# FILED November 20, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JUNE SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9608- CC-00342 ) Appellee, ) ) BEDFORD COUNTY ) V. ) ) HON. CHARLES LEE,JUDGE TIMOTHY MARK RE DD, ) ) Appe llant. ) (ATTEMPTED BURGLARY)

FOR THE APPELLANT : FOR THE APPELLEE : A. JACK SON DEAR ING, III JOHN KNOX WALKUP 117 So uth Main Street Attorney General& Reporter Suite 101 Shelbyvil le, TN 37160 PETE R M. C OUG HLAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 WIL LI AM MI CHA EL Mc COWN Distri ct Attorney General ROBERT G. CRI GLER Assistant Distri ct Attorney General One Public Square, Suite 300 Shelbyvil le, TN 37160

OPINION FILED ________________________ AFFIRMED IN PART AND MODI FIED I N PART THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndant, Timothy M ark Redd , appeals as o f right following a jury trialin the C ir cuit

Co urt of Bedford County. He was con victed of attempted burglary, assault, resisti ng arrest, and possession of burglary tools. He argues on appea l (1) that the e vidence was insu ff ici ent to support the convic

tion for assau lt, (2) that the t rial court err ed by not merging t he convicti on for possessi on of burglary

tools wi th the convi ction for attempted b urglary, (3) that the trial court erred by not merging the convicti on for resisti ng arrest with the convicti on for assau lt, (4) that

the tri al court erred by orderi ng consecutive sentencing, and (5) thatthe tri al court erred by orde rin g a sentence of spl it confi nement for the convicti on of attemptedburglary . We affirm the conv iction s and sentences, but modify the manner of service.

Fo llowinga sentencing hearing, the t rial cour t entered j udgment s senten cing De fendan t in the followin g man ner: Count 1, attem pted burglary 1 ye ar, 9 mon ths, T.D .O.C., to be served in Community Corrections , with 365 days incarc erat ion in Bedford Count y Jail, day for day Coun t 2, assau lt 11 m onths , 29 da ys, Be dford C ounty Jail Coun t 3, resisting a rrest 4 mo nths, B edford Coun ty Jail Coun t 4, posse ssion of burgla ry tools 9 mo nths, B edford Coun ty Jail
The judgments also or dered tha t the sen tence in Count 1 (attempted burglary) is to be ser

ved concurrently wit h the sentence in Count 4 (poss ession-3-

of burglary tools) , and that these sentences are to be consecutive to sentences imposed in Marsh all Coun ty cases. T he sen tence im posed for Coun t 2 (assau lt) was ordered to be served conc urre ntly with the se ntence impos ed in Co unt 3 (resist ing arrest). Howeve r, the trial court ordered the sentences i n Count 2 and Count 3 to be served consecut ively to the sentences imposed in Count 1 and Count 4. The rec ord reflects that at t he time Defendant was sentenced in t he cases involved in thi s appeal, he was ser ving a senten ce for Ma rshall Co unty conviction s which in volved 9 m onths inc arceratio n.

In esse nce, in the ca ses p resen tly before thi s court, t he trialjudge ordered Defen dant to serve a sentence of 1 year, 9 months on Community Corrections, which included 365 day s of incar

ceration i n t he Bedford County Jai l, to be followedby a sentence of incarceration i n the Bedford Count y Jail f or 11 months, 29 days with a minimum service of 75% of this sentence prior t o release. A liter

al reading of the sen tence w ould involve the Defe ndant servi ng 36 5 days in jail, followedby 9 months release i n the Community Correct ions program, andthen followed by servi ce o f at least 75% of an 11 month, 29 day sentence of incarc eration in the B edford Coun ty Jail.

S UFFICIENCY OF

THE EVIDENCE

The only convi ction fo r which Defendant challenges t he suffi ciency of the evidence is the convicti on for assa ult. He c oncedes that t he evidence was suffi cientt o convict him o f the remaining three charge s of attempted burglary, resisting arrest, and p ossession of burglary tools. Defendant argues t hat at no-4-

ti me during hi s arrest di d h e com mit any o vert act, othe r than an idle threat, to place an yone in im minen t fear of bod ily injury.

