State of Tennessee v. Mitchell Jarod Ford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville December 13, 2011
STATE OF TENNESSEE v. MITCHELL JAROD FORD
Appeal from the Circuit Court for Marshall County
No. 10-CR-79 Robert Crigler, Judge
No. M2011-01504-CCA-R3-CD - filed August 24, 2012
The Defendant, Mitchell Jarod Ford, was convicted by a Marshall County Circuit Court jury
of arson and aggravated burglary, Class C felonies. See T.C.A. §§ 39-14-301, 39-14-403
(2010). He was sentenced as a Range III, persistent offender to two concurrent fifteen-year
terms. The trial court ordered the sentences to be served consecutively to three previous
sentences. On appeal, the Defendant contends that (1) the evidence is insufficient to support
his convictions and (2) the trial court erred by imposing fifteen years’ confinement for each
conviction. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.
Donna Orr Hargrove, District Public Defender; and William Harold (on appeal and at trial)
and Michael J. Collins (at trial), Assistant District Public Defenders, Shelbyville, Tennessee,
for the appellant, Mitchell Jarod Ford.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard and Chris
Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to the arson of a vacant home in Marshall County, Tennessee. At the
trial, Lewisburg Police Officer Jennifer McDonald testified that on April 23, 2010, she
responded to a possible vandalism or burglary of a home at 603 Old Lane in Marshall
County. She went inside the home and found a large hole in the bedroom ceiling. Although
the residence was unoccupied, homeowner Judy Crawford told her that the hole was new.
Officer McDonald said she could not determine the cause of the hole or whether the hole was
cut or pushed out. She said she walked around the home and saw that the back door and
windows were locked and that the garage door was open. She saw a lot of trash, old fixtures,
and old furniture in the garage and an access hole in the ceiling that led to the attic. She said
a ladder was near the access hole. She did not go into the attic over the garage.
Officer McDonald testified that Ms. Crawford told her that no one was allowed in the
home and that it was strange that nothing was missing. Ms. Crawford requested additional
police patrols in the neighborhood. She said that she arrived at the home around 11:00 a.m.
and that she finished her investigation by 11:30.
On cross-examination, Officer McDonald testified that she did not see guns, a big-
screen television, or jewelry in the home. She agreed that those items were sometimes taken
during a burglary. She said the doors to the home were locked but agreed the garage may
have been a “point of entry.” She said she did not attempt to speak to the neighbors.
Judy Crawford testified that her husband, Larry Duckworth, died on December 11,
2009, and that the home at 603 Old Lane was part of his estate. She said that her late
husband lived there before they married and that they lived in her Bedford County home after
they married. She said that she was the executrix of her husband’s estate and that her duties
required her to care for the home. She said that either her stepson was going to buy the home
or she was going to sell it. She said that her stepson did not like her serving as executrix of
the estate and agreed that there were “unpleasantries” between them.
Ms. Crawford testified that she asked James Gaylor to watch the home during the
week and help keep the yard maintained but that Mr. Gaylor did not have a key to the home.
She said she went to the home on April 23, 2010, around 10:00 or 10:30 a.m. and noticed
the blinds in the front window were not hanging correctly. She called Mr. Gaylor, who
entered the home with her. She said that the front door was locked and that she saw a four-
by-eight-foot hole in the bedroom ceiling and the drywall from the ceiling on the floor. She
could not determine if the ceiling was cut or pulled down. She stated that she called the
police after being at the home for about five to ten minutes but that she could be wrong about
the time she arrived.
Ms. Crawford testified that before she left the home, she made sure all the doors were
locked. She said she returned to the home because she thought she left her cell phone inside.
She agreed that after looking for her phone, it was about 12:30 p.m. She did not smell smoke
or see fire while she was at the home and said she did not tamper with or touch the back door
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before leaving at 12:30 p.m. She locked the front door when she left and said the house was
secure.
Ms. Crawford testified that before April 23, 2010, she did not know the Defendant and
did not give him permission to go into the home. She agreed she had an interest in the home
as the estate’s executrix. She said she did not give the Defendant or anyone else permission
to start a fire in the home. She said all the home’s utilities had been disconnected for about
five months. She said that a rake and shovel, clutter, and gas cans were on the garage floor
but did not recall newspapers being there. She said furniture, dishes, and other items were
inside the house.
