### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 20, 2002
STATE OF TENNESSEE v. ALLEN PRENTI CE BLYE
Appeal from the Circuit Court for Sullivan County Nos. S41,733, S41,774 R. Jerry Beck, Judge

No. E2001-01375-CCA-R3-CD November 1, 2002

The defendant, Allen Prent ice Blye , wa s charged under two separa te indictments with a total of fourteenoffenses. The indictments were consolidated for trial and the defendant was convicted of all five counts contained in indictment number S41,733 and four counts contained in in dictment numb erS4 1,774. The

defenda nt was fou

nd not gu ilty on the re maining five cha rges c ontained

in indictmen t number S4 1,774. The

trial cou rt imposed

the following sent

ences: Indictment S41,733 Count 1 Theft over $10,000.00 (S. Loflin) 15 years a t 45% Count 2 Felony

evading arrest 6 years a t 60% (consecutive) Count 3 Recklessendang erment 6 years a t 60% (consecutive) Count 4 Driving

on a revo ked lice nse 6 months (c oncurre nt) Count 5 Leaving the sc ene of an accident 30 day s (concu rrent)
Indictment S41,774 Count 2 Theft over $500.00 (Gafford) 6 years a t 60% (consecutive) Count 4 Theft under $500.00 (S. Loflin) 11 months, 2 9 day s (concu rrent) Count 6 Theft ove

r $500.00 (Carroll) 6 years a t 60% (consecutive) Count 9 Theft over $1,000.00 (Mann) 12 years a t 60% (consecutive)

The effective sentence under i ndi ctment S41,733 is 27 years and the e ffective sentence under indictmen t S41,774 is 2

4 ye ars. The trial court

ordered the sentences under ea ch indictment to be served consecu tively , for a to tal effective se ntence o f 51 years. I

n this appe al, the de

fendant present s the following issues: (1) whether the trial court er red by refusing to sever certain of the offenses; (2) whether the evidence was sufficient to support the conviction for theft over $1,000; and (3) whether the sentence was excessive. Because the defendan t w as entitled to separate trials on some of the counts contained in indictment S41 ,774, an d the error cannot be classified as har mless, the four convictions under that indictment must be reversed and rem an ded. The convictions and accompany

ing sentences under indictment S41,733 are aff irmed.

Tenn. R. App. P. 3; Judgments of the Trial Court A ffirmed in Part a nd Revers ed and Remanded in Part-2-

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.

Mark H. Toohey, King sport, Tennessee (at trial), and Julie A. Rice, Knoxville, Tenne sse e (on appeal), for the appellant, Allen Prentice B lye.

Paul G. Summers, Attorney Gene ral & Reporter; Mark A. Fulks, Assistant Attorney Gene

ral; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On the morning of July

31, 1998, A

lfred Ma nn of the Colonial Heights area in Sullivan County discovered that his silver1987 Volkswagen Scirocco sports c ar, valued at between $5,000 and $6,000, had been taken from his front lawn. He had le ft his keys in the vehicle.

On August 8, 1998, Samue l L oflin, who se compa ny, Freema

n Glass, o wned a 19 97 GMC Yukon and a 1994 For

d F-250 p ickup tru ck, disco vered th at the Yuk on had be en taken

from hi s driveway in the Pre ston Fore st

Subdivision in Kingsport. The Yukon hada value of over $10,000. Two drills and a suction cup for holding glass, having a cumulative value of over $500, were missing from the Ford truck.

That same morning, Samuel Loflin's son, Tom, who lived next door to his father, discovered that someone had broken into his Pontiac Grand Prix. The passenger door had been left open and the contents of the glove compartment and the center console had been removed a nd left on the

seats. Debra Ly nn Clasin, who lived directly ac ross the street, found that the trunk of her daughter's Mazda automobile

had been left open. The cons ole and glove comp artment o f the veh icle wer e also open and the contents were scattered throug hout the interior of the car.

Also that same morning , Brian Ca rroll, who lived in th

e same su bdivision a s the L

oflins, discovered

t ha t the door to his Chevrolet S10 pickup truck, which was parked in his carport, had been opened and the contents of the truck were in disar ray. An a

mplifier, a subwoof

er box, an d compact discs were missing. The property had a cumulative value of approximately $1,500.
The next day, Joe Aaron Gaf ford, a Church of

Christ minister, returned from vacation and discover ed that hi s residence, which was located adjac ent to Preston Forest subdivision, hadbeen burglarized

and ransacked. A light was left on in the re sidence, which had been locked during Gaffor d's absence. The carport door had been pried open and left ajar. Dr awers and cabinets were open throughout the house. A baby ring, two VCRs, two cameras, a portable television, a microwave, $200 in cash, and several drawers fr om a jewelry a

rmoire had be en taken. Gaf ford estima t ed that the cumulative value of the stolen property was in excess of $1,000. All of the property take

n was later recovered.-3-

Mary Elizabeth Snapp, who had been dating the defendant, met him at an off ice complex where he was doing interior cleaning on Augu st 8, 1998. Sometime a fter da rk, each left in se

parate
cars. According to Ms. Snapp, she followed the defendant, who was driving a two -door silv er sport s car, to a Winn-Dixie parking lot, where he opened the trunk of his car a nd gaveMs. Snapp a

