### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 3, 200 4

STATE OF TENNESS EE v . WI LLI AM C. TOMLI N, JR.

Appeal f romthe Circ uit Court for Willi am son Coun ty No. II-1101-360 Tim othy L. Easter, Judge

No. M2003- 01746-CCA -R3-C D - F iled March 30, 2004

The De fenda nt, Wi lliam C. Toml in, J r., wa s convicted by a jury of ag g ravated burg lary

and thef t over $1,000. F ollowing a sentenc ing he aring , the trial court imposed consec utive sentenc es of fourtee n y ear s for the ag g ravated burglary and ten y ear s for the theft. I n this appeal, the D efe ndant arg ues t hat t he trial court erre d by deny ing two e videntiary motions, t hat the evide nce is insuffic ient to support the convictions, and that the tria l court er red in sentencing . We modify the ag g ravated burg lary sentenc e to twelve y ear s and af firm the judg ments of the trial c ourt in all other re spects.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff irm ed as Modif

ied

D AVI D H. W EL L ES , J
., delivere d the opinion of the court, in which J ER R Y L. S MI TH and T H O M A S T. W O O D A LL , J J ., joined.

Doug las P. Nanney , Fr anklin, Tenne ssee, f or the a ppellant, Will iam C. Tomlin, J r.

Paul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Da vid H. F ind le y , A ssi stant A tto rn e y Ge ne ra l; Ron Davis, District Attorney Gene ral; and D ere k K. Smit h, Assistant D istrict Attorney Gene ral, for the appe llee, State of Te nnessee

.
OP IN ION

At abo ut 8 :30 on the mornin g of No ve mbe r 2, 20 00
, Al ic e Me a ns le ft he r h ou se in Frank lin to go w ork in the store she and her husband owned. Her husband, Fred Means, had a lrea dy left the house. B etwee n 11:00 and 11:15 that morn i n g , Ms. Means re ceive d a telephone call fr om her ho us e ke e pe r, Na nc y

Ra nc hin o. Ms. Ra nc hin o to ld h e r that, w he n s he arrive d at th e Me a ns ’ h ou se to c le a n it , s he di sco vere d that th e ma ste r b e dr oo m ha d b e e n r a ns a c ke d. Ms. Me a ns imm e diate ly went home a nd found that someone ha d “wr ecke d” her bedroom

. The dra wer s of her dresse r had been pulled out, c lothes were strewn e very wher e, and seve ral jew elry container s that had bee n stored in the dresse r dra wer s wer e on the floor, empty

. One particula r item that Ms. Means desc ribed wa s-2-

a F ossil watch tin that had containe d one of he r husband’ s watche s. She had kept that tin in a dre sser dr a we r, bu t sh e fo un d it

e mpt y on the fl oo r. Th e tot a l va lue of the it ems take n f

ro m th e Me a ns ’ house wa s $7,355.

Ms. Means also discove red that the back door of her house wa s unlocked. She testified that the lock had be en tamper ed with, as thoug h someone ha d “hit the lock” and “scr atche d and damag ed” it. A spa

re ke y to h er house wa s found under the outside ledg e of he r kitchen w indow. A p p ar e n t l y t h e p r e v i o u s o w n e r o f t h e h o u s e h a da l e r t e d t h e M e a n s t o t h e p r e s e n c e o f a s p ar e k e y, and the Me ans had se arc hed for i t

. Howeve r, they had bee n unable to locate it, even thoug h they

sear ched unde r the ledg e of the kitchen window whe re the key was found afte r the bre ak-in. F urther ins pe c tio n o f the do or

by po lic e of fi c e rs re ve a le d th a t so me kin d of me ta l ob je c t w a s b ro ke n o ff

in the door lock. A lthough the door was damag ed, it did not appear that the door ha d been f

orce d open beca use the tumblers in the lock w ere not broken.

I n July 20 00 , th e Me a ns ha d the int e ri or of the ir ho us e pa int e d b y

To ddSmith. Mr . Sm ith and his cre w re turned in October 2000 to paint the exterior of the house. The De fendant had bee n employ ed by

Mr. Smith as a painter a nd worke d on both jobs at the Means’ house. The De fenda nt and the other

painters f inished their work on the exterior of the house a pproxi mately

one we ek bef

ore the bre ak-in.

