State v. Frederick Parks ( 2000 )


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  •            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs August 8, 2000
    STATE OF TENNESSEE v. FREDERICK PARKS
    Appeal from the Criminal Court for Madison County
    No. 96-426 Roy B. Morgan, Jr., Judge
    No. W1999-01357-CCA-R3-CD - Filed October 27, 2000
    Defendant, Frederick Parks, was found guilty by a Madison County jury of one count of burglary and
    one count of theft over $500, for which he received consecutive sentences of four years and two
    years, respectively. The jury also fined the defendant $750, and the trial court ordered the defendant
    to pay $1500 in restitution. On appeal, the defendant raises two issues: 1) whether the evidence
    presented at trial was sufficient to support his convictions; and 2) whether the trial court erred by
    imposing consecutive sentences on the defendant. The judgment of the trial court is affirmed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES, J. AND
    JAMES CURWOOD WITT , JR., J., joined.
    Clifford K. McGown, Waverly; George Morton Googe, District Public Defender; Stephen P.
    Spracher, Assistant District Public Defenders, for the appellant, Frederick Parks.
    Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
    James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    The defendant, Frederick Parks, was indicted on one count of burglary and one count of theft
    over $1000. A Madison County jury convicted the defendant of one count of burglary and one count
    of theft over $500, and fined him $750. The defendant received consecutive sentences of four years
    and two years, respectively, and was ordered to pay $1500 in restitution. The defendant challenges:
    1) the sufficiency of the evidence to support his convictions; and 2) the trial court’s imposition of
    consecutive sentences. We affirm the judgment of the trial court.
    FACTS
    In September 1995, the defendant was employed by a temporary employment agency.
    Through the temporary employment agency the defendant was assigned to work at Jackson Metal
    Services, Inc. Sometime during the night of September 16, 1995, and the early morning hours of
    September 17, 1995, Jackson Metal Services, Inc. was burglarized. During the burglary two doors
    leading inside the building and several desk drawers were pried open. In addition to the damage
    done to the doors and desk drawers, the office was “ransacked.” It was later discovered that several
    checks and two two-way radios were taken during the burglary. At least one of the checks stolen
    during the burglary was a payroll check.
    Around the time of the burglary the defendant borrowed some money from an acquaintance.
    In return, the defendant gave the acquaintance an endorsed payroll check drawn by Jackson Metal
    Services, Inc. and made out to a sales representative employed at Jackson Metal Services, Inc. The
    defendant told the acquaintance that if he did not return with her money by a certain day she could
    cash the check. The acquaintance asked if the check was stolen and the defendant replied that it was
    not. The defendant further stated that the check was given to him by the person the check was made
    out to. Subsequently, a friend of the acquaintance attempted to cash the check for the acquaintance.
    When the check was presented to the bank for payment, a records check done by the bank revealed
    that the check was stolen. The bank retained the check and contacted the police.
    The police subsequently talked to the acquaintance and instructed her to contact them when
    she saw the defendant again. Shortly thereafter, the defendant rented a room from her and the police
    were notified. The defendant was later arrested.
    SUFFICIENCY OF THE EVIDENCE
    The defendant contends that the evidence presented at trial was insufficient to support his
    convictions for burglary and theft over $500. We disagree.
    Standard of Review
    Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
    evidence alone may be sufficient to support a conviction. State v. Tharpe, 
    726 S.W.2d 896
    , 899-900
    (Tenn. 1987); State v. Gregory, 
    862 S.W.2d 574
    , 577 (Tenn. Crim. App. 1993). However, in order
    for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused
    but it must also be inconsistent with innocence and must exclude every other reasonable theory or
    hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a
    certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the
    defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State, 
    460 S.W.2d 385
    , 390
    (Tenn. Crim. App. 1970)).
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    While following the above guidelines, this Court must remember that the jury decides the
    weight to be given to circumstantial evidence and that “[t]he inferences to be drawn from such
    evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with
    innocence are questions primarily for the jury.” Marable v. State, 
    313 S.W.2d 451
    , 457 (Tenn.
    1958); see also Gregory, 862 S.W.2d at 577; State v. Coury, 
    697 S.W.2d 373
    , 377 (Tenn. Crim.
    App. 1985); Pruitt, 460 S.W.2d at 391.
    Analysis
    At trial the defendant’s guilt was established by circumstantial evidence. Testimony was
    given by one witness that sometime during the night of September 16, 1995, and the early morning
    hours of September 17, 1995, Jackson Metal Services, Inc. was burglarized. Among the items taken
    during the burglary was a check in the amount of $122.96 made out to Kevin Robertson, a salesman
    employed by Jackson Metal Services, Inc. Other checks were also taken in addition to two two-way
    radios. The same witness also testified that two doors leading into different parts of the building and
    some desk drawers in the office had been pried open.
