State of Tennessee v. Eric Michael Goldman aka Eric Forrest ( 2006 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs August 15, 2006
    STATE OF TENNESSEE v. ERIC MICHAEL GOLDMAN AKA ERIC
    FORREST
    Direct Appeal from the Circuit Court for Marshall County
    No. 16417    Donald P. Harris, Judge
    No. M2006-00134-CCA-R3-CD - Filed December 29, 2006
    The appellant, Eric Michael Goldman aka Eric Forrest, was convicted of driving after being declared
    a habitual motor vehicle offender (Class E felony) and sentenced to four years in the Department of
    Correction as a multiple offender. He was also found guilty of driving on a revoked license, tenth
    offense (Class A misdemeanor), which was merged with the conviction for driving as a habitual
    motor vehicle offender. On appeal, he contends that: (1) the evidence was insufficient to sustain
    a conviction for the offense of driving after being declared a habitual motor vehicle offender; and
    (2) the sentence imposed by the trial court is excessive and contrary to the law. After careful review,
    we conclude that no reversible error exists and affirm the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN , J., and
    J. S. (STEVE) DANIEL, SR. J., joined.
    Donna Leigh, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the
    appellant, Eric Michael Goldman, aka Eric Forrest.
    Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
    William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    At trial, the first witness was Trooper Bob Logan of the Tennessee Highway Patrol who
    testified that the underlying incident occurred on December 18, 2003, in Marshall County,
    Tennessee. He said he spotted the defendant’s car being driven without a license plate about a half
    mile from the trooper’s post. He estimated that he was one hundred yards from the car when he first
    observed that it was without a license plate. He approached to within two car lengths and
    determined the car did not have a drive out tag. He followed the car for two to three blocks until it
    arrived at a BP gas station and parked at a gas pump. During the time he followed the car, he
    observed only one person in the car. Trooper Logan parked at the side of the gas station building
    and observed the defendant in the driver’s seat. He saw the defendant exit the car from the driver’s
    side door and recalled seeing the defendant’s face clearly, because he estimated the area to be so well
    lit that it would be ten out of ten on a brightness scale. When the defendant exited the building, the
    trooper asked him to come to his patrol car. The defendant got into his own vehicle and drove to the
    trooper’s car. The trooper testified that he walked to the defendant’s window and asked for the
    defendant’s license and registration, which the defendant could not produce. The defendant told the
    trooper that his name was “Eric Forrest.”
    The trooper testified that he checked the defendant’s name and date of birth and determined
    that the defendant’s driver’s license had been revoked and, further, that he had previously been
    declared a habitual motor vehicle offender in Maury County. He then arrested the defendant but
    allowed him to stop by his home to turn off the lights and lock the doors before proceeding to jail.
    On cross-examination, Trooper Logan testified that, initially, he could not clearly see who
    was driving the car but that he was able to see clearly when the defendant drove closer. Again, the
    trooper said he was about two car lengths behind the defendant when they entered the grounds of the
    BP station. On redirect, he said that the defendant never told him that someone else was driving the
    car.
    Next, Kenneth W. Birdwell, Director of the Financial Responsibility Division of the
    Tennessee Department of Safety, testified that his office contains records of habitual motor vehicle
    offenders and of drivers whose licenses are revoked. He said that the records are kept as part of the
    state’s business records and so that he can testify regarding the records. He testified that, according
    to their records, Eric Michael Goldman and Eric Forrest is the same person. He said the defendant
    was declared a habitual motor vehicle offender on October 7, 2002, prior to the date of the
    underlying incident. He testified that a person declared a habitual motor vehicle offender is
    ineligible to have their license restored before the expiration of three years. He also testified that the
    defendant’s license was revoked at the time of the incident.
    Cathy Kelly, Circuit Court Clerk for Maury County, then testified that her office was
    responsible for keeping the records and orders for the Circuit Court, including the habitual motor
    vehicle offender orders. She testified as to the process followed in declaring a person a habitual
    motor vehicle offender. She said that the defendant failed to appear or contest the habitual motor
    vehicle offender proceedings and that a default judgment was taken. She said that she knew Eric
    Michael Goldman and Eric Forrest to be the same person.
    The State rested its proof, and the defendant put on no proof in his defense. The trial court
    conducted a jury out hearing in which the defendant: (1) waived his right to have the jury set his
    fine; (2) agreed to let the court determine the number of his prior convictions for driving on a
    revoked license; and (3) testified that he had made the decision not to testify in his own defense. The
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    jury was then charged and returned a verdict of guilty as to both charges. The trial court merged the
    driving on a revoked license conviction into the driving while declared a habitual motor vehicle
    offender conviction.