Ms. Me a ns te sti fi e d that he r ho me te le ph on e re fl e c te d that sh e ha d re c e ive d te le ph on e c a lls at 10:29 a.m. and 10:36 a.m. on Nove mber 2 fr om a Sherwin-Williams paint st ore loc ated approximately

five minutes from he r house. Tw o of t he employ ees at the Sherwin-Williams store

r e m e m b e r e d s e e i n g t h e D e f e n d a n ti n t h e s t o r e o n N o v e m b e r 2

. T h e s t o r e m a n a g e r , S c o t tB e a s l e y, testified that he a lso remember ed s ee i n g t h e De fendant in the store on Novembe r 2, and he

re me mbe re d th e De fe nd a nt u sin g the sto re ph on e on that date . N o o ne e lse a t th e She rw in- Willi a ms store would have had any rea son to call the Mea ns’ re sidence

.

Detec tive Rick Hag an of the Wil liamson CountySheriff’ s office testified that he dusted the Means’ residenc e for fing erprints. He lifted nine l atent finge rprints, one of which he lifte d from the Fossil watch tin. Hoyt Phillips, a fing erprint ex aminer w ith the Tennesse e B ureau of I nvestig ation, testified that he r ece ived nine ca rds containing latent fing erprints lifted from the Means’ residenc e. Only one of those f

inge rprints was use ful for c omparison. Mr. Phillips i d enti fied the f inge rprint lifted from the F ossil watch tin as being from the De fendant’s rig ht middle finge r.

Detec tive Hag an intervie wed the Defendant a s part of his investig ation. When Detec tive Hag an asked the Defenda nt wher e he had been on November 2, 2000, he replied that he had be en working for a

tire store on Dicker son Road in e x chang e for a discount on a set of tires. Howe ver, he was unable to r emember the name or addre ss of the store. When the detec tive told the Defe ndant that he had be en see n at the Sherw in-Wil liams paint store in Franklin, he answe red that he had be en in the store to buy

a g allon of paint. When the detec tive confr onted the Def endant with the fac t that one of the st o re em p l o y ees r emember ed the De fendant using the phone on November 2, he responde d that he had use d the phone beca use he was try ing to c ontact his forme r employ er, Todd-3-

Smit h, s o h e ca l l ed the Me ans’ house looking f or him. Howeve r, Mr. Smith testified that the Def endant kne w his cellular te lephone number and his offic e numb er, but he had re ceive d no

me ssa g e s f

ro m th e De fe nd a nt. He te sti fi e d f urthe r that th e re wa s n o r e a so n f or the De fe nd a nt t o think he was at the Means’ residenc e on Nove mber 2.

At the conc lusion of the proof, the jury found the De fendant guilty of ag g ravated burgl ary and thef t. This appeal f

ollowed in due cour se.

Th e fi rs t is su e raise d b y

the De fe nd a nt i s w he the r the tr ial cou rt e rr e d b y de nying c e rt a in evidentiary

motions. First, he complains that the fing erprint evidence should have be en suppre ssed beca use De tective Ha g an wa s initi ally mistaken about whe re the latent fing erprint was locate d, and the tin watch box was not prese rved by the police. As pa

rt of his invest igation, Detective H ag an dusted for f

inge rprints a soda c an that he found in the t rash at the Means’ house. Ms. Means te stified that she emptied the tra sh when she le ft on the morning of Nove mber 2, a nd the houseke eper testified that she did not drink a soda that morning . There fore , Detec tive Ha gan believe d that the can ha d been disc arde d by the perpe trator. After he dusted the can f or fing erprints, he threw it away due to a lac k of space in the evidenc e locker . After Ag ent Philli ps examined the fing erprint samples that wer e sent to him, he prepare d a re port that stated that the f inge rprint lifted fr om the “metal c an lid” belong ed to the Defenda nt. Detec tive Hag an assumed that “metal c an lid” re fer red to the soda can. H oweve r, the da y

befor e the tria l beg an, De tective Ha g an lea rned that “metal can lid” did not

re fe r to the so da c a n, bu t to the F os sil watc h tin

. De te c tiv e Ha g a n p ro mpt ly re po rt e d s uc h to de fe ns e counsel, but the watch tin had alre ady been returne d to Ms. Means and clea ned. There fore , there was no possibili ty

that the print rema ined. Def ense counsel m oved to suppress the finge rprint evidenc e. The trial c ourt ruled that, be cause the Def endant did not move to suppress the print when it appe are d that the discar ded soda c an was the source , he wa s in no worse position after learning that the watch tin was the sourc e, bec ause it had not been prese rved either. The trial c ourt did instruct the jury on the State’s duty

to preserve evide nce.