Ms. Crawford testified that at about 1:00 p.m., she received a telephone call from her
late husband’s niece, who told her the home was on fire. She said she returned to the home
with her son, who was a firefighter. She said that by the time she arrived, the fire was
extinguished but that she saw smoke. She said that most of the fire damage was over the
garage and the kitchen. She said the firemen knocked down the back door to get into the
home. The fire department told her that she was responsible for boarding up the home, and
she paid for the expenses personally. She said the cost of the repairs exceeded the value of
the property.
On cross-examination, Ms. Crawford testified that her late husband owned the
property with his sister and that they lived at the home for a period of time. She said that on
the day of the fire, she locked the door but not the deadbolt, which was never used. She said
she had not seen the Defendant around the home. She did not recall seeing cars parked along
the street or seeing a gold Saturn.
James Gaylor testified that he lived across the street from Ms. Crawford’s home on
April 23, 2010, that he mowed the yard periodically, and that Ms. Crawford asked him to
watch the house. He said that he saw cars in the driveway once or twice and that the cars
belonged to Ms. Crawford or her son.
Mr. Gaylor testified that on the day of the fire, the weather was nice and that Ms.
Crawford’s house was not on fire when he left between 11:00 a.m. and 12:00 p.m. to go to
a gas station. He said that he was gone for about ten minutes and that on his way home, he
saw a gold Saturn parked in front of the house’s garage. He said he had never seen the gold
car before that day. He said the car was backed into the driveway and thought it was odd
because the police were at the house earlier that morning. He said that he saw a black male
walk out the front door and that he yelled, “What are you doing over there?” He said the man
got into the gold Saturn and left. He said he yelled for the man to stop because he wanted
to know why the man was inside the house. He said that as he tried to get the car’s license
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plate number, he heard his children screaming and noticed smoke coming from the house.
He said the car sped off when his children started screaming. He said he saw an “H” and an
“4” on the license plate and noticed it was a special plate with blue writing.
Mr. Gaylor testified that he saw the same gold Saturn with the special license plate
one to two hours later on Highway 64, that he followed behind the car flashing his lights and
honking the horn, and that he tried to get the car to pull over. He said that the gold Saturn
turned onto Simms Road and that he called 9-1-1. He was sure it was the same gold Saturn
from Ms. Crawford’s driveway because of the license plate. He continued to follow the car
while speaking to a 9-1-1 dispatcher and said the driver threw something that looked like
white paper from the diver’s side window. He said that he stopped when the Saturn
approached a police roadblock.
Mr. Gaylor testified that the black male he saw leaving Ms. Crawford’s home wore
a white t-shirt with the sleeves cut off and stone washed jeans. When asked if he saw the
man’s face, he said, “Kind of, sort of. I was kind of mad. And I was screaming and
hollering. But I mean, I looked at the person when I did it.” He identified the Defendant as
the man he saw leaving Ms. Crawford’s house in a gold Saturn and as the man he followed
on Highway 64. He said that the Defendant was wearing a long-sleeve shirt when the police
arrested him at the roadblock but that the t-shirt he saw earlier was underneath the long-
sleeve shirt.
Mr. Gaylor testified that he did not see any other cars in Ms. Crawford’s driveway on
April 23, 2010, other than the police and Ms. Crawford’s car that morning around 8:30 or
9:00. He said that other than the ten minutes he was gone to the gas station, he was outside
his home from the time the police left at 8:30 or 9:00 until the time he saw the Defendant’s
car in the driveway. He said he would have seen anyone else in the driveway or go into the
house. He said the Defendant was the only person he saw in the gold car that day.
On cross-examination, Mr. Gaylor testified that he was convicted of theft and felony
evading arrest in 2002 and that he had lived across the street from Ms. Crawford’s house for
about eight months. He said he did not know her stepson. He said that although his
“adrenaline was running,” he thought the gold Saturn had four doors. He said he saw the
Defendant for the length of time it took the Defendant to close the front door and walk from
the front door to his car. He said only his family saw the gold Saturn.
Mr. Gaylor testified that he called 9-1-1 when he heard his children screaming that the
house was on fire and that he took his son to a doctor’s appointment after the fire department
left. He said that about one to one and one-half hours passed from the time he called 9-1-1
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until his departure for the doctor. He said he gave a statement to the police while inside his
home.