    The trial court later conducted a sentencing hearing where two witnesses testified. The first
    witness, an employee of the Probation and Parole Department assigned to the Marshall County
    Circuit Court, testified that the defendant had previously been sentenced to probation or alternative
    sentencing and that the defendant had violated those prior sentences. She also testified that the
    defendant had previously been convicted of subsequent offenses while serving a sentence on
    probation and, further, that he had a pending violation in Maury County General Sessions Court at
    the time of the sentencing hearing in addition to pending charges occurring after the underlying
    incident.
    The defendant testified that he had prior felony charges which were disposed of through the
    court on the same day. He testified that his prior convictions were for third degree burglary and petit
    larceny. He said the burglary occurred at a “junk store” and that the larceny conviction was for
    stealing from a vending machine. In addition, he was apprehended with burglary tools, drug
    paraphernalia, and marijuana for resale. He claimed that he was told that the District Attorney haD
    spoken to the jury during the course of the trial without the judge or defense counsel present, but he
    refused to reveal the source of this information.
    At the conclusion of his testimony, the State recommended the defendant be sentenced to
    four years incarceration as a Range II offender, to be served at 35%. In support thereof, the State
    cited that the defendant had previously been on alternative sentencing without success and that he
    had been charged with other offenses since the time of the underlying arrest. The State asked that
    the court allow no form of alternative sentencing, including work release. The defendant requests
    to be sentenced as a Range I standard offender and argues that the State failed to establish that he
    was a Range II offender.
    The trial court found that the defendant had two prior felonies in accordance with the law and
    determined that he was a Range II offender. The trial court held that the defendant’s burglary
    convictions were of the same course of conduct but that his drug conviction was separate conduct.
    The trial court enhanced the defendant’s sentence citing two factors: (1) the defendant’s prior history
    of criminal convictions in addition to those necessary to establish the range including numerous
    arrests and convictions for driving on a revoked license, assaults, and drug offenses; and (2) the
    defendant’s previous history of unwillingness to comply with the conditions of his release in the
    community. The court found no mitigating factors. Accordingly, the trial court sentenced the
    defendant to four years in the Department of Correction as a Range II standard offender. The
    defendant filed a motion for new trial, but the motion was overruled by the trial court. This appeal
    followed.
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    Analysis
    The defendant raises two issues on appeal: (1) the evidence was insufficient to sustain a
    conviction for the offense of habitual motor vehicle offender; and (2) the sentence imposed by the
    trial court was excessive and contrary to the law. The State contends that the evidence was sufficient
    and that the sentence is just.
    I. Sufficiency
    The defendant contends that the trooper never saw him driving the car and alleges that the
    trooper only saw the defendant exit the store and walk over to the car. He contends that the
    testimony at trial was purely speculative as to whether the defendant was driving and claims that the
    evidence at trial was highly circumstantial and did not carry the required burden of proof. The State
    contends, and we agree, that the proof in the record supports the finding that a rational trier of fact
    could convict the defendant for driving after being declared a habitual motor vehicle offender.
    At trial, the testimony of Trooper Logan showed that the defendant was driving in Marshall
    County, Tennessee. The trooper testified that he got a good look at the defendant’s face and
    confirmed that the defendant was the only person in the vehicle. The defendant moved his vehicle
    next to the trooper’s vehicle where it was determined the defendant was a habitual motor vehicle
    offender whose license had been revoked.
    When an accused challenges the sufficiency of the evidence, this court must review the
    record to determine if the evidence adduced during the trial was sufficient “to support the finding
    by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
    applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
    combination of direct and circumstantial evidence. State v. Brewer, 
    932 S.W.2d 1
    , 18 (Tenn. Crim.
    App. 1996).
    In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
    evidence. State v. Cabbage, 571 S.W2d 832, 835 (Tenn. 1978). Nor may this court substitute its
    inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 
    199 Tenn. 298
    , 305, 
    286 S.W.2d 856
    , 859 (1956). To the contrary, this court is required to 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. State v. Elkins, 
    102 S.W.3d 578
    ,
    581 (Tenn. 2003).
    The trier of fact, not this court, resolves 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.
    Id. In State v. Grace, the Tennessee Supreme Court stated, “[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.” 
    493 S.W.2d 474
    , 476 (Tenn. 1973).
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    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.
    We conclude that the defendant has not met his burden of illustrating that the evidence is
    insufficient to support the verdict of the trial court.
    II. Excessive Sentence
    The defendant contends that the trial court erred in imposing a sentence of four years to be
    served in the Department of Correction. He contends that the offense did not merit a maximum
    sentence and argues that a lesser sentence would still serve the purpose of the Tennessee Criminal
    Reform Act. He argues that the trial court erred in determining that his three prior felonies were not
    a single course of conduct even though they all occurred within twenty-four hours. The State argues
    that the trial court properly followed the sentencing guidelines and that no error exists.