A t rial court’s decision t o admit or ex clude evidence will not be disturbed on appea l absent an abuse of discre tion. See State v. J ames, 81 S.W.3d 751, 76 0 (T en n. 2002). To constitute an abuse of discretion, the tria l court m u s t have a pplied an incor

rec t leg al standar d or “r eac hed a decision which is ag ainst logic or reasoning that cause d an injustice to the party complaining .” I d. (citations omitted).

Claims reg arding the S tates’s dutyto preserve possibly exculpatory

evidenc e ar e g overne d by Sta te v. F e rg us on , 2 S.W. 3d91 2 ( Te nn . 1 99 9) . “ Ge ne ra lly sp e aking, the Sta te ha s a du ty to prese rve a ll evidence subject to discovery and inspect i o n u n d er Tennessee Rule of Criminal Procedur e 16, or ot her applicable law.” I d. at 917. Howeve r, t he evidence must be material, which means it “must both possess an exculpatory value that wa s appar ent bef ore the evidenc e wa s destroy ed, and be of such a nature that the defe ndant would be una ble to obtain compar able e vidence by oth e r r e a so na

ble a va ila ble me a ns .” I d. I f the e vid e nc e is m a te ri a l a ndthe Sta te faile d in its du ty to preserve the e videnc e, there are sever al fa ctors for the trial court to consider re g arding the conseque nces of

the bre ach, inc luding: the d egre e of ne g lige nce involved; the sig nificanc e of the-4-

destroy ed evide nce, c onsidered in lig ht of the probative value a nd reliabi lityof sec ondary or
su bs titute e vid e nc e that re ma ins a va ila ble ; a ndthe su ff

ic ie nc y of the oth e r e vid e nc e us e d at tria l to support the conviction. See id.

I n th is c a se , th e De fe nd a nt h a s f a ile d to sh ow that the F os sil watc h tin app e are d to c on sti tut e exculpatory

evidenc e or that it was, conseque ntly , materia l. Even if the t in could be dee med material evidenc e, the De fenda nt has failed to show bad faith on the part of the State or that the f inge rprint that was lifted f

rom the watch tin is unreliable. Ag ent Philli ps testified that he pref err ed to re ceive the ac tual item from which a fing erprint had been ta

ken, but it was not unusual for him to be given only the lifted print. Furthermore
, he testified that a lifted print is either identifiable or it is not; there is no chanc e of a

bad lift resulting in a misidentification. There fore , the re liabilityof the fing erprint has not be en called into que stion. We c onclude that pr ocee ding to tria l without the evidence being prese rved by t h e S t at e d i d not deprive the Def endant of a fundamentally

fair trial. See id. at 914. There fore , the trial court did not abuse its discretion by ref using to suppress the f

inge rprint that was lif te d f ro m th e F os sil watc h ti n. Th is i ssu e is w ith ou t me ri t.

Th e De fe nd a nt a lso c omp la ins that it wa s e rr or fo r the State to dis c ard the so da c a n b e c aus e it may have c ontained saliva that could be tested f or DNA . The De fendant did not raise this issue in the t rial court either by way of a pretria l Fe rg uson motion or i n the m otion for a new tria l. I ssues may not be raised for the first time in an appellate court. See L awr ence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) . There fore , this iss ue is waive d. Mo re o v er , we cannot conc lude that the Def endant’ s trial was fundamentally unfair be cause the State did not prese rve the soda can for DN A testing. See Fe rg uson, 2 S.W .3d at 914.

I n h is fi na l e vid e nti ary

iss ue , th e De fe nd a nt c on te nd s th a t th e tr ia l c ou rt e rr e d b y re fu sin g to continue the tria l in order f or Age n t P h i l l ips to return to his office , rec over his fing erprinting

su p p l i e s , a n d d u s tf

o r f i n g e rp r i n t s t h e s p ar e k e y

t h a tw a s f

o u n d b e n e a t h t h e M e a n s ’ w i n do ws ill

. Detec tive Hag an testified t h at h e d i d not dust the key for prints because he did not believe it wa s larg e e no ug h to ob ta in a

us able print . How e ve r, Ag e nt P hil lip s said that it mig ht b e po ssi ble to obtain a print. He added that with the passag e of time, the f riction caused by the key

moving in the box in which it was stored ma y have de stroy ed any

print that may

have e x isted. The tr i al court ref used to continue the tria l because the De fendant had known about the exis tence of the key prior to trial, had bee n g rante d funds for the appointment of a f inge rprint expert, and had not ha d the key examined.

Ag ain, the decision to a dmit or exclude evidenc e is left to the discretion of the trial judg e, and will not be dis turbed on appea l absent an abuse of that discretion. S ee James, 81 S.W.3d at 760; Tay lor v. Sta te , 8 14 S.W. 2d37 4, 37 7 ( Te nn . Crim. Ap p. 19 91 ). L ike wi se , th e de c isi on wh e the r t o g rant a continuance lies within the trial court’s discr etion. See State v. Hines, 919 S.W .2d 573, 579 (T en n

. 1 995); State v. Russell, 10 S.W .3d 270, 275 (Tenn. Crim. App. 1999) . Be cause the Def endant ha d an opportunity to have his fing erprint ex pert examine the key for f inge rprints prior to trial, it was not an abuse of discre tion for the trial c ourt to r efuse to g rant a continuance so Ag ent Phi lli ps c ou ld d us t th e ke y in f ro nt o f the jury . S ee Te nn . R. Ap p. P. 3 6( a ) ( “ No thi ng in this ru le-5-

sh a ll b e c on str

ue d a s r e qu ir ing re lie f b e g rante d to a pa rt y re sp on sib le fo r an e rr or or wh o f a ile d to take whatever

action was rea sonable available to pr event or nullify the harmful eff

ect of an er ror.” ) F urthe rm or e , th e De fe nd a nt h a s n ot s ho wn that he wa s p re jud ic e d b y

the tr ia l c ou rt ’s de nying his motion; Agent Phi l l i p s t es t i fied that e ven if it wer e possible to lift a fing erprint from the key , the print ma y we ll ha ve be e n d e str oy e d o ve r t ime by the ke y be ing sto re d inthe pla sti c c on ta ine r. Th is iss ue is w ith ou t me ri t.

The De fenda nt also arg ues that the e vidence is insu ff i ci en t to sustain his convictions for ag g ravated burg lary

and thef t. Tennesse e Rule of Appe l l at e P rocedure 13( e) pr escribes that “[f]i ndings of

g uilt in criminal a ct i o n s wh et h er by the trial court or jury

shall be set aside if the

e vid e nc e is i ns uf

fi c ie nt t o su pp ort the fi nd ing s b y the tr ie 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 defe ndant who challeng es the suffic iency of the e vidence on appea l be ars the bu rd e n o f d e mon str a tin g wh y the e vid e nc e is ins uf

fi c ie nt to sup po rt

the ve rd ic t, b e c aus e
a ver dict of g ui l t d es troy s the presumption of innoce nce and imposes a pre sumption of guilt. See Sta t e v

. E v an s, 108 S.W .3d 231, 237 (Tenn. 2003) ; State v. Carruther s, 35 S.W .3d 516, 557-58 (T e nn. 20 00 ); State v. Tu g g le , 6 39 S.W. 2d91 3, 91 4 ( Te nn . 1 98 2) . T his Cou rt mus t r e je c t a convicted c riminal defe ndant’s cha lleng e to t he sufficiency of t he evidence if, after considering the evidenc e in a lig ht most favorable t o t he prose cution, we de termine that a ny rational trier

of fa ct could h a v e f

o u n d th e e s s e n ti a l e le me n ts o f th e c r im e b e y o n d a

r e a s o n ab le d o u b t. Se e Ja c k s o n v. Virg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On app e a l, the Sta te is e nti tle d to t he st ro ng e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable a nd leg itimate infere nces w hich may be dra wn t here from. See C arr uthers, 35 S .W.3d at 558; Hall, 8 S.W .3d at 599. A guilty verdic t by

the trier of

fac t acc redits the testimony of the State’s wi tne sse s a ndre so lve s all c on fl ic ts in the e vid e nc e in fa vo r of the pr os e c uti on ’s the ory . See State v. Bla nd, 958 S

