FILED

November 13, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9705-CC-00192

)

Appellee, )

)

) MARSHALL COUNTY

VS. )

) HON. CHARLES LEE

JOHN WILLIAM TAYLOR, ) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Burglary-

) Theft over $1,000)

FOR THE APPELLANT: FOR THE APPELLEE:

HERSHELL D. KOGER JOHN KNOX WALKUP

135 N. 1st Street Attorney General and Reporter

P. O. Box 1148

Pulaski, TN 38478 CLINTON J. MORGAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

MIKE MCCOWEN

District Attorney General

WEAKLEY E. BARNARD

Assistant District Attorney

Marshall County Courthouse

Lewisburg, TN 37091

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On October 3, 1996 a Marshall county jury convicted Appellant, John

William Taylor, of aggravated burglary and theft over $1000.00. The trial court,

sitting as thirteenth juror, found the weight of the evidence insufficient for the

offense of theft over $1000.00 and entered a judgment of guilty of theft of

property over the value of $500.00. After a sentencing hearing, the trial court

sentenced Appellant as a career offender to serve fifteen years at 60%,

consecutive to all prior convictions and concurrently with six years at 60% on the

theft conviction. Appellant appeals from the judgment and the sentence, raising

three issues:

1) whether the evidence was sufficient to support the convictions for theft

and burglary;

2) whether the trial court erred in refusing to inform the jury that the

appropriate range of punishm ent for Appellant was as a career offender;

3) whether the trial court erred in ordering Appellant’s sentences to run

consecutive to his prior sentences.

After a review of the record, we affirm the judgment of the trial court.

FACTS

On January 12, 1995, Carla Sue Richards returned to her Marshall County

home to find that someone had broken into her home. The back door was ajar

and twisted, with a foot print on the door. She went into the house and called a

neighbor, her husband, and law enforcement. It was discovered that a television,

two rifles, a shotgun, and jewelry were missing from the house. Law enforcement

personnel put the serial number from the stolen television in the National Crime
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Information Center computer. Two weeks later, Metro Davidson county police

advised a Marshall County detective that the Richards’ television had been

pawned in Nashville by Tammy Taylor, Appellant’s wife. Ms. Taylor was arrested,

tried and acquitted for the burglary and theft of the Richard’s property. During the

course of investigating Ms. Taylor, law enforcement officials took an inculpatory

statement from Appellant in which Appellant stated that he entered the Richards’

house and stole the television, guns, and jewelry.

I. SUFFICIENCY OF THE EVIDENCE

Appellant challenges the jury’s verdict alleging that the evidence introduced

at trial was insufficient for a rational trier of fact to determine beyond a reasonable

doubt that he comm itted the theft and burglary. Appellant contends that there was

no physical evidence to link him to the crime, and that indeed the only evidence

against him were the multiple statements he made to the police, which he now

contends were untrustworthy. When an appellant challenges the sufficiency of

the evidence, this Court is obliged to review that challenge according to certain

well-settled principles. A verdict of guilty by the jury, approved by the trial judge,

accredits the testimony of the State’s witnesses and resolves all conflicts in the

testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.

1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is

originally cloaked with a presumption of innocence, a jury verdict removes this

presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demonstrate the insufficiency of the convicting evidence. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of the evidence as well as all
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reasonable and legitimate inferences that may be drawn therefrom.” Id. (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of

the evidence is contested on appeal, the relevant question for the reviewing court

is whether any rational trier of fact could have found the accused guilty of every

element of the offense beyond a reasonable doubt. Harris, 839 S.W.2d 54, 75;

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from reweighing or reconsidering the evidence. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own

inferences “for those drawn by the trier of fact from circumstantial evidence.”Id.

at 779. Finally, the Tennessee Rules of Appellate Procedure, Rule 13(e)

provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyond a reasonable doubt.” See also State v. Mathews, 805 S.W.2d at

780.

In the matter sub judice, statements by Appellant confessing to the

commission of these crimes were introduced at trial. The corpus delicti of the

crime was more than amply established independently of Appellant’s confession.

See, State v. Ervin, 731 S.W.2d 70, 72 (Tenn. Crim. App. 1987). The weight and

credibility of the evidence presented are matters entrusted solely to the jury as

the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); Byrge v. State,

575 S.W.2d 292 (Tenn. Crim. App. 1978). This Court may not reweigh evidence.

Because sufficient evidence was presented at trial upon which a rational jury

could determine that Appellant committed the crimes, this issue is without merit.
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II. JURY CHARGE

The State filed a notice that it would at sentencing seek to have Appellant

declared a career offender. Appellant agreed that he was a career offender.

