Agreed to testify as part of a plea agreement

Tennessee Reports

Unpublished

STATE v. WOODS, W2002-00299-CCA-R3-CD (Tenn.Crim.App.
3-3-2003) STATE OF TENNESSEE v. RICKY WOODS. No.
W2002-00299-CCA-R3-CD. Court of Criminal Appeals of
Tennessee. at Jackson. Filed March 3, 2003.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Direct Appeal from the Circuit Court for
Madison County; No. 01-259; Roy B. Morgan, Jr., Judge.

Affirmed.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal);
George Morton Googe, District Public Defender; and Stephen
P. Spracher, Assistant District Public Defender (at trial
and on appeal), for the appellant, Ricky Woods.

Paul G. Summers, Attorney General and Reporter; John H.
Bledsoe, Assistant Attorney General; James G. (Jerry)
Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellee,
State of Tennessee.

Joe G. Riley, J., delivered the opinion of the court, in
which John Everett Williams and Alan E. Glenn, JJ., joined.

OPINION

JOE G. RILEY, JUDGE.

A Madison County jury convicted the defendant, Ricky Woods,
of aggravated burglary, theft of property valued over $500,
and vandalism of property under $500. The trial court
sentenced the defendant as a Range II multiple offender for
the convictions for aggravated burglary and theft and
imposed concurrent sentences of eight years for aggravated
burglary, three years for theft, and eleven months and
twenty-nine days for vandalism. On appeal, the defendant
contends (1) the evidence was insufficient to support the
convictions; and (2) the sentences are excessive. We affirm
the judgments of the trial court.

Upon returning from a trip during the weekend of January
12, 2001, Harold Spencer noticed the back door of his
apartment was partially open, and a glass section of the
door was broken. Spencer testified a television, a VCR, a
cable box, a Play Station, and two games were missing from
his apartment. He estimated the value of the television at
$350 to $400, the value of the VCR at $100 to $120, the
value of the Play Station at $300, the value of the games
at $50 each, and the value of the cable box at $50.

Kevin Chism testified that on January 12, 2001, he owed the
defendant money for drugs and wanted to borrow the money
from Spencer, his relative. He stated that at approximately
midnight, the defendant’s step-daughter and one of her
friends drove him and the defendant to Spencer’s apartment
on Old Hickory Boulevard in Madison County. Chism spoke to
a neighbor who informed him that Spencer was not at home.

Chism testified that when he told the defendant no one was
at home, the defendant became angry. He stated they both
hit the glass on the back door until it broke, unlocked the
door, and entered the apartment. While inside the
apartment, the defendant identified which items to take,
including a television, a VCR, a Play Station, and speakers.
Chism stated that the defendant helped him carry the
television to the car, and that Chism carried the VCR and
the Play Station.

Chism testified they then returned to the defendant’s house
on Gates Street where they unloaded the items. He stated
the defendant and Maxine Robinson gave him drugs, and they
kept the items taken from the apartment. Chism further
stated he (Chism) sold the Play Station to Robinson’s
nephew, while Robinson sold a descrambler, which they had
also taken from the apartment.

Chism testified he was arrested the next day on an
unrelated charge and told the police officer what had
occurred on the previous night. He stated he agreed to
testify as part of a plea agreement in which he pled guilty
to aggravated burglary, theft, and vandalism.

Celia Robinson, the daughter of Maxine Robinson, testified
that she and Devona Taylor drove Chism and the defendant,
Maxine Robinson’s boyfriend, to an apartment on Old Hickory
Boulevard. She stated Chism told them that he wanted to go
to his relative’s apartment to get a television and a VCR.
When they arrived at the apartment complex, Chism and the
defendant exited the vehicle, and Celia Robinson and Taylor
went to the store.

Celia Robinson testified that when they returned to the
apartment complex approximately five minutes later, she saw
Chism and the defendant exit the apartment with a
television and a VCR. The defendant carried the television,
while Chism carried the VCR; Chism helped the defendant put
the television in the vehicle. She stated she and Taylor
dropped Chism and the defendant off in an alley near her
house on Gates Street and left.

Jeremy Price, Spencer’s neighbor, testified that on January
12th, while inside his apartment, he and Jason Gentry heard
two or three “loud bangs,” which sounded “like somebody
just kicked in a door.” He stated he walked outside of his
apartment and saw Chism, whom he had previously met through
Spencer. Price stated Chism was loudly asking where Spencer
was and cursing Spencer.

Price testified that while he was speaking to Chism,
another man walked around the corner of the building past
him and Gentry. Price described the man as a tall, stocky
male wearing black clothing and holding what appeared to be
a gun. Price stated he thought the man he saw was the
defendant, but admitted he did not have a close view of the
man.