VCR and a baby

ring. She took the

items to her apartmen t. At a ppro ximate

ly 3:00 A .M. the next morni ng, the defendant drove to Ms. Snapp's apartment in the silver sports ca r. The defendant then drove Ms. Snapp to afriend's house where she waited 30 minutes to an hour. When the defendant returned, he was dr

iving a g reen GM C Yukon, which was later identified as that stolen from Sam Loflin. Ms. Snapp joined the defendant in the Yukon. Shortly after their de parture, the defendant pickedup a man whose car was out of ga soline and drove him to a convenien ce market. When a police officer

arrived, the defendant drove awa y, leaving the man at the pump. Afterward, another police vehicle

followed the Yukon until the defendant drove down a dead- end road, where he and Ms. Snapp waited for several minutes. A short while later, another officer saw the Yukon and began to foll ow. A ccording to Ms. Snapp, the defendant sped awa y, drove throug

h a roadblock, and eventua lly missed a curve and crashed into a house. The defendant fled on foot, leaving Ms. Snapp in the car. When questioned by police , Ms. Snapp init iall y denied an y knowled ge of the defendant

. When told she might not

see her children any

more, however, she cooperated by making a statement and showin g offic ers th e location of the VCR and baby ring. A search of Ms. Snapp's apa rtment yielded the VCR and baby ring belonging to Gaffor d.
Sergeant Dan Bro okshire o f the King sport Polic e Depar tment waslooking f

or the sto le n Yukon when h e sa w a vehic le fitting that desc ription at the gaspumps at a

convenie nce mar ket. After calling for assistan ce f rom other officers, Sergeant B rookshire observed the defendant hurried ly drive away , leaving a passenger sta nding at the gas pump. Sergea nt Brookshire followed closely behind but lost sight of the ve hicle.
Shortly after receiving the ca

ll from Sergeant Bro o kshire, Officer Timothy Horne saw the Yukon being driven by

the defendant and followed. Before Office r H orne cou

ld initiate a traff ic stop, however, the defe

ndant ac celera

ted, jumpe d the cur

b in a c hu rc h p ar ki ng lo t, an d s pe d a wa y. The defendant did not stop when Officer Horne a ctivated his lights, but continued to accelerate and eventua lly ran a stop sign. At another intersection, the defendant drove thr ough a flashing red light and sped up to 70 m iles per hour while straddling the double y

ellow ce nterline and driving into oncoming traffic.
Officer Kevin Hite, who had also learne d of the high speed chase, was forced to evade the defendant as they appr

oached each other in opposite directions. The Yukon driven by the defendant went "slightly a

irborne" and struck the spotlight on the side of Officer Hite's cruise r. Officer Horne continued his pursuit and saw the defendant drive through a stop sign and a red lig ht before crashing the Yukon into

the side of a residence. The defe ndant fled on foot but was arrested by police, who returne d him to the s cene of the acc ident.

Detective Frank L

ight fou nd compact discs belonging to Ca rroll in the Yukon. The Volkswagen

Scirocco which had

been tak en from M ann was d

iscover ed in an apartment complex-4-

near Gafford's residence. Thr ee of the four drawers taken f rom Gafford' s j ew el ry a rmoire were inside the Scirocco, as were his VCR and microwave. The two drills b elonging to Sam L oflin, all of Carroll' s stereo

equipmen

t and some

of his compact discs were also in the Scirocco. At trial, the defendant stipulated that his driver's license had been suspended or r evoked at the time of the arrest.

I The defendant first contends that the trial court abused its discretion by failing to sever the offense s. The state insists that the trial court properly concluded that the multiple offenses were part of the same criminal transaction because most of the offe nses were c om mitted in the same neighborhood

on the same night. The trial court concluded that sever ance was not proper

because the offenses were part of a common scheme or

plan. The trial court additionally de termined that the evidence of each

offense was admissible in a trial of the others under Rule 404(b) as evidence of the defend ant's identity as the perpe trator. The trial court did not engage in a balancing test to determine whether the probative value outweighe d the danger of unfair prejudice