    This court’s review of the sentence imposed by the trial court is de novo with a presumption
    of correctness. T.C.A. § 40-35-401(d). This presumption is conditioned upon an affirmative
    showing in the record that the trial judge considered the sentencing principles and all relevant facts
    and circumstances. State v. Pettus, 
    986 S.W.2d 540
    , 543 (Tenn. 1999). If the trial court fails to
    comply with the statutory directives, there is no presumption of correctness and our review is de
    novo. State v. Poole, 
    945 S.W.2d 93
    , 96 (Tenn. 1997).
    The burden is upon the appealing party to show that the sentence is improper. T.C.A.§ 40-
    35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant
    to Tennessee Code Annotated section 40-35-210(b), to consider the following factors in sentencing:
    (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
    presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
    alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
    [e]vidence and information offered by the parties on the enhancement and mitigating
    factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
    to make in the defendant’s own behalf about sentencing.
    If no mitigating or enhancement factors for sentencing are present, Tennessee Code
    Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses will be the
    minimum sentence within the applicable range. State v. Lavender, 
    967 S.W.2d 803
    , 806 (Tenn.
    1998); State v. Fletcher, 
    805 S.W.2d 785
    , 788 (Tenn. Crim. App. 1991). However, if such factors
    do exist, a trial court should enhance the minimum sentence within the range for enhancement
    factors and then reduce the sentence within the range for the mitigating factors. T.C.A. § 40-35-
    210(e); State v. Arnett, 
    49 S.W.3d 250
    , 257 (Tenn. 2001). No particular weight for each factor is
    prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court
    as long as the trial court complies with the purposes and principles of the sentencing act and its
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    findings are supported by the record. State v. Madden, 
    99 S.W.3d 127
    , 138 (Tenn. Crim. App.
    2002); see T.C.A. § 40-35-210, Sentencing Commission Comments. Nevertheless, should there be
    no mitigating factors, but enhancement factors are present, a trial court may set the sentence above
    the minimum within the range. T.C.A. § 40-35-210(d); State v. Imfeld, 
    70 S.W.3d 698
    , 704
    (Tenn.2002).
    If our review reflects that the trial court followed the statutory sentencing procedure, imposed
    a lawful sentence after giving due consideration and proper weight to the factors and principles set
    out under sentencing law, and the trial court’s findings of fact are adequately supported by the
    record, then we may not modify the sentence even if we had preferred a different result. State v.
    Hooper, 
    29 S.W.3d 1
    , 5 (Tenn. 2000).
    Here, the defendant was convicted for driving after being declared a habitual motor vehicle
    offender, a Class E felony. The trial court determined that the defendant was a Range II offender
    based on his prior felony convictions. The defendant, in fact, had three prior felony convictions, but
    the trial court considered two of the prior convictions to be part of a single course of conduct
    committed within a twenty-four-hour period, in compliance with Tennessee Code Annotated section
    40-35-106(b)(4) (2003). The trial court considered the defendant’s separate drug possession
    conviction to be a separate course of conduct despite the fact that it occurred in the same twenty-
    four-hour period. These separate convictions were enough for the trial court to determine the
    defendant was a Range II offender.
    In his brief, the defendant erroneously relies on the multiple offender statute, T.C.A.§ 40-35-
    106, as it was amended in 2005. The statute defining a defendant as a multiple offender was
    amended in 2005. The defendant here was properly tried and sentenced under the prior law and,
    after our review, we find no reversible error exists to disturb the judgment of the trial court. At the
    time of the underlying offense, convictions for multiple felonies committed as part of a single course
    of conduct within twenty-four hours were to constitute one conviction for purposes of determining
    prior convictions as relates to a defendant’s sentencing range. See T.C.A. § 40-35-106 (2003). In
    2005, the statute was amended to count all convictions that occurred within a twenty-four-hour
    period as one conviction except for those convictions that involve serious bodily injury, bodily
    injury, or threatened bodily injury to the victim or victims. T.C.A. § 40-35-106 (2006). After
    thorough review, we conclude that the trial court properly determined that the defendant’s prior
    convictions were not of a single course of conduct and, accordingly, properly sentenced the
    defendant as a Range II offender. The defendant’s prior convictions for burglary and possession of
    a controlled substance for resale, though rising from the same arrest, were not linked in any other
    way and thus were properly considered as separate convictions. Our review reflects that the trial
    court followed the statutory sentencing procedure, imposed a lawful sentence after giving due
    consideration and proper weight to the factors and principles set out under sentencing law, and the
    trial court’s findings of fact are adequately supported by the record. We affirm the sentence of the
    trial court.
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    Conclusion
    Based on the foregoing and the record as a whole, we affirm the judgments of the trial
    court.
    ___________________________________
    JOHN EVERETT WILLIAMS, JUDGE
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