The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9704-CC-00132
)
Appellee, )
)
) CARROLL COUNTY
FILED
VS. ) August 27, 1997
) HON. C. CREED MCGINLEY
MAURICE PIERRE TEAGUE, ) JUDGE Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellant. ) (Aggravated Burglary)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF CARROLL COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN D. JACKSON JOHN KNOX W ALKUP
161 Court Square Attorney General and Reporter
P.O. Box 471
Huntingdon, TN 38344 KENNETH W . RUCKER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 5th Avenue North
Nashville, TN 37243-0493
ROBERT RADFORD
District Attorney General
ELEANOR CAHILL
Assistant District Attorney General
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant, Maurice Pierre Teague, was convicted by
a Carroll County jury of aggravated burglary 1 . The trial court sentenced him as
a Range I offender to six years in the Department of Correction. The Defendant
appeals both his conviction and his sentence and raises the following issues in
this appeal: (1) That the evidence was insufficient to convict the Defendant of
aggravated burglary when the jury acquitted him of aggravated assault; (2) that
the trial court erred in applying certain sentence enhancement factors; and (3)
that the indictment was fatally flawed. W e affirm the judgment of the trial court.
The State presented the following proof at trial. The tumultuous events
leading to the Defendant’s conviction revolve around the home of Susan
Hollowell in Huntingdon. Ms. Hollowell testified that, in the early morning hours
of Decem ber 13, 1995, she was at her home, a public housing facility into which
she had just moved. Also present were her children; her two-year-old daughter
and her three-month-old son. Randy Cary knocked on the door and she let him
in and they talked for a while. Ms. Hollowell had known Cary for a number of
years and had a personal relationship with him in the past. An hour or so later,
someone knocked at the door. Cary told Ms. Hollowell not to answer it because
it was the Defendant and he did not want to talk to him. Approximately an hour
later, about 3:00 a.m., Steven Gibbs, Billy Ted Little, and a stranger arrived. Ms.
Hollowell and Gibbs had more recently been seeing each other in a personal
1
Tenn . Code A nn. § 39-14-40 3(a).
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relationship. Gibbs wanted to come in and lie down because he and the others
had been drinking at a bar in Jackson, Tennessee. She let the three in and they
and Cary talked. The stranger left shortly after they arrived. Gibbs smelled like
he had been drinking and Little appeared obviously drunk. They argued because
Little wanted to leave. Gibbs took Little to a pay telephone because Ms. Hollowell
did not have a phone. They returned and Cary and Little exchanged words.
Little started a fight with Cary. They struggled on the floor until Gibbs broke them
up. Cary left the house.
A few minutes later, Cary returned with his brother, Terry Cary, the
Defendant, David Myles and a fifth person (Marshall Hampton). Gibbs and Little
hid in the bathroom after the five called into the house for them to come out.
Ms. Hollowell talked with the men through the window, but refused to let them in.
She turned and walked to the back of the house when she heard a front window
break. She saw Randy Cary with a two-by-four piece of lumber. Cary also pulled
a gun. At that point, the Defendant stated: “Pop a cap in her.” The men cam e in
the house and Ms. Hollowell headed to the back bedroom with the children. Cary
handed the gun to the Defendant. The five were yelling at Gibbs and Little in the
bathroom to come out. The men broke open the door with the two-by-four and
began fighting Gibbs and Little. Little had a whiskey bottle. Ms. Hollowell did not
see if the Defendant still had the gun during the fight in the house. The m en left
and she helped Gibbs and Little, who were injured.
Steven Gibbs also testified at trial. He and Little went to Ms. Hollowell’s
house to visit because he had been dating her. He did not know Cary before the
incident. Little was drunk and got into an argument with Cary. They scuffled and
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he broke up the fight. Cary left. Gibbs helped Little clean up his bloodied mouth
and Ms. Hollowell asked them to leave. W hen they tried to leave, they saw Cary
and the other men outside. Gibbs and Little went to the bathroom. Gibbs heard
the window break and Ms. Hollowell talking to them. He heard someone say
“shoot her” or “shoot the bitch.” Ms. Hollowell let them in and the group began
beating on the bathroom door.
