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

Briefs A ugust 20, 2002 STATE OF TENN ESSEE v. JAMES F. MASSENGALE Appeal from the Criminal Court for Sullivan County No. S42,441 Phyllis H. Miller, Judge

No. E2000-00774-CCA-R3-CD October 21, 2002
The defendant, James F. Massengale, who had been charged with eig

ht counts of theft

of prope rty valued at greater than $10,000, three counts of theft

of property va

lued at more than $1,000, three counts of attempted theft of property with a value greater than $10,000, and one count of burglary of an automobile, was convicted of five counts of theft over $10,000, one count of attempted theft over $10,000, and one count of burglary of a vehicle. Thetrial court imposed an effective sentence of eighte en y ears, with ten years to be served in the Department of Correction and eight y

ears to be served on proba tion. I n this appe al, the defendant asserts that the evidence is insufficient to support the convictions and that the trial court erred by ordering consecu

tive sente nces. The judgme

nts of the trial court are affirmed.

Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G ARY R. W ADE , P.J., delive red the o pinion of t

he court , in which J AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined. Richard A. Tate, Blountville, Tennessee, for the a ppellant, James F. Massengale.
Paul G. Summers, Attorney Gene ral & Reporter; Thomas E. Williams, II I, Assistant

Attorn ey Genera l; and Barry

Staubus and Teresa

Murray-Smith, Ass istant Dist rict Attor ney s Gener

al, for the appellee, the State of Tennessee.
OPINION

On July 6 , 1997, a 1 997 Chevr olet Bla zer belon ging to

Gary Mi lle r and having a value of approxima

tely $29,000 was stolen from the par king lot of the Concordia L utheran Church in Kingspo rt. Some ten days later, a 1995 Chevrolet Blaz er own ed by Shei la Hugh es and havin g a value of $19,000 was stolen from a parking lot at the Holston Valley Medical Center. The vehi cle was recovered in I

ndianapolis, but had been “stripped.” According to Ms. Hughes, t

here wa s extensive damage to the drive r’s side door and the steering column which cost $5,000 to repair.-2-

Approximat

ely two week s after t

he Hugh es theft, a 1997 Che

vrolet B lazer belonging

to Amy Russell was taken from a parking lot at the same medical center. The vehicle, whic h had a value of

$25,000, was also r ecover ed in I ndianapo lis.
On October 29, 1998, a 1994 Dodge truck belong i ng to Kristen Irvin wa s stolen from the samemedical center park ing lot. The v ehicle, which ha d a value of $20,00 0, was recovere d in Indiana with damage to the d

river ’s side door and steering column. On Februa ry 5, 1999, L

inda Alley’s black 1996 Chevrolet Blazer, valued at $25,000, was stolen from a parking lot at the medical center. The vehicle was never recovered.
The records of the Kingsport I nn, located wi thin a mile of the medical c enter pa

rking lot, indicatedthat a Jim Massengale had registered as a guest on July 15, 1 997, and again on July 27, 1997, each time

departi ng on the

following

day . No furth

er entr y w as reco

rded in th is name un

til February 10, 1999. The address listed on each registra tion form was 2212 South 18th Street, New Castle, Indiana, the defe

ndant’s home address. Records from the Day s Inn in Kingsport established that a Dawn Duncan of

Indianapolis, I

ndiana, registered as a g

uest at that motel on July 4, 1997, and de pa rt ed tw o d ays later. The reg istration form indic ated tha

t two peop le were

stay ing in the room, which was located directly across from the Concordia L utheran Church.
When a sto len Dodge t

ruck was found at a trailer park in Greenwood, Indiana, Detective Michael Wright

of the Greenwood PoliceDepartm ent condu cted an investig ation. Up on his arr ival, a female, later identified as Becky Beerman, left a trailer and got into t he truck . While spe aking w ith Ms. Beerman, officers noticed a second Dodge truck

park ed across the street in the driveway of a vacant tr ailer. When officers processed the number on the sec ond truck’s license plate, they discovered

that the plate was registered to a diffe r ent v ehicle. They

then proc essed the

vehicle identification nu mber and discover ed that the second

truck ha d been sto len from K

ingspor t, Tennessee. After discovering that the second truck was stolen, officers requested, and were granted, permission to search Ms. Beerman’s residence. As a result of their conversation with Ms. Beerman, the officers determined that their suspect was named “Jimbo.”
Ms. Beerman led

officers to a room in the trailer where “ Jimbo” was staying. Offic ers found a blac k bag containing men's clothing and papers bearing the name James Masseng ale with an addressof