. W

. 2 d 651, 659 (Tenn. 1997) . Questions about the cr edibilityof witnesses, the weig ht and value of

the evidenc e, as well as all fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t, and this Court will not re-w eig h or re -eva luate the evidenc e. See Evans, 108 S.W .3d at 236; Bla nd, 958 S.W .2d at 659. Nor w i l l t h i s Court substi tute its own infere nces dr awn f rom circ umstantial evidence for those dr awn by the trier of

fac t. S ee E vans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

A per son commits agg ravat ed b urg lary who enter s a habitation without the consent of the property owner and “c ommits or attempts to commit a felony
, theft or assault.” Tenn. Code Ann. § 39-14-402( a)( 3), -403(a). “A person commi ts theft of property if, with intent to deprive the owne r of prope rty , the per son knowing ly obtains or exercise s control over the prope rty

without the owner’ s
e ff e c tiv e c on se nt. ” I d. § 3 9- 14 -1 03 . T he e vid e nc e sh ow e d th a t so me on e e nte re d th e Me a ns ’ h ou se wi tho ut the ir

c on se nt andsto le ite ms v a lue d at $7 ,3 55 . T he iss ue is w he the r t he pr oo f s uf

fi c ie ntl y showed that the D efe ndant was the perpe trator.
Ap pr oximate ly

on e week be fo re the br e ak- in, the De fe nd a nt h a d b e e n at th e Me a ns ’ residenc e wor

king a s a painter

for Todd Smith. Pol ice i n vestig ators discove red the Def endant’ s fing erprint on a Fossil watch tin that had been ke pt in one of Ms. Means’ dresse r dra wer s, but was-6-

found on t h e fl o o r, empty . Ms. Means testified that ther e would have been no r eason f or the De fe n d an tt o co m e i n co n t ac twi t h t h e t i n wh i l e h e w as p ai n t i n g.

Th e Me a ns ’ c a lle r I .D . in dic ate d th at, on the mornin g of the br e ak- in, tw o te le ph on e c a lls

wer e made to the M eans’ residenc e from a S herw in-Wil liams store, which was located about five min ute s f ro m th e Me a ns ’ h ome . T he ma na g e r o f t he sto re te sti fi e d th a t th e De fe nd a nt ha d be e n in the store that morning and had u s ed the telephone. Indeed, the Def endant a dmitted calling the Me a ns ’ h ou se fr om S he rw in- Willi a ms b e c a us e he wa s lo oking fo r T od d Sm ith . H o w e v e r , Mr . Sm ith

ma int a ine d th a t th e re wa s n o r e a so n f or the De fe nd a nt t o th ink

he wa s the re on No ve mbe r 2 be c aus e he finished that job a w eek e arlier . Moreove r, the De fendant ha d the numbers to Mr. Smith’s office and ce ll phone, but he had lef t no messag es either

place

.
We conclude that the evidenc e is sufficie nt to support the Def endant’ s convictions for thef t

a nda g g ra vate d b ur g lary

be y on d a re a so na ble do ub t. T his iss ue is, the re fo re , w ith ou t me ri t.
Finally , the Def

endant maintains that the trial court erre d in sentenc ing. The De fendant was convicted of ag g ravated burg lary , a Class C felony , see Te nn. Code Ann. § 39-14- 403(b), a nd theft over $1,000, a

Class D felony , see id. § 39-14- 105(3). At the se nt en ci n g hearing, the trial court d et er mined the Def

endant to be a Rang e I I I
, persistent offe nder, see id. § 40-35-107( c), a classification the Defe ndant does not conte st. The sentenci n g rang e for a per sistent offende r convicted of a C lass C felony is ten to fifteen y ear s, see id. § 40-35- 112(c) (3), a nd eig ht to twelve y ear s for a

Class D felony , see id. § 40-35- 112(c) (4). The trial court imposed consec utive sentenc es of fourteen y ear s for the a g g ravated burg lary and ten y ear s for the the ft. The Def endant a rg ues that the trial court erre d by ref using to apply

the mitigating fac tor that the De fendant’s conduct ne ither

c a u s e d n o r

t h r e a t e n e d s e r i o u s b o d i l y i n j u r y, a n d b y o r d e r i n g h i s s e n t e n c e s t o b e s e r v e d c o n s e c u t i v e l y.