Gibbs testified that he grabbed a whiskey bottle and that Little had a large
“Rambo” knife. After the group broke down the bathroom door, Little saw the gun
and laid down the knife. Cary hit Gibbs with the two-by-four while he was on the
floor. Gibbs managed to get up, but was hit from behind and others took turns
kicking him. Teague took the gun, pointed it at Gibbs head, and said “How’s it
feel to be on the ground, white boy?” Gibbs’ eye, arm and knee were injured in
the fight.
On cross-examination, Gibbs admitted that he was dating Ms. Hollowell
while he was separated from his wife, but said that they were reunited at the time
of trial. He stated that someone broke open the door to his house sometime after
the incident in question. He denied an allegation by Cary that he and Little took
Cary’s money during the first scuffle. Gibbs also testified that he never saw a gun
when the group was outside the house and could not positively identify the voice
saying “shoot the bitch” as the Defendant’s. Gibbs saw the Defendant with a gun
after the men broke open the bathroom door. On redirect, Gibbs stated that
Little had money that night because Gibbs was taking him to court the next day
and he had the money to pay a fine.
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Officer Johnny Ray Hill of the Huntingdon Police Department testified that
he interviewed the Defendant. The Defendant admitted hitting Little and that,
during the brawl, someone dropped a gun and he picked it up and placed it in his
waistband. The Defendant stated that he was called to come over to the house
because someone took money and they thought Gibbs and Little had cocaine.
The Defendant testified in his own behalf. He stated that Marshall
Hampton called him and said Cary had been assaulted and robbed and to meet
at Hampton’s house. Hampton’s house was just down the street from Ms.
Hollowell’s house. The Defendant denied that he had any intention to fight, that
he had a gun, that he said “Pop a cap in her,” or that he broke the window of the
house. He testified that he followed Cary in the house and that Cary was telling
Gibbs and Little to return the money. He stated that he first obtained the gun
after it was dropped during the scuffle. He put the gun in his pants. He admitted
hitting Little after Little first hit him in the face. He also admitted to pulling Gibbs
off Cary.
On cross-examination, the Defendant denied pointing a gun at Gibbs, but
admitted that Gibbs got into a corner and said “Please don’t kill me.” The
Defendant denied going into the house to beat up the men, but admitted going
in to get the money back and “so that he [Cary] wouldn’t be jumped on again.”
He denied that the group had the intent to fight. The Defendant denied that
anyone pointed a gun at Ms. Hollowell when they were standing outside the
house.
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Randy Cary testified that he went to Hollowell’s house to visit. He knew
she was awake because he talked to her boyfriend, Daniel Alton, after he saw
him leaving Hollowell’s house. He stated that he had dozed off in a recliner when
Gibbs, Little and a stranger showed up. They exchanged words, left, and
returned and “jumped” him. They took some money from his jacket pocket and
a house key. Cary left the house and organized the group, including the
Defendant. They went to Hollowell’s house. Cary admitted to carrying a gun at
that time. He denied that the Defendant possessed a gun. Cary testified that he
had no intention to fight, but he wanted to get his money back. He stated that he
took his gun out of his jacket pocket and loaded one bullet and David Myles said
“Pop a cap in her.” Ms. Hollowell saw the gun at that point. He testified that the
gun was lost during the fight and that David Myles returned it to him.
The Defendant was charged with one count of aggravated burglary and
three counts of aggravated assault. The jury acquitted the Defendant on each
count of aggravated assault, but convicted him of aggravated burglary. The
Defendant now appeals his conviction and sentence.
W e first address the Defendant’s third issue, that the indictment was fatally
flawed. The indictment charging the Defendant with aggravated burglary in this
case is as follows:
That RANDY L. CARY, TERRY RAY CARY, DAVID EARLE MYLES,
MAURICE PIERRE TEAGUE and MARSHALL HAMPTON, heretofore,
ON OR ABO UT THE 13TH DAY OF DECEMBER, 1995, before the
finding of this indictment, in the County and State aforesaid, did
intentionally or knowingly enter the habitation of SUSAN HOLLOW ELL,
109 DREW COURT, HUNTINGDON, CARROLL COUNTY,
TENNESSEE without the owner’s effective consent, with intent to
commit a felony, thereby committing the offense of AGGRAVATED
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BURGLARY, in violation of T.C.A. 39-14-403(a), against the peace and
dignity of the State of Tennessee.