Mr. Gaylor testified that when he followed behind the Defendant on Highway 64, the
Defendant tried to get away from him. He agreed that if someone pulled up behind him
flashing the headlights, following closely, and blowing the horn, he would get nervous and
try to run. He said the Defendant stopped the gold Saturn, got out of the car, and asked what
he was doing. He said that when he accused the Defendant of starting the house fire, the
Defendant returned to his car and drove away. He said that he followed the Defendant for
about fifteen to twenty minutes and that he saw the license plate during that time. He stated
that he only saw the man leaving the house and that he did not see anyone start the fire.
On redirect examination, Mr. Gaylor testified that when he gave his statement to the
police, he told the officer everything he saw, including the license plate number. On recross-
examination, he testified that he saw an “H” and a “4” on the license plate. He said that if
a recording showed that he only reported seeing an “H” on the license plate, it was accurate.
City of Lewisburg Fire Inspector Bob Davis testified that on April 23, 2010, he
arrived at the scene around 1:00 p.m., that he was the first responder, and that the firemen
arrived about forty-five seconds later. He said he determined that no electricity was running
to the home because the electrical meter was not attached to the home. He saw fireman go
in the back after they broke down the back door with a concrete block. He said that breaking
a door down was not usual if the door was unlocked. He stated that after the fire was
extinguished, he took photographs of the living room, kitchen, and the ceiling destroyed by
the fire.
Lewisburg Firefighter Ray Luna testified that when he arrived at the scene, he saw
thick, gray smoke. He said the fire did not break through the roof because the smoke was not
dark. He said shingles and tar burned after a fire broke through a roof and caused dark
smoke. He said he opened the gable where the garage was located. He said that the back
door in the garage was locked, that he used a concrete block to open the door, and that the
door was also chain-locked. He said the garage contained boxes and various belongings,
which blocked the back door.
Mr. Luna testified that once he entered the garage, he knocked down the ceiling with
a “pike pole.” He said the smoke came from the loft area above the garage ceiling. He said
he saw wooden steps leading to the loft, which was big enough for an adult to stand upright
depending on height. He saw papers, books, clothes, a bed frame, and a mattress in the loft.
He said that from the loft, he saw a hole in the bedroom ceiling. He said no electricity or gas
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ran to the home because the meters had been removed. He said the fire caused structural
damage to the home and centered around the loft.
Lewisburg Firefighter Jason Davis testified that when he arrived at the scene with
Captain Lynch and Fireman Hundley Ford, the Defendant’s father, he saw dark, black smoke
and some white smoke. He said black smoke meant that a “hydrocarbon, oil based”
accelerant or gas could be involved or that something plastic was burning. He said he did
not see flames when he arrived, which meant that the fire had not burned long. He agreed
flames coming from the roof and eaves of the home meant that the fire had burned long
enough to destroy the wood inside the home.
Mr. Davis testified that another fireman told him to go into the bedroom where a large
hole in the ceiling was found. He said he went into the bedroom, used a ladder to climb into
the attic, and crawled across the ceiling toward the loft. He did not know what caused the
hole in the bedroom ceiling. He said that it looked as though someone tore the ceiling down.
He said he did not fall though the ceiling when he crawled across. He agreed that someone
could have climbed the ladder to the loft, walked across the ceiling, gone through the
opening in the bedroom ceiling, and left through the front door.
On cross-examination, Mr. Davis testified that he met Hundley Ford at work and that
he had known Mr. Ford for many years. He said Mr. Ford drove a gold Saturn. He believed
the Saturn had four doors but said he was not sure. He said he saw the Defendant around the
firehouse periodically. He said that when the firemen left the fire station, he did not see Mr.
Ford’s gold Saturn.
Lewisburg Fire Chief Larry Williams testified that the first fireman arrived on the
scene around 1:01 p.m., two to three minutes after they received information about the fire,
and that he could not see the home because of the thick smoke. He said that he saw very
little black smoke at that time and that most of the smoke was dark gray. He said the dark
gray smoke told him that the fire was burning “ordinary combustibles,” such as wood or
cloth. He said black smoke meant that some kind of petroleum product, such as plastic or
vinyl, was burning. He said that when he got closer to the home, he saw that most of the
smoke came from above the garage. He said his men began extinguishing the flames.
Chief Williams testified that the home was searched and that nobody was found inside
the home. He said that although most of the smoke centered around the loft area of the attic,
the entire attic filled with smoke and caused smoke to escape from the gable and eaves of the
home. He said that had the fire department arrived any later, there would have been “a major
working fire.” He said that the fire had burned for less than five minutes when he arrived
and that the fire caused structural damage to the home. He said that he called the fire marshal
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because it was suspicious that witnesses saw someone leave the home while smoke was
visible and that the utilities were not connected. He said Special Agent Russell Robinson
came to the scene and determined the cause of the fire.