. "[D]ecisions to consolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1) are to be reviewed for an abuse of d iscretion. " Statev. Shir ley , 6 S.W.3d 243, 247 (Tenn. 1999). Ad di ti on al ly, "a trial court’s refusal to sever of fenses will be reversed only when the 'court applied
an incorrect legal

standard, or reached a dec ision which is against logic or reasoning tha t caused an injustice to the party complai ning.'" Id. (quot ing Statev. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)). "[W]hen a defendant obje cts to a pr e-trial conso lidatio n motion by the state , the tria

l court mus t consider the motion by the severa

nce provisions of

Rule 14(b)(1), not the ‘same or similar character ’ standard of R ule 8(b)." Spicer v. State , 12 S.W.3d 438, 443 (Tenn. 2000).
Rule 14 (b )(1) pr

ovides asfollows:

If two or more offenses have been joined or consolida

ted for tr ial pursu ant to Rule 8(b) , the def

endant sh all have

a right to a severance

of the offenses unless the offenses ar e par t of a common scheme or plan and the evidence of one would be admissible

upon the tr

ial of the others.

Tenn. R. Crim. P. 14 (b)(1) . The "p rimary inquiry into whether a severance should have been granted under Rul e 14 is whether the evidence of one crime would be admissible in the trial of t he other if the two counts of indictment had been severed ." State v. Burchf ield , 664 S.W.2d 284, 286 (Tenn. 1984). Tennessee Rule of Evidence 404(b) prohibits the admission of "othe r crimes, wrongs, or acts" of the defendant

when adm

itted only to show the defendant’s propensity to commit the crime charged. See Tenn. R. Evid. 40 4(b). Rule 404(b) do es not, how ever, ba r the adm ission of a

cts alleged to be part of a common scheme or plan when rele vant to a material issue at trial. See Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 1980). Before a trial cou rt may deny a sever ance request, it must hold a hearing on the motion and conclude from the evidence and arg ument presented

at the hearing that (1) the multiple offenses constitute parts of a common scheme or plan; (2) e vidence of eachoffense is releva

nt to some material issue in the trial of all the other offenses; and (3) the-5-

probative value of the evidence of other offenses is not outweighed by the prejudicial effect that admission of the evidence would have on the defenda nt. Spicer , 12 S.W.3d a

t 445; see also

Tenn. R. Evid. 404(b)(3).
"[A] common scheme or p lan for s e verance purposes is the same as a common sche me or plan for evidenti ary purposes." State v. Mo ore , 6 S.W.3d 235 , 239 n.7 ( Tenn. 199 9). I n order t o meet the first prong of common scheme or plan, the evidenc e must fall under one of the following categ ories: (1) offenses that r eveal a dist incti ve des ign or are so similar as to constitute "signature" crimes; (2) offenses that are part of a larger, continuing plan or conspiracy ; and (3) offenses that are all part of the same criminal transaction. This court determined in State v. Hallock that:
[T]h e mere existence of a common scheme or plan is not a proper justifica tion for admitting evidence of

other crimes. Rather, admission of evidence of other crimes which tends to sh ow a commo n scheme or plan isproper t

o show ide

ntity , guilty knowledge, intent, motive, to rebut a defense of mistake or accide nt, or to e stablish some other relevant issue.
875 S.W.2d 285, 292 (Tenn. Crim. App. 1994).

It is our view that the defendant would not be entitled to a severance of the offenses c harged in indictment S41,733 because those offenses represent par ts of the same criminal transaction. The defenda nt, who had a

revoked or suspended

license , drove L

oflin'sstolen Yuk

on, fled f rom offic ers, and placed another in danger a s he did so. The de fendant then left the scene after crashing

the Yukon into the side of a residence. Each offens e, inclu ding the origina l theft of the Yukon , is so closely related to the others that, under the guidelines set out in the latter portions of this opinion,
a joint trial was warranted. Morever , even if the Yukon theft, which occurred severa l hours before the remaining offenses described in the first indictment, was too far removed in time to be claimed
as in "the same criminal transaction," the defe ndant was caught "red-ha

nded" by police and the e

rror would have been harmless, having no eff ect on the result. See

Tenn. R. App. P. 52(a).

With regard to the offenses cha rged in indictment S41,774, a material issue existed as to the id entity of the defendant as the perpetrator of the c rimes. From our review of the recor d, it does appear that the offenses charged in eachof the two

indictmen

ts are re lated in so me way , tending to esta bli sh the defendant as the perpetrator. The defendant was arrested afte r crashing the Yukon stolen from Sam Loflin and M s. Snapp w as in the car at that time. Compact discs taken from Carro ll's truck we

re also in the Yukon . Ite

ms stolen f

rom the Ga

fford r esidenc e were

discover ed in the Scirocc o, which M s. Snapp r eported to author ities as ha ving be en in

the defendant's possession. All of the offenses occurred within a short distance of each other, three in the same subdivision and
one on an adjacent street. I n those cases where identity is the b asi s for 404(

b) admissi

bility , it is gener ally notproof of

the other crime its elf

which provides evidence of identity but evidence found at the other crime scene that tends to connect the defendant to other crimes in the scheme. See e.g. , Statev. Hall , 976 S.W.2d 121, 146 (Tenn. 1998) (appendix) (discussing that evidence found at some of the crime scenes linked the defendants to other cr imes in the spree); State v. Joe N. Anderson, Jr. ,-6-

(Tenn. Crim. App., at Knoxville, Dec. 9, 1999), app. denied (Tenn., Sept. 11, 2000) (noting that the evidenc e of the o ther cr

ime was rele

vant to identity because pr oof that the defendant fired the gun at the victim in the first crime tended to establish that he w as t he s hoo ter in th e se con d cr im e). In
our view, the

offense s charg ed do not f it neatly into one of

the thre e common s cheme o r plan categ ories: (1 ) s ig na tu re cr im es , ( 2) a l ar ge r, co nt in ui ng pl an or co ns pi ra cy, or (3) the same criminal transaction.

For the offenses to qualify

under the signature crimes categ ory, the " modus operandi employed must be so unique and d istincti ve as to be li ke a signature." Moor e , 6 S.W.3d at 240 (quoting State v. Carter , 714 S.W.2d 241, 245 (Tenn. Crim. App. 1986)). Although the offenses do nothave to

be identical in every

way, a common scheme or plan is not found merely because there was evidence that

the defendant committed the multiple offenses or because the similarities of the offenses outwe igh the differences. Moore , 6 S.W.3d at 240-41. "Rather, the trial court must find that a distinct design or unique method was used in committing the offens es." Id. at 241 . The method of perpe

trating the crime s must emplo y " 'such u nusual pa rti cularit ies'" that a re asonable per son could believe it unlikely that diffe rent people were using this method. Id. at 240 (qu otin g Harris v . State , 189 Tenn. 635, 644, 227 S.W.2d 8, 11 ( 195 0)) . In this case , as the st ate conc edes, nothing about the offenses charged in e ither indictment would establish a "dist inct d esign or unique method" so that the

offense s could be

joined assignatu

re crime s.
"The larger, con tinuing plan category encompasses groups or sequences of crimes committed in order to achie ve a common u ltimate goal or purpose." Hallock , 875 S.W.2d a t 290; Neil

P. Cohen, et al., Tennessee Law of Evidence § 404[12][c], pp. 4-93 (4 th ed. 2000 ) ("The uni fying concept of crimes admitted under this theory is not their high degree of similarity but the common goal or purpos e toward

which ea ch crime is directed."). The categ ory require s proof of "a working plan, operati n g towards the future with such force as to make proba ble the crime for which the defendant is on trial ." State v. Ho yt , 928 S.W.2d 935, 943 (Tenn Crim. App. 1995); see also State
v. Adams , 859 S.W.2d 359, 362 (Tenn. Crim. App 1992). In Hallock , this court rejected the contention that sex crimes a gainst d iffere nt victims in the same household can be consolidated based upon a common goal of achieving sexual g ratification. 875 S.W.2d a t 290. Ha llock provides an example to illustra

te a commo n problem

when atte

mpting to classify multiple c

rimes a s a larg er, con ti nuing plan: "X is on trial for three counts of burgla ry, eac h involving a different building, a different form of entry , and a d if

fe re nt da y. His overall purpose, however, was to acquire mone y for college. Clearly, without

more, X isentitled t

o severance under R ule 14(b)(1). " Id. ; see also Adams , 859 S.W.2d at 362 (holding that a shared motivation for two other

wis e unrela

ted crime s is insufficient

to prove a common scheme or plan even when the of fenses share some similarities). The fact that a defendant has a co mmon goal in committing crimes or that most of the crimes were committed in the same neighborhood does not me an that pr

oof of the individua

l, disparate crimes will reveal a larger, c ontinuing plan. I n a rece nt case, this cour

t conclud ed that a common motive to terrorize the victim, the defe ndant' s estran ged wif

e, was in sufficie

nt to show a

common scheme
or plan when the assaults were otherwise unrelate d in time, location, and character. Statev. Ronald Prentice , No . M2000-02 937-CCA-R3 (Tenn. Crim. App., at Nashville, Dec. 28, 2001), for publication

.-7-

Since the rulings in Hallock and A da ms , the lar

ger, c ontinuing

plan cat egory has ty pically been restric ted to cases involving crime sprees, where the defenda

nt commits s everal

crimes qu

ite closely in time to one another. See e.g. , State v. H all , 976 S.W.2d 121, 1 46 (T enn. 1998) (app endi x) (holding t he b urglaries, larcenies, and murde rs committed by the defe ndants during the week following their escape from a Kentucky prison were part of a large r plan to flee the country

and the Kentucky authorities). Th e offenses charged in indictment S41,774 cannot, in our opinion, be classifiedas parts of

a larg er, cont

inuing pl an beca

use the st ate has f ailed to show the existence of "a working plan, operating towards the f uture with such force as to make [the other offenses probable] ." Se e H oyt , 928 S.W.2d at 943; Adams , 859 S.W.2d at 362.