Jason Gentry testified that while visiting Price, they
heard noises, which “sounded like somebody was kicking in a
door,” and went outside to investigate. He stated he saw
the defendant and another man standing near Price’s
apartment, and that the defendant walked directly in front
of him. Gentry stated he did not speak to the defendant and
did not see where he went. He also identified the defendant
as one of the men he saw that night during a photographic
line-up at the police department.

Officer Al Colon testified that he arrested Chism on an
unrelated charge on January 13th, and that Chism informed
him of the presence of stolen merchandise in a house on
Gates Street. Officer Allen Randolph testified that he
accompanied Sergeant Melinda Wyatt to a house on Gates
Street to speak to the occupants regarding the possible
presence of stolen property. He stated they were met at the
door by Maxine Robinson, who allowed them to remove a
television and a VCR from the residence. Sergeant Wyatt
testified that she recovered a converter and descrambler
from Bobby Walker, Maxine Robinson’s brother, and a Play
Station and games from Jonas Reed, who had purchased the
items.

Maxine Robinson, the defendant’s girlfriend, testified that
on January 12th at approximately 8:00 p.m., Chism came to
her house on Gates Street. Chism told her that his mother
had kicked him out of her house and asked if she wanted to
take a television and a VCR “in pawn” so he could use the
money to get a hotel room. She stated she told him that she
was interested in the items, but that she was about to go to
sleep. She stated Chism did not have the items with him
during this time.

Maxine Robinson testified Chism then went outside and spoke
to the defendant; the defendant entered the residence and
went to sleep. She stated Chism returned early the next
morning and asked her if she was still interested in the
items. She told Chism she was interested and gave him $60
for the items. She stated the defendant was still sleeping
during this time; however, she did not know whether the
defendant left during the night while she was asleep.

The defendant testified that on January 12th, Chism asked
Celia Robinson and Devona Taylor to drive him to his
relative’s apartment on Old Hickory Boulevard. The two
girls asked the defendant to go with them because they were
afraid of driving to the apartments with Chism alone. The
defendant stated that when they arrived, Chism told them to
wait in the car and then walked to the side of the
building.

The defendant testified he exited the vehicle to check on
Chism, while the two girls went to the store. He stated
that while he was walking around the apartment building, he
heard noises coming from the back of the building. He
noticed the door of an apartment was open and heard noises
coming from inside the apartment, so he turned around and
walked in the opposite direction. The defendant testified
that while he was walking away, he saw two men, whom he did
not recognize, and briefly spoke to them. He stated he did
not see Chism speak to either of the men, and he denied
possessing a gun.

The defendant testified Celia Robinson and Devona Taylor
returned from the store as he was walking through the
parking lot. Chism then returned to the vehicle carrying a
television. The defendant stated Chism placed the
television in the vehicle, went back into the apartment, and
returned with a VCR. They then returned to Maxine
Robinson’s house, where Chism unloaded the items. He
testified he went inside the house and went to sleep. When
he awoke the next morning, the television was on the
kitchen table.

The jury convicted the defendant of aggravated burglary,
theft of property valued over $500, and vandalism under
$500. The trial court sentenced the defendant as a Range II
multiple offender to eight years for aggravated burglary,
three years for theft, and eleven months and twenty-nine
days for vandalism. The trial court ordered the sentences
to run concurrently, for an effective sentence of eight
years.

I. SUFFICIENCY

The defendant contends the evidence presented at trial was
insufficient to support the convictions. We disagree.

A. Standard of Review

In determining the sufficiency of the evidence, this court
does not reweigh or reevaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict
approved by the trial judge accredits the state’s witnesses
and resolves all conflicts in favor of the state. State v.
Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the
state is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which
may be drawn therefrom. Id. This court will not disturb a
verdict of guilt due to the sufficiency of the evidence
unless the defendant demonstrates that the facts contained
in the record and the inferences which may be drawn
therefrom are insufficient, as a matter of law, for a
rational trier of fact to find the accused guilty beyond a
reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19
(Tenn.Crim.App. 1996). Accordingly, it is the appellate
court’s duty to affirm the conviction if the evidence,
viewed under these standards, was sufficient for any
rational trier of fact to have found the essential elements
of the offense beyond a reasonable doubt. Tenn.R.App.P.
13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875
S.W.2d 253, 259 (Tenn. 1994).

B. Accomplice Testimony

The defendant contends the testimony of the accomplice,
Kevin Chism, was insufficiently corroborated. We disagree.

In Tennessee, a conviction may not be based solely upon
the uncorroborated testimony of an accomplice. State v.
Bane, 57 S.W.3d 411, 419 (Tenn. 2001); State v. Allen, 976
S.W.2d 661, 666 (Tenn.Crim.App. 1997). In order to qualify
as corroborative evidence,

[t]here must be some fact testified to, entirely
independent of the accomplice’s testimony, which, taken by
itself, leads to the inference, not only that a crime has
been committed, but also that the defendant is implicated
in it; and this independent corroborative testimony must
also include some fact establishing the defendant’s
identity.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (citations
omitted).

The corroborative evidence may be direct or circumstantial
and is not required to be sufficient standing alone to
support a conviction. Id. The corroborative evidence is
sufficient if it fairly and legitimately tends to connect
the defendant with the commission of the crime charged.
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). In
addition, corroboration is sufficient even though the
evidence is slight and entitled to but little consideration
when standing alone. State v. Heflin, 15 S.W.3d 519, 524
(Tenn.Crim.App. 1999). The corroboration need not extend to
all portions of the accomplice’s evidence. Bigbee, 885
S.W.2d at 803. The sufficiency of the corroboration is a
determination for the jury. Shaw, 37 S.W.3d at 903.

Chism, who pled guilty to various offenses involving the
burglary of Spencer’s residence, testified he and the
defendant broke the glass on the back door, entered the
apartment, and took various items from the apartment. Jason
Gentry identified the defendant as one of the two men
outside the apartment on the day of the offense. Celia
Robinson testified she and a friend drove Chism and the
defendant to the apartment complex; they both exited the
vehicle; the defendant returned carrying a television; and
Chism carried a VCR. We conclude Chism’s testimony was
sufficiently corroborated to support the convictions.

C. The Convictions

“Aggravated burglary” is defined as the entering of a
habitation with the intent to commit a felony, theft, or
assault. Tenn. Code Ann. §§ 39-14-402(a)(1),
-403(a) (1997). “Theft of property” is committed when one,
“with the intent to deprive the owner of property, . . .
knowingly obtains or exercises control over the property
without the owner’s effective consent.” Id. §
39-14-103. As applicable to the case at bar, “vandalism”
occurs when a person “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.” Id. § 39-14-408(a).

As viewed in the light most favorable to the state, the
evidence presented at trial revealed that Chism and the
defendant went to Spencer’s apartment, and upon discovering
Spencer was not at home, broke the glass out of the back
door of the apartment, thus committing vandalism as alleged
in the indictment. See id. § 39-14-408(a) (1997).
The defendant and Chism then entered the apartment and took
several items.

Spencer testified various items of personal property valued
well over $500 were taken from the apartment. Chism
testified he and the defendant took the items without
Spencer’s consent. We conclude the evidence was sufficient
to support the defendant’s convictions for aggravated
burglary, theft of property valued over $500, and vandalism
under $500.

II. SENTENCING

The defendant contends his sentence is excessive.
Specifically, he submits the trial court erred in refusing
to apply mitigating factor (4), “[t]he defendant played a
minor role in the commission of the offense.” Tenn. Code
Ann. § 40-35-113(4) (1997). We disagree.

A. Standard of Review

A defendant who challenges his or her sentence has the
burden of proving the sentence imposed by the trial court
is improper. Tenn. Code Ann. § 40-35-401 (1997),
Sentencing Commission Comments; State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). It is this court’s duty to conduct a
de novo review of the record with a presumption the trial
court’s determinations are correct when a defendant appeals
the length, range, or manner of service of his or her
sentence. Tenn. Code Ann. § 40-35-401(d) (1997). The
presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44
(Tenn. 1999).

B. Trial Court’s Findings

At the sentencing hearing, the parties stipulated the
defendant should be sentenced as a Range II multiple
offender regarding the convictions for aggravated burglary
and theft. The trial court correctly noted the range of
sentencing was six to ten years for aggravated burglary, a
Class C felony; two to four years for theft of property
valued over $500, a Class E felony; and up to eleven months
and twenty-nine days for vandalism under $500, a Class A
misdemeanor. See Tenn. Code Ann. §§
40-35-111(e)(1), -112(b)(3), (5) (1997).

The trial court began at the presumptive sentences of six
years for the aggravated burglary conviction and two years
for the theft conviction. It then applied the following
enhancement factors for the aggravated burglary and theft
convictions: enhancement factor (1), “[t]he defendant has a
previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the
appropriate range;” and enhancement factor (13), the felony
was committed while on probation from a prior felony
conviction. Id. § 40-35-114(1), (13) (1997). The
trial court also applied mitigating factor (1), “[t]he
defendant’s criminal conduct neither caused nor threatened
serious bodily injury.” Id. § 40-35-113(1) (1997).

C. Mitigating Factor (4)

The defendant does not contest the trial court’s
application of the enhancement factors. Rather, he contends
the trial court erred in refusing to apply mitigating
factor (4), “[t]he defendant played a minor role in the
commission of the offense.” Id. § 40-35-113(4)
(1997). According to the evidence presented at trial, the
defendant helped Chism break the glass in the back door of
the apartment, entered the apartment, identified which
items to take, and helped load the items in the vehicle.
The defendant clearly played more than a minor role in the
commission of the offenses. We conclude the trial court did
not err in refusing to apply this mitigating factor.

We affirm the judgments of the trial court.