State of Tennessee v. Lucian Alan Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 29, 2014

STATE OF TENNESSEE v. LUCIAN ALAN GREEN

Appeal from the Circuit Court for Robertson County

No. 2013-CR-447 Michael R. Jones, Judge

No. M2014-00242-CCA-R3-CD - Filed December 2, 2014

In a two-count indictment, appellant, Lucian Alan Green, was charged with burglary of a

building other than a habitation and theft of property valued at more than $1,000 but less than

$10,000, both Class D felonies. The jury found him guilty as charged, and the trial court

sentenced him as a standard offender to concurrent terms of three years, six months at thirty

percent release eligibility for each offense to be served in the Tennessee Department of

Correction. Appellant now challenges the sufficiency of the convicting evidence and the trial

court’s sentencing decision. Upon 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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS

and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Joe R. Johnson II (on appeal); and Garth Click (at trial), Springfield, Tennessee, for the

appellant, Lucian Alan Green.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White,

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

OPINION

This case involves the burglary of a church and theft of a laptop belonging to one of

the ministerial staff.

I. Facts

A. Trial

At appellant’s November 2013 trial, the State called the victim of the theft, Robert E.

MacKenzie, as its first witness. He was the youth minister at the Main Street Church of

Christ in Springfield. To carry out his responsibilities, the church provided the victim with

an Apple MacBook Pro laptop computer. At the time of the theft, he had been in possession

of the computer for approximately one and one-half years. The computer was valued at

$1,500 when it was purchased. In addition, the victim purchased several computer programs

at his own expense such as an office suite and a video-editing program that totaled

approximately $300. The victim stated that at the time of the theft, the computer was in

“perfect condition” and would have been valued between $1,500 and $2,000.

The victim explained that the church’s office building was an old house and that the

church secretary occupied the front area of the building, which would have been the main

living room of the house. The victim’s office was adjacent to her office, and the head

minister’s office was in the rear of the building. On March 20, 2013, the office building was

opened at 8:00 a.m. and closed around 4:00 p.m. When the victim left that day, his computer

was on his desk, and no one had permission to take it. When he returned to work on March

21, his computer was missing, as was the power cord and the shipping box, which had been

under his desk. Nothing else was missing from his office. The victim noticed that someone

had entered through his window, which was constructed of Plexiglass. “[T]he glass was

pushed in, meaning they [could] reach underneath the glass and unlock the window and then

push the window up from the outside and gain access.” He observed that the pictures of his

wife and son that were located on a table in front of the window were knocked down. The

victim said that he immediately telephoned law enforcement upon discovering the theft.

The victim recalled that his computer had a feature called “Find my iPhone,” which

allowed him to activate the GPS on the computer when it was connected to a wireless

network. He logged on to his iPhone to trace the computer, and he received a notification

around 2:20 p.m. that same afternoon. The notification read, “Sean’s Mac Book is located

[],” and it provided an address and coordinates. The victim explained that the notification

would generally bear his name, Robert, but that someone had essentially reprogrammed his

computer and changed the owner’s name. When the victim received a name and address, he

telephoned the detective in charge and gave him the information. By that night, officers had

recovered the computer. The victim received the computer the following day, but because

of the programming changes, all of his files and software had been “swiped clean.” The files

included curriculum, journals of conversations with teenagers, personal journals, and videos

he had been editing. In sum, the victim estimated that “thousands of hours [were] just gone.”

-2-

The victim testified that he knew appellant through a mutual acquaintance at the Robertson

County YMCA. He had not seen appellant near the time of the theft.

On cross-examination, the victim acknowledged that during the time he owned the

computer, newer models of the Apple MacBook had been released and newer versions of the

software he had purchased had also been released.

The State’s next witness was Stephanie Keys, a children’s service officer at the

Woodland Hills Youth Development Center. Appellant was her former step-brother. At the

time of the theft, Ms. Keys had not been in contact with appellant for “a few months.”

