1 The Defendant rai ses two chal lenges to t he sent ence i mposed by the trial co urt. Fir st, the Def endant contends that he should have been affor ded an al ter nati ve sent ence. Second, the D efen dan t argu es that th e trial co urt im pro perly refused to credi t him for t ime served in t he Willi amson Coun ty jai l. We will address t hese two sente ncing iss ues together. 

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

Briefs N ovember 28 , 2001
STATE OF TENN ESSEE v. MICHAEL B IKREV Appeal from the Circuit Court for Williamson County No. I-1100-336-A Donald P. Harris, Judge

No. M2001-01620-CCA-R3-CD - Filed February 4, 2002

The Defendant, Michael

Bikrev, was convicted of theft of property over $1, 000.00 by a Williamson County jury. After a

sentencing hearing, the De fendant was sentenced as a Rang e I standard offender to three ye ars in the Department of Correction. The trial court suspended thesentence conditioned up o n the Defendant serving one y ear in the Williamson County jail and completing four y ears of probation. On appeal, the Defendant contends that (1) the evidence is ins ufficient to s upport his conviction, (2) the St

ate did not prove venue, (3) the trial court erred in a dmitting evidence of a

tacit admission made by

the Defe ndant, and (4) the

trial cou rt erre d in sente

ncing th e Defe ndant. 1 We affirm t he judg ment of the

trial cou rt.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. Jeff Preston Burks, Franklin, Tennessee, for the appellant, Michae l Bikrev.
Paul G. Summ

ers, Attorney General and Reporter; David H. Findley, A ssistant A ttorney G eneral ; Ron Davis, District Attorney General; and Lee Dryer , Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The victims in this case, Brian and Barbara Ma islin, operate a computer

deliver y bu siness. In situations where delivery is not practical, the Maislins conduct business out of a sto

rage u nit in a “Stor N Lock” in Be

llevue, Tennessee. The “Stor N Lock” is located in Davidson County. The-2-

Maislins acquire

business via adver

tisements in variou s newspa pers. The Def

endant a nd his wife, Myra Bikrev , respond

ed to one s uch adve

rtisemen t and info

rmed the Maislins th at theywere interestedin buying a c omputer for Ms. Bikrev’s business. The Defendant met

the Maislins at the stora ge unit in Bellevue and bought a computer, but declined to provide any informa

tion, such as an addressor phone

number, t

hat would allow Mr. Maislin to g

ive him a r

eceipt.

On July 28, 1999, the day af ter buying

the computer, the Defendant called the Maislins and stated that he was having problems with the monitor. Mr. Maisli n told the Defe ndant tha t he would have to speak with Ms. Maislin who did the computer repair work. The Defendant would not leave his phone number w ith Mr. Maislin, but Mr. Maislin noted the number from his caller identification di sp la y. The Defendant called ag ain the next day, and Mr. Maislin offe red to come to the Defenda nt’s residence and fix the monitor or to allow the Defendant to return it. The De fendant decline d both optio ns.
On July 3 0, the Mai slins disco vered th at t heir storage unit had been burglarized and ten computer s, three Cannon 5100 printers , five sets of Phillips-Magnavox speakers, four monitors, and various “mice” and

cables were missing. Brian B illingsley, the re pair man at the Bellevue

“Stor N Lock,” testified that the lock had beenpried off the Maislins’ storage unit, and the latch had to be replaced. Darcy

Rowe, the manager of

the “Store N Lock,” de scribed the surveillance cameras used
a t the stora

ge fac ility , and the S tate intr oduced a surveilla nce tape made at th

e time of t

he offe nse in which a hand with a large ring on one of the finger s can be s een push ing the c amera to

an ang le where only the

sky is visible.

Mr. Maislin testified that he viewed the surveillance tape and rec ognized the ring from the tape as being

similar to one worn by the Defe

ndant. Mr. Maislin used the number that appeared on his caller i dentific ation disp lay the nigh t the Def endant c alled him to get in touch with the Defend ant. Mr. Maisli n inquired about the monitor the Defendant had previously complained about and offered to come out to the Defendant’s residence and r epair it. Reluctantly, the De fendant agreed. Upon arriving

at the Defendant’s residence in Williamson County on North Chapel Road in Franklin, the Maislins observed that theDefendant was wearing the ring they had recognized on the surveillance video. Additionally, while in the house, Mr. Maislin noticed a box that looked very si milar to the box which contained the speakers missing from their storage unit. When the Defendant noticed Mr. Maislin looking at the box, he ushered Mr. Maislin away from the area.