Appellant argues that the trial court erred in refusing to instruct the jury that

Appellant would have to serve as a career offender if convicted of the charges

against him. Appellant requested the instruction under Tennessee Code

Annotated § 40-35-201, but upon the trial court’s ruling that, if the court instructed

the jury as to punishment, the court would use the entire spectrum of punishment

from mitigated offenders to career offenders, Appellant withdrew the motion

requesting the jury instruction.

In State v. Cook, the State failed to notify the defendant of intent to seek

enhanced punishment. The defendant filed a motion to strike the notice, which

was granted. The State then appealed the application of Range I punishment to

the defendant. The Court of Criminal Appeals reversed the trial court’s sentence

and ordered resentencing under Range II. By statute the defendant if convicted

of the aggravated rape and aggravated sexual battery charges against him, was

considered an automatic Range II offender. The defendant then appealed,

arguing that he had a statutory right to a jury instruction regarding the actual

range of punishment to which he was subject. The State argued that the

defendant had waived that right by filing the motion to strike. In upholding the

defendant’s right to the requested Range II jury instruction, the Supreme Court

of Tennessee held that “ whatever rights or benefits the Legislature had in mind

for the defendant when it passed T[ennessee] C[ode] A[nnotated] § 40-35-201(b)

would be lost if the defendant were to be sentenced to punishments greater than
1We need not address the issue of the correctness of the trial court’s decision had Appellant not

withdrawn his requested instruction and had a valid stipulation as to Appellant’s actual sentencing range

been e ntered a long with a v alid waiver o f any future conten tion that Ap pellant wa s not in the c ategory to

which he stipulated. T hat cas e is not pre sented by this recor d. 

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what the jury finding guilt was instructed would be imposed.” State v. Cook, 816

S.W.2d 322 (Tenn. 1991). The Court went on to hold that “where a defendant

wants his trial jury to know the range of possible punishments resulting from

convictions that he is entitled to have that information conveyed to the jury. To

deny... that statutory right constitutes prejudice to the judicial process, rendering

the error reversible under Rule 36(b)T[ennessee] R[ules] A[ppellate]

P[rocedure].” State v. Cook, 816 S.W.2d at 327. The situation in the instant case

is somewhat analogous, however important distinctions in this case and Cook

warrant a different result in the case sub judice. Unlike Cook the Appellant in

the instant case was not subject to the increased punishment as a matter of law.

Rather, a finding would have to be made at the sentencing hearing that he was,

in fact, a career offender. Although the Appellant offered to stipulate he was a

career offender, no such stipulation was ever actually entered, and Appellant

never agreed to forever forego any contention that he was not a career offender.

Finally, Appellant actually withdrew his request that the jury be instructed that he

was a career offender.1

 Under these circumstances we cannot say it was error

for the trial court to refuse to instruct the jury only as to punishment for career

offenders convicted of aggravated burglary and theft of property valued over

$1,000.

III. CONSECUTIVE SENTENCING

Under Tennessee law, “[w]hen reviewing sentencing issues . . . including

the granting or denial of probation and the length of sentence, the appellate court
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shall conduct a de novo review on the record of such issues. Such review shall

be conducted with a presumption that the determinations made by the court from

which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997).

“However, the presumption of correctness which accompanies the trial court's

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, arguments of counsel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id.

Consecutive sentencing is governed by Tennessee Code Annotated §

40-35-115. The trial court has the discretion to order consecutive sentencing if

it finds that one or more of the required statutory criteria exist. State v. Black,

924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles

of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

In the instant case the trial court found that Appellant is a “professional

criminal” defined at Tennessee Code Annotated § 40-35-115(b)(1) as one “. . .

who has knowingly devoted [his/her] life to criminal acts as a major source of
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livelihood. . .” The Court also noted that past efforts at both incarceration and

non-incarcerative sentences had failed to deter Appellant from continued criminal

acts. Indeed, the record reflects Appellant was on parole at the time the instant

offenses were committed. The record also reflects a criminal record of over

twenty convictions for burglary and theft convictions over a four year period.

Clearly, the record demonstrates Appellant is a professional burglar from whom

the public needs protection. Consecutive sentences are amply warranted in this

case.

Accordingly the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

DAVID H. WELLES, JUDGE