However, around 3:00 a.m. on March 21, 2013, he telephoned her. She was awake because

she was working a double shift. Ms. Keys recalled that appellant informed her that he had

no place to sleep that night and asked if he could come over, which he had done on occasion

in the past. She said that he could but told appellant that she did not finish her shift until 6:00

a.m. Appellant also told Ms. Keys that he had something in which he thought her brother,

Sean1 Perry, may be interested. Appellant telephoned Ms. Keys shortly after 6:00 a.m. and

told her that he was en route to her boyfriend’s house, where Ms. Keys lived at the time. He

arrived at the house around 6:30 a.m., and he had a DVD player with him. After making

appellant comfortable on the sofa, Ms. Keys retired to her bedroom upstairs and awakened

at 11:30 a.m. Appellant, who was still there, asked her to call her brother and inquire if he

wanted to purchase an Apple laptop from him. Mr. Perry was interested in the computer and

met appellant at Ms. Keys’ residence between 12:00 and 12:30 p.m. Appellant retrieved the

computer from his vehicle, and they began to discuss a purchase price. Ms. Keys recalled

that at one point, appellant said “that he had got[ten] it from some other person that had

[given] him another laptop that did not work, and they gave him this one to replace that one.”

Mr. Perry and appellant walked outside to conclude their business, and Ms. Keys began to

get ready to go to work. When she left the house to go to work, both men had departed. She

was not privy to what transpired outside, but she was aware that Mr. Perry intended to

purchase the computer.

Sean Perry testified next and stated that appellant had been his step-brother until his

mother and appellant’s father divorced in 2011. In 2013, Mr. Perry had not seen appellant

in approximately five to six years. On March 21, 2013, Mr. Perry’s sister, Ms. Keys,

contacted him about a computer that appellant was selling. Mr. Perry and appellant had

already negotiated the price of the computer before he arrived at Ms. Keys’ residence; he

would pay $300 in cash and would cancel out a $300 debt that appellant owed him. When

1

Mr. Perry’s first name is spelled both “Sean” and “Shawn” in the transcript. When he was called

to testify, he spelled his last name but not his first name. For consistency, we will use the first spelling that

was given by the victim.

-3-

Mr. Perry arrived, he inspected the computer and characterized it as being in “good

condition.” He estimated that the same computer would retail from $1,200 to $1,500 in

stores. Appellant told Mr. Perry that he acquired the computer from someone for whom he

had performed work but who could not pay the bill. Because appellant had taken control of

his father’s heating and air conditioning business, Mr. Perry “assumed” that the debt had

been incurred in that line of work.

After Mr. Perry returned to his home, it took about two hours for him to log on to the

computer with his personal Apple ID, install his own software, and set up the computer to

his preference. He encountered a problem when the computer requested a PIN, so he

returned the computer to the box and decided to take it to the Apple store the next day for

assistance. He said that police arrived within thirty minutes of his repackaging the computer.

Mr. Perry testified that when he purchased the computer, he had no idea that it was stolen and

that he had not been compensated for the $300 he paid for it.

On cross-examination, Mr. Perry denied having reformatted the computer or changing

the operating system or settings. He acknowledged that he thought that $600 was a “good

deal” for an Apple laptop. He stated that Apple products tend to retain their value better than

generic models would.

The State’s next witness was Detective Madison Burnett with the Springfield Police

Department. He investigated the theft and burglary of the Main Street Church of Christ

office building. During the course of his investigation, he did not recover any latent

fingerprints, but he noticed footprints throughout the office building that matched those from

outside the window. Detective Burnett also obtained the serial number of the computer.

Later in the day, the victim contacted Detective Burnett and informed him that he received

a notification about the location of the computer. He traveled to the indicated location and

recovered the computer around 5:30 p.m.

Detective Burnett testified that after interviewing Mr. Perry and Ms. Keys, he began

trying to locate appellant. Before Detective Burnett could locate appellant, appellant

telephoned him. Detective Burnett asked appellant to come to the police department, and

appellant told him that he might be able to identify the person from whom he bought the

computer. He told Detective Burnett that he purchased it from “a skinny white guy.”

Appellant arrived thirty to forty-five minutes later. His story began with purchasing the

laptop during the day of March 20, which Detective Burnett knew to be false because the

computer was still in the victim’s possession at that time. Appellant then described “this

white male subject and [said] he was rough looking [and] wore a hoodie.” Detective Burnett

testified to the content of appellant’s statement, dated March 22, 2013, at 9:25 a.m.:

-4-

He says that he bought the computer the day before yesterday [March

20] for [$125] and said the white male was trying to get [$200] but he

wouldn’t give him that. “I got it from him at the parking lot of Discount

Tobacco Store, from a white male with three or four inch beard. I would say

he was about thirty. He looked rough. He was skinny, he was wearing a white

hoodie. I called my sister to get my brother’s number and he agreed to buy it.