The Maislins in

formed th e Defe ndant tha t they recent ly h ad a bre ak-in at

the stora ge unit. Mr. Maislin te stified th at the De fendant seemed v ery

interest ed in the i nvesti gation. In fact, the Defendant called the Maislins several times to inquire about the prog ress of the investigation.

The Maislins informed Detective William Cothren of the Metro

Police De

partmen t of their suspicions regarding the Def endant. On Au gust 2, D etective Cothren, along w ith Detectives Tommy Jarrell and Rick Hagan

of the Metro Police Department and T.R. Parker of the Williamson County Sheriff’s Department, went to the Defendant’s residenc e in order to question him. The detectives informed the Defe

ndant abo ut the sur veillanc e tape a

nd the Mai slins’ susp ic ions. The Defendant-3-

told the detectives that he “goofed ar ound,” jumped up and hit the camera. Detective Cothren to ld the Defendant that if hecould jump and hit the camera he should be play ing prof essional basketba ll because the camera was twelve feet of f the ground. The Defendant stated that he was very athletic. The Defend ant denie d any involveme

nt in the the

ft, and consented to a search of his home. The detectiv es found n othing in the home o

r on the pr

emises. Following the detectives’ visit to his home, the Defendant called the Maislins and told them that the police had been there and asked wh at the “p

roblem” was. Mr. Maislin hung up the phone. The Defendant continued calling, and, bec oming angry , Mr. Maislin told the Defendant that he knew the D efenda

nt had stol en the co mputers a nd the poli ce wer

e handlin g the sit

uation. A t that point , the Defend ant’s wif

e interjected and

stated tha

t she knew where the Maislins lived, and that they “better watch themselves.” The Defendant’s wife further stated that the Ma islins would never find their “shit” and the police could not find “a turd in an outhouse.”

On October 7 , 2000, Deputy Tamika Sande rs of the Williamson County Sheriff’ s Departmen t received a “found p roperty” ca ll from North Chapel Road. Johnny Talley , Jr., who lives approxima

tely three-fourths of a mile from the Defen dant, found several trash bags and boxes of computer equipment while working on his land. Deputy Sanders took possession of the items a nd gave them to Detective Hag an. The equipment was wet when recover ed.

The Maislins identified the items recovered by Deputy Sanders a s the equipment stolen from their storag e unit. De

tecti ve Hagangave the equipment to the Maislins. The Maislins used blow d ryersto dry the computers. Ms. Maislin enter ed the registry

file of one of the computer s an d noticed that a software program for one of the printers that had been stol en from the st orage unit had been loaded onto one of the computers that had been recovered by Deputy Sanders. The program
was loaded on August 1, 2000, several day s after the printers were stolen. Ms. Maislin also noticed several Ukranian names in the registry file of the recovered computer, and te stified that the Defendant

is of Ukranian descent. Detecti ve Hag an alsoexamined the computers and discovered several files registered to or containing the name “Myr a,” which was the Defendant’s wife ’s name.
SUFFICIENCY

The Defend ant conte

nds that the evidenc e presented at trial is insufficient to support the jury’s verdict

of guilt bey ond a rea sonable d

oubt. We dis agree . Tennes s ee Rule of Ap pellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence i s insuffic ient to support the finding s by the trier of fact of guilt beyond a reasonable doubt.” Evidenc e is sufficie nt if, aft er revi ewing t

he evide nce in the light most favora ble to the prosecution, any r ational trier of fact could have found the essential e lements of the crime beyond a re asonable doubt. See Jackson v. Virgini a , 443 U.S. 3 07, 319 (1 979); Statev. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destro ys the presumption of innocence and imposes a presum ption of g uilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v. State , 372 S.W.2d 173, 176-4-

(Tenn. 1963); see also Stat e v. Buggs , 995 S.W.2d 10 2, 105-06 (Tenn. 1 999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legit imate inf erences that may

be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, sho uld the reviewing court find particular conf licts in the trial te st im on y, the court must resolve them in favor of the jury verdict or trial court

judgment. Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be gi ve n the evide

nce, an d all fac tual issue s are re solved by the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 78 8, 795 (Te nn. 2000) ; State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Tennessee Code Annotated section 39-14-103 provides that “ [a] person commits theft of propert y if, with intent to deprive the owner of property , the person knowingly obtains or exercises control over the property

without the owner’s effective consent.” Theft of property with avalue of over $1,000 is a Class D felony

. See Tenn. Code Ann. § 39-14-105 (3).

