Opinion
No. E2006-02290-CCA-R3-CD.
February 27, 2008 Session.
Filed June 26, 2008.
Direct Appeal from the Criminal Court for Claiborne County; No. 11,969; E. Shayne Sexton, Judge.
Judgments of the Criminal Court Affirmed and Remanded for Entry of Corrected Judgments.
Wesley D. Stone, Franklin, Tennessee, for the appellant, Mitchell Eads.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General; and Jared R. Effler and Amanda Cox, Assistant District Attorneys General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Jerry L. Smith and Robert W. Wedemeyer, JJ., joined.
OPINION
In an eight-count indictment, the defendant, Mitchell Eads, was charged by the Claiborne County Grand Jury with two counts of theft of property over $10,000, three counts of burglary, one count of vandalism over $500, one count of theft of property over $1000, and one count of vandalism over $1000. The trial court granted the defendant's motion to sever the first five counts of the indictment, and the defendant was subsequently convicted in separate jury trials of three counts of burglary, two counts of theft of property over $1000, and one count of vandalism over $1000, all Class D felonies, for which he received an effective sentence of twenty-four years as a career offender. In a timely appeal to this court, the defendant challenges the sufficiency of the evidence in support of his convictions and argues that the trial court erred in denying his motion to suppress his statement, in denying his request for disclosure of the identity of a confidential informant, in refusing to issue a jury instruction on absent material witness, in imposing the fines fixed by the jury, and in imposing an excessive sentence. Following our review, we affirm the judgments of the trial court and remand for entry of corrected judgments in Counts 6, 7, and 8 to reflect the $5000 fine imposed in each count.
FACTS
This case arises out of a burglary, vandalism, and theft perpetrated at Midway School on September 12-13, 2001, and burglaries and thefts perpetrated at Annie's Auto Sales on September 7-8, 2001. Information from a confidential informant led a Claiborne County Sheriff's Department investigator to the defendant, who was arrested at the home of Doris Halford, his girlfriend's mother, and later gave a statement admitting his involvement in the crimes. The defendant was charged in a single eight-count indictment for the crimes committed at both locations, with the trial court later granting his motion to sever counts one through five, which involved the offenses at Annie's Auto Sales, from counts six through eight, which involved the offenses at Midway School.
Motion to Suppress Statement
Prior to trial, the defendant filed a motion to suppress his statement on the basis that it was involuntary. At the hearing on the motion to suppress, Captain David Honeycutt of the Claiborne County Sheriff's Department testified he arrested the defendant on September 18, 2001, and brought him to his office in the Claiborne County Criminal Investigation Division ("CID") for an interview. He began by reading the admonition and waiver of rights form to the defendant, who signed it at 3:28 p.m., indicating that he understood his rights and wished to make a statement. He then questioned the defendant about the offenses, condensing his answers into a written statement that he read aloud to the defendant at the conclusion of the interview. The defendant agreed that the statement contained an accurate account of the crimes, initialed the beginning and end of each page, and signed the statement at 4:20 p.m. Captain Honeycutt identified the waiver of rights form and the defendant's statement, which were admitted as exhibits to the hearing. He said that he and Detective Charlene Green signed the statement as witnesses. The defendant appeared to understand everything that was read to him and to know what he was doing in signing the statement.
On cross-examination, Captain Honeycutt testified that an individual to whom he had been directed by Officer Jackie Nicely of the Union County Sheriff's Department provided information that led him to the residence where he arrested the defendant. He believed that the home belonged to the mother of the defendant's girlfriend, Jerri Lynn Widener, who lived in a trailer next door. He said he was taking statements from Widener's mother and her family when the defendant, who was carrying groceries, walked into the residence with Widener. At that point, he arrested the defendant and transported him to the Claiborne County CID Office for the interview. The arrest occurred at about 1:00 p.m, the trip to the CID Office took approximately an hour and a half, and the interview lasted approximately an hour and a half.
Captain Honeycutt acknowledged that John Thomas, who had already plead guilty in connection with the case, was also arrested for the crimes. He denied, however, that he made any promises to the defendant in exchange for his help in building the case against Thomas or threatened to charge Widener if the defendant refused to cooperate with his investigation. Instead, he told the defendant that he could not promise him anything but would relay any information he provided to the district attorney's office. He said that Detective Green was present when he read the statement to the defendant but was in and out of the room during the interview itself. On redirect examination, he testified that the defendant did not appear to be under the influence of any intoxicants and exhibited no difficulty in carrying groceries into the house at the time of his arrest.
The defendant testified that on September 18, 2001, he went with Widener to the grocery store, the drugstore, the post office, and a McDonald's restaurant before returning to Widener's mother's home. He said that Captain Honeycutt arrested him when he walked into the home, transported him to the CID Office in Claiborne County, and interrogated him by asking leading questions about the crimes. As an example, he recalled that before he had said anything to Captain Honeycutt about the Midway School burglary, Captain Honeycutt asked him how he had broken out the window in a door at the school. He said that Captain Honeycutt and Union County Sheriff's Department Officer Nicely told him while he was still in Union County that if he did not cooperate Widener "would be brought into this," which made him "fe[el] somewhat pressured into giving a statement." In addition, Captain Honeycutt told him at the CID Office that if he helped with the case against Thomas, he could probably arrange for the defendant to serve his time at the Claiborne County Jail and would talk to the district attorney about the possibility of concurrent sentences.