New Castle, India

na. They found a la

ptop compu

ter unde r the bed that belo nged to Kristen Irvin, one of the

theft victims. It was later determined that the second Dodge tr uck was that stolen from Ms. Irvin. Officers f ound a wallet in an adjacent bathroom. The wallet contained a piece of paper with the na

me and ad

dress of Dawn Duncan, th e individu al who ha

d been register

ed as a guest at the Days I

nn on the day that a ve

hicle was stolen from the pa rking l ot of the Co ncordia Lutheran Church. An Indiana

identification card

with the de

fendant ’s pictur

e and be aring t

he name Jim Alexander was also found. Abirth certificate from the state of New Yor k which also bore the name Jim Ale

xander wa s in the ba

throom.
Detective James Moff

att of the Kingspo rt Police D epartme

nt conclu ded that e ach of th e auto thefts had occurred within a one-mile radius. Most of the thefts inv olved Chevrolet B lazers. T hese-3-

wer e recovered in the I

ndianapolis, Indiana, area . During the course of the investigation, of ficer s discovered that the defendant had stayed at either

the Kingsport Inn, Westside I nn, or Days I

nn on the day s of the thefts. De tective M offatt, a

long with oth er members of the Kingsport Police Department , conducted s urveillance of the Kingsport I nn on February

10 and 11, 1999. After checking in and spe

nding the night, a maleand a female left their motel room at approximately 10:30 a.m. in a red Honda. The female was driving . Police followed the vehicle to Holston Valley Medical Center where the male suspect g ot out and walked into the parking gara ge. Detective Marvin Bell, also of theKingsport Police Department, maintained visual contact withthe male suspect, later identified as the defendant, as he walked to a 1996 GMC Jimmy, which belonged to Tamara Beard. When the defenda ntentered the driver’s side of the Jimmy and leaned over the right side of

the steering wheel, Detective B ell and Detective Frank Light approac

hed the vehicle, saw damage to the driver’s side door ha ndle, and noticed that the ignition ring had been removedfrom the steering column. The defenda nt’s brown jacket, a p air o f vice grips, and a screwdriver

were on the passenger sea t. The defendant initially ide ntified himself as James Lee from New Castle, Indiana.
The female driving the red Honda was Char lee Parker, who said s he had f irst met the defendant at a saloon on the night before . She spent the night with the defendant at the Kingsport Inn and on the

next morning , the def

endant a sked her

to take him to Holston Valley Medica l Center to visit a sick friend . Ms. Parker was stopped by police a short

distance from the hospital, but was never charge d with any

of the the

fts.
After being notified by hospital security that her 1996 GMC Jimmy had been burg larized, Tamara Beard inspected her vehicle, w hich she valued at $18,000, and discovered that the ignition cover was in the passenger seat and “the door handle was busted.” She conf irmed tha t the jack et, screwdriver, vice grips, and f lashlight found in the vehicle did not belong to her.
Detective Light discovered that a Dawn Duncan

fr om Ind ia na po li s w as a g ue st at th e D ays Inn when one of the vehicles was taken. Police found sheets of paper with her n ame and t

he name “J im my” in the roomshe occupied. After learning tha t Ms. Duncan had traveled to Norton, Virginia, Detective Light contacted the No rton Polic e, who pr

ovided ph otogra

phs of Ms . Duncan and her compa nion, James Massengale. Detective L ight then discovered that a James Massengale wa s registered as a guest at the Kingsport I nn when the 1997 Chevrolet Blazer was s tolen fro m Amy Russell. While inter

viewing the defe ndant af ter his ar rest , Detect ive L

ight ask ed the de fendant if he knew the whereabouts of the black B lazer belonging