The “Stor N Lock” surviellance tape revealed a ha nd with a ring identical to one worn by the Defendant

moving a security camera near the time of the theft. Mr. Maislin observed a box similar to a speaker box stolen from his s torage unit in the home of the Defendant. The stolen computer equipment

was recovered three-f

ourths of a mile from the Defendant’s home. S everal files and progra ms found within the stolen computers bore the name of the Defenda nt’s wife. The Maislins testified that the Defendant did not have their permission to enter t he storage unit and remove the computer equipment. The Maislins also stated that the val ue of the recovered equipment was approximately $ 1,500 at wholesale. Reviewed in the light most favorable to the State, this evidence is sufficient to support the jury ’s verdi ct of gu

ilt beyond a rea sonable d

oubt. This i ssue is wit

hout merit

. VENUE
The Defendant next contends that his conviction must be set aside because the State failed to pr ove t hat Williamson County was the correct venue in which to try him. We disagree. Mr. Maislin testified that his storage unit was located in Davidson County, and De puty Sanders stated that the stolen equipment was recovered in Williamson C ounty . “If one or more elements of an offense are com mit ted in one c ounty and one or more elements in another, the offense may be prosecuted

in either county.” Tenn.R.Crim.P. 18(b). Accordingly , the “taking ” of the com puter equipment

did not have to occur in Williamson County. I t is sufficient that

the Defendant, at one time, exercised control over the equipment within Williamson County and without the permission of the victims. See

Tenn. Code Ann. § 39-14-103.-5-

Venue need be proved by only a preponde

rance of t he evidence. See Tenn.Code Ann. § 39-11-20 1(e). “ Slight evidence i s enough to carr y th e prosec ution’s bu

rden of p reponde rance i f it is uncontradicted.” Ellis v. Carlton , 986 S.W.2d 600, 602 (Tenn.Crim.App.1998). The Defendant argues that ther e i s no evide nce to sug gest tha

t the Def endant po ssessed t

he stolen equipmen

t in Williamson County. Detective Ha gan testified that the Defendant resides in Williamson County and the computers were recovered in Williamson County three-fourths of

a mile from the Defendant’s home. Further

more, the computer s contained files b earing the Defe ndant’s w ife’s na

me when they
were recovered. Deputy

Sanders and Detective

Hagan’s testimony was sufficient for a rational jury to find tha

t the Def endant e xercised control o ver the equipment in Williamson Co

unty . The State satisfie d its burde

n of proving venu e, and thi s issue is th erefor e without m

erit.
TACIT ADM ISSION

The Defendant also argues that the tri al court er red in ad mitting in to evidence state

ments made to the vic tim by

the Defe ndant’s w ife in the

presenc e of the D efenda nt under t

he tacit admission rule. While we agree that the trial court e rre d in ad mitt ing the state ments as a

tacit admission, we findthe error to be harmless because the state ments were admissible as the statemen ts of a co-conspirator.
“[W]hen a statement is made in the presence and hearing of one acc

used of an offense and the statement tends to incriminate him, or is of an in criminat

ing cha racter , and suc h stateme

nt is not denied or in any

way objecte d to by

him, both the statement and the fact of his failure to deny it or make any response to it, is admissible against him as evidence of his acquiescence in its truth.” State
v. B lack , 815 S.W. 2d 166 , 176- 77 (Te nn. 19 91), q uoti ng Ledu ne v. State , 589 S.W.2d 936, 939 (Tenn. Crim. App. 1979).

In the present case, after the police sea rched his home, the Defendant called Mr. Maislin and demanded

to know what the “problem” was. Mr. Maislin informed the Defe ndant that he knew the Defendant

had stolen the computers and that the police were handling the matter. At this point, the Defendant’s wife interjected over the phone and stated that she knew where the Maislins lived and that they “better watch the

mselves. ” The De

fendant ’s wife f

urther s tated tha

t th e Mai slins would
never get their “shit” back and the police could not find “a turd in an outhouse.” The Defendant then told his wife to “shut up.” The trial court admitted this excha

nge as a tacit

admission on the part of the Defendant and gave a limiting instru c tion to that effect. While the Defendant’s silence in the face of the Mr. Maislin’s accusation is admissible as a tacit admission, the Defe ndant’s w if e’s statemen ts were no t an accusation a gainst t he Defe ndant, but rather

a threa t directe d at the vi ctims,
an d w er e n ot ad mi ss ib le un de r t he sa me th eo ry. However, we conclude that the admission of the wife’s statements as a “tacitadmission” is harmlessbecause the statements were admissible as the statements of a co-conspirator. A conspi r acy is a combina