I gave him [$200] cash - I’m sorry, he gave me [$200] cash and a [$100] gift

card to Best Buy. I bought two CD’s and an FM transmitter and a charger at

Rivergate. I put the FM transmitter[,] which allows my phone to play music[,]

in my car. I drove [here] on my own. I did come here of my own free will.”

When appellant completed his statement, he indicated his desire to look through

photographs and attempt to identify the person from whom he purchased the computer.

Detective Burnett stated that at that time, he told appellant that he knew he was lying and

advised him of his rights. Appellant exclaimed, “‘You know it was Dustin, you know Dustin

Trenoff is the one doing all these burglaries[,] and I will take you straight to him.’”

Appellant gave Detective Burnett an address of an apartment complex and maintained that

Trenoff could be found there. Detective Burnett arrested Trenoff at the appointed location.

On cross-examination, Detective Burnett acknowledged that Trenoff was charged for

his involvement in the Main Street Church of Christ burglary and theft.

The State’s final witness was Dustin Trenoff. He was serving a fourteen-year

sentence at thirty-five percent release eligibility for burglary and had previously served

several sentences for property-related crimes. Trenoff blamed his drug addiction for his

propensity to commit property crimes. Trenoff had been granted a furlough from the county

jail to attend an uncle’s funeral, but when he did not return, he was charged with escape. He

was on escape status on March 20, 2013. He left the abandoned house where he was staying

to steal property at appellant’s request. Trenoff stated that appellant “fronted” him a “rock”

of cocaine, for which Trenoff would reimburse appellant after he made some money by

disposing of stolen property. Appellant drove Trenoff to the church, where they parked and

broke into the building between 1:00 and 2:00 a.m. Trenoff clarified that they both “broke”

in but that he was the only one who “went” in. He gained entry by placing a screwdriver in

the window and “jimmying” it up. Trenoff retrieved a laptop computer and placed it inside

the box he found underneath the desk. He then passed it to appellant but remained inside to

see if there was anything else he could steal. Trenoff and appellant agreed that the price of

the laptop would be $100 and that they would split the proceeds in half. Appellant paid

Trenoff in cocaine; he gave Trenoff a gram of cocaine, which was worth about $50 to $60.

Trenoff said that when he was first apprehended and arrested, he did not mention

appellant’s involvement. He maintained that there was a “convict code or honor among

-5-

thieves,” which meant “not snitching.” Accordingly, he lived by that code and protected

appellant until he learned that appellant had implicated him. In exchange for his testimony,

Trenoff had been told that the parole board would be notified of his cooperation. At the

close of this testimony, the State rested its case-in-chief.

Appellant testified on his own behalf. He stated that Trenoff called him “in the

middle of the night” and said he had a laptop for sale, so appellant met him in a parking lot.

They negotiated the price, and appellant purchased the laptop. Appellant then telephoned

Ms. Keys and went to her house around 6:00 a.m. on the morning of March 21. When she

awakened between 11:00 a.m. and 12:00 p.m. that day, she contacted Mr. Perry who drove

over. Mr. Perry purchased the computer for $200 and a $100 gift card. Appellant said that

Mr. Perry asked if the computer was stolen and that he answered, “‘Not to my knowledge.’”

He denied telling Mr. Perry anything about bartering the computer for work performed or

money owed to him.

Thereafter, Ms. Keys’ boyfriend contacted appellant and told him that the computer

had been stolen. Appellant said that in a desire to “clear his name,” he contacted the

Springfield Police Department. He drove to the police department to give a statement and

look at photographs, but while there, he was booked for burglary. Appellant then implicated

Trenoff as the one breaking into area churches. He denied having accompanied Trenoff to

burglarize the Main Street Church of Christ. Appellant stated that before he sold the

computer to Mr. Perry, he tried to reset it so that “it would be like a brand new computer”

when Mr. Perry bought it. Appellant admitted selling cocaine to Trenoff previously and

trading him cocaine for the computer.

B. Sentencing Hearing

At appellant’s January 2014 sentencing hearing, the State offered the presentence

report and a certified copy of an order of probation revocation as evidence. Appellant again

testified on his own behalf. He stated that he had obtained a GED and that he had attended

“some” college classes. He was also a certified heating and air-conditioning technician but

was working for a construction company at the time. He resided part of the time at his

girlfriend’s residence and part of the time at his grandmother’s residence.