to Linda Alley . The defendant responded, “Hy pothetic ally

speaking, let’s say

I know where

the black Blazer

is in Indiana, I

know you’ll never find it.” The defendant then acknowledg ed that the Blazer was located “in someone’s ba ckyard.”
At the conclusion of

the state’s proof, the trial court entered judgments of acquittal to three counts of thef

t of prope rty valued at g

reater than $1,000 in relation to the thefts of vehicles from Marsha Fletcher, Anne tte Wolf

e, and Che

rokee O il Company . The tria l court a lso enter ed judg ments of acquitta l on two counts of at

tempted th

eft of pr operty

with a val

ue of mor

e than $10 ,000 in-4-

relation to vehicl es belong

ing to Angela Jessee and Elaine Brooks. Finally , the trial court entered a judgmen t of acqu ittal on two

counts of

theft ove r $10,000 in relati on to vehic le s stolen from Jennifer Bragg and Per

min Shelton.
The jury convicted the de

fendant of fivecounts of theft over $10,000 for the M iller, Hu ghes, Russell, Irvi

n, and All ey

vehicle s. The defendant was conv

icted of one coun

t o f burglary

of an automobile

and on e coun t of at tempt ed the ft ove r $10, 000 fo r enter ing the J immy belong ing to Tama ra Beard. L astly , the def endant w as found not guilty of theft o ver $10, 000 of a v ehicle belong ing to Da

vid Adams w

hich was taken fr

om the par

king lot o f the King sport Time s.
I The defenda

nt first asserts that

the evidence is insufficient to support his convictions for theft over $10,000. O n appea

l, of cour se, the st

ate is en titled to the stron gest legitimate view of the evidence and all reasonable inferenceswhich migh t be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 ( Tenn. 197 8). The c redibilit y of the witne sses, the

weight to be giv en their te st im on y, and the reconciliation of conflic ts in the pr

oof are matters e ntrusted to the jury as the trier of fact. By rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relev ant quest io n is whether, after reviewing the e vidence in the light most favorable to the state, any rational trier of fact could have found the e ssential elements of the crime bey ond a rea sonable d

oubt. Ten

n. R. App. P. 13(e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnes s es, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of f

act. Liakas v. State , 199 Tenn. 298, 2 86 S. W.2d 856, 859 (1956). Because a verdict of g uilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bea rs the burden of showing that the evidence was le gally insuff icient to sustain aguilty verdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).
“A person commits theft of pro pe rty if, with intent to deprive the owne r of property , the person knowingly obtains or e xercises con tr ol over the property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103. Theft of property va lue d at more

than $10, 000 but les s than $60,000 is a Class C felony. Id. § 39-14-1 05(4). “ Value” is define d as follo ws: (i) The fair

market value of the property . . . at the time and place of the offense; or (ii) If the fair market v alue of t

he prope rty cannot be ascert ained, th e cost of replacing the property within a reasonable time after the offense.
Tenn. Code Ann. § 39-11-106(35)(A). Owners are competent by fact of ownership to testify to the value of the property

stolen. State v. H amm , 611 S.W.2 d 8 26 (Tenn . 1981); Reaves v . State , 523 S.W.2d 218, 220 (Tenn. Crim. App. 1975).
Where the evide

nce is en tirely cir cumstantial, t he jury

must find th at the pr

oof is not o nly consistent with the g

uilt of the

accuse d but incon si stent wi th his innocence. There must be an evidentiary

basis upon which the jury

can exclude every othe

r reasonable theory

or hypothesis except-5-

that of guilt

. Pruitt v. Sta

te , 3 Tenn. Crim. App. 256, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970). The trial court has the duty to cha rge the jury

on the weight and significance of circumstantial evidence when it

is th e only bas is up on whi ch the state 's case rests. Bishop v. State , 199 Tenn. 428, 287 S.W.2d 49, 5 2 (T enn. 1956 ). Li ke all other fact question s, the det erminati on of whe

ther all re as on ab le th eo ri es or hyp ot he se s a re ex cl ud ed by t he ev id en ce is pr im ar il y a jury question. State v. Tharpe , 726 S.W.2d 8 96 (Tenn . 1987); Mara ble v. Stat