tion between two or

more per sons to com

mit a criminal act. State v. Lequire , 634 S.W.2d 608, 612 ( Tenn. Cri m. App. 198 1). The e vidence establish ed that the Defe

ndant a nd h is wife worked in concert to exercise control over the Maislins’ computer

equipment. A conspiracy-6-

does not have to be formally charg ed in order for statements made by co-conspirators to be admissible. See id. ;Tenn. R. Evid. 803 (1.2)(E). Furthermore , once aconspiracy has been established, any

statemen

t made dur

ing the c ourse of

or in furthe rance o f that co nspirac y is admissible

against any

conspirator. See id. , at 613; Randolph v . State , 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978).

In State v. Henry , 33 S.W.3d 79 7, 803 (Te nn. 2000) , our supr

eme cour t held th at “the commission of the of

fense . . . does not im pl y that the conspiracy automatically included a ll later statemen ts pertaining to the concealment of the offe nse.” See also State v. Walker , 910 S.W.2d 381, 386 Tenn. 1995). Henry

require s an anal

ysi s of the f

acts in e ach cas e to dete

rmine if the common goal of the conspiracy

was still in existence atthe time of the state ments, and if the statements were made in furtherance of that goal. See Henry , 33 S.W.3d at 803. In the present case, we find that the conspiracy

was ongoing, and the statements admissible because the stat eme nts made by the Defendant’s wife were made to threa ten the vi ctims in

an effort to impede the criminal investigation agains t the Def

endant.

Ac co rd in gl y, the trial court erred by admitting the statements made by the Defendant’s wife under the tacit admissio n rule, however, the error was ha rmless because the statements were admissible as co-conspirator statements. See Tenn. R. Evid. 803 (1.2)(E).
SENTENCING

Fi na ll y, the Defe

ndant con tends tha t the tria l court e rred in s entenci ng him

because he was notafforded an alternative sentence and he was not

given credit for time served in the Williamson County jail. We disagree

. When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial courtare cor rect. Te nn. Code A

nn. § 40-3 5-401(d) . This pre sumption is “conditioned upon the af

f irmative showing in the record that the trial court consider ed the sentencing principle s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and sentencing hea ring; (b) the present

ence re port; (c) the principles of sentencing and arg

uments as to sentencing al ternativ es; (d) th

e nature and cha racter istic s of the criminal cond uct involv ed; (e) any statutory mitigating

or enhancement factors; (f) any statement made by the defe

ndant regarding sentenc ing; and (g) the potential or lack of pot ential fo r rehabilitation or treatmen t. See Tenn. Cod e Ann. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); Statev. Thomas , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988).2 As enhancement fact ors, the t

ria l cour t found that

the Def endant had a previous hi story of c riminal conduct (con tinue d...)
-7- If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a l awful s entence after having g iven due consideration and proper weig ht to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sent

ence eve n if we would have preferred a different result. State v. Pike , 978 S.W.2d 904, 926- 27 (Tenn . 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defenda

nt who “is a

n especi ally

mitigate d or stand ard off

ender c onvicted

of a ClassC, D,
or E felony is presumed to be a f

avorabl e candid ate for

alterna tive sente ncing o ptions in the absence of evidenc e to the c ontrary .” Tenn. Code Ann. § 40-35-1 02(6); State v. Lane , 3 S.W.3d 456, 462 (Tenn. 1999). Guidance rega rding what constitutes “evidence to the contrar y” which would re

but the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35- 103(1), w hich sets forth the

following

consider ations: (A) Confinement is necessary to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confineme

nt is nece ssary

to avoid dep

reciating the se

riousnes s of the of

fense or confinement

is particularly suited to provide a n effectivedeterr

ence to o thers like

ly to commit similar offenses; or (C) Measures less res t rictive than confinement have frequently or recently

been applied unsuccessfully

to the defendant[.]

See State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991).

Ad di ti on al ly, the principles of sentencing reflec tthat the sentence should be no greater than that deserved for the offense committed and should be the least sev ere mea sure nec essary to achieve the purposesfor which the sent ence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The trial court should also consider the potential for rehabilitation or t reatmen t of the defendant

in determining the appropriate sentence

. See id. § 40-35-103(5).

The presentence report reflects that at the time of sentencing the Defendant was twenty-one yearsold, married, and a

high school graduate. His family immigrated to the United States in 1991, and the De fendan t attende d high school in Ne w Jersey . He was p reviousl y e mploy ed at an a

uto service business, but was te rminated after st ealing a pist ol from a customer’s automobile. The Defendant was most recently employed by

a temporary

service provider.