The same criminal transaction category can be described as the allowance of other criminal acts evidence to provide the "full story " of the offense for which the defendant is on trial. Cohen, et al., Tennessee Law

of Evidence , § 404(13), at pp. 4-94, 95. For examp le, a ban k robber steals a car while fleeing from the bank; the car the ft is admissible in the trial of the robbery to describe the whole event. Id. According to that particular authority , however, "crimes admitted a s part of the 'same transaction' should be limited to those so inextricably connected in time, place , or manner that the jury would be unable to comprehend the essential nature of the cha rged crime without hearing the evidence of th e 'other' crime." Id. (citi ng Claiborne v. State , 555 S.W.2d 414 (Tenn. Crim. App. 1977)). It is only when " exclusion of the evidence would create a chronolog ical conceptual void" that would likely result in confusion on the materia l issu es and "sacri fice t he jur y's under stand ing" that same cr iminal tra nsaction evidenc e is admissible. State v. Gilleland , 22 S.W.3d 26, 272 (Tenn. 2000). In this case, none of the offenses for which convictions resulted in indictme

nt S41,774 c ould be describ ed as so e ssential to the other s or to thos e offen ses char ged in indictment S4 1,733 tha t, withoutthem, the ju ry would be unable to comprehend the essential nature of the char ged crime. Moreover, exclusion of the evidence of some of the offe nses in a t rial of th e otherswould not c

reate
a confusing co nceptua

l void . Thus, although it might be cumbersome, the charg es in indictment S41,774 should be tried separately from the charges in S41,733 and from eac h other.

Our next in qu ir y is wh at , i f a ny, prejudice the defendant suffere d as a result of the improper joinder. Tennessee Rule of Criminal Procedure 52 sta tes th at “[n ]o judgment of conviction shall be reversed on appeal except

for errors which affirmatively appear to have affected the result of the trial
on the merits.” Tenn. R. Crim. P. 52(a). “In most severance cases, ‘the line between harmless and prejudicial error is in di re ct proportion to the degree . . . by which proof exceeds the standard required to convict. . . .’” Spicer , 12 S .W.3 d at 44 7-48 ( quot ing Delk v. Sta te , 590 S.W.2d 435, 442 (Tenn. 1979)). Our supreme court has held that the error is har mful when, because the evidence of guilt was not overwhelming, the fa ilure to sev er offenses invited the jury to infer guilt from the propensi ty of the ac cused to c ommit crime. Shirley , 6 S.W.3d at 250-51. In Spicer , our high court concluded

that, because the eviden ce of guilt was suff icient bu t not over whelming , the fai lure to
sever offenses required reversal. 12 S.W.3d at 447. This court, in State v. Mi chelle Ferguson , No. E1999-01 302-CCA- R3-CD (Te nn. Crim. App., at Knoxville, Aug. 3, 2000), held that the trial court’s failure to sever was reversible er ror because “[a]ltho ugh the eviden ce . . . wa s legally sufficient to support all three of [d]efen dant’ s convictions, the evidence was far from overwhelming.” Cf. Statev. Michael Anderson Peek , No. E199 8-00038- CCA-R3-CD (Tenn. Cr im.-8-

App. May 3, 2000) (f

inding that the failure to sever was harmless whe re the evidence of the defendant’s guilt was overwhelming)

. The jury acquitted the defendant on five of the nine counts submitted under indictment S41,774. On three of the other four counts, the jury returned verdicts of guilt on le sser included offenses rather than t

he offe nses charged. During he r testimony, Ms. Snapp acknowledg ed questions about her own credibility. Her testimonyabout the defendant's possession of the Scirocco wa s critical for the state as it was the only evidence connecting the defendant to the theft of the Scirocco and the evidence of the

other crimes discovered in the Scirocco. In summary , the evidence was not overwhelming on any

of the counts in indictment S41,774. The error of try ing each of the charg es which resulted in convictions (the Gafford theft, the S. L oflin theft, the Carroll theft, and the Mann theft) in the same trial ca nnot be cl assified

as harmle ss.
Alth ough it

was inappropriate for the counts in indictment S41,774 to b e tried w ith those in indictmentS41,733, th

e evidence was o verwhelming fo r the L oflin vehicle theft, the evading arrest, the reckless endangerment, and the driving on a suspende d or rev oked license convictions under indictmentS41,733. In consequence, the error was harmless as to the convictions under indictment S41,733.