The defendant stated that he consumed five to seven Valium pills, which made him "[v]ery passive," at approximately 11:30 a.m. or 12:00 p.m. while sitting with Widener in their vehicle in the parking lot of the IGA grocery store in Union County. He said that he might have given his statement even were it not for Captain Honeycutt's threats and promises because he was still under the effect of the Valium at the time of his interrogation. He acknowledged on cross-examination, however, that the Valium did not prevent him from walking into the post office and Halford's house or from remembering in detail the events that transpired before and after his arrest. He further acknowledged that he had twenty-four prior felony convictions, including multiple convictions for burglary and theft.
Sabrina Cosby, a friend of the defendant's who was working at the Union County IGA grocery store on September 18, 2001, testified that she was talking to the defendant in the parking lot of the store when she saw him take a bottle of pills from his dash, pour some into his hand, and put them in his mouth. She said the episode occurred before her lunch break, at about 10:00 a.m. On cross-examination, she acknowledged that she had no idea how many or what kind of pills the defendant took. She further testified that the defendant did not appear to be under the influence of any intoxicants during the time she saw him at the store.
At the conclusion of the hearing, the trial court denied the motion to suppress, finding that the defendant was neither coerced nor threatened and was capable of understanding what he was doing when giving the statement. Among other things, the trial court noted the defendant's ability to recall with accuracy events that occurred before, during, and after the statement was given.
Midway School Offenses
On April 18, 2002, the defendant proceeded to trial on counts six through eight of the indictment, which charged him with burglary, theft over $1000, and vandalism over $1000 at Midway School.
State's Proof
Birchel Miracle, a maintenance worker at the school, testified that he arrived at work at approximately 5:30 a.m. on September 13, 2001, to find glass on the floor outside the secretary's office, the door to the secretary's office cracked, and the door to the principal's office "jimmied" or "busted." After telephoning the principal and the police, he searched for the point of entry and discovered that a window had been broken out of the boys' bathroom located between the secretary's office and a third grade classroom.
Roy Norris, Director of Claiborne County Schools, testified that Midway School was owned by the Claiborne County Board of Education. He said it was the Board's policy that after hours use of the school property had to be authorized by the school's principal.
Daniel Lee Redmond, principal of Midway School, testified that Miracle telephoned him at 5:45 a.m. on September 13, 2001, to inform him of the break-in at the school. When he arrived shortly after 6:00 a.m., he found that the glass pane was broken out of the door to the secretary's office and that the door to his office was splintered. Upon further investigation, he discovered that a coach's office and the office of the school counselor had been broken into as well. The recording device that was part of the school's surveillance system was missing from his office along with a digital camera he kept in a box in his desk. He also found that all the changers were empty in the school's Lance vending machines. In addition, four students later reported to him that their backpacks were missing from their lockers.
Redmond identified photographs of the damage to the school, including one of the broken window in the third grade boys' bathroom and another of the place in the front foyer where the fire extinguisher had been located. He said that he did not see the fire extinguisher when he entered the school on the morning of September 13, 2001. He stated that he gave no one permission to enter the school on the night or early morning before the burglary was discovered. He testified that the lump sum value of the items missing from the school was approximately $1200 to $1500 and that the amount required to repair the damage to the property was approximately $1000.
On cross-examination, he testified that his secretary had removed the money from the vending machines on the day before the break-in was discovered. The machines belonged to the Lance Company, but the proceeds from the sales belonged to Midway School and the Claiborne County Board of Education. He acknowledged that the students' book bags were not owned by the Board of Education or the school. Finally, he explained that his valuation of the missing items was based, in part, on the approximate value of the surveillance system purchased by the school, which was $1900.
Corporal Harrison Cornett of the Claiborne County Sheriff's Department testified that he was dispatched to Midway School on the morning of September 13, 2001, in response to the reported break-in. He first noted that there was glass on the floor outside the principal's office, that the door to the principal's office had been either pried or beaten open, and that the door beyond the principal's office had been kicked open. He then secured the scene and called for an investigator. Captain Honeycutt arrived in response to his request, and he assisted him in the investigation of the crime. Among other things, Cornett collected into evidence a piece of wood that was beside the broken window in the boys' bathroom.
Captain David Honeycutt identified the piece of wood from the school bathroom and testified that he observed that the window had been pried open. He said he later received information that the defendant had been seen in possession of some of the items stolen from the school, located and arrested him in Union County, and brought him back to the CID Office at the Claiborne County Sheriff's Department for an interview. Captain Honeycutt described the interview process in detail and identified the defendant's signed admonition and waiver of rights and his statement, which was redacted to delete any references to the Annie's Auto Sales offenses. The defendant's statement reads as follows:
The Midway School burglary started like this. I was needing a gallon of gas and knew I could get some at the school. While I was getting the gas[,] John took a stick and started prying at a window. I said don't do that. The window then broke and he said that we would have to go in and I said I know it now. We went in to fix the window with the plexiglass. I'm trying to find the maintenance office when we noticed that there was surveillance cameras. John asked me where I thought the VCR was at. I said the main office. John tried to bust in with a fire extinguisher. We finally made it in. When we entered the office we were looking for the video surveillance stuff. We found it in the little office off to the side. I told him to do whatever he was going to do and he brought the whole thing out with him. He also got the Lance machines keys and broke into those. We split the money and it came to about $187.00 ap[ie]ce. He kept the rest of the stuff except what he left at my girlfriend[`]s.
On cross-examination, Captain Honeycutt testified he was unable to obtain any clear fingerprints from the crime scene. He acknowledged that the Lance machines were undamaged and said that they appeared to have been opened with a key. He further acknowledged that he had never before spoken with the person who provided information about the defendant's possible involvement in the crimes. Asked if he had any idea how the individual knew about the defendant's involvement, he explained:
They were a friend of the family and came to me with what they had seen and heard. Actually they came to Officer Jackie Nicely of Maynardville first. And he called me at my office and asked me if I had a school that had been broken into and a large amount of change missing. And I stated, yes, I had.
