State of Tennessee v. Demetrie Darnell Owens

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 21, 2010

STATE OF TENNESSEE v. DEMETRIE DARNELL OWENS

Direct Appeal from the Circuit Court for Marshall County

No. 2009-CR-43 Robert Crigler, Judge

No. M2009-02611-CCA-R3-CD - Filed September 2, 2010

The defendant, Demetrie Darnell Owens, was convicted by a Marshall County jury of

aggravated burglary, a Class C felony, and theft of property over $1000, a Class D felony,

and was sentenced by the trial court as a Range II offender to an effective sentence of ten

years in the Department of Correction. On appeal, he argues that the evidence was

insufficient to sustain his convictions and that the trial court erred by imposing an excessive

sentence. Following our review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and R OBERT

W. W EDEMEYER, JJ., joined.

Michael J. Collins (at trial and on appeal) and William Harrell (at trial), Assistant Public

Defenders, for the appellant, Demetrie Darnell Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Charles F. Crawford, Jr., District Attorney General; and Weakley E. Barnard,

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

OPINION

FACTS

On May 2, 2008, Lewisburg veterinarian Dr. Randall Baker and his wife, Kathy

Baker, discovered that their Marshall County home had been broken into and their home safe

and its contents stolen. Because the breach of the home’s security system had not resulted

in a call from the couple’s alarm company, the detective assigned to the case focused his

initial attention on the couple’s twenty-year-old daughter, Katherine Baker, who eventually

confessed that she had suggested that the defendant rob her parents, provided him with the

alarm system code, and left a bedroom window unlocked in order for him to gain entry into

the home. Upon further investigation, the detective discovered that four days after the

burglary the defendant had pawned a diamond ring that matched the description of one stolen

from the home. As a result, the defendant was subsequently charged with one count of

aggravated burglary and two counts of theft of property over $1000 and tried before a

Marshall County jury.

At the defendant’s September 18, 2009, trial, Katherine Baker testified that she had

pled guilty for her role in the crimes in exchange for a sentence of eleven months, twenty-

nine days at thirty percent. She said that at the time of the burglary she was living rent-free

with two roommates in a home owned by her father. Her parents had forbidden her from

having parties at the house, but approximately one week before the burglary she defied their

rules by hosting a party that was attended by a number of guests, including the defendant.

While the party was in session, her parents stopped by the house, angrily confronted her in

front of her guests about her disobedience, and ordered everyone, including her, off the

premises. She and her friends left the house in three vehicles, with the defendant, Jessica

Young, Chris Jackson, and possibly Jeremy Davis sharing the same vehicle with her.

Baker, who explained that she was adopted, testified that her mother made her

especially angry during their confrontation by expressing regret for having adopted her and

that she suggested to her companions that they retaliate by robbing her parents. She said she

“kind of got scared” after making the suggestion, but the defendant encouraged her by asking

questions about her parents’ possessions and home security system and talking about the

money and jewelry they could get in the burglary. She, therefore, gave the defendant the

code to her parents’ alarm system, told him that their money and jewelry were located in a

safe in their bedroom closet, and discussed how he could get into the house through a

window above the air conditioning unit. In addition, on the night before the burglary, she

went to her parents’ home and unlocked the window.

Baker testified that after she and the defendant were arrested, the defendant attempted

to persuade her not to reveal his role in the crimes. She said the mother of the defendant’s

children also contacted her numerous times in an attempt to influence her trial testimony. On

cross-examination, she acknowledged that there were five or six people besides the defendant

who heard her divulge her parents’ security code and discuss plans for how to complete the

burglary. She further acknowledged that, a few days after the burglary, Chris Jackson told

her that there was nothing in the safe.

The State introduced by stipulation evidence that on May 6, 2008, the defendant

pawned a man’s horseshoe ring at Household Pawn Number 2 in Nashville. Jason Smith, an

-2-

employee of the pawn shop, identified the ring, which was subsequently admitted as an

exhibit, as a man’s horseshoe gold ring with eleven, four-point diamonds and a weight of 6.9

DWT. On cross-examination, he estimated that horseshoe rings pass through the shop at the

rate of one every month to two months, but said that, unlike the ring here, they were “usually

not raised . . . with holes on the side” and did not weigh as much. In addition, the ring at

issue in this case contained “two marks, one on each side of the base of the ring.” He agreed,

however, that were no identifying initials on the ring. He also conceded that the ring was the

only item pawned by the defendant at the shop on that date.

Mrs. Kathy Baker testified that she arrived home from work on May 2, 2008, to find

all the lights in and around the house lit, which indicated that the home’s alarm had gone off.

