stolen from the victims. They said that a search w arrant was obtained and the house was searched. In addition to the television and the VCR, they fou nd two r

ifles an d a shotg un in a be droom un der a bl anket, a green l eafy material in a pink bag i n a gun cabinet, and five Ni ntendos. They testified that the victims later identified the television, the VC R and the guns as belongin g to them. Detective Adams stated that he questioned Henley after his arrest. He said tha t Henley cooperated and gave a statement,even though he was not promised any leniency at the time of the statement. Detectiv e Adams testified that Henley named only the defend ant and h is brothe r in conne ction with the stole n propert y.10 Donna Knight, a forensic chemi st with the Tennessee Bureau of Investigation, testified that she examined the green leafy material taken from the homes of the defendant and David Henley and determined that it was mar ijuana. She stated that the marijuana taken from the defendant’s residence weighed 2.2 grams and that the marijuana taken from Henley ’s residence weig hed 102.6 grams.

For the defense, Parker Lee Mer lo, the defendant’s brother, testi fied that on June 27, 1995, at about 10:30 or 11:30 a.m., David Henley picked him up at his home driving a silv

er Volkswagen Rabbit . He said that while he entered William Heath’s residence and stole two guns, Henley drove the car around the nei ghborhood. He stated that after the burgl ary, they went back to Henley’s resid ence and wrapped the guns in a blanket and placed them inside a gun cabinet. M erlo testified that on July 4, the defend ant and the de fendant’s wif e took him to Hen ley’s residence to exchange some Nint endos f or three m arijuana cigarette s and five dollars. He said tha t he gave the defendant two of the marijuana cigarettes.

Merlo testified that on July 5, 1995, he borrowed the defenda nt’s wife’s car at approximately 9:00 or 9:30 a.m. He stated that he picked up Henley and a person known as Ricky T., and they went to burg larize McKinley Floyd’s residence, stealing a televisi on and a VCR. He described Ricky T. as being appr oximately five feet six inches tall w

ith long, blondish-brow n hair, a light brow

n mustache and a goatee. Merlo said that whil e Henley and Ricky T. drove around, he went i nside the house, looked under the mattresses and through the drawers, and took the television and the VCR. He stated that afterw ards they went to Henl ey’s house. Merlo tes tified that he then left by himself and drove back to Floyd’s resi dence to steal a gun that he saw during the first trip. He said that he returned to H enley’s house and traded He nley the gun for marijuana. Merlo t estified that he returned the defendant’s wife’s car at11

approximately 2:00 p.m. H e stated that he left the marijuana he received from Henley at the defendant’s house on a table to pr event his girlfriend

from getting mad at him.
Merlo testified that on July 6, he and Henley went to the defendant’s house, but the defendant was not at home. He said that Henley had o ne of the .22 rifles and that they shot the gun in a field near the defe ndant’s house. Merlo also detailed the events leading up to Henley kicking in the defendant’s door on July 6. He said that Henley was

angry at the defendant because H enley had been told that the defendant had turned him in to the polic e.
Merlo testified that the defendant, Gary Thompson, and Wayne Freeman were not involv

ed in the offenses. He said that he had s een Henley sell drug s on earlier occasions and that he had observed at least fiv e exchanges of stolen merchan dise for marijuan a. He conc eded tha t he initi ally had a gr udge again st Henley, but he claimed that he no longer felt that way about him. H e admitted that he had been convicted of attempted aggr avated burglary and three counts of burglary and that threeof the convictions involved the burglaries of the Leath and Floyd residences. On crossexamination, Merlo admitte d that he had also been convic ted of two other counts of aggravated burgl ary in 1990.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction because the sta te did not prove the offenses bey ond a reasonable doubt. He also asserts that judg ments of acquittal should hav e been entered by the trial court. The state responds that the evi dence establishes the defendant’s g uilt beyond a reasonable doubt. We agree.12 Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). In Tennessee, whether the issue of the sufficienc y of the evidence for acqui ttal purposes is being considered by the trial

court upon motion for a judgment of acq uittal or by an appellate court upon review, the standard to apply is the same. State v. Ada ms , 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995).

For circumstantial ev

idence to constitute the sole basis for a conviction, the facts must be “so closely interwoven and connect ed that the finger of guilt i s pointed unerringly at the defendant and the defend ant alone.” State v. Crawford , 225 Tenn. 478, 484, 470 S.W.2d 610, 613 (1971). The evidence must be both consistent with th e defendant’s guilt and inconsis tent with the defendant’s innoce nce, exclude all other reasonable theories except that of guilt, and establish the defendant’s guilt so as to convince the mind beyond a reasonable doubt that he or she co mmitted the crime. Patterson v. State , 4 Tenn. Crim. App. 657, 661, 475 S.W .2d 201, 203 (1971).

When viewed in the light most favorable to the state , the evidence presented at the defendant’s trial supports the jury’s verdicts. The proof show s that on June 27, 1995, a .22 semi-automatic W inchester and a twelve-gauge shotgun were taken from William Leath’s residence without Mr. Leath’s permissi on. David Henley testified that approximately a week or a week and a half before July 5, 1994, the defendant and his brother contacted hi m and told him that they wanted him to see13

something. When Henley went to the def endant’s residence, the defendant an d his brother showed Henley Mr. Leath’s guns that w ere kept in the defendant’s shed, and they traded the guns for mari juana.

The evidence also demonstrates that McKinley Floy d returned home from work at approximatel

y 3:50 p.m. on July 5, 1995, and discovered that a tele vision, a VCR, and a .22 rifle wer e taken from his home. On that same day , the defendant borrowed his wife’s

car between the hours of 9:30 a. m and 3:00 p.m. Around noon, Richard Vincent, Jr., s

aw one man driving the car belonging to the defendant ’s wife and two men walking near the Floyd residence. Approximately thirty to forty minutes later, Vincent saw the defendant’s wife’s car approximately three miles away from Mr. Floyd’s residence. Henley testified that around noon on July 5, 1995, the defendant and his brother brought Mr. Fl oyd’s television, VCR and gun to trade for mari juana and fifty dollars cash, and marijuana was found at the defendant’s residenc e later that evening.
We note that the possession of recently stole n property permits an inference to be drawn by the jury that the possessor stole the property. Bush v. State , 541 S.W.2d 391, 394 (Tenn. 1976). Under these circ umstances, we conclude that a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty of the offenses of aggravated burglary and theft of property. Therefore, we also conclude that the trial court properly decided not to enter a judgment of acquittal.

II. SENTENCING The defendant challenges the consecut ive nature of his sentences. He argues that consecutive sentences are not warranted because they do not reason ably relate to the severity

of the offenses. We disagree.14 No witnesses testified at the sentencing hearing. The presentence repo rt introduced at the hearing r eflects that the then twenty -five-year-old defendant c laimed that he was innocent. It also reflects that the defend ant has a juvenile record for unruly acts, failure to appear, violation of probation, fighting, assau lt on a minor, disorderly conduct and grand larceny . For the defendant’s grand l arceny conviction, he was sentenced to the custody of the De partment of Correction. It show s that the defendant obtained his GED and a certificate in masonry while incarcerated. The def endant also reported taking industr

ial electricity c

ourses.
The presentence report states that the defendant’s criminal recor d as an adult consists of felony conv ictions for one count of possessi on of marijuana with the intent to sell, two counts of aggravated burg lary, and two counts of theft of property valued more than five hundred but less than one thousa nd dollars. The defendant also has misdemeanor convictions for contempt of court, assault on an officer, disorderly conduct, reckless driv

ing, driving w

ithout a license, and two counts of theft of property valued less than five hundr ed dollars. The report also shows that the present offenses were committed while the defendant was on probation.

The report also shows that the defendant reported that his mental he alth was poor. He claimed th at he had obtained psychiatri c treatment at several mental health c enters and that o n one occ asion, h e jumped out of a th ird floo r wind ow of a psychiatric hospital . The report states that the defendant as serted that he drank alcohol very seldom and that he had never been much of a dri nker in the past. The defendant claimed that because alcohol made him sick, he limited his intake to one to two beers a month. The report reflects that the def endant admitted using alcohol since he was eleven year

s old in an earlier pres

entence report prepared in 1991. The earlier presentence report shows that the defendant stated that his dri nking increased by th e15

age of thirteen, resulting in him being sent to drug rehabilitation. It also

shows that the defendant drank nine quarts of beer a day in 1990.

The defendant admitted using marijuana s ince he was fourteen year s old, stating that he used marijua na “like people use cig arettes.” It states that th e defendant smoked one-half ounce of marijuana per w eek. The defendant denied using cocai ne or valium or any other dr

ugs. The report reflects that the 1991 presentence report stat es that the defendant admitted be ing addicted to cocaine for approximately one year in 1989 and using morphine and liq uid morphine three times a day , every day for about a week and a half in September 1989.

The presentence report reflects that the defendant has been employed for short period of times at var ious jobs, several r

esulting in the defendant being fired. It also states that the defendant report ed working at one job for two years, though an investigation by the probation officer revealed that the defen dant had in fact only worked six days

before being fired. Also, the d efendant has failed to pay fines imposed for his prior convictions.

At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant to five years and four months for each aggravated bur glary convicti on, to three years and six months for his felony theft convi ction, and to eleven months and twenty-nine days for his misdemeanor theft convic tion. The trial court order ed the defendant to serve the aggr avated burglary s

entences consecutive to each other. In sentencing the defendant, the trial court applied th e following enhancement factors pursuant to T.C.A. § 40-35-114 to each of his con victions:

(1) the defendant has a previous histor y of criminal convictions or criminal behavior; (8) the def endant has a previous histo ry of unwillingne ss to comply with the conditions of a se ntence i nvolving release in the community; and16 (13)(C) the felonies w

ere committed while the defendant w as on probation. The trial court placed consi derable weight on enhancement factors (1) and (13)(C) . In mitigation, the trial c

ourt considered that the defendant’s conduct neither caused nor threatened serious bodily injury. See T.C.A. § 40-35-113(1).

The trial court stated that it chose not to enhance the d efendant’s sentences to the extent it nor mally would because the court determined that
consecu tive sente nces were wa rranted. It conclu ded that the def endant s hould se rve his aggravated burg lary sentences consecuti vely because the defendant is an offender whose record of criminal activity is ex

tensive and because he committed the offenses while on probation. See T.C.A. § 40-35-115(b)(2) and (6). The trial court s aid that the sentences were fashioned in s uch a manner that they woul d be sufficient to deter the defendant, and it determined that incar ceration was necessary to prevent the defendant’s further criminal conduc t. The court also denied probati on, determining that measures less restrict ive than confinement have both freq uently and recently bee n applied unsuccessfully to the defendant. See T.C.A. § 40-35-103(1)(C).

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. § 40-35-401( d). As the Sentencing Commission C omments to this section notes, the burden is now on the defendant to show that the sentence is improper. T his means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).17 In conducting our de novo review, we must consider (1) the evidence, if any, received at the tr

ial and sentencing hearing , (2) the presentence repor t, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 23 6-37 (Tenn. 1986).

Under the relevant parts of T.C.A. § 40-35-115(b), the tr ial court was authorized to impose consecutive sentences once it found tha t: (2) the defendant is an offender whose r ecord of criminal activity is ex

tensive; or (6) the defendant is sentenced for an offense comm itted while on probation. However, these factors “cannot be read in isolati on from other provisions of [the Sentencing Reform Act of 1989.] The proof must also establish that the ter ms imposed are reasonably related to the severity of the offenses comm itted and are necessary in order to protect the public from further criminal acts by the off ender.” State v. Wilkerson , 905 S.W.2d 933, 93 8 (Tenn. 1995).

In this case, the defendant’s cri minal record is substanti al. Given the defendant’s criminal history , we conclude that the tri al court properly con cluded that consecutive sentences were warranted. The record also reflects that the off enses were committ ed while th e defen dant was o n probat ion. More over, the consecut ive sentences imposed by the trial court reasonably reflect the severity of the def endant’s repeated commission of theft-related offenses and are necessary to protect the public from further criminal conduct. Therefore, we hold that the tri al court’s imposition of consecutive sentences w as proper.18 In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

John H. Peay, Judge

David H. Welles, Judge