e , 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958).
The jury is governed

by four rules w

hen testing the value of circumstantial evidence : (1) The evidence should be acted upon with caution; (2) all of the essential facts must be consistent with the hyp othesis of guilt ; (3) the f acts must e

xclude eve

ry other re asonable

theory except tha

t of guil t; and (4) the facts must establish such a certainty of guilt as to convince bey ond a reasonable doubt that the defendant is the perpetrator of the cr ime. Marable , 313 S.W.2d at 456. Here, the proof established that vehicles having a value of

greater than $10,000 were stolen from Gary Miller, Sheila Hughes, Amy Russell, Kristen Irvin, and Linda Alley . Each of the vehicles was stol en from an area h aving a one-mile radius and most were taken from the parking lot of the Holston Valley Medica

l Center. Receipts from

local motels established that James Massengale from New Castle, I

ndiana, w as reg istered a s a guest on the day s that the thefts occurred. Several of the stolen vehicles were later recovere d from the Indianapolis, I ndiana, area, only

a short distance from the defendant’s residence. The Dodg e truck belongingto Ms. Irvin was recove red across the street from the res idence wh ere the defendant had been stay ing. In addition, a laptop computer w hich belonged to Ms. Irvin was found in the bedroom where t he defe ndant had be en sle eping. During an interview with police, the defendant indicated that he knew the location of the black Blazer which was take n from Ms. Alley . The evi dence o f each o ffense tended to corrobo rate the others. Under these circumstances, it is our view that the evidence was suffic ient to support the defendant’s convicti ons.
II As his final issue, the de fendant asserts that the trial court erred by ordering consecutive sente ncing. The st ate di sagrees . Whe n ther e is a ch allen ge to the length, range, or manner of service of a senten ce, it

is the duty of this court to conduct a de novo review with a presumption that the determinations made by

the trial court ar e correct. Tenn . Code Ann . § 40-35- 401(d). T his p re sumption is "conditioned upon the affirmative showing in the rec ord that the trial court considered

the sentencing principles and all relev ant facts and c ircumstanc es." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see Statev. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies in appropr

iate factors or oth

erwise f ails to follow t

h e 1989 Sentencing Act, the presumption of correctness falls." Statev. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Com mission Comments provide that the burden is on the defendant to show the improprie ty o f the sen

tence. Tenn. Code

Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review r equiresan analy sis of (1) the evidence, if any, rec eived at the trial and sentencing hearin g; (2) the p

resente nce rep ort; (3) t

he princ iples of se

ntencing and th e argu ments of counsel-6-

relative to sentencing alternatives; (4) the nature and characteristics of the offense ; (5) any mitiga ting 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. Tenn. Code Ann. §§ 40-35 -102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calcula ting the sentenc e for a Cl ass B, C, D, or E felony c onviction, the presumptive 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 factors, the trial court may set the sentence above the mi nimu m, bu t sti ll wi thin the ran ge
. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhance men t and mitigating factors requires an a ssignment of relative weight for the enhancement factors asa means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The sente

nce must th

en be re duced within the range by any weig ht assigned to the mitigating factors present. Id.
Th e trial courtimposed a sentence of eight y ears on three of the five convictions for theft over $10,000 and the conviction for attempted theft over $10,000. A sentence of ten years was imposed on the remaining two convictions for theft over $10,000 and a sentence of four

years w as imposed for the conviction for burglary of an automobile. The trial court ordered that the ten-y ear sentences be served

concurrently . The remaining sentences were to be served concurrently

with each other an d consec uti vely to the ten-y ear sentence for an eff

ective sentence of eightee n years. The de fendant is to serve

the ten- ye ar sente

nce in the

Departm ent of Cor

rection and th e eight-y ea r sentence on probation.
The trial court

first determined

that the defendant qualified as a Range II , multiple offender and then concluded that enhancement factor (1) , that the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appro priate r ange, was applicable to all of the convictions. See Tenn. Code Ann. § 40-35-114(1). I n addition, the trial court applied enhancement factor (13), that the felony

was committed while the defendant was on probation, to two of the convictions for theft over $10,000 as well as the convictions for burglary of an automobile and attempted theft. See Tenn. Code Ann. § 40-35-114(13). In mitigation, the trial court found that the defendant’s conduct neither caused nor threatened serious bo di ly i nj ur y, see Tenn. Cod

e Ann. § 40 -35-113( 1), but g ave that factor very little wei ght.
The tria l court or dered c onsecuti ve sente

nces on th

e following gr

ounds:
I find he’ s a profe ssional criminal who has knowingly devoted his life to criminal acts as a major source of livelihood.