The Def endan t cont ends t hat th e tria l cour t erro neous ly denied him al ternat ive se ntenc ing. The Defend ant prope

rly asserts t hat, because

he was c onvicted

of a ClassD felony, he is pre sumed eligible for alternative sentencing. SeeTenn. Code Ann. § 40-35-102 (6). After f indi ng t wo enhancement

fact ors and one mitigating factor, 2 the trial court impo sed a sen

tence of three y ears.2 (.. .cont inued)

in add ition to that ne cessa ry to establ ish t he appropriat e range, and that he was on probat ion at t he time he committed the pres ent of

fense . See Tenn. Code A nn. §§ 40 -35-114 (1 ), (13)(c). In mitigat ion of the Defendant’ s sent ence, t he tri al court found that hi s conduct neit her caused nor threatened seri ous bodily i njury. See Tenn. Co de An n. § 40-35-1 13 (1). Ho we ver, th e trial co urt ga ve th is mitig ating facto r little weig ht.

3 The Defen dant arg ues that the trial cou rt erred by ordering his s entenc e to be se rved cons ecuti vely t o the previ ous sent ence. The tr ial judge did not impose cons ecuti ve sent ences, and it is act uall y the r efusa l of the t ria l j udge to allow the Defen dant jail time cre dit that the De fenda nt contests. -8- However, the trial court suspended that sentence conditioned upon one yea r of incarceration in the Williamson County jail and the completion of four y ears probation.

Two alternative sentences available to sentenc ing cou rts are “[a] sentence of confinement which is suspended upon a term of probation supervision” and “ [a] sentence of per i od ic confinement which may

be serve d in a loca

l jail or wo

rkhouse in conjunc tion with a term of probation.” Tenn. Cod e Ann. § 40- 35-104; see also State v. Dowdy , 894 S.W.2d 301, 304 (Tenn. Crim. App. 1994) (split confinement is one of the alternative sentenc ing opti ons under Tennessee Code Annotated section 40-35-104). The trial cour t imposed an appropriate alternative sentence unde r Tennessee Code Anno tated se ction 40- 35-104. T his issue iswithout me

rit.

The Defendant also challenges the trial court’s refusal to give him credit for time serv ed in the Williamson County jail. The Defendant was incar cerated in the Williamson Co un ty j ail from August 2 1, 2000 to March 1, 2001 pursuant to an unrelated probation violation. On October 11, 2000, while incarcerated, the Defe ndant was served with the arrest warra nt for the present case. The Defendant

remained in custody a

fter he concluded his sentence for the pr obation violation, and was sentenced in the present case on May 4, 2001. During sentencing, the trial cour t credited t he Defendant

for time served in custody after the completion of the probation violation sentence, a total of sixty-one day s. The Defendant now contendsthat he is e ntitled to s entence

credit f or all the time served in custody a

fter the service of the arrest wa rrant for the present case. 3 We disagree. Tennessee Code Annotated section 40-23-101 (c) pr ovides that [t ] he trial cou

rt shall, a t the time th

e sentence is impos ed and the defenda nt is committed to jail, the workhouse, or the state penitentiary for

imprisonment, render the judgmen

t of the c ourt so as to allow the defendant credit on the sentence for any period o f time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jur isdiction, or county

jail
or workhouse, pending arraig nment and trial. The defendant shall also receiv e credit on the sentence for

the time se

rved in th e jail, wo rkhouse or penitentiary subsequent t o any conviction ar

ising out of the original offense for whic h the defendant wa s tried.

A defenda

nt is not entitled to credit for time he spent in jail for other offenses. See Trigg v. State , 523 S.W.2d 375 (Tenn. Crim. App. 1975).-9-

The trial cou

rt prope rly credite d the Def

endant f or only the six ty- on e d ays he was incarcerated

after the conclusion of the unrelated probation violation sentence. This issue is without merit.

CONCLUSION

After a thor ough review of the record, w e conclude that the evidence supports the jury ’s verdict of guilty bey

ond a reasonable doubt, venue was proven by a preponderance of the evidenc e, the trial court’s error in

admitting

the Defe ndant’s w ife’s sta

tements under the t

acit admi ssion rule was harmless, and the Defendant was prope rly sentence d. For the foregoing reason, the judg ment of the trial court is AFFI

RMED.

___________________________________ DAVID H. WELLES, JUDGE