# FILED
November 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9705- CC-00192 ) Appellee, ) ) ) MARSHALL COUNTY VS. ) ) HON. CHARLES LEE JOHN WILLI AM TAYLOR, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed B urg lary- ) Theft over $1, 000)

FOR THE APPELLANT : FOR THE APPELLEE : HERSHELL D. KOGER JOHN KNOX WALKUP 135 N. 1st Street Attorney Generaland Reporter P. O. Box 1148 Pulaski, TN 38478 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 MIKE MCCOWEN Distri ct Attor ney General WEAKLEY E. BARNARD Assistant Distri ct Attor ney Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Octob er 3, 1996 a Marshall count y jury convicted Appel lant, Jo hn William Taylor, of a ggravate d burgla ry and the ft over $10 00.00. T he trial cou rt, sitti ng a s thirteenth juror , found the weight of t he evidence i nsuffic ient for the off ense of theft

over $1000.00 and entered a judgment of guilty of thef t o f property over the va lue of $50 0.00. Afte r a sente ncing he aring, the tri al court sentenced Appellant as a career o ffender t o serve fi fteen year s at 60%,
consecu tive to all prior con victions an d conc urrently with six year s at 60% on the theft convic tion. Ap pellan t appe als from the judg ment and the sentence, raising three issues:
1) whether the evidence was sufficient to sup port the conv ictions for the ft and burglary; 2) whethe r the trial cou rt erred i n refusing to inform the jury t hat the appropriate ran ge of punishm ent for Appellan t was as a ca reer offender; 3) whethe r the trial cou rt erred in or dering A ppellant’ s sentences to r un consecutive to his pri or sentences.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On Janua ry 12, 199 5, Carla S ue Rich ards retu rned to h er Mars hall Cou nty home to find t hat someone had broken int o her home. The back door was aj ar and twisted, with a foot print on the door. Sh e went into the house and call ed a neighbor, her husband, and l aw enforcement. I t was discovered that a televisi on, two rifl es, a shotgun, and jewelry were missing f rom the house. Law enforcement personnel put the seri al numberfrom the stol en televi sion in t he National Cri me-3-

Informati on Center computer. Two weeks later, Metro Dav i dson county police advised a Marshall Count y detecti ve that t he Richards’ televisi on had been pawned in Nash ville by Tammy Taylor, Appell ant’s wi fe. Ms. Tayl or was arrested, tried and ac quitted for th e burgla ry and the ft of the Richard’s pr operty. During the
course of investi gating Ms. Taylor, l aw enforcem ent officials took an incu lpatory statementfrom Appellant in which Appel lant stated that he entered the Richards’ house an d stole the television, gun s, and jewelry.

I. S UFFICI ENCY OF THE EVI DENCE
Appellant challenges the jury ’s verdic t allegin g that th e evide nce in troduce d at trial was i nsufficient for a rationaltrier of fact to determinebeyon d a rea sona ble doubt thathe comm itted the theft and burg lary. Appellant con tends that there was no physical eviden ce to lin k him to the crime, and that i ndeed the only evidence against him were the mult iple statements he made to the p olice, w hich he now
c onte nds were untrust worthy. When an appell ant chall enges the suff iciency of the evidence, this Court is obli ged to revi ew that chal lenge acco rding to certain well-set tled principles. A verdictof guilty by the jur y, approved by the tr ial j udge, accredits

the testimon y of the Sta te’s witnes ses an d resolve s 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 (T enn. 1 992). A lthoug h an a ccus ed is origina lly cloaked wit h a presumption of innocence, a j ury verdi ct rem ov es this presumption and re place s it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of pr oof rests wit h Appellant to demo nstr ate the insufficie ncy of the convicting evidenc e. Id. On ap peal, “th e [S]tate is enti tled to t he stronge st l egitim ate view of the e videnc e as w ell as all-4-

reaso nable and le giti mate in ference s that ma y be draw n therefro m.” Id . ( citing State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 19 78)). Where the suf ficien cy of the evidence i s contested on appeal , the rel evant questi on for the revi ewing court is whetherany rati onal tri er offact could have fo und the acc used guilty of every element ofthe offens e beyon d a reas onable doubt. Harris , 839 S.W.2d 54, 75; Jackson v. Virgin ia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979). In conducti ng o ur eva lu ation o f the co nvicting eviden ce, this Cour t is precluded from reweighi ng or recons idering the evidenc e. State v. Morgan , 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v . Mathews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 199 0). Moreover , thi s Court may n ot subst itute its own inferences “for t hose drawn by the t rier of fact from circums tantial evide nce.” Id. at 779. Final ly, t he Tennessee Rules of Appellate Procedure, Rule13(e) provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury shall be set aside if the evi dence is insuf ficien t to support the findi ngs by the trier of fact beyo nd a rea sonab le doub t.” See also State v . Mathews , 805 S.W.2d at 780.

In the matter sub judice , statements by Appellant co n fessing to the commission of thes e crimes we re intro duced at tri al. The corpus de lictiof the cri me was more than amply established i ndependently of Appellant’ s confession. See , State v. Ervin , 731 S.W.2d 70, 72 (Tenn. Crim. App. 1987). The weight and credibility of the evi dence presented are matter s entrusted solely t o the jury

as the triers of fact. State v. She ffield , 676 S.W.2d 542 (T enn. 19 84); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978 ). This Court may not reweigh evidence. Because sufficient evid ence w as pres ented a t trial upon w hich a rati onal ju ry could determine that Appellant committed t he crimes, this i ssue is without m erit.-5- II . JURY

CHARGE

The State fileda notice t hat it woul d at sentenci ng seek to have Appel lant declared a career offender. Appell ant agreed that he was a caree r offen der. Appellant

argues that the trial court erre d in r efusing to instruc t the jur y that Appellant

would h ave to s erve as a career offender i f convicted of the charges against him. Appell ant requested t he ins truct ion under Tennessee Code Annotated § 40-35-201, but upon the tri al court’s ruling that, i f the court instruct ed the jury asto pun ishm ent, the court w ould use the enti re spectrum of punishment from mitigate d o ffenders to career of fenders, Appel lant wit hdrew the motion requesting t he jury i nstructi on.

