State v. Loren Pierce ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997 FILED
March 5, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9704-CC-00146
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) BENTON COUNTY
VS. )
) HON. JULIAN P. GUINN
LOREN JOE PIERCE, ) JUDGE
)
Appe llant. ) (Direct Appeal-Aggravated Arson)
FOR THE APPELLANT: FOR THE APPELLEE:
TERRY J. LEONARD JOHN KNOX WALKUP
9 North Co urt Square Attorney General and Reporter
P. O. Box 957
Camden, TN 38320 ELIZABETH T. RYAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
ROBERT RADFORD
District Attorney General
TODD A. ROSE
Assistant District Attorney
P. O. Box 94
Paris, TN 38242
OPINION FILED ________________________
CONVICTION AFFIRMED; REMANDED FOR RE-SENTENCING
JERRY L. SMITH, JUDGE
OPINION
Appellant Loren Joe Pierce was convicted on June 5, 1996 by a jury in the
Benton County Circuit Court of one count of aggravated arson, a Class A felon y.
As a Range I standard offender, Appellant received a sentence of fifteen years
with the Tennessee Depa rtmen t of Co rrection . The tr ial cou rt orde red this
sentence to run consecutively to Appellant's prior sentence for aggravated
kidnapping. Appellant presents two issues for our consideration on this direct
appe al: (1) whether the eviden ce wa s sufficie nt to su stain A ppella nt's conviction
for aggravated arson; and (2) whether the trial court erred in failing to act as
thirteen th juror a nd gra nt App ellant a new tria l.
After a review of the reco rd, we affirm the judg ment of the trial court, but
remand for a new sentencing hearing.
I. FACTUAL BACKGROUND
The proof shows that on July 15, 1995, Appellant started a fire on the
second floor of the Benton County Jail by throwing a burning piece of pape r onto
a pile of garbage in the hallway outside the cell. At the time of this offense,
Appellant was incarcerated as a pre-trial detainee on the aggravated kidnapping.
At trial, Leland Randolph Stoutt and Stanley Malin, Appellant's fellow
inmates, testified that Appellant became angry with the jailer because there was
no toilet pape r. Mr. Stou tt testified that A ppellant s tated, "W ell, I'll show him, it
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will be a fire in a minute." According to Mr. Malin's testimony, Appellant said,
"Get rea dy, I'm fixing to set this plac e afire."
Stacey Tharpe, another inmate, testified that around mealtime, Appellant
walked through the jail and said, "Everybody eat because when you get through
it's going to be a fire." A couple of minutes later, Mr. Tharpe saw Appellant light
a piece of paper with a match and toss the paper onto a pile of garbage in the
hallway of the ja il.1 The garbage consisted primarily of Styrofoam which
immediately began to burn.
Depu ty Lucas Kennon testified that upon being informed that there was a
fire on the seco nd floo r of the ja il, he gra bbed a fire extin guish er and imm ediate ly
extinguished the blaze. Deputy Kennon stated that the smoke was almost
unbearable and described it as being strong, white, and thick.
Sher iff Bobby Shann on testified that on the date of the incident,
appro ximate ly forty inmates resided in the jail and that seven to eight employees
were inside the building.
Depu ty Morris Rogers testified that he and other deputies escorted all the
inmates on the seco nd floo r outdo ors for th eir safety. Johnny Hayes, an arson
investigator with the Tennessee Fire Marshall's Office, arrived at the jail after the
fire had been extinguished. The debris had been removed by the time that Mr.
Hayes arrived. H owev er, he n oticed smo ke on the ce iling an d walls and
scorch ed and peeling p aint.
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Mr. Th arpe exp lained that the m atches were given to the inm ates by the jail.
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II. SUFFICIENCY OF THE EVIDENCE
Appe llant's first contention on this dire ct app eal is th at the e videnc e is
insufficient to sustain his conviction for aggravated arson. We disagree.
This Court is obliged to review challenges to the sufficiency of the
convicting evidence according to certain well-settled principles. A verdict o f guilty
by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's
witnesses and res olves all co nflicts in the tes timony in favor of the State. State
v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994); State v. Harris , 839 S.W.2d 54, 75
(Tenn. 1992). A lthough an accu sed is orig inally cloake d with a pre sump tion of
innocence, a jury verdict removes this presumption and replaces it with one of
guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests w ith Appellant to demonstrate the insufficiency of the
convicting evidenc e. Id. On ap peal, "th e [S]ta te is en titled to the strongest
legitimate view of the evidence as well as all reasonable and legitimate
inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571
S.W.2d 832, 83 5 (Ten n. 1978 )). Wh ere the s ufficiency o f the evid ence is
contested on appeal, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reaso nable d oubt. Harris , 839 S.W .2d 54, 75; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In
conducting our evaluation of the convicting evidence, this Court is precluded from
reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences "for those
drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W.2d
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776, 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal
actions wheth er by th e trial co urt or jur y shall be set aside if the evid ence is
insufficient to support the findings by the trier of fact of guilt beyon d a rea sona ble
doubt." See also Matthews, 805 S.W.2d 776, 780.
Tenn . Code Ann. § 3 9-13-30 3 provide s in part:
(a) A person commits arson who knowingly damages any personal
property, land, or other property, except buildings or structures
covered under § 39-14-301, by means of a fire or explosion:
(1) Without the consent of all persons who have a pos sessory
or proprietary interest therein;
(2) With intent to destroy or damage any such property for
any unlawful purpose.