Special Agent Russell Robinson with the State of Tennessee Fire Marshal’s Office,
an expert in arson investigation, testified that he was told a witness saw someone leave the
scene just before smoke became visible. He said that when he arrived at the scene around
1:00 or 1:30 p.m., the fire was extinguished. He said that he ruled out weather as the cause
of the fire because there was no lightening on April 23, 2010.
Agent Robinson testified that most of the damage caused by the fire was in the loft
above the garage. He drew two diagrams of the scene, which were received as exhibits. He
said that the origin of the fire was in the loft along a wall separating the loft from the attic
and that the wall was above the kitchen. He said he climbed the stairs into the loft and took
three photographs. The photographs showed extensive fire damage, charring to the wood of
the home, a bed frame and box springs, and the remains of two “box style fans.” A
photograph showed a “V pattern” in the charring of the wood on the wall separating the loft
from the remainder of the attic. Agent Robinson said the pattern showed the fire’s origin and
was “a classic example” of a burn pattern in arson cases. He said that a fire burned up and
out, creating a V-shaped pattern. Another photograph showed the entrance of the loft and
the damage caused by the fire. He said there was no evidence that the entrance to the loft
was “boarded up” before the fire. He said that the fire took minutes to ignite the loft and the
items in the loft, that the mattress in the loft helped fuel the fire, and that no accelerants were
used.
Agent Robinson testified that he took a photograph of the electrical meter box on the
exterior of the home, which showed that a meter was not installed at the time of the fire. He
concluded that the fire was not the result of an electrical problem. He determined gas was
not running in the home and excluded it as the cause of the fire.
Agent Robinson testified that a witness seeing someone leave the home within thirty
minutes of seeing the smoke eliminated spontaneous combustion as the cause of the fire. He
stated that spontaneous combustion was a slow and smoldering fire and would have taken
hours or days to ignite everything in the loft. He stated that he excluded the kitchen as the
cause of the fire and that he concluded that someone intentionally started the fire. He said
the fire began from an open flame, such as a lighter or a match.
Agent Robinson testified that he examined the bedroom with the hole in the ceiling
and saw the “gypsum board” that fell from the ceiling. He said the bedroom ceiling was
“mechanically damaged,” which meant that someone cut or “punched through” the ceiling.
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He said that he entered the attic through the hole in the bedroom ceiling and that it was
possible for someone to walk from the hole in the bedroom ceiling to the loft area in the attic.
He said that aside from the hole in the bedroom ceiling, the only other means of an exit from
the attic were the stairs from the loft in the garage. On cross-examination, Agent Robinson
testified that he did not find matches, a lighter, or a flint at the scene and that there was no
way to know which open flame source caused the fire. He said he did not know when the
hole in the ceiling was made.
Tennessee Highway Patrol Trooper James Crump testified that during a driver license
checkpoint on Highway 64 on April 23, 2010, he saw a gray minivan following a gold, two-
door Saturn and that both cars left the road. He identified the Defendant as the driver of the
Saturn and Mr. Gaylor as the driver of the minivan. He stated that Mr. Gaylor told him the
Defendant started a house fire. He said he heard about Mr. Gaylor’s following the Defendant
on his police radio before they arrived at the checkpoint. He stated that he contacted the
Lewisburg Police Department, that a detective came to the checkpoint, and that they arrested
the Defendant. He stated that Mr. Gaylor identified the license plate on the Defendant’s car
as the license plate on the car he saw leaving Ms. Crawford’s house. He said the Defendant
wore a dark long-sleeve shirt, a white tank top underneath the shirt, and khaki pants. He
stated that Mr. Gaylor told him the Defendant was wearing the tank top underneath the long-
sleeve shirt. He said that although he did not make a police report of the incident, he wrote
down the Saturn’s license plate number, H2941.
On cross-examination, Trooper Crump testified that the Defendant told him that Mr.
Gaylor was following him. He did not recall the Defendant’s stating Mr. Gaylor tried “to run
him off the road.” He said that he did not smell smoke or gasoline on the Defendant or see
anything in the Defendant’s car that could be used to start a fire. He stated that Mr. Gaylor
was about fifty feet from the Defendant when Mr. Gaylor told him the Defendant started a
house fire.