. . . Number

two, he has an extensive record of criminal activity . Now, not if you just look at co nvic tions, but if you look at his statement he does. . . . [H]e’s being sentenced for an offense committed while on probation from Sevier County , s o I [find ] seve

ral [f acto rs ap plica ble].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. -7- Prior to th e enact

ment of the

Criminal Se

ntencing Reform Act of 1989 , the limit e d 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 supre me court ruled tha t agg ravatin g circumstance s must be present before placement in any one of the c lassifications. Later, 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 stat utory offense s involving

sexual abu se of mino

rs. There were, however, a dditional words of caution: [C]onsecutive sentences should notroutinely be imposed . . . and . . . t he agg regat e maxi mu m of consecutive terms must be reasonably related to the severity

of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cau tionary language. Tenn. Code Ann. § 40-35-115, Sentencing CommissionComments. The 1989 Act is, in essence, the codif

ication o f the hold

ings in Gray

and Taylor ; consecutive sentences may be imposed i n the discretion of the trial court only upon a determination that one or more of the f ollowin g criteri a 1 exist: (1) The def

endant isa profe ssional criminal who has knowingly 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 concl

ud es as a r

esult of a

n 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 defend ant is a dangerous offender w hose behavior indicates little or no regard for human life, an d no hesita tion about committing

a crime in which the risk to human life is high; (5) The def

endant isconvicted of

two (2) or more statutory

offenses involving sexual abuse of a minor

with consi deratio n of the a ggra vating circumsta

nces ar isin g from the relation ship betwe

en the de fendant and victim or victim s, th e time spa n of defend ant's undetected sexual activity, the nature and scope of the sexual acts and the 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).-8-

The length of the sentence, when consec utive in nature, must be “justly deser ved in relation to the seriousnes s of the offense,” Tenn. Code Ann. § 40-35-102(1), and “no greater than that deserved” under the circumstances, Tenn. Code Ann. § 40-35-1 03(2); Statev. Lane , 3 S.W.3d 456 (Tenn. 1999). Here, the defen da nt was convicted of seven offenses. Proof pre sented at trial and at the sentencing hearing established tha t the defendant was part

of an au tomo bile t heft r ing sp annin g a three- state

area. The record indicates that the de fendant told an agent

of the FBI that he had stolen as many as 150 ca

rs per y ear and admitted t

hat car th eft was h

is primary source

of income. The defendant explained

to officers that he would receive between $1200 and $3500 for every car that he s to le in Indiana and delivered to Virginia. The defendant testified that he often de livered “packages,” which sometimes included stolen c ars, to an individual named “Lane y” in Norton, Virginia. “La

ney ,” in turn , would dr

ive the de fendant to the King sport ar

ea wher e he woul d s teal a car to drive back to I

ndiana. The presentence report indicated that the defendant was last employ ed in 1992 at a t

ruck re pair shop in California. Deena McCullough, a probation office r, testified at the sentencing hearing that the defendant had been placed on probation in Sevier County on October 8, 1998.
In our view, the evidence established that the defendant had a n extensive criminal history and also qualified as a professional criminal. See, e .g. , State v. Desirey , 909 S.W.2d 20 (T enn. Crim. App. 1995). That he was on probation when two of the

offense s were c ommitted is a further basis for consecutive sentencing. See Tenn. Code Ann. § 40-35-115(b)(6). Thus, the trial court did not abuse its discreti on by

orderin g consecutive te

rms. Accordingly , the judgments of the trial court are affir med.

___________________________________ GARY R. WADE, PRESIDING JUDGE