II The defenda

nt next asse

rts that the evidence is insufficient to support his conviction for theft of the Scirocco. On appea

l, the stat e is entitl ed to the strongest legitimate view of the evidenc e and all reasonable inferences which might be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their t estimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury a s the trier of fact. Byrge v. State , 575 S .W.2d 292, 295 (Ten n. Crim. Ap

p. 1978). When the sufficiency of the ev idence i s challenged, the relevant question is whether, after reviewing the evidenc e in the lig ht most fav orable to the state , any

rationa l trier of fact could have f

ound the e ssential e

lements of the cr

ime beyond a
reasona ble doubt. Tenn. R. App. P. 13 (e ); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concer

ning the credibi lity

of the wit

nesses, the weight and value of the evidence , as well
as all factual issues raised b y the eviden ce are resolve d by

the trier of fact

. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of g uilt against a defen d ant removes the presumption of innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showing that the e vidence was leg ally

insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). In a criminal action, a convicti on willbe set as ide only where the reviewing court finds that the "evide nce is insufficient to support the finding by the trier of fact of guilt bey ond a reasonable doubt." Tenn. R. App. P. 13(e). In a jury trial, a guilty verdict , approved by t he trial j udge, a

ccredits the testimony of the state' s witnesses andresolve s all conf licts in testimony

in favor of the theory

of the state. State v. H atchett , 560 S.W.2d 627, 630 (Tenn. 1978).

"A person commits theft of property if, with intent to deprive the owner of prop erty, the person knowingly ob tains or exercises control over the property without the owner's effective-9-

consent." Tenn. Code Ann. § 39-14-103. The defendant submits that the only testimony connecting him to the theft of the Scirocco was Ms. Snapp's asser tion that he had b een in a white, black, or silver sports car sometime near August 8 or 9. The defendant further arg ues that Ms. Snapp admitted that her reputation for truthfulness was poor and that she feared losing custody of her children when first questioned by the police.
During his testimony, Mann identified a phot ograph office rs had taken of his vehicle. He inspectedthe vehicle after it was located by police on August 10, 1998, and recognized it as the one stolen some eleven day s earlier. Ms. Snapp testified that the car appearing in the photograph of Mann's vehicle

was the sa

me one she

saw in the possession of the defendant shortly before his arre st.

It is, of course, the funct

ion of the jur y to

assess the credi

bility of the wit

nesses. I n this instance, the jury acc

redited the testimony of

Ms. Snapp. Becau se Ms. Snapp was with the defendant at the time he fled from police and crashed his vehicle, he r testimony that he

had driven the Scirocco before picking

her up in t

he Yukon w as partic

ularly probativ e. The evidence

of the defendant 's gui lt satisfies the standard prescribed in Tenn. R. App. P. 13( e) and Jacks on v. Virg inia , 443 U.S. 307 (1979). Due to the trial court's failure to g rant a severance, however , the defendant is entitled to a new trial on this charge.

III Fi na ll y, the defe

ndant ar gues tha t the tria l court e rred in th e im position of sentence. The defendant gener ally complain s about the

consolid ated sentencing he aring in which the defendant was sentenced for these crimes as well

as unrel ated ag grava

ted rape and ag grava

ted burglary

convicti ons. Most of the trial judge's findings of fa ct deal with the unrelated crimes. As to the "ca ses unrelated to the aggravated r

ape and aggra

vatedburglary ," the trial court applied the following enhancement factor s: (1) The def

endant ha s a prior

history of crimin al convictions; (2) The def

endant tr eated the victim w ith excepti onal cru elty ; (3) The offense was committed to gratify the defendant's desire for pl eas ure or excitemen

t; (4) The defendant has exhibited a n unwilling

ness to co mply

with the conditions of release into the community ; and (5) The felony of

fenses were committed while the defendant wa s on parole.
Tenn. Code Ann. § 40-35-114(1), (5), (7), (8), (13) (b).

The state co ncedes t

hat neit her enhanc ement fa

ctor (5) , that the

victim wa s treate d with exception ally

cruelty, nor (7), that the crime was committed to satisfy the defendant's desire for pleasure or

excitement, would be applicable to the offenses at issue and submits that appellate review must be de novo

without a p

resumptio n of corr

ectness

.-10-

When there is a challenge to the leng th, range, or manner of servic e of a sent ence, it is the duty of this cour t to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial c ourt considered the sentencing principles and all relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 1 66, 169 (Tenn. 1991 ); see State v. Jone s , 883 S. W.2d 597, 600 (Tenn. 1994). "If the tr ial court applies inappropriate factors or otherwis e fails to fol low the 1989 Sentencing Act , the presum ption of co rrectness fall s." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sente ncing Co mmission Comm ents provide that the burden is on the defenda nt to show the impropriety of the sentenc e. Tenn. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments.

Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the p

resente nce rep ort; (3) t

he princ iples of se

nte ncing a

nd th e arguments of counsel relative to sentencing alternatives; (4) the nature a nd characteristics of

the offense; (5) any

mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. T enn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class B, C, D, or E felony conviction, t he pre sumptive sentence is the minimum in the range if there are no enhanc ement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If

there are enhancement but no mitigating fa ctors, the trial court may

set the sentence above the

minimum, but

still wit hin the range. Tenn. Code Ann. § 40-35-210(d) . A sentence invo lvin g both enhan cement and mi tigat ing fact ors req uires an ass ign men t of relative weight for the enhancement factors as a means of increasingthe sentence. Tenn. Code Ann. § 40-35- 210(e). The sentencemust then be reduced within the range by any weight assigned to the mitigating factors present. Id.

In misdemeanor sentencing, the court is required to pr ovide the defendant

with a re asonable opportuni ty to be heard as to the length and manner o f the sen

tence. T he sente nce must b e specif

ic and consistent with the purposes of the Act. Tenn. CodeAnn. § 40-35-302(a), (b). Not grea ter than 75 percent of

the sentence should be fixed for service by

a misdemeanor offender; however, a DUI offender may be required to serve the full one hundred p ercent of his sentence. Tenn. Code Ann. § 40-35-30 2(d); Palmer v. State , 902 S .W.2 d 391, 393-9 4 (Ten n. 199 5). In det ermin ing th e percentage of the sentenc e, the court must consider enhancement and mitigating factors as well as the legisla tive purp oses and p

rinciple s relate d to sentencing. Tenn. Code Ann. § 40-35-302(d). The misdemea

nant, unlike the felon, is not entitled to the presumption of a minimum sentence. State v. Creasy , 885 S.W.2 d 829, 832 (Tenn. Crim. App. 1994). Appellate review of misdemeanor sentenc ing is de novo with a presumption of correctness. See State v. Troutman , 979 S.W.2d 271 (Tenn. 1998).

No ta bl y, th e f

in di ng s o f f ac t a nd co nc lu si on s o f l aw fi le d b y the trial c ourt dea lt primar ily withsente nces fo r agg ravated rape and aggravated bur glary , both of which occurred on June 20, 1998 and were wholly

unrelated to the convictions at issue here. The convictions under indictment-11-

S41,733 we

re not ind ividually address ed. Fur

ther, ce rtain of the enhancement factors relied upon by the trial court, as the sta te concedes, are inapplicable. Unde r those circumstances, our review must be de novo withouta presumption of correctness. Beca use a new trial has been ordered on e ach of the convictions under ind ictment S41 ,774, this c ourt nee d only addressthe five convictions under indictmentS41,733: 15 years for theft ove r $10,000 (Class C fe

lony ); six years f

or felony e

vading arrest (Class E felony); six y

ears for reckle ss endang erment ( Class E felony); six months for driving
on a revoked or suspended license (Class B misdemea nor); and 30 day s for leaving the scene of an accident (Class C misdemeanor). Each of th e f ir st th re e s en te nc es ar e t o b e s er ve d c on se cu ti ve ly. The misde

meanor s entence s are to b e serve d concur rently with the f

elony sentenc es.
Ini ti al ly, the defendant does not take issue w ith either

of the two

misdemea

nor sente nces. Becau se the terms imposed are to be served concurrently

with each other and with the felonies, they have no bearing on the effective se ntence. Fo r t he th ef

t c on vi ct io n, a C la ss C f el on y, the defendant
was classified as a range I II , persistent offender. Thus, the appropriate ra nge wou ld be 10 to 15 ye ars, with eligibility for rele ase after serving 45%. As to t he evad ing a rrest and reckle ss endangerment

convictions, both Class E felonies, the defendant was classified

as a career offende

r, making the appr

opriate range 4 to 6 years, w it h eligibility for re lease after service of 60%. The defendant does not challeng e his st atus as either a persistent or a caree r offender, see

Tenn. Code Ann. § 40-35-107, -108, but complains about the trial cour t' s application of the enhancement and mitigating factor s. He also contendsthe trial

court shouldnot have classified him as a professional criminal for consecutive sentencing purpose s. See Tenn. Code Ann. § 40-35-115(b)(1).

Our review o f the re cord indi cates th at at lea st three enhancement factors ar e applicable: (1) the defenda

nt has a previous history of

criminal convicti ons or cr

iminal beh avior in a

ddition to those necess ary to establ ish the ap propria te rang e; (8) the

defenda nt has a pr evious his tory

of unwillingness to comply with the conditions of a sentence involving release in the community; and, as to the three felonie s, (13) the felony

was committed while he was on parole. See Tenn. Code Ann. § 40-35-114 (1), (8), (13)(b).