Defense Proof
The defendant's sole proof consisted of a statement read by defense counsel and admitted as an exhibit that informed the jury that John Thomas had pled guilty to burglary and theft over $1000 in connection with the offenses perpetrated at Midway School.
Following deliberations, the jury convicted the defendant of the offenses as charged in the indictment, setting a fine of $5000 for each offense.
Annie's Auto Sales Offenses
On August 15-16, 2002, the defendant was tried on counts one through five of the indictment, which charged him with two counts of burglary, two counts of theft over $10,000, and one count of vandalism over $500 perpetrated at Annie's Auto Sales.
The cover page of the trial transcript erroneously lists the year of the Annie's Auto Sales trial as 2001 instead of 2002.
State's Proof
John Travis Bailey, brother of the owner of Annie's Auto Sales as of September 2001, testified that he stopped by the business on September 8, 2001, and noticed that the door to the car lot building had been broken open. Upon further investigation, he saw that a second door in the store was broken and that a boat storage building located on the same property had been broken into as well. He identified photographs of the damage to the two buildings, pointing out a broken door jamb and a shoe print on doors in the car lot building and a broken door hasp in the front and boards removed from the back of the boat storage building. On cross-examination, he acknowledged that he repaired the damage to the buildings himself by substituting a different door hasp and replacing the boards on the boat storage building, repairing the broken door jamb on the car lot building with oak boards and four-inch screws, and installing a new lock.
James Stephen Bailey, owner of Annie's Auto Sales in September 2001, testified that both doors to the car lot building had been "busted in," three boards had been pried off the back of the boat storage building, and the lock had been "busted off the front" of the boat storage building, resulting in a little over $500 in total damage. Among the property missing, which he valued at over $10,000, was a .270 deer rifle, a .25 caliber pistol, an electric wench, an electric wire welder, walkie-talkies, a Harley-Davidson motorcycle engine, four large tires and rims, a 350 Chevrolet carburetor and valve cover gasket, an impact wrench, and an assortment of Craftsman and off-brand tools. He said that Captain Honeycutt later notified him that several of the stolen items had been found, and he subsequently recovered his motorcycle engine, four large tires and rims, impact wrench, pistol, and some of his tools. He said that, after the break-in, he found a flashlight at the business that did not belong to him. He stated that he gave no one permission to enter his business on the night or early morning of September 7-8, 2001. Finally, he identified a photograph of a 1996 Ford F-150 four-wheel drive, extended cab truck that was parked at his car lot on September 7-8, 2001, testifying that it belonged to a friend, Jim McMurray, who had asked him to try to sell it for him.
On cross-examination, the witness testified that the keys to McMurray's truck were in a bowl in a filing cabinet in his office. He acknowledged that his father and brother made repairs to the buildings using material he had on hand and said that his damage estimate was based on his pricing of new doors and door jambs at Home Depot. He further acknowledged that the motorcycle engine belonged to his employee, Les, but said that it partly belonged to him as well because Les owed him money.
Jim McMurray, whose Ford truck was parked at the Annie's Auto Sales lot at the time of the break-in, testified that he never again saw the vehicle after that date. Based on his experience buying and selling pickup trucks in his auction business, he thought that the truck was worth around $10,000 at the time it was stolen.
Doris Anderson testified that on September 11, 2001, she brought her nephew, John Thomas, to her home in Claiborne County because he had recently gotten out of jail and needed a place to stay. She identified the defendant as a man who came to her house on September 12, 13, and 16, 2001, testifying that Thomas left the house with the defendant on September 12 and that the defendant, who was driving a "little black car," brought Thomas to her home on September 16.
Gary Lee Anderson, Doris Anderson's husband, testified that he found two boxes of tools and a small engine that did not belong to him in his barn on September 18, 2001. He said he had earlier seen Thomas and another person in a black vehicle at the barn.
Officer Gary Ruskowski of the Claiborne County Sheriff's Department testified that on September 18, 2001, he and Lieutenant Bobby Morelock retrieved from Anderson's barn a Harley-Davidson motorcycle engine, an impact wrench, and a toolbox full of miscellaneous tools. He said that it required both himself and Lieutenant Morelock to lift the motorcycle engine into the trunk of his vehicle.
Dee Dee Raley, Widener's sister, testified that she lived with her mother and grandmother in a house next door to the trailer where the defendant had lived with her sister the previous summer. She said she saw John Thomas with the defendant at the trailer and on one occasion when the defendant was present purchased a .25 millimeter pistol from Thomas. She stated that Thomas took the pistol from a red pickup truck that he said he had inherited from his grandfather. As she recalled, there was a rifle in the back windshield of the truck.
Deputy Jackie Nicely of the Union County Sheriff's Department testified that on September 18, 2001, he and Captain Honeycutt recovered a set of tires and rims from behind a trailer next to Halford's residence in Union County. On cross-examination, he stated that an individual in Union County telephoned him with information relevant to the case and he in turn contacted Captain Honeycutt.
Dr. Kenneth Smith, a retired physician from Middlesboro, Kentucky, whose wife owned a cabin in the Cedar Grove area of Claiborne County, testified that he telephoned the sheriff's department in January 2002 after seeing a man asleep on the front porch of a neighbor's cabin and a red Ford pickup truck that had been driven up an abandoned farm road to the woods 100 yards past the cabin.
Investigator Michael Joe Gray of the Claiborne County Sheriff's Department testified that in January 2002 he and Sergeant Steve Cline found the defendant at a cabin in the Cedar Grove area of Claiborne County. He said that when he asked where the Ford pickup truck was, the defendant replied, "It's up in the woods." Investigator Gray identified a photograph of a red Ford F-150 pickup truck, previously identified as McMurray's vehicle, which he said he found parked in the woods.
Captain David Honeycutt testified that he was the detective with the Claiborne County Sheriff's Department assigned to investigate the break-in at Annie's Auto Sales. He said that his investigation led him to the defendant after a person in Union County told him that the defendant might be in possession of a stolen truck. He located the defendant at a residence in Maynardsville, arrested him, and read him his rights. At that point, the defendant told him that he had some items at his girlfriend's residence and, taking him to the residence, turned over a gas tank from a Harley motorcycle, a set of tires and rims, and a pistol.
Captain Honeycutt described his subsequent interview with the defendant at the CID Office and read aloud from the portion of the defendant's statement relating to the offenses at Annie's Auto Sales:
We went to a car lot next to Rigsby's to steal gas, myself and John Thomas. When we got there it was around midnight two or three weeks ago I think. John pulled some boards off the back of the building next to the cars and went inside. He took some valve covers and a carburetor off a truck. In the other building John had took my flashlight and left it there when we left. He then got the Harley motor, a gun, tools, and other items. John was loading all the stuff into the front office. I said, my Trans Am won't haul the stuff you have here. John went through the keys that were hanging up and got the keys to a red Ford King Cab four-wheel drive. I later tried to get him to park it behind the courthouse so it could be found but he took it down to my girlfriend's. I had parked my car at Blair's Creek Church and me and John had agreed to meet at Hometown Grocery. I told him that truck would have to leave my girlfriend's house the next day. The next night he left in the truck. He had been back a couple of times to ask me where to hide the truck. I think I know where he took it. The tires in the bed of the truck and the Harley gas tank was left at my house. John sold the .25 auto to Dee Dee.
Captain Honeycutt testified that he participated in the recovery of the Ford pickup truck, which occurred at a time when Thomas, whom he had arrested in connection with the case, was already in jail.
Defense Proof
Karen Nicely, wife of Union County Sheriff's Deputy Jackie Nicely and a dispatcher for the Union County Sheriff's Department, testified that she received a telephone inquiry from Doris Halford about a possible stolen vehicle. In response, she ran the tag number through the computer, learned that it was not reported as stolen, and conveyed that information to Halford. On cross-examination, she acknowledged that it was not uncommon for a stolen vehicle not to be immediately entered into the computer system.
Johnny Hickman, a self-employed Harley-Davidson motorcycle mechanic, identified the Harley-Davidson engine at issue in the case as part of a 1962 three-wheel Harley-Davidson motorcycle he had partially rebuilt and traded to Les Babcock for an "old Chevrolet Coupe." He said that, in his opinion, the motorcycle engine was worth approximately $1500. On cross-examination, he estimated the value of the Chevrolet Coupe as $2500 to $3000 but said he had done some work on the vehicle since the trade.
Dee Dee Raley, recalled as a witness for the defense, testified that she purchased the pistol from John Thomas, who had come to her sister's trailer in a red pickup truck he said he had inherited from his grandfather. She said she never saw the defendant driving the red pickup truck. She acknowledged, however, that Thomas visited the defendant on numerous occasions during the time the defendant lived with her sister and that some of the stolen property was found behind her sister's trailer.
Jerri Lynn Widener testified that the defendant drove a red vehicle during the time he lived with her. She said that the defendant was home with her when sometime in the middle of September 2001 Thomas showed up at her trailer at 2:00 a.m. in a red truck that was "loaded down with all kinds of stuff." She stated that Thomas told her that he had inherited the truck and its contents from his deceased grandfather and that his girlfriend had just kicked him out.
As his final proof, the defendant introduced the judgments against John Thomas in connection with the offenses along with a stipulation by the parties that the amounts of restitution relating to John Thomas' case had no bearing on the determination of value in the defendant's case.
Following deliberations, the jury convicted the defendant of the two counts of burglary as charged in the indictment and one count of theft over $1000 relating to the items stolen from the business. The jury acquitted the defendant of the counts of the indictment charging him with theft of the truck and vandalism of the business.
At the December 2, 2002, consolidated sentencing hearing, Wayne Lee, a community corrections officer for Claiborne County, testified that the defendant entered into the community corrections program "by way of Hamblen County" in November 1994 but was subsequently revoked by the Hamblen County trial court based on new violations he picked up while supervised by Lee on some Claiborne County cases. He said the defendant came under his supervision on April 10, 1995, on two cases out of Claiborne County that resulted in his receiving eighteen felony convictions and one misdemeanor conviction. Three months after coming under Lee's supervision, the defendant received a thirty-day sentence in the county jail for violating the house arrest rule. Approximately three and a half months later, he committed a second violation by not following the rules of house arrest, failing to perform required community service work, and failing to obey the lawful orders of the community corrections program. Lee stated that the defendant maintained sporadic employment during his period of supervision, which ended on January 17, 1996, and that he never successfully completed the community corrections program.
Tennessee Board of Probation and Parole Officer Lee Ann Skeen testified that the defendant came under her supervision on July 5, 2001, when he was paroled from prison. She said that the defendant, required to maintain steady employment as a condition of his parole, was supposed to be doing farm work at the time of his release from prison. However, she had very little communication with his prospective employer and was unable to verify his employment. She stated that the defendant picked up the charges in the instant case, as well as others that were still pending, while on parole status and under her supervision. On cross-examination, she acknowledged that the defendant earned his GED while in the Department of Correction and that he had never threatened her.
At the conclusion of the hearing, the trial court sentenced the defendant as a career offender to twelve years for each conviction. Based on his extensive criminal record and his history as a professional criminal, the trial court ordered that the sentences relating to the Annie's Auto Sales offenses be served consecutively to the sentences relating to the Midway School offenses, for an effective sentence of twenty-four years in the Department of Correction. Pursuant to statute, the trial court also ordered that the sentences be served consecutively to the sentences for which the defendant was on parole at the time he committed the instant offenses.
ANALYSIS I. Sufficiency of the Evidence
As his first issue, the defendant challenges the sufficiency of the evidence in support of his convictions. When the sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) ("Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt."); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.Crim.App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact.See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.Crim.App. 1987). "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." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citingCarroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A. Theft of Property Over $1000
The defendant argues that the evidence is insufficient to sustain his conviction for theft of property over $1000 at Annie's Auto Sales because there were no eyewitnesses to the theft, he impeached the State's proof as to the value of the property, and the State failed to prove that he knowingly obtained or intended to deprive the owner of the property. He argues, similarly, that the evidence was insufficient to sustain his theft conviction at Midway School because there was no proof that he either took or was in possession of the VCR, camera, or book bags and no evidence other than his uncorroborated statement that he shared in the money from the vending machines. He additionally argues that the State failed to establish the true owner of the VCR, camera, and book bags, and thus failed to meet its burden of showing beyond a reasonable doubt that he did not have the owner's effective consent to take those items.
To sustain the theft convictions, the State had to prove beyond a reasonable doubt that the defendant, with the intent to deprive the owner of property, knowingly obtained or exercised control over property without the owner's effective consent and that the value of the property was $1000 or more but less than $10,000. Tenn. Code Ann. §§ 39-14-103,-105(3) (2006).
We conclude that the evidence, viewed in the light most favorable to the State, was sufficient to sustain the defendant's convictions for theft of property. With respect to the Annie's Auto Sales theft, the State presented evidence that the defendant gave a statement admitting his involvement in the crime; led Captain Honeycutt to several of the stolen items that were hidden behind his girlfriend's residence; was frequently in the company of John Thomas; and was present when Thomas sold the stolen pistol to Raley. The State also presented evidence that an individual in a vehicle similar to one the defendant drove was present with Thomas at the barn where other stolen items were found, including the motorcycle engine that was so heavy it required two men to lift. This was sufficient evidence for the jury to find that the defendant participated with Thomas in the theft of the items from Annie's Auto Sales.
The defendant asserts that it "strains logic" for the jury to acquit him of the theft of the truck while convicting him of the theft of the items. We respectfully disagree. Different proof, some of which is detailed above, was presented with respect to the two theft charges, and from this proof the jury could have reasonably found the defendant guilty of theft of the items but not guilty of theft of the truck. The defendant additionally contends that the evidence was insufficient to sustain his conviction for "theft of property in any degree" because the State's proof as to value over $10,000 was successfully impeached by the testimony of his defense witness, Johnny Hickman. The defendant cites no case law in support of this claim, and we find no merit to his argument on this issue.
With respect to the Midway School theft, the State, again, presented evidence that the defendant gave a statement in which he admitted his involvement in the crime. "It is a well-established principle of law in this state that a conviction cannot be founded solely upon a defendant's confession, and our cases have long required some corroborating evidence in order to establish the corpus delicti." State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000) (citing Ashby v. State, 124 Tenn. 684, 697-98, 139 S.W. 872, 875 (1911)). "Corpus delicti" means "the body of the crime," and the State needs only slight evidence of "corpus delicti," or that a crime was committed as alleged in the indictment, to corroborate a confession. Id. (citations omitted). Evidence corroborating the defendant's statement consisted of proof of the crime itself, including evidence that the perpetrators gained entry via a bathroom window by the use of a stick, broke into the principal's and secretary's offices to take the school's recording device, and broke into the school vending machines by use of a key.
The defendant additionally argues that by failing to establish the "true owners" of the VCR, book bags, and digital camera, the State failed to meet its burden of showing he did not have the owners' effective consent to take those items. He also argues that the State failed to prove beyond a reasonable doubt the value of the items. We find no merit to these arguments. The State presented testimony by the director of the Claiborne County Board of Education and the principal of the school sufficient to prove beyond a reasonable doubt that the property was valued over $1000 and that the defendant lacked the owners' consent to take the items. The evidence, therefore, was sufficient to sustain the defendant's conviction for theft over $1000 at Midway School.
B. Burglary
The defendant contends that the evidence was insufficient to sustain his convictions for burglary of Annie's Auto Sales because there was no proof that he ever entered the buildings. In support, he points out the inconsistencies between his statement, in which he said that Thomas took the keys to the Ford truck from the wall, and James Stephen Bailey's testimony at trial that the keys were kept in a bowl in his filing cabinet. He contends that the evidence was insufficient to sustain his conviction for burglary of Midway School because the only evidence he entered the building was his uncorroborated statement. He additionally argues, inter alia, that the State failed to prove he entered the school with the intent to commit a theft or did not have the effective consent of the owner to enter. The State argues that the evidence was sufficient for a rational trier of fact to find the essential elements of the burglary beyond a reasonable doubt, and we agree.