In State v. Cook , the State failedto noti fy thedefendantof intent to seek enhanced punishment. The defendant fil ed a motion to strike t he notice, which
was granted. The State then appealed the appli cation of Range I punishmentto the defendant. The Court of Criminal Appeals rever sed the trial cour

t’s sentence and ordered resentenci ng under Range II. By statute the defendant i f convicted of the aggravated rape and a ggravated se xual battery charges against him, was considered an automatic Range I I offender . The d efenda nt then appealed, arguing that he had a statutory right to a jury inst ruction r egarding the ac

tual range of punishment to which h e was subject. The State argued t hat the defendanthad waived that right by fili ng the motion to s tri ke. In uphol ding the defen dant’s right to the requestedRange II jur y instr uction, the Suprem e Court of Tennessee held that “ whatever

rights or

benefits

the Legislat ure had in mind forthe defendant when i t passed T[ennessee] C[ode]A[nnotated]§ 40-35-201(b) would be lost i f the defendan t were to besenten ced to pu nishm ents greater t han1 We need not address the issue of the correct ness of the trial cour t’s deci sion had Appellant not withdrawn his requested i nstructi on and had a valid stipul ation as t o Appellant’s actual

sentencing r

ange 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. -6- what the jury finding guilt was instructed w ould be imp osed.” State v. Cook , 816 S.W.2d 322 (T enn. 1991). The Court went on to hold t hat “where a defendant
wa nts his tri al jury

to know the ra nge of possibl e punishments resul ting fr om convicti ons that he is e ntitl ed to ha ve t hat i nfor mati on con veye d to t he ju ry. To deny... that stat utory ri ght constit utes prejudi ce to the judici al process, rendering the error

rever sibl e under

Rule 36 (b)T[ ennesse e] R[u les] A[ pp ellate] P[roced ure].” State v. Cook , 816 S.W.2d at 327. The situati on in the instant case is somew hat analogo us, howeve r import a nt disti nctions i n this case and Cook warranta differ

ent result

in the case sub judice . Unlik e Cook the Ap pellan t in the instant

case was not subj ect to theincreased puni shment as a matter of law. Rather, a findi ng would h ave to be made at the sentencing hearing that he was, in fact, a career offender. Alt hough the Appell an t o ffered to sti pulate he was a
careeroffende r, n o s uch stipul ation was ever actuall y entered, and Appellant
neveragreed to for

ever forego

any contenti on that he was n ot a career offend er. Finally, Appe llant ac tually with drew h is request that the jury be instructed that he
was a career offende r. 1 Under these circumstances we cannot say it was error forthe trial cour t to refu se to in struct t he jury onl y as to puni shment for career offenders convicted of aggravated burgl ary and thef t of proper

ty val ued over $1,000.

III . CONSECUTI VE SENTENCI NG Under Tennessee law, “[w]hen reviewing sentenci ng issues .
. . incl uding the granting or

denial of

probation and the length of sentence, the appellate cou rt-7-

shall conduct a de novo review on the record of such i ssues. Such review shall be conducted with a presu mption that the determinat ions made by the cour t from which the app eal is taken are corre ct.” Tenn. C ode Ann . § 40-35-401 (d) (1997). “Howeve r, the pre sum ption o f correc tness which acco mpa nie s t he trial c ourt's action is condit ioned upon the aff irmative showing in t he record that the trial court considered the sentenci ng princi ples and a ll relevant fac ts and circ umsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we m ust co nsider all t he evidence, the presentence report, the sentencing princi ples, the enhan cing and mitigating factors, arg umen ts of coun sel, the ap pellan t’s statements, the nature andcharacter of the offens e, and the appel lant’s potential forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 823 S.W.2d at 169. “ The defend ant has t he burden of demon strating that the sente nce is improp er.” Id.

Consec utive sentencing i s governed by Ten nessee Code Annotated § 40-35-115. The t rial cour t has the discr

etion to o rder consecutive sentencin g if it finds t hat one or more of the requ ire d statutory criteria exist. State v. Black , 924 S.W .2d 912 , 917 (T enn. C rim. App . 1995). F urther, the court is req uired to determine whether the cons ecutive sentences (1) are reasonably related t

o the severity of the off

enses committed; (2) serve to protect t he public f rom further criminal conduct by the offender; and (3)are congruent with generalprincipl es of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).

In the instant case the t rial cour t found that

Appellant i s a “profess ional crimin al” defined at Tennessee Code Annotated § 40-35-115(b)(1) as o ne “.
. . who has knowingly

devoted [hi s/her] l ife to c riminal ac ts as a major source of-8-

livel ihood. . .” The Court also noted t hat past efforts at both inca rcerati on an d non-incarce rative s entences had failed to deter Appel lant fr om continued cri minal acts. Indeed, the rec ord ref lects A ppella nt was on pa role at the ti me the instant offenses were c omm itted. T he rec ord als o reflec ts a crim i nal record of over twenty convicti ons for burgl ary and thef t convict ions over a f our year pe ri od. Clearly, the record dem onstra tes Ap pellan t is a professi onal burglar from whom the public ne eds pro tection. Consec utive sentence s are amp ly warra nted in this
case.
Accordingly

the judgment of

the tri al court i s affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE