State v. Timothy Redd

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE SESSION, 1997 November 20, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9608-CC-00342
)
Appellee, )
) BEDFORD COUNTY
)
V. )
) HON. CHARLES LEE, JUDGE
TIMOTHY MARK REDD, )
)
Appe llant. ) (ATTEMPTED BURGLARY)
FOR THE APPELLANT: FOR THE APPELLEE:
A. JACK SON DEAR ING, III JOHN KNOX WALKUP
117 So uth Main Street Attorney General & Reporter
Suite 101
Shelbyville, TN 37160 PETE R M. C OUG HLAN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM MICHAEL McCOWN
District Attorney General
ROBERT G. CRIGLER
Assistant District Attorney General
One Public Square, Suite 300
Shelbyville, TN 37160
OPINION FILED ________________________
AFFIRMED IN PART AND MODIFIED IN PART
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Timothy M ark Redd , appeals as o f right following a jury
trial in the C ircuit Court of Bedford County. He was convicted of attempted
burglary, assault, resisting arrest, and possession of burglary tools. He argues
on appea l (1) that the e vidence was insu fficient to support the conviction for
assau lt, (2) that the trial court erred by not merging the conviction for possession
of burglary tools with the conviction for attempted b urglary, (3) that the trial court
erred by not merging the conviction for resisting arrest with the conviction for
assau lt, (4) that the trial court erred by ordering consecutive sentencing, and (5)
that the trial court erred by ordering a sentence of split confinement for the
conviction of attempted burglary. We affirm the convictions and sentences, but
modify the manner of service.
Following a sentencing hearing, the trial court entered judgments
senten cing De fendan t in the followin g man ner:
Count 1, attem pted burglary 1 year, 9 mon ths, T.D .O.C., to be served
in Community Corrections , with 365 days
incarceration in Bedford County Jail, day
for day
Coun t 2, assau lt 11 m onths , 29 da ys, Be dford C ounty Jail
Coun t 3, resisting a rrest 4 mo nths, B edford Coun ty Jail
Coun t 4, posse ssion of
burgla ry tools 9 mo nths, B edford Coun ty Jail
The judgments also ordered that the sentence in Count 1 (attempted
burglary) is to be served concurrently with the sentence in Count 4 (possession
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of burglary tools), and that these sentences are to be consecutive to sentences
imposed in Marsh all Coun ty cases. T he sen tence im posed for Coun t 2 (assau lt)
was ordered to be served conc urrently with the se ntence impos ed in Co unt 3
(resisting arrest). Howeve r, the trial court ordered the sentences in Count 2 and
Count 3 to be served consecutively to the sentences imposed in Count 1 and
Count 4. The rec ord reflects that at the time Defendant was sentenced in the
cases involved in this appeal, he was serving a senten ce for Ma rshall Co unty
conviction s which in volved 9 m onths inc arceratio n.
In esse nce, in the ca ses p resen tly before this court, the trial judge ordered
Defen dant to serve a sentence of 1 year, 9 months on Community Corrections,
which included 365 days of incarceration in the Bedford County Jail, to be
followed by a sentence of incarceration in the Bedford County Jail for 11 months,
29 days with a minimum service of 75% of this sentence prior to release. A literal
reading of the sen tence w ould involve the Defe ndant serving 36 5 days in jail,
followed by 9 months release in the Community Corrections program, and then
followed by service of at least 75% of an 11 month, 29 day sentence of
incarc eration in the B edford Coun ty Jail.
S UFFICIENCY OF THE EVIDENCE
The only conviction for which Defendant challenges the sufficiency of the
evidence is the conviction for assault. He concedes that the evidence was
sufficient to convict him o f the remaining three charge s of attempted burglary,
resisting arrest, and p ossession of burglary tools. Defendant argues that at no
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time during his arrest did he com mit any o vert act, othe r than an idle threat, to
place an yone in im minen t fear of bod ily injury.
When an accused challenges the sufficiency of the convicting evidence,
the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble
to the prosecution, any rational trier of fact could have found the essential
eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.
307, 319 (19 79). On ap peal, the S tate is entitled to the strongest legitimate view
of the evide nce an d all inferen ces there from. State v. Cabbage, 571 S.W.2d 832,
835 (Tenn . 1978). B ecaus e a verdic t of guilt removes the presumption of
innocence and re places it with a presumption of guilt, the accused has the
burde n in this court of illustrating why the evidence is insufficient to support the
verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.
1982); State v. Grace, 493 S.W .2d 474, 476 (1973).
Questions concerning the credibility of witnesses, the weigh t and valu e to
be given the evidence, as well as a ll factual issues raised b y the evidence, a re
resolved by the trier of fact, n ot this cou rt. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor m ay this court
reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verdict
approved by the trial judge acc redits th e State ’s witne sses and re solves all
conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.
On Septe mbe r 7, 199 5, W illard Ba ker, ow ner an d ma nage r of Sh elbyville
Supe rmarke t, was workin g alone in the back of the store after it had closed for
the day. He heard a noise that sounded like it was on the roof, and it got louder
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as he followed it outside. He walked to the overhang and could hear the noise
directly over his head. After a few seconds, h e walked ba ck inside the store and
called the police. The police arrived abou t one m inute la ter at ap proxim ately 9:40
p.m. Baker saw two or three cars arrive at the front parking lot and two cars
arrive in back. He pointed towards the roof where he heard the noise.
Officer James Wilkerson of the Shelb yville Police Department arrived at the
Shelbyville Supermarket after hearing from the police dispatcher that someone
was attemp ting to gain entry to the store. He pulled in tow ard the b ack of the
building and was the first police officer to arrive. When he shined his spotlight
onto the roof, he saw the Defendant running across the roof towards him.
W ilkerson stopped his car and ran to the building. Defendant jumped from the
roof area onto some coolers, and then jumped down to a loading dock where
Wilkerson was standing. The men stood within arms reach when Wilkerson
ordered Defendant to drop the black bag he was carrying and drop to the ground.
W hile holding the bag with his left hand, Defendant stuck his right hand in
the bag and partially pulled out something. Wilkerson could only see part of the
sma ll, black object. Defendant said something to th e effec t that “we would all
die.” Wilkerson presumed that Defendant “had a bom b the w ay he s aid we would
all die.” Wilk erson stated that at th e time he wa s in fear of immine nt bodily injury
and had drawn his weapon. While Wilkerson repeatedly ordered Defendant to
drop the bag and get on the ground, Defendant refused to comply and continued
to threate n W ilkerson.
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At about that time, Officers Marsh, McKee, and Arrington arrived on the
scene. Marsh was first, and he testified that after he arrived he was running
around the building when he heard Wilkerson asking for help. He saw that the
subject had a bag with his hand stuck in the bag and heard him say that “he
would take all of us out.” McKe e, who drove up as backup behind the store, first
saw the Defendant standing between Marsh and Wilkerson, edging towards the
open field. McKee got out of the car and cut in between Defendant and
Wilkerson. When McKee approa ched Defe ndan t, Defe ndan t turned and to ld
McKee that “I will take us all.” At that time, McKee took Defendant’s hand out of
the bag and pu shed it as ide, then th rew the b ag.
Defendant began to flee on foo t, but was caught by Arrington. Arrington
had arrived at the s tore with Mars h in the front parking lot. He had gone to the
northwest corner of the building until he heard an officer behind the store request
assistance. He ran to the rear of the store and sa w Defe ndant flee ing. Arrington
grabbed Defendant and the two fell to the groun d in a struggle. All the officers
at the scene assisted Arrington as Defendant resisted arrest by first swinging his
arms and then putting his arms underneath his body where they could not put
handc uffs on him. After the Defendant was placed in the patrol car, Wilkerson
found the bag Defendant had been holding. H e chec ked to se e if a weapon was
inside. Wilkerson found various burglary tools inside the bag and identified these
at trial.
Officer Wilkerso n drove De fendant to the p olice station where Chris
Szaroletta, a police investigator, was called in to take a statement from the
Defen dant. Szaro letta tes tified tha t Defe ndan t, after w aiving his rights, volunta rily
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made a statement admitting his attempted entry into the store, that he removed
some screw s from pane ls on th e store ’s roof, a nd tha t the bu rglary to ols
belonged to him. T his statem ent was ad mitted into evidence. No proof was
offered by the defense.
Under Tennessee Code Annotated section 39-13-101(a)(2), a person
comm its assault if he intentionally or knowingly causes another to reasonably fear
imminent bodily injury. During his testimony, Officer Wilkerson stated that the
Defe ndan t’s actions of pulling a small, black unidentifiable object out of his bag
and threatening that “we will all die” caused him to reasonably fear imminent
bodily injury. In fact, Wilkerson was sufficiently concerned for his safety to draw
his weapon as an attempt at some form of self-defense. The State proved
beyond a reasonable doubt that Defendant pulled an unidentifiable object out of
his bag and threatened Officer Wilkerson, and that Wilkerson reasonably feared
imminent bodily injury. See State v. Wilson, 924 S.W .2d 648, 650 (Tenn. 199 6).
In additio n to the Defe ndan t’s act a nd W ilkerso n’s fear, the assau lt statute
requires proof of crim inal intent, or m ens rea . That criminal intent requires that
Defendant acted either intentio nally or knowingly. De fendant argu es that his overt
acts were only “idle threats” which do not give rise to intent under the meaning
of the statute. It is not necessary that intent be found solely from direct evidence
as a crim e ma y be es tablish ed by c ircum stantia l evidence alone. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). The law provides that mens
rea, even the maliciou s intent to kill, ca n be infe rred from circumstances of
conduct giving rise to the crime . See State v. Smith, 751 S.W.2d 851, 855 (Tenn.
Crim. A pp. 198 8).
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The Defendant’s indictment charged that the Defendant “intentionally or
know ingly did cause Officer James E. Wilk erson . . . to reas onab le fear imminent
bodily injury.” A person acts intentionally “with respect to the nature of the
conduct when it is the person’s conscious or objective desire to engage in the
conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a). Th ere is
sufficient circumstantial evidence for the jury in this case to have concluded
beyond a reasonable doubt that Defendant acted with the required mens rea
when he threa tened Officer W ilkerso n. Upo n app ellate re view, th e State is
entitled to the strongest view of the evidence and the inference that Defendant
was aware that the threat w ould cause Wilkerson to fear imminen t bodily injury,
which satisfies the me ns rea re quirem ent of “kno wingly.” This issu e has n o merit.
M ERGER O F C ONVICTIONS
Defendant argues the trial cou rt erred in failing to merge count four,
possession of burglary tools, with count one, attempted burglary. He alleges that
“but for the b urglar y tools in his possession, the Defendant could not be convicted
of attempted b urglary.” Defendant also claim s that as th e crime s of assa ult,
count tw o, and re sisting arre st, coun t three, b oth co ntain the statutory element
of fear, the se two crime s sho uld merge . See Tenn. Code Ann. §§ 39-13-101 and
39-16-602.
The resolution of this issue requires a weighing of the following four
factors: “(1) a Blockburger analysis o f the statuto ry offense s; (2) an analysis,
guided by the principles of Duchac, of the evide nce us ed to prove the offenses;
(3) a consideration of whether there were multiple victims or discrete acts; and
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(4) a compa rison of the purpo ses of the resp ective statutes.” State v. Denton,
938 S.W .2d 373 , 381 (T enn. 19 96); see Blockburger v. U.S., 284 U.S. 299
(1932); Duch ac v. State , 505 S.W .2d 237 (Tenn. 1973). In Blockburger, the
United States Supr eme Cour t held th at in su stainin g mu ltiple convictions from a
single set of circumstances where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether each provision requir es
proof of an add itional fact wh ich the oth er does not. Blockburger v. U.S., 284
U.S. at 304. The Tennessee Supreme Court has held that “if the same evidence
is not requ ired, then th e fact that both charges relate to, and grow out of, one
transaction, does not make a single offense where two are defined by the
statutes.” Duchac, 505 S.W .2d at 239 (citations om itted).
Tennessee Code Annota ted section 39-14-701 defines the offense of
possession of burglary tools as p ossession of “any tool, machine or implement
with intent to use the sam e, or allow the same to be used, to commit any
burglary. . . .” The offe nse of burglary is defined by statute as when a person,
“without the effective consent of the property owner, enters a building other than
a habitation (or any po rtion thereo f) not ope n to the pu blic, with inten t to com mit
a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)(1). “A person
comm its criminal attempt who, acting with the kind of culpability otherwise
required for the offense . . . acts with intent to complete a course of action or
cause a result that would constitute the offense . . . and the conduct constitutes
a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-
12-101 (a)(3).
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The statutory provisions of attem pted burglary an d possess ion of burglary
tools require proof of at least one different element in each offense; the same
evidence is not required to prove both offenses; the offenses involved concerned
two discrete acts by the Defendant; and the offenses protect different interests.
The trial court corr ectly noted that a person cou ld comm it an attempted burglary
without the po sses sion o f burgla ry tools, and th at not o nly did Defendant possess
a screwdriver with which he was attempting to enter the building, he possessed
numerous other burglary tools which were introduced into e vidence. Sim ilarly,
the Defendant’s possession of burglary tools did not infer that he “entered ” a
building for the purpose of comm itting a burglary, only that the Defendant had the
intent to commit a burglary. In Duchac, a similar conviction was upheld involving
the offenses of third degree burglary and possession of burglarious instruments.
Id. at 240. The mere fact that both offenses grew out of a single criminal episode
does n ot mak e them a single ca se in this ins tance. Id.
Coun ts two and three warrant the same analysis as abo ve. A person
comm its assault who “inten tionally o r know ingly ca uses anoth er to rea sona bly
fear immin ent bod ily injury.” Ten n. Cod e Ann. § 39-13-101(a)(2). A person who
intentio nally prevents or obstructs “anyone known to the person to be a law
enforcement officer, or anyone acting in a law enforcement officer’s presence and
at such officer’s direction, from effecting a[n] . . . arrest . . . of any person,
including the defenda nt, by using force ag ainst the law enforc ement officer o r
another” commits the offense of resisting arrest. Tenn. Code Ann. § 39-16-
602(a). These offenses also are s eparate and distinct offenses which require
proof of different statutory eleme nts and evidenc e, involve se parate d iscrete ac ts
by the Defe ndant and have multiple victims (all of the arresting officers versus
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Officer Wilkerson), and protect differing interests. See Blockburger, 284 U.S. at
304. Th is issue is w ithout me rit.
S ENTENCING
When an accused challenges the length, range or the manner of service
of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence
with a presum ption that the determ inations mad e by the trial court are correct.
Tenn. Code A nn. § 40-35-4 01(d). This pre sump tion is “conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d
166, 16 9 (Ten n. 1991 ).
In cond ucting a de n ovo re view of a sentence, this cou rt must cons ider:
(a) the evid ence , if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the princip les of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
the defendant made on his ow n beha lf; and (g) the potential or lack of potential
for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210;
see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial c ourt’s finding s of fac t are ad equa tely supported by the record, then
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we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
CONSECUTIVE SENTENCING
Defendant argues the trial court erred by ordering his sentences to be
served consecutively. Upon review of the record, it is evident that the trial court
imposed consecutive sentences based upon the fact that Defendant committed
these offenses while he was on probation for offenses he committed in another
county. Tennessee Code Annotated section 40-3 5-115(b )(6) states that a
defendant convicted of more than one (1) criminal offense can be ordered by the
court to serve consecutive sentences if the defendant is sentenced for an offense
committed while on probation.
Furthermore, the trial cour t found tha t an extended sentence was
necessa ry to restrain the Defendant from committing other offenses, thereby
protecting the pub lic from D efenda nt’s further c riminal co nduct. See State v.
Wilkerson, 905 S .W .2d 93 3, 939 (Ten n. 199 5). Th e trial co urt also noted that this
offense was se rious in tha t it “could hav e led to the injury of the [p olice] officers .”
Due to the severity of Defendant’s acts, the consecutive sentence imposed
reason ably relates to his crim es. Id. at 939. T his issue has no merit.
ALTERNATIVE SENTENCING
Defendant argues that the trial court erred by ordering him to serve his 1
year, 9 month sentence for attempted burglary in Commun ity Corrections as a
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form of alternative senten cing. Defendant claims that he did not request such a
form of sentencing, and, therefore, has not met his burden of proof of entitlement
to alternative sentencing. Defendant was sentenced to serve a split sen tence in
Com munity Corrections o f 365 days, day fo r day, on his felony sentence of one
year and nine months, but was not granted alternative sentencing on the
misdemeanor senten ce of eleve n mon ths and twenty-nin e days, to be served at
the rate of seven ty-five percent (75% ).
Trial courts have the authority to place a defend ant into “C omm unity
Corrections program [s] whethe r there is a written application or n ot.” State v.
Estep, 854 S.W.2d 124, 127 (Tenn. Crim. App. 1992). However, Tennessee
Code Annotated section 40-36-106(a)(7) explicitly provides that “[P]ersons who
are sentenced to incarceration or on escape at the time of consideration will not
be eligible [fo r Com munity C orrection s].”
At the time of the sen tencing h earing, D efenda nt was se ntence d to
incarceration on the Marshall County convictions. In addition, Defendant was
sentenced to incarceration for the m isdemea nor assau lt in this case in Bedford
County. Therefore, the Defendant was not eligible to be sen tenced to
Com munity C orrection s.
Nevertheless, it is apparent from the record that the trial court felt that
alternative senten cing of sp lit confinem ent was the most appropriate sentence for
Defendant in this case. We agree. Therefore, even though Defendant is not
statuto rially eligible to be placed into the Community Corrections program, we
affirm the length of the sentences and the order of consecutive sentencing as set
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forth by the tr ial cou rt, but m odify the judgm ents to reflect th at De fenda nt is
sentenced to serve the conviction for attempted b urglary in the Be dford C ounty
Jail, with a split confinement involving incarcerat ion for 1 year, followed by
probation for 9 months. This sentence is to follow and thus be served
conse cutively to and after the se ntence of 11 months, 29 days in the Be dford
Coun ty Jail for the con viction of as sault in Co unt 2. See Tenn. Code Ann. § 40-
35-306 . The jud gmen ts, as mo dified, are h ereby affirm ed.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH B. JONES, Presiding Judge
___________________________________
WILLIAM M. BARKER, Judge
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