She said she initially thought it was a malfunction because nothing looked amiss and her

husband informed her when she called him that he had heard nothing from their alarm

company. Later that day, however, she went into her bedroom closet, discovered that the safe

was missing, and called her husband and then the sheriff’s department.

Mrs. Baker testified that when she attempted to reset her alarm at the request of the

officers who responded to her house, a code came up indicating that a window was open.

She said she and the officers then searched the house and discovered that a window in the

spare bedroom located above the outside central air conditioning unit was open. According

to Mrs. Baker, the contents of the stolen safe, which had a total value of $6,550, included

$300 in cash, papers, and an assortment of jewelry, among which was a man’s horseshoe

diamond ring and a woman’s horseshoe diamond ring. When shown the man’s horseshoe

diamond ring pawned by the defendant, Mrs. Baker identified it as the ring she had purchased

as a first wedding anniversary gift for her husband, who was an equine veterinarian,

testifying that she had chosen it with care, seen her husband wear it for the past thirty-one

years, and had no doubt that it was her husband’s ring.

Dr. Randall Baker testified that if a window was opened when his home’s burglar

alarm system was turned on, the alarm would go off, which immediately activated the system

of house lights and, unless the alarm code was entered within thirty seconds, triggered a call

to the security company. He said that he, his wife, and their daughter knew the code to his

home’s security system but that only he and his wife knew the combination to their fireproof

safe, which he estimated weighed approximately seventy-five to eighty pounds. He stated

that after the burglary he saw no indentations in the central air conditioning unit or in the pea

gravel surrounding it, which indicated to him that more than one individual had been

involved in removing the safe through the window. He said he did not know the defendant

and did not give him or anyone else permission to enter his home or take his property.

-3-

Dr. Baker identified the horseshoe diamond ring pawned by the defendant as the ring

his wife had given him on their first wedding anniversary, expressed his absolute certainty

in his identification, and, at the request of the State, placed the ring on his finger to

demonstrate that it fit. On cross-examination, he acknowledged that there were no initials

or inscription on the ring but said that it had been specially sized to his finger because his

hands were “a good bit smaller” than most men’s hands.

Detective Bart Fagan of the Marshall County Sheriff’s Office testified that he spoke

to the victims’ daughter on the day of the burglary after learning that she was the only person

besides the victims who knew the home’s alarm code. He said she initially denied any

knowledge of the crimes but eventually gave a statement in which she mentioned both the

defendant and Chris Young. As a result, he checked the pawn shops in Lewisburg and the

surrounding counties, learned that the defendant had pawned a horseshoe ring on May 6,

2008, at Household Pawn Number 2 in Nashville, and took Mrs. Baker with him to the pawn

shop, where she positively identified the ring. He said he found no record of the defendant’s

having pawned any items in any of the three pawn shops in Lewisburg and no record of Chris

Jackson’s having pawned any items. He stated that he searched for Chris Jackson but was

unable to locate him.

On cross-examination, Detective Fagan testified that the defendant had pawned other

jewelry at another pawn shop in Nashville, but those items were unrelated to this case. On

redirect examination, he said the defendant sold a woman’s horseshoe diamond ring at

Jefferson Street Pawn and Jewelry, located two to three miles from Household Pawn Number

2, on May 9, 2008, but the ring was gone by the time he took Mrs. Baker to the shop to try

to identify it. On recross examination, he testified that a pair of earrings that the defendant

sold to the store at the same time did not belong to Mrs. Baker.

The defendant, who was disruptive throughout the entire trial, refused to respond to

the trial court or his counsel when they attempted to ascertain whether he wished to testify

in his own behalf and was subsequently removed from the courtroom. After he refused

several opportunities to return, the trial was continued in his absence with defense counsel

resting without presenting any proof.

Following deliberations, the jury convicted the defendant of aggravated burglary and

two counts of theft over $1000 as charged in the indictment. At the conclusion of the

sentencing hearing, the trial court merged the theft convictions and found that enhancement

factors (1), the defendant has a history of prior convictions in addition to those necessary to

establish his range, (8), the defendant failed to comply with the conditions of a sentence

involving release into the community, and (13)(B), at the time the offense was committed the

defendant had been released on parole, see Tenn. Code Ann. § 40-35-114(1), (8), (13)(B)

-4-

(2006), applied to the offenses and were entitled to great weight. The trial court found that

mitigating factor (1), the defendant’s conduct neither caused nor threatened serious bodily

injury, see id. § 40-35-113(1), applied but was entitled to minimal weight. The trial court

therefore sentenced the defendant as a Range II, multiple offender to concurrent terms of ten

years for the aggravated burglary conviction and eight years for the theft conviction, for an

effective sentence of ten years in the Department of Correction at thirty-five percent. This

appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The defendant first contends that the evidence in this case was too speculative and

circumstantial to sustain his convictions. In support, he points out that there were no

eyewitnesses to the burglary and no identifying initials on the horseshoe ring he pawned. He

also points out that several other individuals were present when Katherine Baker proposed

the method of burglarizing the home and divulged the alarm code. The State argues that the

evidence was sufficient to sustain the convictions, and we agree.

When the sufficiency of the convicting evidence is challenged on appeal, the relevant

question of the reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

also Tenn. R. App. P. 13(e) (“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 of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard

applies whether the finding of guilt is predicated upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

-5-

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

“A jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has

the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

To sustain the theft conviction, the State had to prove beyond a reasonable doubt that

the defendant, with the intent to deprive the owner of property, knowingly obtained or

exercised control over property without the owner’s effective consent and that the value of

the property was $1000 or more. Tenn. Code Ann. §§ 39-14-103, -105(3) (2006). For the

aggravated burglary conviction, the State had to prove beyond a reasonable doubt that the

defendant entered a habitation without the effective consent of the owner and with the intent

to commit a theft. Id. §§ 39-14-402(a)(1), -403(a). A habitation is defined, as “any structure

. . . which is designed or adapted for the overnight accommodation of persons[.]” Id. §

39-14-401(1)(A).

The defendant asserts that the pawned horseshoe diamond ring “did not have any

markings that proved it was the same ring [stolen in the burglary] beyond a reasonable

doubt.” However, both Dr. and Mrs. Baker positively and unequivocally identified it as the

ring that Mrs. Baker had given to Dr. Baker on their first wedding anniversary almost thirty-

one years earlier. The pawn shop employee also testified that the ring, with its eleven

diamonds, distinctive mounting, heavier weight, and identifying marks on each side of the

base, was unlike those that he usually saw in the shop. Thus, in addition to the testimony of

the defendant’s accomplice, Katherine Baker, as to the defendant’s role in the crimes, the

State presented proof from which a rational jury could reasonably conclude that the

defendant was in possession of and pawned, four days after the burglary, property that was

stolen from the home. “Possession of recently stolen goods gives rise to an inference that

the possessor has stolen them” and “may also be sufficient evidence to sustain a conviction

for burglary.” State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995) (citing Bush

v. State, 541 S.W.2d 391, 394 (Tenn. 1976), and Brown v. State, 489 S.W.2d 855, 856 (Tenn.

Crim. App. 1972)). We conclude, therefore, that when viewed in the light most favorable

to the State, the evidence was sufficient to sustain the defendant’s convictions for aggravated

-6-

burglary and theft over $1000.

II. Sentencing

The defendant next contends that the maximum ten-year sentence imposed by the trial

court “is excessive and contrary to law.” Specifically, he asserts that the heavy weight the

trial court assigned to the applicable enhancement factors does not comply with the purposes

and principles of the 1989 Sentencing Act because his convictions were for property crimes

and the limited resources of the Department of Correction should be reserved for those who

commit violent or sexual offenses. The State responds by arguing that the defendant’s

extensive criminal record, alone, justified the maximum ten-year sentence imposed. We,

again, agree with the State.

When an accused challenges the length and manner of service of a sentence, it is the

duty of this court to conduct a de novo review on the record 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) (2006). This presumption 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 presumption does

not apply to the legal conclusions reached by the trial court in sentencing the accused or to

the determinations made by the trial court which are predicated upon uncontroverted facts.

State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d

922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.

App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)

the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)

any statistical information provided by the administrative office of the courts as to Tennessee

sentencing practices for similar offenses, (h) any statements made by the accused in his own

behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001). The party challenging the sentence imposed by the trial court has the

burden of establishing that the sentence is erroneous. Tenn .Code Ann. § 40-35-401 (2006),

Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

In imposing a specific sentence within a range, a trial court “shall consider, but is not

bound by” certain advisory sentencing guidelines, including that the “minimum sentence

within the range of punishment is the sentence that should be imposed” and that “[t]he

-7-

sentence length within the range should be adjusted, as appropriate, by the presence or

absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).

The weighing of the various mitigating and enhancement factors is “left to the trial court’s

sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

At the sentencing hearing, Terese Frazier, the probation and parole officer who

prepared the defendant’s presentence report, testified, among other things, that the twenty-

seven-year-old defendant’s criminal record, which covered seven pages of the report,

included two probation violations and the fact that he committed the instant offenses while

out on parole from a previous felony theft conviction. The trial court relied on this extensive

criminal record in enhancing the defendant’s sentence to the maximum in the range. Because

the trial court properly considered the purposes and principles of the sentencing act and

applied enhancement factors that are supported by the record, we affirm the maximum ten-

year sentence imposed.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial

court.

_________________________________

ALAN E. GLENN, JUDGE

-8-