The presentence report reflects that the defendant had a prior criminal record , includin g some thirty-five

adult convictions and eight juvenile convictions, dating back to 1966. He receive d prison sentences for eac

h adult co nviction, which inc luded con victions for a v ariety of the ft related offense s, burglary , and escapefrom both prison and jail. The

state re ported c onviction s in 2001 for aggravated

burglary and aggravated r

ape. After his arrest, the defenda ntwas re turned to the Department

of Corre ction for

a violatio n of his pa

role. While

awaiting trial on the inst

ant offe nses, the defe ndant re ceived t

wo discipl

inary reprima nds.

The defend ant, 4 6 at th e tim e of sen tenci ng, dropped out of high school in the tenth grade and has not been employ

ed since 1988. While

the defendant argues that his conduct ne ither caused nor threatened

serious b odily

injury , it is our vi ew that e ven if eve ry mitigating

factor argued by

the defendant is applicable to each of his crimes, his criminal record is so extensive as to warr ant enhanc ement of

the sente nces to the maximum te

rms.1 The firs t four cri teria are f ound in Gray . A fif

th category i n Gray , based on a specific number of prior felony convictions, may en hanc e the sen tence range but is no longe r a listed c riterion

. See Te nn. Co de A nn. § 4 0-3 5-11 5, Sentencing C omm ission Com ments.
-12- Our next inqu iry is whe ther t he tri al cou rt erre d by orderi ng the sentenc es to be served consecutivel y. The state contends that consecut ive sentencing was appropriate because the defendant had an extensive record of criminal activity and quali fied as a

professional criminal. The state has submitted argument and provided citations of lega l authority in sup port of its claim that the defendant has an extensive criminal record. It doe s not provi de any supportin g arg

ument to itsclaim that the defe ndant qua lifies asa professional criminal. See gener ally State v. Desirey , 909 S.W.2d 20 (Tenn. Crim. App. 1995).

Prior to th e enact ment o f the C rimi nal S enten cing R eform Act of 1989, the limited classifications for

the imposition of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that ca se our supreme court ruled that agg ravat ing circumst

ances mu st be present before placement in any one of the classifi cations. Late r, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an additional category for those defendants convicted of two
or more statutory offe

nses involving sexual abuse of minors. There were, howeve r, additional words of caution:
[C]onsecutiv e sentences shoul d not routinely be imposed . . . and . . . the agg regat e maximum of c on secutive terms must be reasonably related to the severity

of the offenses involved.
Taylor , 739 S.W.2d at 230. The Sentencing Com mission Comments adopted this cautionary language. Tenn. Code Ann. § 40-35-115, SentencingCommission Comments. The 1989 Act is, in essence, the co dific ation of the hold ings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the trial court only upon a determination that one or more of the following criteri a 1 exist:
(1) The defendant is a professional criminal who has kn owingly

devoted h

imself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) Th e d ef

en da nt is a d an ge ro us me nt al ly a bn or ma l p er so n s o d ec la re d b y a competent

psychiatrist who conclude s as a result of an investig ation prio r to sentencing that the defendant's criminal conduct has been characterized by a pattern of repe titive or c ompulsive

behavior with heed

less indif ferenc e to consequence s; (4) The def

endant isa dang erous of fender whose be

havior in dicates little or n o regard for human life, and no hesitationabout committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offense s involving sexual abuse of a mi nor wi th con sider ation of the aggr av ating circumstances arising fr om the r elationship between the defendant and victim or victims, the time s pan o f-13-

defend ant's undetected sexual activity, the na ture and scope of

the sexual acts andthe extent of th

e residu al, phy sical an d mental d amage to the vic tim or vict

ims; (6) The defendant is sentenced for a n offense committed while on probation; or (7) The d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b).

The length of

the sentence, when consecutive in nature, must be "justly dese rved in relation to the seriousness of the offense," Tenn. Code Ann. § 40- 35-102(1), and "no grea ter than that deserved" under the circumstances, Tenn. Code Ann. § 40- 35-103(2 ); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

Becau se th e d efendant is an offender whose record of criminal activity is so extensive, he qualifies for the c onsecuti v e sentencing imposed for felony evad ing arrest and reckless enda ngerment offense s, regardless of whether the state met its burden of

showing he is a "professional criminal." See Tenn. Code Ann. § 40-35-115(b)(2). Moreover, the de fenda n t's sparse employ

ment history coupledwith the sh

eer numb er of his prior co nvictions supports a determin atio n that he is indeed
a profess i onal crimina l. Id. § 40-35-1 15(b)(1 ); see Desirey , 909 S.W.2d 20. In our view, the aggrega te term of 27 ye ars imposed for convictions under indictment S41,733 is warranted.

CONCLUSION

The judgments under indictment S41,733 are affirmed, as ar e the sentences. B eca

use the trial court should have severed each of the offenses under indictment S41,774, and the er ror cannot be classified as harmless, those judgments of conviction must be reversed and the defendant must be granted a new tr

ial.

___________________________________ GARY R. WADE, PRESIDING JUDGE