Appellant explained that his probation revocation was a “kill sentence,” meaning that

to effectuate a plea agreement, a prior order of probation would be revoked so the sentences

could be served at one time. After that, he successfully completed the terms of a community

corrections sentence. He said that if he were granted probation, he would reside with his

grandmother, who was a pastor of a church called “Manna Ministries” and lived on the

church campus in Union City. Appellant also agreed that information he provided to law

enforcement led to the apprehension and arrest of Dustin Trenoff. He confirmed that he had

-6-

already paid restitution to Mr. Perry in the amount of $300. Appellant said that if he were

granted probation, he would “live by the book.”

In determining appellant’s sentence, the trial court stated on the record that it

considered the requisite factors. The trial court applied Tennessee Code Annotated section

40-35-113(1), that appellant’s criminal conduct neither caused nor threatened serious bodily

injury, but it did not attribute much weight to it as a mitigating factor. The court also

considered Tennessee Code Annotated section 40-35-113(9), that appellant assisted the

authorities in uncovering offenses committed by other persons or in detecting or

apprehending other persons who had committed offenses. It did not attribute much weight

to that factor because, it reasoned, appellant did not offer this assistance “until they already

had him pretty well dead to rights with the possession of a stolen laptop.” As enhancing

factors, the trial court found support for Tennessee Code Annotated section 40-35-114(1),

that appellant had a previous history of criminal convictions in addition to those necessary

to establish the appropriate range.

Reviewing appellant’s presentence report, the trial court noted one felony and several

misdemeanors, including convictions for failure to appear, domestic violence, possession of

marijuana, and assault. The trial court found that the one applicable enhancement factor was

“very strongly weighed” by the court. As such, the trial court imposed sentences of three

years, six months for each felony conviction.

Moreover, the trial court found that confinement was necessary to protect society by

restraining a defendant who has a long history of criminal conduct. In so holding, the trial

court noted not only the volume of criminal convictions but also the fact that there was not

much time during which appellant did not have a pending criminal charge against him. It

also concluded that measures less restrictive than confinement had frequently or recently

been applied unsuccessfully. The trial court noted that on July 22, 2011, appellant pleaded

guilty to two counts of domestic violence, evading arrest, failure to appear, and driving on

a suspended license, which were committed during an eleven month, twenty-nine day

probationary period that commenced on August 20, 2010. Thus, the trial court denied

alternative sentencing.

It is from these judgments that appellant now appeals.

II. Analysis

A. Sufficiency of the Evidence

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

-7-

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) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual disputes

raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court

presumes that the jury has afforded the State all reasonable inferences from the evidence and

resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our

own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh

or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes

the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt

at the appellate level, the burden of proof shifts from the State to the convicted appellant,

who must demonstrate to this court that the evidence is insufficient to support the jury’s

findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

Appellant contests the sufficiency of the evidence underlying his convictions for

burglary of a building other than a habitation and theft. Specifically, he contends that “there

was absolutely no way that a rational trier of fact could give more credibility to Trenoff’s

testimony than to [appellant’s] testimony.”

As charged in this case, “[a] person commits burglary who, without the effective

consent of the property owner[,] [e]nters 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)(1). “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(a). Appellant was charged with a

Class D felony theft, which is theft of property valued at $1,000 or more but less than

$10,000. Id. § 39-14-105(a)(3). The trial court also instructed the jury with regard to

-8-

criminal responsibility for another. “A person is criminally responsible for an offense

committed by the conduct of another, if[,] [a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the offense . . . .” Id. § 39-

11-402(a)(2).

Viewing the evidence in the light most favorable to the State, appellant was in

possession of the laptop stolen from the Main Street Church of Christ. He sold the computer

to his former step-brother, Mr. Perry. Both the victim and Mr. Perry placed the value of the

computer at greater than $1,000. The sole question was whether appellant burglarized the

church and stole the laptop himself, was criminally responsible for the burglary and theft, or

knew nothing of the crimes. Appellant relayed several accounts of how he came to be in

possession of the computer. He indicated to Mr. Perry that he had accepted it as a barter

from someone who could not pay for his services. He told Detective Burnett that he

purchased it from a “rough-looking . . . skinny white guy” in a parking lot of a tobacco shop.

At trial, appellant testified that he bought it from Trenoff in exchange for cocaine. To the

contrary, the State presented Trenoff as a witness, who gave a completely different account.

Trenoff explained that at appellant’s behest, the two of them traveled together to break into

the church but that Trenoff alone entered the building.