    Testimony given by a police officer established that the check made out to Kevin Robertson
    for $122.96 (hereinafter “the check”) was recovered on September 21, 1995, after an individual
    attempted to cash it at a local bank. The police officer further testified that the owner reported that
    the check had been taken during the September 16 or 17, 1995, burglary.
    Another witness, who worked as a bank teller, testified that shortly after the burglary she was
    working when the check was presented to her for payment. Upon looking through the bank’s
    computer records the witness found that the check had been reported as being stolen. The witness
    testified that the person who attempted to cash the check was a regular customer at the bank. When
    police contacted the person who attempted to cash the check she told police that a friend had asked
    her to take the check to the bank.
    The person who asked her friend to take the check to the bank for her also testified against
    the defendant. This witness testified that she originally received the check from the defendant
    sometime during September 1995. At trial the witness testified that the defendant gave her the check
    in return for some money she had lent the him. The witness further testified that the defendant told
    her she could cash the check if he did not return with her money by a certain day. When the witness
    asked the defendant if the check was stolen, the defendant said that it was not. The defendant further
    stated that the person who the check was made out to had given him the check in partial repayment
    of a debt he owed the defendant. The defendant stated that the person who the check was made out
    to had done this on prior occasions.
    The person who the check was made out to also testified. This witness testified that he did
    not know the defendant. Further, this witness testified that the endorsement on the back of the check
    was not his and that he never gave the defendant permission to sign the back of the check.
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    At trial the defendant testified that he never saw the check before; did not forge the signature
    on the back of the check; did not give it to anyone to cash; and was innocent of the crimes he was
    being tried for. The jury obviously did not believe the defendant’s testimony. This was the jury’s
    prerogative.
    While the evidence presented in this case was purely circumstantial, a jury could have
    concluded beyond a reasonable doubt that the defendant was the person who committed these
    crimes. This court will not disturb the jury’s findings. This issue is without merit.
    CONSECUTIVE SENTENCES
    The defendant contends that the trial court erred by imposing a consecutive sentence. We
    respectfully disagree.
    Standard of Review
    A court may order sentences to run consecutively if the court finds by a preponderance of the
    evidence that “[t]he defendant is an offender whose record of criminal activity is extensive.” Tenn.
    Code Ann. § 40-35-115(b); see also State v. Black, 
    924 S.W.2d 912
    , 917 (Tenn. Crim. App. 1995).
    Analysis
    An examination of the sentencing record indicates that the trial court considered several
    enhancing and mitigating factors in sentencing the defendant. One of the enhancing factors the trial
    court considered was the fact that the defendant was on parole at the time he committed the instant
    offenses; and (2) the extensive criminal history of the defendant. It is unclear from the sentencing
    record, however, which of these two the trial court used as its basis for consecutive sentences.
    At this point we would pause to reiterate that Tenn. Code Ann. § 40-35-115(b)(6) states that
    consecutive sentences may be imposed “for an offense committed while on probation.” In State v.
    Pettus, the Tennessee Supreme Court stated that “[parole,] probation and community sentences are
    alternatives to incarceration, each of which includes suspension of incarceration. But that similarity
    alone does not allow courts to treat the alternatives as equivalents, ignoring thereby the natural and
    ordinary meaning of the language used in the statute.” State v. Pettus, 
    986 S.W.2d 540
    , 544 (Tenn.
    1999). The court went on to say “the legislature did not intend [for these] to be equivalents for
    purposes of consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(6). Thus, the trial court
    could not have used the fact that the defendant was on parole when he committed the instant offenses
    to impose consecutive sentences. Parole and probation are not synonymous for purposes of Tenn.
    Code Ann. § 40-35-115(b)(6).
    A review of the record demonstrates that the defendant has an extensive criminal history.
    Past convictions of the defendant include: driving with a revoked license; robbery with the use of
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    a deadly weapon; aggravated burglary; and aggravated rape. Based upon this extensive criminal
    history it was proper for the trial court to run the sentences consecutively. See Tenn. Code Ann §
    40-35-115(b)(2). We will not disturb the trial court’s imposition of consecutive sentences. This
    matter is without merit.
    CONCLUSION
    We conclude that there was sufficient evidence to support the convictions of the defendant
    and that the trial court did not err in imposing consecutive sentences. The judgment of the trial court
    is affirmed.
    ____________________________________
    JOHN EVERETT WILLIAMS, JUDGE
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