Lewisburg Police Officer Kevin Clark testified that he arrived at the scene around
1:00 p.m., about two minutes before the fire department, and that he saw people across the
street and smoke coming from the home. He spoke to Mr. Gaylor, Andy Watts, and Clellene
Banks, and Mr. Gaylor told him about the gold Saturn and gave him a partial license plate
with an “H,” a “9,” and a “4.” He said he stayed at the scene until the fire was extinguished.
Officer Clark testified that he left the scene and drove to Highway 64 to take the
Defendant into custody. He said the license plate on the Defendant’s car was H2941 and was
a military honorable discharge plate with red, white, and blue coloring. He said that he took
the Defendant to the parking lot at Wright’s Paving and that Ms. Watts and Ms. Banks
identified the Defendant as the person who left the scene in the gold Saturn. He said they
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both identified the Defendant without hesitation from about 100 feet away. On cross-
examination, Officer Clark testified that he did not see a gold Saturn at the scene. He said
the Defendant was the only person in his car when Ms. Watts and Ms. Banks identified the
Defendant. He said it was possible that Ms. Watts and Ms. Banks had cell phones during the
identification.
Clellene Banks testified that she lived at 606 Old Lane Road on April 23, 2010, and
that she worked at the Shell Quick Market, which was “a stone’s throw distance” from her
home. She said her husband, Mr. Gaylor, mowed Ms. Crawford’s lawn and watched the
house. She said that before the fire, the police came to the house and that Mr. Gaylor talked
to them. She said that after Mr. Gaylor returned home, they and their son drove to a gas
station to get gas for their lawnmower. She did not see anyone at Ms. Crawford’s house
when they left. She said that they were gone about ten minutes and that she saw a gold
Saturn backed up to the garage when they returned.
Ms. Banks testified that she had never seen the Saturn before April 23. She identified
the Defendant as the man standing at the trunk of the Saturn. She said the Defendant wore
dark pants and a white t-shirt but did not recall anything about the shirt’s sleeves. She said
that Mr. Gaylor asked the Defendant if he could help the Defendant and what the Defendant
was doing at the house. She said the Defendant did not respond, got into the car, and drove
away. She said he was not in a hurry until smoke started coming from the garage.
Ms. Banks testified that she and Ms. Watts, her daughter, told the police they could
identify the Defendant. She said she made eye contact with the Defendant as he started to
drive away. She said that she saw smoke and that the Defendant sped away. She said that
Mr. Gaylor called the fire department and that she told the police what she saw. She said she
met Officer Clark at a business on Old Lane Road, that Officer Clark got the Defendant out
of the police car, and that she told the police that the Defendant was the man who “set the
house on fire.” She recalled that she was about 100 feet from the Defendant and stated that
he had put a dark shirt over his t-shirt.
On cross-examination, Ms. Banks testified that the Saturn had four doors but that she
was “not positive.” She did not talk to the Defendant. She did not recall if the Defendant’s
t-shirt had sleeves but said it was not a tank top. She said that as the Defendant drove away,
she saw a dark shirt in the car and that the shirt was similar to the shirt the Defendant wore
when she identified him. She said the Defendant was the only person the police showed her.
She said that she had a cell phone and that Mr. Gaylor called her from his cell phone as he
followed behind the gold Saturn. She said that she was familiar with the cars in her
neighborhood, that she did not recall a gold Saturn parked on her street, and that a gold
Maxima was parked down the street from her home.
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Lewisburg Police Detective James Johnson testified that the fire department and other
police officers were at the scene when he arrived around 1:03 or 1:04 p.m., that the fire was
suspicious, and that he called Agent Robinson to help investigate. He learned that the
Defendant lived on Nashville Highway and said that the Defendant’s home was between the
scene and the place where Mr. Gaylor saw the Defendant on Highway 64. He said it took
about fifteen minutes depending on traffic to drive from Old Lane Road to where the
Defendant was spotted on Highway 64. He agreed that Nashville Highway connected to Old
Lane Road and that Highway 64 connected to Nashville Highway at a different location.
Detective Johnson testified that he was present for Ms. Banks’s identifying the
Defendant and that she was about 100 feet from the Defendant. He said that Ms. Banks and
Ms. Watts identified the Defendant without hesitation. He said he left the scene around 2:46
p.m. to talk to the Defendant at the police station.