"A person commits burglary who, without the effective consent of the property owner . . . [e]nters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft, or assault[.]" Tenn. Code Ann. § 39-14-402(a)(1) (2006). "`Owner' means a person in lawful possession of property, whether the possession is actual or constructive." Id. § 39-14-401(3). Viewed in the light most favorable to the State, the evidence showed that the defendant and Thomas broke into the boat and car lot buildings at Annie's Auto Sales, taking an assortment of tools and other items. The evidence further showed that the two also broke into the Midway School, taking a digital camera, money from the vending machines, and the VCR from the school's surveillance system. The evidence was sufficient for the jury to find that the defendant lacked the owners' consent to enter the buildings and that his purpose for the break-ins was to commit the thefts. The jury obviously resolved any inconsistencies in the evidence in favor of the State, as was within its province as the trier of fact. See State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). We conclude, therefore, that the evidence was sufficient to sustain the defendant's convictions for the burglaries of Annie's Auto Sales and Midway School.
C. Vandalism Over $1000
Finally, the defendant contends that the evidence was insufficient to sustain his conviction for vandalism over $1000 at Midway School because the State failed to prove he was the one who caused the damage, that the damage was in an amount greater than $1000, that the property was owned by the Claiborne County Board of Education, and that the damage was done without the owner's effective consent. The State argues that the evidence was sufficient to sustain the conviction and we, once again, agree with the State.
A person commits vandalism when he or she "knowingly causes damage to or the destruction of any real or personal property of another . . . knowing that the person does not have the owner's effective consent[.]" Tenn. Code Ann. § 39-14-408(a) (2006). "Acts of vandalism are to be valued according to the provisions of § 39-11-106(a)(36) and punished as theft under § 39-14-105." Id. § 39-14-408(c). "Value" includes either the fair market value of the property or service at the time and place of the offense or the cost of replacing the property within a reasonable time after the offense. Id. § 39-11-106(a)(36)(A)(i), (ii).
Viewed in the light most favorable to the State, the evidence established that the defendant broke into the school with John Thomas, in the process breaking multiple windows and doors and damaging the school's surveillance system. At trial, the school's principal, who was familiar with the damage and the cost of the repairs, testified that the amount required to repair the property was approximately $1000. We conclude, therefore, that the evidence was sufficient to sustain the defendant's conviction for vandalism over $1000.
II. Denial of Motion to Suppress Statement
The defendant next contends that the trial court erred in denying his motion to suppress his statement to police. He asserts that the statement was the product of an illegal arrest and argues that his Valium usage, the threats and promises made by Captain Honeycutt, and the lack of attenuation between the illegal arrest and interview at the CID Office rendered his statement unknowing and involuntary. The State argues that the evidence preponderates in favor of the trial court's finding that the defendant's statement was knowing and voluntary, that the defendant has waived the alleged illegality of his arrest by his failure to include it as in issue in his motion to suppress or motion for new trial, and that Captain Honeycutt had probable cause to arrest the defendant. We agree with the State.
When this court reviews a trial court's ruling on a motion to suppress evidence, "[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded the "strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence." State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). Thus, the findings of a trial court in a suppression hearing are upheld unless the evidence preponderates against those findings. See id. However, the application of the law to the facts found by the trial court is a question of law and is reviewed de novo. See State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
As an initial matter, we agree with the State that the defendant has waived the alleged illegality of his arrest by his failure to raise or argue the issue in his motion to suppress or in his motion for new trial. Issues and arguments not raised before the trial court are deemed waived on appeal, see State v. Alvarado, 961 S.W.2d 136, 153 (Tenn.Crim.App. 1996); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn.Crim.App. 1995), as are issues relating to the admission or exclusion of evidence that are not raised in the motion for new trial.See Tenn. R. App. P. 3(e).
We also agree that, even if not waived, the defendant would not be entitled to relief on the basis of this issue. An officer may arrest a person without a warrant in a number of situations, including "[w]hen a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony." Tenn. Code Ann. § 40-7-103(a)(3) (2006). At the time of the defendant's arrest, Captain Honeycutt, who had received information from a friend of the family that the defendant was in possession of items stolen in the burglaries, had already interviewed the Halford family members and was at the residence where several of the stolen items were found. Thus, we conclude that Captain Honeycutt had probable cause for believing that the defendant was involved in the crimes.
We further conclude that the evidence does not preponderate against the trial court's finding that the defendant's statement was knowing and voluntary. In Miranda v. Arizona, 384 U.S. 436, 471-75, 86 S. Ct. 1602, 1626-28 (1966), the United States Supreme Court held that a defendant's statements made during a custodial interrogation are inadmissible at trial unless the State establishes that the defendant was informed of his right to remain silent and his right to counsel and that he knowingly and voluntarily waived those rights. Whether the defendant made a voluntary, knowing, and intelligent waiver of those rights depends "`upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). The waiver must be "`made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.'" State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn. 1994)). The State has the burden of proving the waiver by a preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).
The defendant argues that his statement was involuntary because it was obtained while he was under the influence of Valium and operating under the belief that Captain Honeycutt would help him if he assisted in the case against Thomas and would bring charges against Widener if he did not. However, as the State points out, a defendant's ingestion of an intoxicant does not in and of itself render his confession involuntary.See State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000) (appendix) (citingState v. Robinson, 622 S.W.2d 62, 67 (Tenn.Crim.App. 1980), cert. denied, 454 U.S. 1096, 102 S. Ct. 667 (1981)). Instead, the focus is on whether the defendant's faculties were so impaired at the time of the statement that the statement "cannot be considered the product of a free mind and rational intellect." Id. As the trial court observed, the defendant was able to recall with specificity the events that occurred before, during, and after his statement was given. Captain Honeycutt testified that the defendant did not appear to be under the influence of an intoxicant, exhibited no difficulty in carrying groceries into Halford's house, and appeared to understand and comprehend what he was doing in making the statement. Furthermore, he denied that he promised the defendant anything in exchange for his statement or threatened that he would arrest Widener if the defendant did not cooperate with his investigation. We also note that the defendant, with twenty-four prior felony convictions, had extensive experience with the criminal justice system. We conclude, therefore, that the trial court did not err in denying the defendant's motion to suppress his statement.
III. Denial of Motion to Disclose Identity of Informant
The defendant next contends that the trial court committed reversible error by denying his motion for disclosure of the identity of the confidential informant who provided the information that led to his arrest. Although a confidential informant's identity is generally protected, this court recognized in State v. Vanderford, 980 S.W.2d 390 (Tenn.Crim.App. 1997), that the State may be required to divulge an informant's identity when (a) disclosure would be relevant and helpful to the defendant in presenting his defense and is essential to a fair trial, (b) the informant was a participant in the crime, (c) the informant was a witness to the crime, or (d) the informant has knowledge that is favorable to the defendant. Id. at 397 (citations omitted). The defendant "has the burden of establishing by a preponderance of the evidence that the confidential informant's identity is material to his defense because the informant was a witness to the crime, participated in the crime, or possesses facts favorable or relevant to the defendant."Id. The decision of whether the State should be required to disclose the identity of a confidential informant lies within the sound discretion of the trial court. Id. at 396.
We find no abuse of discretion by the trial court in this matter. In a pretrial hearing, the defendant cited Vanderford to argue that the identity of the informant was material to the preparation of his defense and essential to a fair trial. After the prosecutor informed the court that he did not know the person's identity and had no intention of calling the individual as a witness, the trial court denied the motion. Noting that the State was compelled to disclose any exculpatory evidence and that the defendant had no evidence that the person was a participant or even a witness to the crimes, the trial court found that the defendant had not met his burden of establishing the materiality of the information:
But to answer your question, I'm not going to make them reveal the confidential informant. Number one, if they don't know who it is, I'm not going to make them go find out. And, number two, I don't think that the burden has been met establishing the materiality of your knowing who this is since the State is not going to call them anyway.
We conclude, therefore, that the defendant is not entitled to relief on the basis of this claim.
IV. Failure to Issue Jury Instruction on Absent Material Witness
In a related vein, the defendant contends that the trial court erred by not issuing his requested special jury instruction on absent material witness with respect to the confidential informant. He argues that the missing witness clearly possessed knowledge of material facts, the relationship between the witness and the police naturally inclined the witness to favor the prosecution, and the witness was available to process by the State but was not equally available to the defense without the State's disclosure of his or her identity. The State argues that the defendant has waived the issue by failing to submit his request in writing and that the trial court properly denied the oral request because the facts did not support an absent material witness charge. We, again, agree with the State.
Rule 30 of the Tennessee Rules of Criminal Procedure provides that requests for special jury instructions be in writing. During his oral argument on the issue, defense counsel told the court that he intended to file a request for an instruction on absent material witness along with his requests for other jury instructions. However, there is nothing in the record to indicate he did so. Failure to submit the special request in writing constitutes a waiver of the issue. See State v. Vickers, 985 S.W.2d 1, 8 (Tenn.Crim.App. 1997); State v. Brewer, 932 S.W.2d 1, 15 (Tenn.Crim.App. 1996).
Regardless, the defendant is not entitled to relief on the basis of this issue. Defendants have a "constitutional right to a correct and complete charge of the law." State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts have the duty to give "a complete charge of the law applicable to the facts of the case." State v. Davenport, 973 S.W.2d 283, 287 (Tenn.Crim.App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). A trial court's denial of a request for special jury instructions is error only when the trial court's charge does not fully and fairly state the applicable law. State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001).
We agree with the State that the facts in this case did not support an instruction on absent material witness. The pattern jury instruction on absent material witness provides:
When it is within the power of the state or the defendant to produce a witness who possesses peculiar knowledge concerning facts essential to that party's contentions and who is available to one side at the exclusion of the other, and the party to whom the witness is available fails to call such witness, an inference arises that the testimony of such witness would have been unfavorable to the side that should have called or produced such witness. Whether there was such a witness and whether such in inference has arisen is for you to decide and if so, you are to determine what weight it shall be given.
(This inference does not apply to the defendant because [he][she] has a lawful right not to testify and [his][her] failure to testify cannot be considered for any purpose against [him][her], nor can any inference be drawn from such fact.)
T.P.I. — Crim. 42.16 (8th ed. 2004) (footnotes omitted). To support a missing witness instruction, the facts must show the witness had knowledge of material facts, that there was a relationship between the witness and a party that would naturally incline the witness to favor that party, and that the witness was available to the process of the court for trial. State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (citations omitted). In addition, the witness must not have been equally available to both parties. State v. Boyd, 867 S.W.2d 330, 337 (Tenn.Crim.App. 1992).
In the pretrial arguments on the issue, the prosecutor informed the trial court his only information on the informant came from police notes that Captain Honeycutt, who had not gotten the informant's name, took during his conversation with the individual. He said that Captain Honeycutt's notes stated that
basically the informant told Captain Honeycutt three weeks ago, started dating Jerri Lynn Widener, stole some Harley parts and gas last week, Jimmy Dykes, brother to Jerri Lynn Widener, was told by [the defendant] that he broke into a school, backpack full of quarters, video equipment, tore equipment when they saw they were being taped. A guy named John was with [the defendant] when [the defendant] done the school break-in. Jerri Lynn works sometimes escorting mobile homes and part-time at Easy Street Lounge. [The defendant] drives a red Trans Am, [the defendant] and John also had a stolen truck, said his grandfather gave it to him. Doris Halford is Jerri Lynn's mother.