Be fore a trial c ourt imposes a sentenc e upon a convicted criminal defe ndant, it must consider (a) the evidence adduced at the trial and the se ntencing hearing; ( b) the pre sentenc e re port; (c) the principles of se ntencing and ar g uments as to sentenc ing a lternatives; (d) the nature and char acte ristics of the criminal conduct involved; (e) evidenc e and inf ormation offe red by

the parties on the enha nceme nt and mitigating fac tors set forth in Tenne ssee Code Annotated se ctions 40-35- 113 and 40-35- 114; and (f) any statement the de fendant wishes to make in the d ef en d an t ’s own behalf about sentenc ing. See Tenn. Code Ann. § 40-35-210( b); State v. I mfeld, 70 S.W .3d 698, 704 (T e nn . 2 00 2) . T o f

a c ili ta te app e llate r evi ew, the tr ia l c ou rt is r e qu ir e d to pla c e on the re c or d it s
rea sons for imposing the specific sentenc e, i n cl uding the identification of the mitig ating and enhanc ement fa ct o rs found, the spec ific fa cts supporting eac h enhanc ement fa ctor found, and the

me tho d b y

wh ic h th e mitig a tin g a nde nh a nc e me nt f a c tors hav e been e va luate d a ndba la nc e d in determining the se ntence . See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a c halleng e to the sente nce imposed, this court has a duty to conduct a de novo re view of the sente nce w ith a presumption that the determinations made by the t rial court are corr ect. See Tenn. Code Ann. § 40- 35-401(d) . Howeve r, this presumption “is conditioned upon the af firmative sh ow ing in the re c or d th a t th e tr ia l c ou rt c on sid e re d th e se nte nc ing princ ipl e s a nda ll r e le va nt f a c ts-7-

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 court followed the statutory sentenc ing pr ocedur e, that the c ourt imposed a lawf ul sentence afte r having g iven due c onsideration and pr oper w eig ht to the fa ctors and principles set out under the sentenc ing law, and that the trial court’s finding s of fa ct ar e ade quately supported by

the re cord, then the pre sumptio n i s ap p l i ca ble, and we may not modify

the sentenc e eve n if we w ould have p r e f e rr e d a d if f e r e n t r e s u lt

. Se e St a te v

. Pi k e , 9 7 8 S. W. 2 d 9 0 4 ap p

. a t 9 2 6

- 2 7

. ( T e n n

. 1 9 9 8 )

. We will uphold the sentence imposed by the tri al court if ( 1) the sente nce c omplies with the purposes and princ iples of the 1989 Sentenc ing Act, and ( 2) the trial c ourt’s finding s are adequately supported by the re cord. See State v. Arne tt, 49 S.W .3d 250, 257 (Tenn. 2001) . The burden of showing that a sente nce is im proper is upon the appea ling pa rty . See Te nn. Code Ann. § 40-35- 401 Sentencing Commi ssion Com ments; Arnett, 49 S.W.3d at 257.

At the t ime of sentencing
, the Defenda nt was forty -eig ht y ear s old and married. He dr opped out of hig h schoo l after

completing the ninth gr ade. With respec t to his employ ment history , the prese ntence report merely states that the De fendant had bee n employ ed by sever al automobile body

re pa ir c omp a nie s, tho ug h h e ha d b e e n e mpl oy e d a s a paint e r at th e tim e of

the ins ta nt o ff

e ns e s.

At the sentenc ing he aring , the State pre sented the te stimony of Da vid Pratt, the probation

o f f ic e r w h o p r e p ar e d th e p r e s e n te n c e r e p o r t. M r

. Pr a tt te s ti f ie d th a t th e D e f

e n d a n t h ad a le ng thy his tory of c ri min a l c on vic tio ns

. Th os e c on vic tio n in c lud e : bu rg lary of a n auto mob ile , r ob be ry , f ir st deg ree assault in Nebr aska, f our counts of a ggra v at ed rape , assault with intent to commit rape, possession of a wea

pon, shooting a missil e int o a dwe lling, and attempted automobile burg lary . The Def endant a lso had sever al misd e me an o r c o n v ic ti o n s , in c lu ding posse ssion of burg lary tools, leaving the sce ne of a n acc ident, theft, and D UI . Mr. Pr at t al s o t es t i fi ed that, on Nove mber 23, 1982, the Def endant ha d violated hi s sentenc e of probation for an agg ravated rape convic tion. The Def endant p re s en t ed n o p ro o f a tt h e s en t en ci n g h ea ri n g.

The trial co u rt en hance d the Def endant’ s sentence s based on the f ollowing f

actor s: the De fe nd a nt h a d a

pr e vio us his tory

of c ri min a l c on vic tio ns in a dd iti on to tho se ne c e ssa ry to e sta bli sh him a s a pe rs ist e nt of

fe nd e r; the De fe nd a nt h a d a pr e vio us his tory

of un wi lli ng ne ss t o c omp ly

wi th the conditions of a se ntence involving his r elea se into the community ; and the De fendant abused a position of private trust or used a specia l skill that signific ant l yfac ilitated the offe nse. See Te nn. Code Ann. § 40-35-114( 2), (9), (16). The Defendant does not contest t he applicability of the thre e enhanc ement fa ctors. The trial court a lso applied the mitigating fac tor that the Def endant’ s conduct

“ ne ith e r c a us e d n or

thr e a te ne d s e ri ou s b od il y in ju ry ,” id. § 4 0- 35 -1 13 (1 ), bu t rule d th a t th is mit ig a tin g fa c tor

on ly app lie d to the the ft c on vic tio n. Th e c ou rt re a so ne d th a t th e De fe nd a nt c ou ld not have known f

or ce rtain whe ther a ny one wa s home when he burg larized the Mea ns’ house.

The De fenda nt contends t hat t he trial court should have applied t he mitigating f actor on the

a g g ra vate d b ur g lary

se nte nc e a s we ll. I n this c a se , we c on c lud e that the De fe nd a nt is c or re c t in his contention. This Court has previously held t hat, under appropriate fa cts, mitigating fac tor (1) ma y be applied to a

sentenc e for

ag g ravated burg lary . Se e S t at e v

. J ames Michael Scott, No. M2001- 0 2 0 0 0

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, 2 0 0 2 W L 3 1 1 5 4 6 0 3
, a t* 6 ( T e n n

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. In-8-

this case, no one was home when t he Defenda nt burg larized the M eans’ residenc e. Although the trial court re asoned that the Def endant could not ha ve been certain that the house wa s empty , the State’s the ory a t tria l w a s th a t the Defen dan t c a lle d th e Me a ns ’ h ou se tw ic e fr om the She rw in- Willi a ms paint store to ens u re t h at no one wa s home. Ther efor e, the De fendant was entitled to mitigation beca use his conduct neither caused nor threatened serious bodily injury

. After weig hing the three enhanc ement fa ctors ag ainst the one mitigating f actor , the trial judg e enhanced t h e De fendant’s sentenc e for

theft by two y ear s. We conclude that a two-y ear enhanc ement is appropr iate for the ag g ravated burg lary

sentenc e as w ell. The r e f

o r e , w e modify

the Def endant’ s sentence for a g g ravated bu rg lary fr om f ou rt e e n y e ars to t we lve y e ars

.

Tenne ssee Code A nnotated sec tion 40-35-115 sets forth the criteria for determining whe ther sentenc es for

multipl e convic tions shall run c onsecutively or concur rently

. The trial court orde red the Def endant’ s sentence s to run consec utively afte r determining that the Def endant was an off

ender with an extensive rec ord of criminal activity

. See Tenn. Code Ann. § 40-35-115(b)(2) . The re cord ref lects that the De fenda nt had a leng thy history of criminal co n victions ex tending from 1977 throug h 2001, which included c rimes ra ng ing from m isdemeanor theft and DUI to ag g ravated ra

pe
a ndro bb e ry . T he tr ia l c ou rt didno t e rr

or abu se its dis c re tio n b y

or de ri ng c on se c uti ve se nte nc e s in thi s c a se . T his iss ue is w ith ou t me ri t.

The De fenda nt’s sentenc e for ag g ravated robbe ry

is modified from fourte en y ear s to twelve y e ars . In a ll o the r r e sp e c ts, we a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ DAVID H. WELLES, J UDGE