When an acc used challenges the suffi ciency of the convict ing evidence , the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecut ion, any r ational trier

of fact could have fou nd the essenti al eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U. S. 307, 319 (19 79). On ap peal, the S tate is enti tled to t he strongest legiti mate view of the evide nce an d all inferen ces there from. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn . 1978). B ecaus e a verdic t of g uilt re moves the presumpti on of innocence and re pla c es it wi th a presumpti on of guil t, the acc used has the burde n in this court of i llustr ating why the evi dence is insuf ficien t to support

the verdictreturned by

the trier of fact. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W .2d 474, 476 (1973).
Questions concerning the credibility of witnesses, the weigh t and valu e to be given the evide nce, as well as a ll factual issues raised b y the evidence, a re resolved by the trier of fact, n ot this cou rt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cri m. App.), perm . to appeal denied , id . (Tenn. 1987). Nor m ay this court reweigh or reevalu ate the ev idence
. Cabbage , 571 S.W.2d at 835. A jury verdict approved by the t rial j udg e acc redits th e State ’s witne sses and re solves all conflicts in fa vor of the S tate. Grace , 493 S.W.2d at 476.

On Septe mbe r 7, 199 5, W illard Ba ker, ow ner an d ma nage r of Sh elbyville Supe rmarke t, was workin g alo ne in the back of the store af

ter it had closed for the day. He heard anoise that sounded like it was on theroof, and it got loud er-5-

as he followed it outside. He walked to the overhang and could hear the noi se directly overhis head. After a few seconds, h e walked ba ck inside the store and called the poli ce. The police arrive d abou t one m inute la ter at ap proxim ately 9:40 p.m. Baker saw two or three cars arri ve at the front parki ng lot and two cars arrive i n back. He pointed towards the r oof where he heard t he noise.

Officer James Wilkerson of the Shelb yvill e Police Depart ment arrived at the Shelbyvil le Supermarket af ter heari ng from the police dispatcher that someone was attemp ting to gain entry to the store. He pulled in tow ard the b ack of t h e build ing and was the fi rst poli ce officer to arr ive. When he shined hi s spotli ght o nto the roof, he s aw t he De fen dant run nin g ac ros s th e ro of towar ds h im. W il kerson stopped his car and ran to thebuildi ng. Defendant j umped from the roo f area onto some coolers, and then jumped down to a loading dockwher e Wilkerson was standing. The me n stood wit hin arms reach when Wilker son ordered Defendantto drop the black bag he was carryi ng and drop to t he ground.

W hile holding t he bag with hi s left hand, Defendant stuck his right hand in the bag and partial ly pull ed out something. Wilkerson could only see part of the sma ll, black object . Defendant sai d som eth ing to th e effec t that “we would all die.” Wilkerson presumed that Defendant “had abom b the w ay he s aid we would all die.” Wilk erson stated that at th e time he wa s in fear of immine nt bodily injury and had drawn his weapon. While Wilkerson repeatedly ordered Defendant to drop the bag and get on the gr ound, Defendant r

efused to comply

and continued to threate n W ilkerson.-6- At abou t that t ime, Offi cers Marsh, McKee, and Arrington arrived on the scene. Marsh was fir st, and hetes tifi ed that after he arri ved he was running around the buil ding when he heard Wilkers on asking for help. He saw that the subject had a bag wi th his hand stuck in t he bag and heard him say t hat “he would take allof us out.” McKe e, who drove up as backup behind the store, fi rst saw the Defendantstanding bet ween Marsh and Wilkerson, edgi ng towards the open field. McKee got out of t he car and cut i n between Defendant and Wilkerson. When McKee a pproa ched Defe ndan t, Defe ndan t turned and to ld McKee that

“I wi ll take us al l.”

At thattime, McKee took Defendant’s hand out of the bag and pu shed it as ide, then th rew the b ag.

Defendant began to flee on foo t, but was caught by Arringto n. Arri ngton had arrived at the s tore with Mars h in the front parking l ot. He had gone to the northwest corner of t he buildi ng until he heard an officer behind t he store request assistance. He ran to the rear of the store and sa w Defe ndant flee ing. Arringto n grabbed Defe ndant and the two fell to the groun d in a struggle. All the officers at the scene assisted Arrington as Defendant resi sted arrest by fir st swingi ng his armsand then putt ing his arms underneath his b ody where they could not put handc uffs on him. After the Defend ant was p laced in t he patrol car, Wilkerson found the bag Defendant had been holding. H e chec ked to se e if a weapon was inside. Wilkerson found various burgl ary tool s inside t he bag and identifi ed these at trial.