(emphasis added). The Defendant asserts that the indictment is defective
because it does not specify the felony intended to be committed.
An indictment or presentment must provide notice of the offense charged,
an adequate basis for the entry of a proper judgm ent, and suitable protection
against double jeopardy. State v. Trusty, 919 S.W .2d 305, 310 (Tenn. 1996);
State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 1991); State v. Lindsay, 637 S.W .2d
886, 890 (Tenn. Crim. App. 1982). The indictment “must state the facts in
ordinary and concise language in a m anner that would enable a person of
common understanding to know what is intended, and with a degree of certainty
which would enable the court upon conviction, to pronounce the proper
judgment.” W arden v. State, 214 Tenn. 391, 381 S.W .2d 244, 245 (1964);
Tenn. Code Ann. § 40-13-202.
A lawful accusation is an essential jurisdictional element, thus, a
prosecution cannot proceed without an indictment that sufficiently informs the
accused of the essential elements of the offense. State v. Perkinson, 867 S.W .2d
1, 5 (Tenn. Crim. App. 1992); State v.Morgan, 598 S.W.2d 796, 797 (Tenn. Crim.
App. 1979). A judgment based on an indictment that does not allege all the
essential elements of the offense is a nullity. W arden v. State, 381 S.W .2d at
245; McCracken v. State, 489 S.W .2d 48, 53 (Tenn. Crim. App. 1972).
The State argues that the Defendant has waived consideration of the issue
on appeal because he did not raise the issue prior to trial. Rule 12(b)(2) of the
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Tennessee Rules of Criminal Procedure provides that “[d]efenses and objections
based on defects in the indictment . . . other than that it fails . . . to charge an
offense” must be raised in a pretrial m otion. Tenn. R. Crim. P. 12(b)(2).
Furthermore, failure to raise defenses and objections pretrial constitutes a waiver.
Tenn. R. Crim. P. 12(f). W e note the waiver rule does not apply when an
indictment fails to charge an essential element of an offense because no offense
has been charged. State v. Perkinson, 867 S.W .2d 1, 5-6 (Tenn. Crim. App.
1992).
In the case at bar, the Defendant has not alleged that the indictment fails
to charge an offense. Rather, he claims that the indictment has failed to describe
the offense with the “degree of certainty” required and therefore the indictment
is void. Aggravated burglary is burglary of a habitation as defined in sections
39-14-401 and 39-14-402. Tenn. Code Ann. § 39-14-403(a). “ A person commits
burglary who, without the effective consent of the property owner: (1) Enters a
building other than a habitation (or any portion thereof) not open to the public,
with intent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)
(emphasis added). The Defendant cites State v. Haynes, 720 S.W .2d 76 (Tenn.
Crim. App. 1986), quoting Hooks v. State, 289 S.W. 529, 529 (Tenn. 1926),
which states that an indictment for burglary “must set out and define the felony
intended to be committed.” Hooks, 289 S.W . at 529.
The Defendant has first raised the issue in his appeal. Because he failed
to raise the issue pretrial as required by Rule 12(b), this issue has been waived.
Moreover, the Defendant could have, but did not file a motion for a bill of
particulars pursuant to Rule 7(c) of the Rules of Criminal Procedure to clarify the
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offense with which he was charged. See State v. Joyner, 759 S.W.2d 422, 424-
25 (Tenn. Crim. App. 1987). Instead, he clearly proceeded to trial with a defense
that he had no intent to commit any of the assaults when he arrived at the house.
W e believe the Defendant has waived any consideration by this Court of this
issue.
The Defendant also challenges the sufficiency of the evidence convicting
him of aggravated burglary. He contends that because he was acquitted of all
aggravated assault charges, the burglary conviction cannot stand because the
assaults were the underlying felonies comprising an element of the offense of
burglary.
W hen an accused challenges the sufficiency of the convicting evidence,
the standard is whether, after reviewing 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). Questions concerning the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by
the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).
A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,
476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate
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view of the evidence and all inferences therefrom . Cabbage, 571 S.W .2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493
S.W.2d at 476.