In denying the requested charge, the trial court noted that there was no proof that the State was in control of or even knew the identity of the witness and no showing that the witness could give relevant, non-hearsay testimony at trial. We find no error in the trial court's ruling. From the vague information provided in Captain Honeycutt's notes, it is apparent that any testimony the informant would have offered, to the effect that he or she had heard from someone that Jimmy Dykes had heard from the defendant that he had committed the burglaries, would have taken the form of double or triple hearsay at the very least. We conclude, therefore, that the defendant is not entitled to relief on the basis of this claim.
V. Sentencing
The defendant's final two issues consist of challenges to the trial court's sentencing determinations. When an accused challenges the length and manner of service of a sentence, it is the duty of this court to conduct a de novo review on the record with a presumption that "the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn.Crim.App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn.Crim.App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn.Crim.App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the trial court's determination of controverted facts as the trial court's determination of these facts is predicated upon the witnesses' demeanor and appearance when testifying.
In conducting a de novo review of a sentence, this court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103,-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.Crim.App. 2001).
The party challenging the sentence imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence imposed by the trial court is erroneous.
A. Imposition of Fines Fixed by Jury
The defendant contends that the trial court erred by imposing the $5000 fine for each of the three Midway School offenses without consideration of the relevant provisions of the 1989 Sentencing Act, including his ability to pay. The State argues, inter alia, that the fines fixed by the jury and approved by the trial court were appropriate in light of the defendant's extensive prior criminal history and poor potential for rehabilitation and to avoid depreciating the seriousness of the offenses. In addition, the State points out that the trial court suspended payment of the fines during the defendant's period of incarceration and that the defendant, only twenty-seven years old at the time of sentencing, should still be young enough to obtain gainful employment upon his release from prison. We agree with the State.
In imposing a fine within the limits set by the jury, a trial court should consider the principles of the 1989 Sentencing Act, including "`the defendant's ability to pay that fine, and other factors of judgment involved in setting the total sentence.'" State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002) (quoting State v. Marshall, 870 S.W.2d 532, 542 (Tenn.Crim.App. 1993)). Other factors which should be considered include the defendant's prior history, potential for rehabilitation, and the circumstances surrounding the offense which are relevant to the defendant's overall sentence. Id. (citing State v. Blevins, 968 S.W.2d 888, 895 (Tenn.Crim.App. 1997)). In addition, "[t]he seriousness of a conviction offense may also support a punitive fine." Id. (citing State v. Alvarado, 961 S.W.2d 136, 153 (Tenn.Crim.App. 1996)).
Applying the above principles to this case, we note that the defendant, who was only twenty-seven years old at the time the July 26, 2002, presentence report was prepared, has managed to accumulate an extensive history of prior convictions, including multiple burglary, aggravated burglary, and theft convictions. In addition, he has a number of other pending charges in Claiborne County, including possession of contraband in a penal institution, especially aggravated kidnapping, and felony escape. We further note the lack of any employment history on his presentence report and his repeated violations of the community corrections program and of the rules of parole, evidencing his poor potential for rehabilitation. Finally, we note that the trial court, in recognition of the fact that the defendant was effectively indigent, suspended the payment of the fines during his period of incarceration. Based on these considerations, we conclude that the trial court did not err in imposing the total fine of $15,000 recommended by the jury for the Midway School offenses.
B. Consecutive Sentencing
The defendant also contends that the trial court erred by ordering that the sentences for the Annie's Auto Sales offenses be served consecutively to the sentences for the Midway School offenses. He points out that the trial court had already relied on his prior offenses to classify him as a career offender, thereby sentencing him to twelve years at sixty percent release eligibility for each offense, and argues that the court failed to take into consideration the fact that his prior offenses consisted almost exclusively of non-violent property crimes. The State argues that the record supports the trial court's imposition of consecutive sentencing. We, again, agree with the State.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may in its discretion order consecutive sentencing if it finds by a preponderance of the evidence that any one of a number of criteria apply, including that "[t]he defendant is a professional criminal who has knowingly devoted the defendant's life to criminal acts as a major source of livelihood" and that "[t]he defendant is an offender whose record of criminal activity is extensive." Tenn. Code Ann. § 40-35-115(b)(1), (2) (2006). In ordering consecutive sentences, the trial court made the following findings:
So the real question in my opinion is whether or not these 12-year sentences will be imposed consecutively or concurrently. The State has cited grounds for consecutive sentencing, primarily that — talking about a career offender in their opinion and, correct me if I'm wrong, General, 40-35-115, sub-section (b), sub 1 and 2, characterize the defendant as a professional criminal who has knowingly devoted such life to criminal acts as a major source of livelihood and a defendant whose record of criminal activity is extensive.
There's no question in this Court's mind that 40-35-115 justifies this Court in ordering these sentences to run — these sentences will run consecutive with one another. I don't recall a case right off the top of my head that suggests any greater that the defendant — that any defendant would be a career criminal such as Mr. Eads. He's engaged in a life of crime since reaching adulthood and has failed to abstain from that.
The record fully supports the trial court's imposition of consecutive sentencing based both on the defendant's record of extensive criminal activity and his status as a professional criminal who has knowingly devoted his life to crime as a major source of livelihood. As the defendant admitted at the suppression hearing, he has a lengthy list of prior felony convictions, including multiple convictions for burglary and theft. Furthermore, there is no indication from the record of any history of lawful employment. No previous employment is listed on his presentence report, and his parole officer was unable to confirm that he was actually employed as a farm worker as he claimed to be upon his release from prison. Accordingly, we affirm the trial court's imposition of consecutive sentencing.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court and remand for entry of corrected judgments in Counts 6, 7, and 8 to reflect the $5000 fine imposed in each count.