Officer Wilkerso n drove De fendant to the p olice station where Chri s Szaroletta, a police investi gator, was c a lled i n to take a statement from the Defen dant. Szaro letta tes tified tha t Defe ndan t, after w aiv ing his rights, v olunta rily-7-

made a statement admit ting his attempted entry i nto the store, that he removed s om e screw s from pane ls on th e store ’s roof, a nd tha t the bu rglary to ols belonged to him. T his statem ent was ad mitte d into evi dence. No proof was offered by

the defense.

Under Tennessee Code Annotated secti on 39-13-101( a)( 2), a person comm its assaul t if he intenti onally or knowingly causes another to reasonably f ea r imminent bodily i njury. During hi s testi mony, Officer Wilkerson statedthat the Defe ndan t’s actions of pulli ng a small, bl ack unidenti fiable o bject out of his bag and threatening that “ we will alldie” cause d him to reasonably fear imminent bodily injury. In fact , Wilkerson was suf ficien tly concerned for his safety to draw his weapon as an attempt at some form of se lf-defense. The State pr oved beyond a reasonable doubt that Defendant

pulled an unidenti fiable o bject out of his bag and threaten ed Officer Wilkerson, and that Wilkerson reasonably feared imminent bodily injury. See State v. Wilson , 924 S.W .2d 648, 650 (Tenn. 199 6).

In additio n to the Defe ndan t’s act a nd W ilkerso n’s fear, t he assau lt statute requires proof of crim inal intent, or m ens rea . That criminal intent r equires that Defendant acted either intentio nally o r knowingly. De fendant argu es that his overt acts were only “ idle thr eats” whi ch do no t give rise to i ntent under t he meaning of the statu te. It

is notnecessary that

intent be found solely from dir ect evidence as a crim e ma y be es tablish ed by c ir cum stantia l evidence alone. State v. T harpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). The law provides t hat men s rea, even the maliciou s intent to kill, ca n be infe r red from cir cumstances of conduct giving rise to the crime
. See State v. Smith , 751 S.W.2d 851, 855 (Tenn. Crim. A pp. 198 8).-8- The Defendant’s i ndictment char ged that the Defendant “i ntentional ly or know ingly did ca use Off icer James E. Wilk erson . . . to reas onab le fear imminent bodily inju ry.” A pers on acts intentionally “with respect to the nature of

the conduct when it is the person’ s conscious or objective desi re t o engage in the conduct or cause the r esult.” Tenn. Code Ann. § 39-11 -302 (a). Th ere is suffic ien t cir cumstantialevidence for the jury

in thi s case to have concl uded beyond a reasonable doubt that Defendan t act ed with the required mens rea when he threa te ned Office r W ilkerso n. Upo n app ellate re view, th e State is entitl ed to the st rongest vi ew of the evi dence and the inference that Defenda n t was aware that the threat w ould cause Wilkerson to fear imminen t bodily injury, which satisf ies the me ns rea re quirem ent of “kno wingly.” This issu e has n o merit.

M ERGER O F C ONVICTIONS

Def end ant argues the trial cou rt erred in failing to merge count four, possession of burglary tools, with count one, attempted burgl ary. He al leges that “butfor the b urglar y tools in his possession, the Defendant coul d not be convi cted of attempted b urglary.” D efendan t also claim s that as th e crime s of assa ult, count tw o, and re sisting arre st, coun t three, b oth co ntain the statu tory el ement of fear, the se two crime s sho uld merge . See Tenn. Code Ann. §§ 39-13-101 and 39-16-602.