W e first address the contention that, because the jury acquitted the
Defendant of all aggravated assault charges, the evidence to convict for
aggravated burglary is insufficient. The Defendant challenges the sufficiency of
proof of the element that he entered a habitation without consent “with intent to
commit a felony.” Tenn. Code Ann. § 39-14-402(a)(1). The crime of burglary is
com plete and has been committed when an entry has been made without
consent and with the intent to commit a felony once inside. State v. Lindsay, 637
S.W.2d 886, 889 (Tenn. Crim. App. 1982). The eventual consummation of the
intended crime is not required to support a conviction for aggravated burglary.
See Petree v. State, 530 S.W .2d 90, 92 (Tenn. Crim. App. 1975).
The intent requirement is general in nature and there is no need to
prove that the intruder succeeded in carrying out the intent for which
the structure was broken into. Therefore, if one breaks into the dwelling
of another with the intent to commit murder or any other felony he is
guilty of burglary even if he leaves without finding his intended victim or
without having committed any felony in the dwelling.
Id. (quoting Duchac v. State, 505 S.W .2d 237, 239-40 (Tenn. 1973)(citations
omitted)). Thus, it is of no consequence that the Defendant in the case sub
judice was acquitted of the actual aggravated assaults.
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The Defendant also makes a general argument that the proof was
insufficient to show an intent on his part to commit an assault when he entered
Ms. Hollowell’s house. He highlights the facts that he and Randy Cary both
testified that they went to the house only to get Cary’s money. He notes that
Cary testified that no assaults would have occurred if Gibbs and Little had simply
returned the money. Yet, we are mindful that the intent to commit a felony may
be proved by circumstantial evidence. Hall v. State, 490 S.W .2d 495, 496 (Tenn.
1973); State v. Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994).
On appeal we must consider the evidence in the light most favorable to the
State. Obviously the jury rejected the Defendant’s proffered reason for entering
Ms. Hollowell’s house. There is evidence in the record that the Defendant joined
a group of men organized by Randy Cary after he got into a fight with Billy Ted
Little. There is evidence that Cary was angry with both Gibbs and Little. The
group of men arrived with Cary holding a two-by-four board. There is also
evidence that Cary had a handgun and that the Defendant stated: “Pop a cap in
her.” Both Ms.Hollowell and Gibbs testified that the crowd outside was yelling for
the two men to come outside. None of the State’s witnesses testified that Cary
or the others were at the house to get Cary’s money back. There is also
evidence that Cary sm ashed a window and that, once inside the house, the group
of men hit and kicked Gibbs and Little.
In considering the evidence in the record, we conclude that the jury could
have found beyond a reasonable doubt that the Defendant entered Ms.
Hollowell’s house with the intent to exact retribution for Cary by assaulting Gibbs
and Little. W e also note that the trial judge charged the jury with criminal
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responsibility for the conduct of another and the lesser offense of facilitation of
a felony. Tenn. Code Ann. §§ 39-11-402; 39-11-403. The jury could have
convicted of the lesser offense, but chose to convict the Defendant for the greater
offense. Furthermore, the jury could have convicted the Defendant based on
criminal responsibility for the conduct of another. This would only require that the
Defendant acted “with intent to promote or assist the commission of the offense.”
Tenn. Code Ann. § 39-11-402. The jury could reasonably infer that the
Defendant acted with the intent to assist Cary with entering the house to assault
the victims. In any event, we can only speculate regarding the theory upon which
the jury relied. In either case, the evidence was sufficient to support a finding of
guilt. This issue is without merit.
Finally, the Defendant argues that the trial court imposed an excessive
sentence by misapplying two sentence enhancement factors. When an accused
challenges the length, range, or the 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 court are correct. Tenn. Code Ann. § 40-35-
401(d). This presumption is "conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant
facts and circum stances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement
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that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
The Defendant’s sentencing hearing was conducted on October 9, 1996.
His presentence report indicates that, at the time of sentencing, he was twenty-
four years old and single. He dropped out of high school in the eleventh grade.
