State of Tennessee v. David Lynn Sisk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 27, 2010 Session

STATE OF TENNESSEE v. DAVID LYNN SISK

Appeal from the Circuit Court for Cocke County

No. 0362 Ben W. Hooper, II, Judge

No. E2009-00320-CCA-R3-CD - Filed September 8, 2010

A Cocke County Circuit Court jury convicted the defendant, David Lynn Sisk, of aggravated

burglary, theft of property valued at more than $1,000 but less than $10,000, and theft of

property valued at more than $10,000 but less than $60,000. The trial court determined that

the defendant was a career offender and imposed a total effective sentence of 27 years’

incarceration. In this appeal, the defendant challenges the sufficiency of the convicting

evidence, claims that the indictments charging theft are multiplicitous, argues that the trial

court erred in its jury charge, and contends that the trial court erroneously declared him a

career offender. Because the evidence was insufficient to support the defendant’s

convictions, we reverse the judgments of the trial court and dismiss the charges in this case.

To facilitate any further appellate review, we also conclude that the theft indictments were

impermissibly multiplicitous, necessitating the dismissal of the defendant’s conviction of

theft of property valued at more than $1,000 but less than $10,000, and that the trial court

erroneously classified the defendant as a career offender.

Tenn. R. App. P. 3; Judgments of the Circuit Court Reversed and Dismissed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J.C. M CL IN, J.,

joined. D. K ELLY T HOMAS, J R., J., filed a separate opinion concurring in part and dissenting

in part..

Wesley D. Stone, Knoxville, Tennessee (on appeal), and Brad Davidson, Newport,

Tennessee (at trial), for the appellant, David Lynn Sisk.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; James B. Dunn, District Attorney General; and Joe Crumley and Brownlow Marsh,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The convictions in this case arose from the burglary and theft of property from

the home of Manit and Marina Subhakul sometime between March 27, 2006, and April 4,

2006.

Newport Police Department Detective George Grooms testified that he

received a call from a Detective Carroll of the Cocke County Sheriff’s Department that the

sheriff’s department had discovered a black BMW belonging to the victims that “had been

wrecked and . . . had been burned and . . . had been hit several times with what looked to be

a big pick.” Detective Grooms sent Lieutenant Ronnie Landers to the victims’ home to

investigate, and Lieutenant Landers observed that “there was no one at home but . . . a

window was broken out in the rear of the house.” Detective Grooms testified that when he

arrived at the residence, he found the back door open and “a large television set right at the

back door,” which appeared to have been taken from the master bedroom. Detective Grooms

stated that entry into the house had been gained via a window in the bathroom and that the

house “had been partially ransacked. . . . It had been searched somewhat thoroughly.” Just

inside the back door, officers found “a hand-rolled cigarette” that Detective Grooms

collected and sent for deoxyribonucleic acid (“DNA”) testing at the Tennessee Bureau of

Investigation (“TBI”) forensics laboratory in Knoxville. Detective Grooms recalled that

although officers dusted the entirety of the house for fingerprints, they found no usable

prints.

Detective Grooms testified that the defendant, who lived across the street and

two houses down from the victims, became a suspect in the burglary by “word of mouth” and

that, based upon this word of mouth, he obtained a search warrant to procure a DNA sample

from the defendant. He said he sent the sample along with the cigarette, a beer bottle found

in the yard, and DNA samples from other suspects to the TBI for comparative analysis.

Detective Grooms testified that the only items recovered from the burglary and theft were the

face of a small safe that had been in the bedroom and photographs of the victims’ ancestors,

both of which were found on the bank of the river in Newport. Detective Grooms recalled

that “blunt trauma force had been used to dislocate the door from the body of the safe.” He

stated that the victims’ delay in returning from a trip to Thailand hampered the investigation

because officers were unsure what was actually missing from the residence.

Detective Grooms testified that on January 3, 2007, he and other officers went

to the defendant’s house to arrest him “around noon time, and . . . . as soon as we stopped in

front of his house, he ran.” Detective Grooms stated that it took officers 10 to 15 minutes

to capture the defendant. After his arrest, the defendant signed a waiver of his rights but

gave no statement.

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TBI forensic scientist Jennifer Milsaps testified that there was no DNA

evidence on the beer bottle recovered from the victims’ residence but that there was DNA

evidence on the cigarette butt. She stated that the probability of the DNA on the cigarette’s

belonging to someone other than the defendant “exceeds the current world population.”

During cross-examination, Agent Milsaps stated that it is impossible to tell the age of a DNA

sample or of the DNA on the cigarette butt in this case.

Manit Subhakul testified that he and his wife left to visit relatives in Thailand

on March 27, 2006, and that, on April 5 or 6, 2006, their son-in-law called to tell them that

the house had been burglarized. Mr. Subhakul stated that he and his wife did not return

immediately but instead waited to return on their scheduled departure date. He confirmed

that the BMW, the door of the safe, and the photographs discovered on the riverbank

belonged to him. He testified that the total value of all the items taken from his residence

was “about forty thousand” dollars. He estimated that the 1992 BMW 250 could have sold

for “about $16,000.” During cross-examination, Mr. Subhakul acknowledged that he had

often seen the defendant, who lived across the street, smoking in front of his house.

The State rested, and the defense opted not to present any proof. Based on the

proof presented by the State, the jury convicted the defendant as charged. The defendant

filed a timely motion for new trial and a timely notice of appeal.

In this appeal, the defendant contends that the evidence was insufficient to

support his convictions, that the indictments charging theft were multiplicitous, that the trial

court erred by refusing to give his requested jury instruction on circumstantial evidence, and

that the trial court erroneously classified him as a career offender. We consider each claim

in turn.

I. Sufficiency of the Evidence

The defendant claims that because the presence of a cigarette butt containing

his DNA in the victims’ residence was the only evidence linking him to the offenses, the

evidence was insufficient to support his convictions. The State argues that the DNA on the

cigarette butt and the fact that the defendant was a neighbor of the victims supports the

convictions. We agree with the defendant.

We review the defendant’s claim mindful that our standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings

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of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. Winters, 137 S.W.3d at 654. Although a criminal offense may be

established exclusively by circumstantial evidence, Duchac v. State, 505 S.W.2d 237 (Tenn.

1973); Winters, 137 S.W.3d at 654, before an accused may be convicted of a criminal offense

based upon circumstantial evidence alone, the facts and circumstances “must be so strong

and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.”

State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). “In other words, ‘[a] web of guilt

must be woven around the defendant from which he cannot escape and from which facts and

circumstances the jury could draw no other reasonable inference save the guilt of the

defendant beyond a reasonable doubt.’” State v. McAfee, 737 S.W.2d 304, 306 (Tenn. Crim.

App. 1987) (quoting Crawford, 470 S.W.2d at 613).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

“Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401

and 39-14-402.” T.C.A. § 39-13-403(a) (2003). Burglary, as is applicable in this case, is

committed when a person “without the effective consent of the property owner . . . [e]nters

a building and commits . . . a . . . theft.” Id. § 39-14-402(a)(3). “A person commits theft of

property 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.” Id. § 39-14-103.

Here, the evidence adduced at trial established that sometime between March

27 and April 4, 2006, someone broke into the victims’ home via a bathroom window and

took items totaling more than $50,000, including the victims’ 1992 BMW. Detective

Grooms found a partially-smoked, hand-rolled cigarette on the floor near the kitchen door.

DNA on the cigarette matched the defendant. Other than this match in DNA, no other proof

linked the defendant to the crimes. None of the items taken from the victims’ residence were

discovered in the defendant’s possession. No pawn tickets or other evidence was presented

to suggest that the defendant had sold the items. No fingerprints were found in the house or

on the BMW that matched the defendant. No one saw the defendant in or near the residence

or driving the BMW. The victim acknowledged that he had seen the defendant smoking in

front of his house. The mere presence of a single cigarette partially smoked by the defendant

is neither sufficient to weave an inescapable web of guilt around the defendant, see McAfee,

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737 S.W.2d at 306, nor “to exclude every other reasonable hypothesis save the guilt of the

defendant,” see Crawford, 470 S.W.2d at 612. Several plausible explanations for the

presence of the defendant’s cigarette inside the victims’ residence come to mind, including

that the cigarette butt was “tracked” into the residence.

Recently, in State v. James Rae Lewter, No. M2007-02723-SC-R11-CD (Tenn.

June 4, 2010), our supreme court concluded that a jury could have reasonably inferred

Lewter’s guilt of burglarizing a dental office from the presence of a shirt containing his

DNA. The court was careful to point out, however, that the DNA evidence was not the only

evidence linking Lewter to the crime. In addition to the shirt, the co-defendant, a woman

with whom Lewter had an intimate relationship, admitted committing the burglary and theft

and insisted that she did not take Lewter’s shirt to the scene. Id., slip op. at 4. Further, the

evidence showed that the female co-defendant could not have moved the stolen property on

her own, that she would have needed a truck to take the items away, and that Lewter owned

a truck. Id., slip op. at 4-5. From all this evidence, our supreme court concluded that the jury

could have inferred Lewter’s guilt. Id., slip op. at 6. Here, other than the presence of the

defendant’s DNA on the cigarette butt found inside the home, no other evidence corroborated

the State’s theory that the defendant committed the offenses in this case. Although this

evidence might, arguably, be sufficient to suggest that the defendant was present in the

victims’ home at some point, there is simply no evidence from which the jury could have

concluded that the defendant took several thousand dollars worth of property from the

residence or that he entered with any other felonious intent. In consequence, we reverse

convictions in this case and dismiss the charges against the defendant.

The standard of the prosecution’s evidence in a criminal case of proof beyond

a reasonable doubt is a critical component of the American system of justice. Jackson, 443

U.S. at 323-24. To remain vital, the concept must be honored by the courts not only in the

abstract but also in the application to the facts of real cases. We hold that the State did not

shoulder its burden to satisfy this important standard in this case.

II. Multiplicity

The defendant next contends that the indictments charging him separately with

theft of in excess of $10,000 worth of property from the victim’s home and with the theft of

the BMW from the victim’s home were multiplicitous and that, as such, they violate the state

and federal constitutional protections against double jeopardy.

Initially, the State asserts that the defendant waived our consideration of this

issue by failing to include it in his motion for new trial. We disagree. Rule 3 of the

Tennessee Rules of Appellate Procedure provides, in pertinent part, that

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in all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence,

jury instructions granted or refused, misconduct of jurors,

parties or counsel, or other action committed or occurring during

the trial of the case, or other ground upon which a new trial is

sought, unless the same was specifically stated in a motion for

a new trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e). Relief from a double jeopardy violation, however, is not a new trial

but a dismissal of the offending charges. See, e.g., State v. Rocky Joe Houston, No.

E2009-00352-CCA-R9-CD (Tenn. Crim. App., Knoxville, Mar. 3, 2010) (dismissing charges

against the defendant where “both our state and federal constitutional guarantees against

double jeopardy prohibit a second prosecution of the defendant for any offense contained in

the indictment in this case”); State v. Epps, 989 S.W.2d 742, 746 (Tenn. Crim. App. 1998)

(vacating and dismissing multiplicitous conviction of attempted theft). In consequence, the

defendant’s failure to raise the multiplicity issue in his motion for new trial does not result

in waiver of the issue. The defendant has raised the issue on appeal, and that is sufficient to

secure plenary review.

The State also claims that “theft by illegally entering the victim’s house and

stealing items and theft by stealing the victim’s vehicle are not the ‘same offense.’” Again,

we disagree.

Both the federal and state constitutions protect an accused from being “twice

put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V; Tenn. Const.

art. 1, sec. 10. The state and federal provisions, which are quite similar in verbiage, have

been given identical interpretations. See State v. Waterhouse, 8 Tenn. (1 Mart. & Yer.) 278,

284 (1827) (“[W]e did not feel ourselves warranted in giving [the double jeopardy provision

of the state constitution] a construction different from that given to the constitution of the

United States, by the tribunal possessing the power, (and of pre-eminent qualifications) to

fix the construction of that instrument.”). The United States Supreme Court has observed of

the double jeopardy clause:

Our cases have recognized that the Clause embodies two vitally

important interests. The first is the ‘deeply ingrained’ principle

that ‘the State with all its resources and power should not be

allowed to make repeated attempts to convict an individual for

an alleged offense, thereby subjecting him to embarrassment,

expense and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the

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possibility that even though innocent he may be found guilty.’

The second interest is the preservation of ‘the finality of

judgments.’

Yeager v. United States, — U.S. —, 129 S. Ct. 2360, 2365-66 (2009) (citations omitted). To

these ends, our state supreme court has “noted many times, three fundamental principles

underlie double jeopardy: (1) protection against a second prosecution after an acquittal; (2)

protection against a second prosecution after conviction; and (3) protection against multiple

punishments for the same offense.” State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996)

(citing Whalen v. United States, 445 U.S. 684, 688 (1980); United States v. Wilson, 420 U.S.

332, 343 (1975); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). At issue in this case

is the third of the three principles of double jeopardy, the “protection against multiple

punishments for the same offense.”

“The applicable rule is that where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires proof of a fact which the

other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Thus, “separate

statutory crimes need not be identical -- either in constituent elements or in actual proof --

in order to be the same within the meaning of the constitutional prohibition [against double

jeopardy].” Brown v. Ohio, 432 U.S. 161, 164 (1977) (citing 1 J. Bishop, New Criminal Law

§ 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-69 (1965)).

“Multiplicity concerns the division of conduct into discrete offenses, creating several

offenses out of a single offense.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996). To

determine whether offenses are multiplicitous, this court generally considers:

1. A single offense may not be divided into separate parts;

generally, a single wrongful act may not furnish the basis for

more than one criminal prosecution;

2. If each offense charged requires proof of a fact not required

in proving the other, the offenses are not multiplicitous; and

3. Where time and location separate and distinguish the

commission of the offenses, the offenses cannot be said to have

arisen out of a single wrongful act.

Id. “Additional factors such as the nature of the act; the time elapsed between the alleged

conduct; the intent of the accused, i.e., was a new intent formed; and cumulative punishment

may be considered for guidance in determining whether the multiple convictions violate

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double jeopardy.” Epps, 989 S.W.2d at 745 (citing Phillips, 924 S.W.2d at 665). Of

particular import in this case,

[w]hether the acts of the defendant constitute several thefts or

one single crime must be determined by the facts and

circumstances of each case. If each taking is the result of a

separate intent, each is a separate crime; however, where the

takings are all pursuant to a single intent, there is but a single

larceny.

Id. at 746.

In Epps, several items were taken from the victim’s home and an automobile

was taken from a shed outside the home during a burglary. The State charged Epps by

separate counts with the theft of the items from inside the victim’s home and the theft of the

victim’s automobile, and the defendant was convicted of theft and attempted theft on these

counts. Finding as plain error that the convictions for theft and attempted theft violated

principles of double jeopardy, we held that “[w]here several articles are stolen from the same

owner at the same time and place, only a single crime is committed.” Id. at 745-46. In this

case, as in Epps, the theft of property from inside the victims’ home and the theft of the

BMW “arose from a single criminal episode, involved the property of one victim, and both

occurred at the same location.” Id. at 745. Moreover, adding the value of the BMW to the

value of the items taken from inside the victims’ home would not increase the grade of the

theft offense charged in the first count of the indictment. In consequence, the indictments

for theft of property valued at more than $10,000 but less than $60,000 and theft of property

valued at more than $1,000 but less than $10,000 were multiplicitous, and the dual theft

convictions violate double jeopardy principles. The defendant’s conviction of theft of

property valued at more than $1,000 but less than $10,000 must be reversed and the charge

dismissed.

III. Jury Instructions

The defendant next contends that the trial court erred by refusing to give his

specially requested instruction on circumstantial evidence and by failing to instruct the jury

on the doctrine of “mere presence.” The State asserts that the defendant has waived our

consideration of this issue by failing to raise the issue in his motion for new trial.

Alternatively, the State submits that the jury instructions were proper. We agree with the

State on both points.

As indicated, the failure to raise the issue of “jury instructions granted or

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refused” in a motion for new trial results in waiver of plenary appellate review. See Tenn.

R. App. P. 3(e). Pursuant to Rule 36(b) of the Tennessee Rules of Appellate Procedure, “an

appellate court may consider an error that has affected the substantial rights of a party at any

time, even though the error was not raised in the motion for a new trial” where consideration

of the error is “necessary to do substantial justice.” Tenn. R. App. P. 36(b). Before an error

may be so recognized, however, it “must be ‘plain’ and it must affect a ‘substantial right’ of

the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The word

“‘plain’ is synonymous with ‘clear’ or equivalently ‘obvious.’” United States v. Olano, 507

U.S. 725, 734 (1993) (citing United States v. Young, 470 U.S. 1, 16 n.14 (1985)). Authority

to correct an otherwise “forfeited error” lies strictly “within the sound discretion of the court

of appeals, and the court should not exercise that discretion unless the error ‘seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. at 732

(citations omitted).

In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court

adopted the definition of “substantial right” promulgated by this court in Adkisson. There,

we held that “a ‘substantial right’ is a right of ‘fundamental proportions in the indictment

process, a right to the proof of every element of the offense, and is constitutional in nature.’”

Adkisson, 899 S.W.2d at 639. Our supreme court also adopted Adkisson’s five factor test for

determining whether an error should be recognized plain:

“(a) the record must clearly establish what occurred in the trial

court;

(b) a clear and unequivocal rule of law must have been

breached;

(c) a substantial right of the accused must have been adversely

affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is ‘necessary to do substantial

justice.’”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll five factors must

be established by the record before this court will recognize the existence of plain error, and

complete consideration of all the factors is not necessary when it is clear from the record that

at least one of the factors cannot be established.” Id. at 283. To be reviewable as “plain,”

the error “must [have been] of such a great magnitude that it probably changed the outcome

of the trial.’” Id. (quoting Adkisson, 899 S.W.2d at 642) (alteration in original). Finally, “the

burden of establishing entitlement to relief for plain error is on the defendant claiming it.”

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).

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Before the trial began, the defendant asked the trial court to instruct the jury

on the treatment of circumstantial evidence as follows:

1. In order to convict on circumstantial evidence alone, the

facts and circumstances must be so closely interwoven and

connected that the finger of guilt is pointed unerringly at the

[d]efendant and the [d]efendnt alone. A web of guilt must be

woven around the [d]efendant from which he cannot escape and

from which facts and circumstances the jury could draw no other

inference save the guilt of the [d]efendant beyond a reasonable

doubt. . . .

We cannot speculate a [d]efendant into the penitentiary . . . [.]

2. [Where evidence is entirely circumstantial] there must be

an evidentiary basis upon which the jury can exclude every other

reasonable theory or hypothesis except that of guilt.

3. Probable guilt, however, is not enough.

4. In convictions such as these, where the evidence is

entirely circumstantial, the jury must find that the proof is not

only consistent with the guilt of the accused, but inconsistent

with his innocence. There must be an evidentiary basis upon

which the jury can exclude every other reasonable theory or

hypothesis except that of guilt.

The defendant also asked the trial court to instruct the jury on mere presence: “Even under

the theory of criminal responsibility for the acts of another, mere presence during the

commission of a crime is not enough to convict.” The defendant later abandoned his request

for a mere presence instruction, but he reiterated his desire for the specially requested

circumstantial evidence instruction. The trial court denied the request, ruling that the pattern

jury instruction on circumstantial evidence was “adequate, if not more than adequate, and in

many instances, is almost verbatim with what’s contained in the request.”

An accused’s constitutional right to trial by jury, see U.S. Const. amend VI;

Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of the law, see

State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a

complete charge of the law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d

314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see also Tenn. R. Crim. P. 30. When

examining the propriety of jury instructions, however, a reviewing court must review the

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challenged instruction in the context of the entire charge rather than in isolation. See

Sandstrom v. Montana, 442 U.S. 510, 527 (1979) (Rehnquist, J., concurring); see also Cupp

v. Naughten, 414 U.S. 141, 146-47 (1973) (“[A] single instruction to a jury may not be

judged in artificial isolation, but must be viewed in the context of the overall charge.”); State

v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial error “if

it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”

State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

The legal accuracy of the trial court’s instructions is a question of law entitled

to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007).

The propriety of a given instruction is a mixed question of law and fact to be reviewed de

novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.

2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

A. Circumstantial Evidence Instruction

Here, the trial court instructed the jury as follows:

Circumstantial evidence is all the testimony and exhibits

which give you clues about what happened in an indirect way.

It consists of all the evidence which is not direct evidence. Do

not assume that direct evidence is always better than

circumstantial evidence. According to our laws, direct evidence

is not necessarily better than circumstantial evidence. Either

type of evidence can prove a fact if it is convincing enough. A

defendant may be convicted on direct evidence, circumstantial

evidence, or both. When the evidence is entirely circumstantial,

then before you would be justified in finding the defendant

guilty, you must find that all the essential facts are consistent

with the theory of guilt, and the facts must exclude every other

reasonable theory except that of guilt.

This language is identical to Tennessee Pattern Jury Instruction 42.03(a) and is an accurate

statement of the law. Moreover, as the trial court observed, the given instruction conveyed

the substance of the defendant’s requested charge without the unnecessary repetition. See

State v. Gilley, 297 S.W.3d 739, 766 (Tenn. Crim. App. 2008) (“While the defendant may

request special instructions, jury instructions are sufficient where they adequately state the

law.”). The trial court’s refusal to provide the requested instruction was not error, much less

plain error.

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B. Mere Presence

On appeal, the defendant claims that the trial court erred by refusing to instruct

the jury on the weight of his mere presence. The record establishes, however, that defense

counsel abandoned the request for this charge and, in fact, asked the trial court not to provide

the instruction. Because we cannot say that the accused did not waive this issue for tactical

reasons, we likewise cannot say that the trial court’s failure to provide the requested charge

rises to the level of plain error.

IV. Sentencing

Lastly, the defendant claims that the trial court erred by classifying him as a

career offender for his Class C felony convictions because he does not have the requisite

number of previous felony convictions to qualify for career offender sentencing. The State

concedes that the defendant was improperly classified as a career offender.

When considering challenges to the length and manner of service of a sentence

this court conducts a de novo review with a presumption that the determinations of the trial

court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of

establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that

the trial court gave “due consideration and proper weight to the factors and principles which

are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are

adequately supported in the record, then we may not disturb the sentence even if we would

have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). In the event the record fails to demonstrate the required consideration by the trial

court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing decision, the trial court must consider:

(1) The evidence, if any, received at the trial and the sentencing

hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing

alternatives;

(4) The nature and characteristics of the criminal conduct

involved;

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(5) Evidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114;

(6) Any statistical information provided by the administrative

office of the courts as to sentencing practices for similar

offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the

defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5).

The jury convicted the defendant of two Class C felonies and one Class D

felony. The presentence investigation report established that the 34-year-old defendant had

some 36 prior convictions, including 12 Class E felony convictions. Tennessee Code

Annotated section 40-35-108 provides, in pertinent part, as follows:

(a) A “career offender” is a defendant who has received:

(1) Any combination of six (6) or more Class A, B or C

prior felony convictions, and the defendant’s conviction offense

is a Class A, B or C felony;

(2) At least three (3) Class A or any combination of four

(4) Class A or Class B felony convictions if the defendant’s

conviction offense is a Class A or B felony; or

(3) At least six (6) prior felony convictions of any

classification if the defendant’s conviction offense is a Class D

or E felony.

T.C.A. § 40-35-108(a). With 12 prior Class E felony convictions, the defendant qualified

as a career offender for purposes of his Class D felony theft conviction, a conviction that has

been vacated as violative of double jeopardy principles. He did not, however, have the

requisite number of predicate felony convictions to qualify as a career offender for purposes

of his Class C felony convictions. As to these convictions, the defendant is a Range III,

persistent offender. See id. § 40-35-107(a) (“A ‘persistent offender’ is a defendant who has

received . . . [a]ny combination of five (5) or more prior felony convictions within the

conviction class or higher, or within the next two (2) lower felony classes . . . .”). Had we

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not determined that the evidence was insufficient to support the defendant’s convictions, we

would remand the case for resentencing.

Conclusion

Because the evidence presented at trial was insufficient to support the

defendant’s convictions of two counts of theft and aggravated burglary, the judgments of the

trial court are reversed, the convictions are vacated, and the charges are dismissed. To

facilitate further appellate review, we also conclude that the defendant’s conviction of theft

of property valued at more than $1,000 but less than $10,000 violates principles of double

jeopardy. As a result, that conviction must be reversed and dismissed. Finally, the trial court

erroneously classified the defendant as a career offender for purposes of his Class C felony

convictions.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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