The resolution of t his issu e re quires a wei ghing of t he following four factors: “(1) a Blockburger analysis o f the statuto ry offense s; ( 2 ) an analysis, guided by the principles of Duchac , of the evide nce us ed to prove the offenses; ( 3) a cons iderati on of whether t here were multi ple vict ims or discr ete acts; and-9-

(4 ) a compa rison of the purpo ses of the resp ective statutes.” State v. Denton , 938 S.W .2d 373 , 381 (T enn. 19 96); s ee Blockb urger v. U. S. , 284 U.S. 299 (1932); Duch ac v. State , 505 S.W
. 2d 237 (Tenn. 1973). In Blockburger , the United States Supr eme Cour t held th at in su stainin g mu ltiple convicti ons from a single set of ci rcumstances where t he same act or tr ansaction constitutes a violat ion of two distinct statutor y pr ovisions, the test t o be applied to determine whetherthere are t

wo offenses or only one is whether each prov ision requir es proofof an add itional fact wh ich the oth er does not. Blockburger v. U.S. , 284 U.S. at 304. The Tennessee Supreme Court has held that “if t he sameevidence is not requ ired, then th e fact th at both ch arges relate to, and grow out of, one t ran saction, does not make a singl e offense where t wo are defined by

the statutes.” Duchac , 505 S.W .2d at 239 (citations om itted).

Tennessee Code Annota ted secti on 39 -14-701 defi nes the offense of possession of burglary tools as p ossession of “any t ool , machine or i mplement with intent t

o us e the sam e, or allow t he same to be used, to commit any burglary.
. . .” The offe nse of burgl ary is def ined by stat ute as when a person, “without the effecti ve consent of the property owner, enters a buildi ng other than a habitati on (or any po rtion thereo f) not ope n to the pu blic, with inten t to com mit a felony, the ft or a ssault. ” Tenn. Code Ann. § 39-14-402(a)(1). “A person comm its criminal attempt who, ac ting with th e kind of culpability otherwise required for t he offen se . . . acts wi th intent t o complete a course of action or cause a result that would constitute the offens e . . . and the conductconstit utes a substanti al step toward the commission of the offens e.” Tenn. Code Ann. § 39- 12-101 (a)(3).-10- The statutory provisions of attem pted burglary an d possess ion of burglary tools r equi re p roo f of at l east one dif fer ent ele ment

in each offense ; t he s ame evidence is not required to prove both of fenses; t he offenses i nvolved concerned two discreteacts by theDefendant; and t he offensesprotect diff erent interests. The trialcourt corr ectly noted that a person cou ld comm it an attempted burglary without the po sses sion o f burgla ry tools, and th at not o nly did Defendant possess a screwdriver with whi ch he was attemptingto enter t he buildi ng, he possessed numerous other burgl ary tool s which w ere introduced into e vidence. Sim ilarly, the Defendant’s pos session of bur glary tools did not infer that he “entered ” a buildi ng for the purpose of comm itting a burglary, only that the Defendant had t he intent to commit a burgl ary. I n Duchac , a simil ar convict ion was upheld i nvolvi ng the offenses of

third degr

ee burglary

and possession of

burglari ous instruments. Id
. at 240. The mere fact t hat both off enses grew out of a s ingle cri minal episode does n ot mak e them a single ca se in this ins tance. Id
.
Coun ts two and three warrant the same analysis as abo ve. A person comm its assau lt wh o “inten tionally o r know ingly ca uses anoth er to rea sona bly fearimmin ent bod ily injury.” Ten n. Cod e Ann. § 39-13-101(a)(2). A person who intentio nally prevents or obstructs

“anyone known to t he person t o be a law enforcementofficer, or anyo ne acting in a law enforcement officer’s presence and at such officer’s dir e ction, f rom effecti ng a[n] . . . arr est . . . of any per

son, includi ng the defenda nt, by using force ag ainst the law enforc ement officer o r another ” commits t he offense of resisti ng arrest. Tenn. Code Ann. § 39-16- 602(a). These offenses also are s eparate and disti nct o ffenses which require proofof different statutory eleme nts and evidenc e, involve se parate d iscrete ac ts b y the Defe ndant and have mult iple vi ctims (al l of the arresti ng officers versus-11-

Officer Wilkerson), and protect diff ering interests. See Blockburger , 284 U.S. at 304. Th is issue is w ithout me rit.

S ENTENCING

When an accused challenges t he length, range or the manner of service of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence with a presum ption that the determ inations mad e by the trial court are cor rect. Tenn. Code A nn. § 40-35-4 01(d). This pre sump ti on is “condi tioned upon t he affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circu mstance s.” State v. Ashby , 823 S.W.2d 166, 16 9 (Ten n. 1991 ).

In cond ucting a de n ovo re vie w of a se ntence, this cou rt must cons ider: (a) the evid ence , if any, received at the tri al and the sentencing heari ng; (b) t he presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternat ives; (d) the natur e and characteri stics of the crimi nal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement the defendant

made on his ow n beha lf; and (g) the potential o r lack of potential for rehabi litat ion ortreatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having giv

en due considerat ion and properweight to the facto rs and princ ipals set out under the sentencing l aw, and thatthe trial c ourt’s finding s of fac t are ad equa tely supported by t he record, t hen-12-

we may not modify t he sentence even i f we would have pr eferred adiffer

ent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

CONSECUTIVE S ENTENCING

Defendant a rgues the tri al court erred by orderi ng his sentences to be served consecutively. Upon review of the record, it is evident that the trial court imposed consecutive sentences based upon the fact that Defendant committed these offenses whi le he was on probat ion for offenses hecommitted in anot her county. Tennessee Code Annotat ed sec tion 40-3 5-115(b )(6) states that a defendantconvictedof more than one ( 1) criminaloffense can be or dered by the court to serve consecut ive sentence s if t he defendant i s sentenced for an offense committed whil e on probation.
Furthermore, the trial cour t found tha t a n extend ed sentence was necessa ry to restr

ain the Defendant

from committi ng other offenses, the re by protect ing the pub lic from D efenda nt’s further c riminal co nduct. See State v. Wilkerson , 905 S .W .2d 93 3, 939 (Ten n. 199 5). Th e trial co urt also noted that this offense was se rious in tha t it “could hav e led to the injury of the [p olice] officers .” Due to the severity of Defendant’s act

s, the consec uti ve sentence i mposed reason ably relates to his crim es. Id . at 939. T his issue has no merit.

ALTERNATIV E SENTENCING
Defendant argues t hat the tri al court erred by orderi ng him to serve his 1 year, 9 month sentence for attempted burglary i n Commun ity Correcti ons as a-13-

form of alternative senten cing. Def enda nt c lai ms that he di d not request such a form of sentenci ng, and, therefor e, has not met his bur

den of proof of

entitl ement to alternat ive sentenci ng. Defendant was s entenced to ser ve a split sen tence in Com munity Corrections o f 365 days, day fo r day, on his fel ony sentence of one yearand nine months, but was not granted alternat ive sentenci ng on the misdemeanor senten ce of eleve n mon ths and twenty-nin e days, to be served at the rate of seven ty-five percent (75% ).

Trial courts have t he authorit y to pl ace a defend ant into “C omm unity Corrections

program [s] whethe r th ere is a written application or n ot.” State v. Estep , 854 S.W.2d 124, 127 (Tenn. Cri m. App. 1992). However , Tennessee Code Annotated section 40- 36-106(a)(7)explicitly pr ovides that “[ P]ersons who are sentenced to i ncarcerati on or on escape at the t ime of consider ation wil l not be eligible [fo r Com munity C orrection s].”

At the ti me of the sen tencing h earing, D efenda nt was se ntence d to incarcera tion on the MarshallCounty convic tions. In additi on, Defendant was sentenced to incarceration for the m isdemea nor assau lt in this case in Bedford County. Therefore, t he Defendant was not eligible to be sen tenced to Com munity C orrection s.
Nevertheless, it is

apparent fr

om the record that

the tri al court fel t that alternative senten cing of sp lit confinem ent was t he most appropriate sentence for Defendant in thi s case. We ag re e. Therefore, even though Defendant is not statuto rially eligi ble to be pl aced into t he Community Cor recti ons progr am, we affirm the lengt h of the sentences andthe order of consecutive sentencing as s et-14-

forth by the tr ial cou rt, but m odify the judgm ents to reflect th at De fenda nt is sentenced to serve t he convicti on for attempted b urglary in the Be dford C ounty Jail, with a split

confinement involvi ng inca rcerat io n for 1 year , foll owed by probation for 9 months. This sentence i s to fol l ow and thus be served c onse cutiv ely to and after the se ntence of 11 months, 29 days in the Be dford Coun ty Jail for the con viction of as sault in Co unt 2. See Tenn. Code Ann. § 40- 35-306 . The jud gmen ts, as mo dified, are h ereby affirm ed.-15- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ WILLIAM M. BARKER, Judge