It reflects that the Defendant had nearly thirty misdemeanor convictions as an
adult and more as a juvenile. He denied regular alcohol or drug abuse, yet some
of his convictions were for possession of drugs. The Defendant reported a
sporadic employment history. He had one uncle living in McKenzie and a four-
year-old daughter in Trenton.
At the sentencing hearing, the State proposed six enhancement factors of
which the trial court found five to be applicable. Those applied were that (1) The
defendant has a previous history of criminal convictions; (8) The defendant has
a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community; (9) The defendant possessed or employed
a firearm during the commission of the offense; (10) The defendant had no
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hesitation about committing a crime when the risk to human life was high; and
(13)(c) The felony was committed while the defendant was on probation. Tenn.
Code Ann. § 40-35-114(1),(8),(9),(10),(13)(c). The trial court considered and
rejected the application of any mitigating factors.
The trial court also evaluated the Defendant’s amenability to alternative
sentencing pursuant to Tennessee Code Annotated section 40-35-102. The trial
court refused alternative sentencing based on the Defendant’s past criminal
history, including a disrespect for the law manifested in convictions for failure to
appear and escape. Aggravated burglary is a Class C felony and the sentence
range a Range I offender is three to six years. Tenn. Code Ann. §§ 39-14-
403(b); 40-35-101. The trial court sentenced the Defendant to the maximum in
the range of six years in the Department of Correction.
The Defendant argues that the trial court erred by applying enhancement
factors (9), that the Defendant possessed or employed a firearm during the
commission of the offense and (10) that the Defendant had no hesitation about
committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-
35-114(9),(10). We agree with the Defendant’s contention that the trial court
misapplied enhancement factor (9), but we do not reach our conclusion based on
the Defendant’s reasoning. He argues that, because he was acquitted of the
aggravated assaults, the use of a weapon cannot be used to enhance the
burglary conviction. The State counters that two of the aggravated assault
charges were based on serious bodily injury rather than use of a weapon.
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However, a careful review of the record reveals that there is simply no
evidence that the Defendant possessed the gun during the perpetration of the
aggravated burglary. Ms. Hollowell testified that Cary handed the gun to the
Defendant after they entered the house. Gibbs testified that he saw the
Defendant with a gun when the group broke down the bathroom door. The
Defendant denied having a gun until he picked it up during the scuffle. Cary
testified that he had possession of the gun in his pants when the group entered
the house. As we have previously stated, the crime of burglary is complete and
has been committed when an entry has been m ade without consent and with the
intent to commit a felony once inside. Lindsay, 637 S.W .2d at 889. Thus,
because the record is devoid of evidence that the Defendant possessed or
employed a weapon while effecting the entry into Ms. Hollowell’s home, the
application of factor (9) was error. We do not believe the proof sufficiently links
the gun to the Defendant to allow enhancement based on this factor. We
conclude, however, that the error was harmless.
Next, the Defendant contends that the trial court misapplied enhancement
factor (10), that he committed a crime when the risk to human life was high. He
argues that this was an element of the aggravated assaults of which he was
acquitted, therefore, the trial court could not apply it to the aggravated burglary.
W e disagree. See State v. Jones, 883 S.W .2d 597, 603 (Tenn. 1994). This
Court has held that a burglary conviction may be enhanced using factor (10)
when the circumstances create a risk to human life. See State v. John L.
Goodwin, III, C.C.A. No. 01C01-9601-CR-00013, Sumner County (Tenn. Crim.
App., Nashville, Jul. 23, 1997); State v. Jimm y Ray Potter, C.C.A. No. 01C01-
9301-CC-00021, Fentress County (Tenn. Crim. App., Nashville, Mar. 17, 1994);
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cf. State v. Avery, 818 S.W .2d 365, 369 (Tenn. Crim. App. 1991). Here, the
Defendant was part of a group of men who brandished weapons, smashed in a
window, and threatened to shoot a woman, all while she was visible through the
window holding her three-month-old-son. The Defendant knew that the men they
sought were in the home and an entry would likely result in a confrontation. This,
we feel, is sufficient proof to support the application of enhancem ent factor (10).
Even though we conclude that the trial court misapplied one enhancement
factor, we believe the remaining enhancement factors justify the sentence of six
years in the Departm ent of Correction.
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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