Appellant’s specific challenge to the sufficiency of the convicting evidence was the

credibility of Trenoff. This court has previously stated,

[Appellant’s] challenge to the sufficiency of the evidence invites this court to

revisit the question of the victim’s credibility . . . . Because the resolution of

questions of fact, including witness credibility, is within the province of the

jury, we must decline the defendant’s invitation. By its verdict, the jury

accredited the [witness’s] testimony despite its sometimes inconsistent nature

on particular details.

State v. Thompson, 36 S.W.3 102, 107 (Tenn. Crim. App. 2000); see also State v. Stephens,

264 S.W.3d 719, 740 (Tenn. Crim. App. 2007) (noting that appellant’s challenge to the

sufficiency of the evidence was based on the credibility of a witness and that this court will

not discount the testimony of a witness and engage in a re-weighing or re-evaluation of the

evidence on appeal). All witnesses were thoroughly cross-examined, and the jury assessed

the testimony and evidence at trial. We will not substitute our own inferences drawn from

the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the evidence.

Dorantes, 331 S.W.3d at 379. From the evidence presented, a rational trier of fact could

have found appellant guilty of burglary and theft on the theory of criminal responsibility. He

is not entitled to relief on this claim.

-9-

B. Sentencing

Appellant’s specific complaint with regard to sentencing involves the trial court’s

weighing of the mitigating factors and the court’s failure to consider appellant’s payment of

restitution as a mitigating factor. We note that he contests only the lengths of his sentences

and not the trial court’s denial of alternative sentencing.

In determining an appropriate sentence, a trial court must consider the following

factors: (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; (5) evidence

and information offered by the parties on mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement the defendant makes on his

own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-

35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least

severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.

Code Ann. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.

Code Ann. §§ 40-35-114, -210(c). The 2005 amendments set forth certain “advisory

sentencing guidelines” that are not binding on the trial court; however, the trial court must

nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors

is advisory, a court shall consider “[e]vidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-

210(b)(5). The trial court must also place on the record “what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing

factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345

(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State

v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.

Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating

factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at

345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at

*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.

2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said

-10-

error will not remove the presumption of reasonableness from its sentencing determination.

Id. at 709. This court will uphold the trial court’s sentencing decision “so long as it is within

the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,

under such circumstances, appellate courts may not disturb the sentence even if we had

preferred a different result. See Carter, 254 S.W.3d at 346. 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, Sentencing Comm’n Cmts.; State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

The record reflects that the trial court considered the requisite statutory factors in

determining the lengths of appellant’s sentences. The trial court found two mitigating

factors: (1) that appellant’s criminal conduct neither caused nor threatened serious bodily

injury; and (2) that appellant assisted the authorities in uncovering offenses committed by

other persons or in detecting or apprehending other persons who had committed offenses.

Tenn. Code Ann. § 40-35-113(1), (9). However, the trial court attributed little weight to

those factors. As an enhancing factor, the trial court found that appellant had a previous

history of criminal convictions in addition to those necessary to establish the appropriate

range. Id. § 40-35-114(1). Based on appellant’s criminal history, the trial court found that

this factor weighed “heavily” against appellant.

The trial court did not abuse its discretion in sentencing appellant. The sentence is

within the appropriate range, and the record demonstrates that it was otherwise in compliance

with the purposes and principles of sentencing. Although appellant’s payment of restitution

could have been considered as a mitigating factor under the “catch-all” provision,2 we note

that the Sentencing Act renders enhancing and mitigating factors merely “advisory” pursuant

to the 2005 amendments. Id. §§ 40-35-114, -210(c). Moreover, as set forth above, the

weighing of enhancing and mitigating factors is left to the sound discretion of the trial court.

Appellant is not entitled to relief from his sentences.

2

A defendant’s “good faith attempt to compensate” the victim “[b]efore detection” is an enumerated

mitigating factor. Tenn. Code Ann. § 40-35-113(5). However, this court has held that restitution made after

detection constitutes a mitigating factor under the “catch-all” provision. See State v. Mary McNabb, No.

03C01-9404-CR-00135,1995 WL 48459, at *2 & n.3 (Tenn. Crim. App. Feb. 8, 1995) (citation omitted)

(noting that a trial court need not and should not attribute as much weight to this factor as it would if

restitution had been made prior to detection).

-11-

CONCLUSION

Based on our review of the record, the briefs of the parties, and the applicable legal

authorities, we affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

-12-