On cross-examination, Detective Johnson testified that it was coincidental that the
Defendant’s home was close to the scene. He denied telling Ms. Banks and Ms. Watts that
Officer Clark was bringing the man from the roadblock for them to identify. He said he told
Ms. Banks and Ms. Watts that the police had a man for them to identify. He said the
Defendant was wearing a blue shirt, a white t-shirt underneath the blue shirt, and khaki pants
at the time of Ms. Banks’s identification. He thought the blue shirt had three buttons and did
not recall if the shirt had long sleeves. On redirect examination, Detective Johnson testified
that if Ms. Banks and Ms. Watts had hesitated or been unsure of the identity of the man they
saw leaving the scene, the Defendant would not have been arrested. On recross-examination,
he stated that Ms. Banks and Ms. Watts only identified the Defendant while in the parking
lot and that they were not shown a photograph lineup.
Upon this evidence the Defendant was convicted of arson and aggravated burglary.
The trial court sentenced the Defendant to two concurrent fifteen-year terms and ordered his
sentences in the instant case be served consecutively to previous sentences in Giles and
Marshall Counties. This appeal followed.
I
The Defendant contends that the evidence is insufficient to support his convictions.
He argues that the State failed to present sufficient proof of identity to support his
convictions and that the witnesses misidentified him. The State contends that the evidence
is sufficient to support the convictions and argues that the Defendant is not entitled to relief
because identity was a question of fact resolved by the jury. We agree that the evidence is
sufficient to support the convictions.
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Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing 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); State v. Williams, 657 S.W.2d 405,
410 (Tenn. 1983). This means that we may not reweigh the evidence but must presume that
the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the
“credibility of the witnesses, the weight to be given to their testimony, and the reconciliation
of conflicts in the proof are matters entrusted to the jury as the trier of fact.” State v. Dotson,
254 S.W.3d 378, 395 (Tenn. 2008) (citing State v. Vasques, 221 S.W.3d 514, 521 (Tenn.
2007)); see State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
Relevant to this appeal, “a person commits burglary who, without the effective
consent of the property owner, enters a building with the intent to commit a felony, theft or
assault.” T.C.A. § 39-14-402(a)(3) (2010). Aggravated burglary is burglary of a habitation,
which is defined as “any structure, . . . which is designed or adapted for the overnight
accommodation of persons.” T.C.A. §§ 39-14-401(1)(A), 39-14-402. A person commits
arson, in relevant part, “who knowingly damages any structure by means of a fire . . . without
the consent of all persons who have a possessory, proprietary or security interest therein.”
T.C.A. § 39-14-301(a)(1). “Identity of the perpetrator is an essential element of any crime.”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789,
793 (Tenn. 1975)). Identity may be established with circumstantial evidence, and the “jury
decides the weight to be given to circumstantial evidence, and ‘the inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt . .
. , are questions primarily for the jury.’” Id. (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)).
In the light most favorable to the State, the evidence shows that the gold Saturn had
not been seen at 603 Old Lane Road before the day of the fire. Mr. Gaylor identified the
Defendant as the man he saw leaving Ms. Crawford’s house in a gold Saturn minutes before
he saw smoke come from the home. Mr. Gaylor saw an “H” and a “4” on the specialized
license plate of the gold Saturn. Although Mr. Gaylor was gone for about ten minutes the
morning of the fire, he said he was outside his home from the time the police left Ms.
Crawford’s house after investigating the vandalism until he saw the gold Saturn in the
driveway. Mr. Gaylor said that he would have known if someone else had gone into the
house or another car had been in the driveway the morning of the fire.
Mr. Gaylor saw the same Saturn later that day and followed it to a police roadblock.
The license plate on the Defendant’s car was H2941 and was an honorable discharge plate
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with red, white, and blue coloring. Ms. Watts and Ms. Banks identified the Defendant as the
man they saw leaving the scene minutes before they saw smoke. The Defendant’s father
drove a gold Saturn. Although there were varying accounts about the Defendant’s clothing
and the number of doors on his car, any conflicts were resolved by the jury. See Sheffield,
676 S.W.2d at 547.
Agent Robinson concluded that the cause of the fire was arson after ruling out the
weather, electricity, gas, and spontaneous combustion as possible causes. We conclude that
a rational trier of fact could have found beyond a reasonable doubt that the Defendant,
without Ms. Crawford’s consent, entered the home with the intent to set the home on fire, a
felony. We also conclude that a rational trier of fact could have found beyond a reasonable
doubt that the Defendant knowingly damaged the home by means of fire without Ms.