Tenn. Code Ann. § 39-14-302 provides in pertinent part: "(a) A person comm its
aggravated arson who c omm its arso n as d efined in § 39-14-3012 or § 39-14-303:
(1) When one (1) or mo re perso ns are p resent th erein." Te nn. Co de Ann . § 39-
14-302(a)(1 ). The State is required to prove each and every element of the
charged offense. In the indictment, Appellant was charged with setting fire to
garbage for the unlawful purpose of creating a fire in the Benton County Jail at
a time when one (1 ) or mo re pers ons w ere pre sent a t the jail.
The proof shows that Appellant set the garbage on fire; that the trash
burned and created dense, white smoke; and that approximately forty inmates
and se ven em ployees were pre sent at the time of the incident.
Appellant complains that the proof showed Stacey Tharpe was not in a
position to see Appellant light the fire. However, any inconsistencies or
2
Tenn. C ode Ann . § 39-14 -301 de als with arson o f a structure. Ho wever, Ap pellant was no t charged w ith this
offense.
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contradictions in the evid ence were r esolve d by the jury in convicting Appella nt.
Therefore, the evidence was sufficient to sustain Appellant's conviction for
aggravated arson.
III. TRIAL COURT’S THIRTEENTH JUROR REVIEW
Appellant contends that because the trial court expressed dissatisfaction
with the required senten ce, the co urt erre d in de nying h is mo tion for n ew trial.
We disagree.
T ENN. R. C RIM. P. 33(f) provides, in part, "The trial court may grant a new
trial following a verdic t of guilty if it disagrees with the jury about the weight of the
evidence ." Id. This rule imposes a duty upon the trial judge to act as the
thirteenth juror in every criminal c ase. State v. Blanton, 926 S.W.2d 953, 958
(Tenn. Crim. App. 1996) (citing State v. Carter, 896 S.W.2d 119, 122 (Tenn.
1995)). An appe llate court has no ind epende nt authority to serve as the
thirteenth juror and to assess the propriety of the jury's verd ict. State v. Burlison,
868 S.W.2d 713, 719 (Tenn. Crim . App. 1993 ). Only in those cas es where the
trial judge ov errules a motion for new trial without comm ent will this Court
presume that the trial court approved the verdict as the thirteenth ju ror. State v.
Moats , 906 S.W .2d 431 , 435 (T enn. 19 95); State v. Dankw orth, 919 S.W.2d 52,
57 (Tenn . Crim. A pp. 199 5). In Moats , the Tennessee Supreme Court reiterated
the well-settled rule that "an appellate court must grant a new trial when the
record contains statements by the trial court expressing dissatisfaction or
disagreement with the weight of the eviden ce or th e jury's verdict, or sta temen ts
indicating that the trial court misunderstood its responsibility or authority to act as
the thirteen th juror." Id. at 435-36.
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In overruling Appellant's motion for new trial, the trial judge expressed his
conce rn that the s entenc e was to o stringen t:
I thought the charge, the penalty under the facts of the case
were unduly ha rsh. I am o f the opinio n, howe ver, that the
evidence that was prod uced was more than sufficien t to
support the jury's verdict. And, in fact, I can find no grounds
as thirteenth juror to not approve that, notwithstanding the
harshness of the pun ishme nt. I find and approve that verdict
as the trial judge.
The trial cou rt's une quivoc al rem arks in dicate only its belief that the prescribed
sentence for the offense was too harsh. Because the record is devoid of any
statem ents wherein the trial judge express es dissa tisfaction or d isagree ment w ith
the verdict, we find no erro r in his refusal to grant Appellant's motion for new trial.
IV. SENTENCING
Although not raised by e ither party , we have noted as plain error two
problem s with resp ect to sentencing in this case. First, the trial court be gan its
sentencing procedure in the belief that Tennessee Code Annotated Section 40-
35-210(d) required the cour t to consider the minimum sentence for a Range I
offender of a Class A felony, i.e. fifteen years, as the presumptive sentence for
Appe llant. How ever, in State v. Robert Willis Chance, No. 02C01-9605-CC-
00178, opinion filed January 31, 1997; this Court held that despite the literal
language of Tennessee Code Annotated Sections 40-35-210 (c) and (d), the
presum ptive sentence for a Class A felon y is always the m id-point of the
sentence range. In this case the presumptive sentence for Appellant should be
twenty rather than fifteen years.
Second ly, the trial court stated at the sentencing hearing that Ap pellan t’s
sentence must by law be served consecutively to the sentence for the aggravated
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kidnapping charge in which he was a pre-trial detainee when he committed the
arson in the present case. We are unaware of any provision of law that requires
consecu tive sentencing in a situation such as that presented in the instant case.
Indee d, this C ourt ha s note d that it is som ewha t ironic th at while the legislature
has manda ted consec utive sente nces for felon ies com mitted while the offender
is on parole, see Tenn. Code Ann. § 40-28-123(a), the General Assembly has not
mandated cumulative sentencing for offenders who commit additional felonies
while incarcera ted. See , State v. Michael Blazer, No. 03C01-9405-CR-00185,
opinion filed February 3, 1995, at Knoxville. The trial court on remand should
therefore consider whether the instant case warrants consecutive sentencing.
According ly, the judgm ent of conviction is affirm ed. Th e sen tence is
reversed and the case remanded for re-sentencing in accordance with this
opinion.
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JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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