Crawford’s consent. The Defendant is not entitled to relief.
II
The Defendant contends that the trial court erred by imposing fifteen years’
confinement for each conviction. He argues that his sentences are excessive based on the
facts of his case and that the trial court erred in weighing enhancement factors. The State
contends that the trial court properly imposed fifteen-year sentences. We agree with the
State.
Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is on the appealing
party to show that the sentencing is improper. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even
if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).
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In imposing a sentence within the appropriate range of punishment for the defendant:
[T]he court shall consider, but is not bound by, the
following advisory sentencing guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).
At the sentencing hearing, the presentence report was received as an exhibit. The
record shows that the Defendant had previous convictions for bank robbery, attempted
robbery, seven counts of statutory rape, two counts of domestic violence, criminal trespass,
vandalism, resisting arrest, evading arrest, driving under the influence, reckless
endangerment, and a traffic violation. Probation Officer Crystal Gray testified that the
Defendant received three years’ probation for the attempted robbery conviction beginning
on August 24, 2009, and that the instant offenses occurred on April 23, 2010.
Ms. Gray testified that the Defendant served in the Army from 1996 to 1999 and
received an honorable discharge. She said that after the Defendant was discharged from the
Army, he served in the Tennessee National Guard from 1999 to 2004 and received an
honorable discharge.
On cross-examination, Ms. Gray testified that the Defendant pled guilty on the same
day to seven counts of statutory rape and that the Defendant passed all drug tests while on
probation. She agreed the Defendant graduated from high school and said the Defendant
denied using alcohol after his driving under the influence conviction. She said the Defendant
had three children. She said that although the Defendant was upset and was too emotional
to participate in the interview, he was not rude. On redirect examination, Ms. Gray testified
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that the Defendant was arrested for bank robbery about one year after being discharged from
the Army.
The trial court found and placed “great” weight on enhancement factors (1), (8), and
(13) and stated that these factors were sufficient to sentence the Defendant to a fifteen-year
term for each conviction. See T.C.A. § 40-35-114. The court found that enhancement factor
(1) applied because the Defendant had a record of criminal convictions in addition to that
necessary to establish him as a Range III, persistent offender. The court found that the
Defendant was convicted of bank robbery in the United States District Court and received
a sentence of thirty months’ confinement and three years’ probation. The Defendant had also
been convicted of attempted robbery, seven counts of statutory rape, reckless endangerment,
driving under the influence, evading arrest, resisting arrest, attempted criminal trespassing,
vandalism, two counts of domestic violence, and speeding. The court found that factor (8)
applied because the Defendant had his probation revoked in 2005 and 2010. The court found
that factor (13) applied because the Defendant was on probation at the time the offenses were
committed. The trial court found that mitigating factor (13) applied because of the
Defendant’s honorable military service. See T.C.A. § 40-35-113; State v. Allen Ray
Kennedy, M2006-00847-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App. Mar. 23, 2007)
(stating “that an honorable military record is an acceptable mitigating factor under Tennessee
Code Annotated section 40-35-113(13)”).
The court found that confinement was necessary to protect society from the
Defendant, who had a long history of criminal conduct. The court also found that less
restrictive measures, such a probation, were unsuccessful previously. The court sentenced
the Defendant to concurrent terms of fifteen years’ confinement. The court ordered the
sentences be served consecutively with the Giles County attempted robbery and domestic
violence sentences and the Marshall County domestic violence sentence, creating an effective
twenty-year sentence.
Although the Defendant claims that the trial court improperly weighed the
enhancement factors, the 2005 Amendments to the 1989 Sentencing Act “deleted as grounds
for appeal a claim that the trial court did not weigh properly the enhancement and mitigating
factors.” Carter, 254 S.W.3d at 344. The Defendant had convictions for bank robbery,
attempted robbery, statutory rape, driving under the influence, and domestic violence. The
Defendant was on probation at the time of the instant offenses in Giles and Marshall
Counties for three different offenses and had his probation revoked previously with regard
to the statutory rape convictions. The court gave great weight to the Defendant’s criminal
history, his failure to comply with the conditions of probation previously, and his being on
probation at the time of the instant offenses. The record reflects that the trial court imposed
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a sentence within the applicable range that was consistent with the purposes and principles
of the Sentencing Act. The Defendant is not entitled to relief on this issue.
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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