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State v. Hopper3/29/1999
The appellant, Timothy Alan Hopper, appeals as of right from his convictions in the Hardin County Circuit Court of burglary and driving under the influence . Following a jury trial, the appellant was sentenced as a Range II multiple offender to serve six (6) years for the burglary conviction and eleven (11) months and twenty nine (29) days for D.U.I. The sentences were ordered to run concurrently, with the sentence for D.U.I. suspended to thirty (30) days.
On appeal, the appellant challenges the sufficiency of the convicting evidence and the nature and length of his sentences. We find no reversible error and affirm the judgment of the trial court.
On July 6, 1996, Chief Mike Vaughn of the Crump City Police Department received a telephone call reporting a burglary at Davis Brother's Block Company. Chief Vaughn went to the scene and discovered tire tracks which he opined were left by a car with a temporary spare tire on one wheel. He also noticed two sets of foot prints leading from the building entrance to where the tire tracks ended. Bill Davis, the owner of the Block Company, told the police that he had seen the appellant driving a car with a temporary spare tire a few days earlier.
On the same night of the burglary, Investigator Mike Fielder and Deputy Sheriff Mark Mitchell of the Hardin County Sheriff's Department were notified about a possible D.U.I. in progress. A pedestrian reported to the officers that he had observed a person driving recklessly and throwing a beer bottle out of his car. The officers investigated the report and found appellant's car parked on the side of a public street in Hardin County. The car matched the description given by the pedestrian and the appellant admitted to the officers that he had been driving the car. Deputy Mitchell smelled alcohol on appellant's breath and administered two field sobriety tests, the horizontal gaze nystagmus test and the fingertip-to-nose test. The appellant failed both tests and was placed under arrest for D.U.I. Approximately one-half-hour later, appellant's blood/alcohol level tested 0.10 percent on the intoximeter machine.
During the field tests, Investigator Fielder examined appellant's car and discovered a temporary spare tire on the car and three pairs of tennis shoes inside the car. Later tests revealed that the spare tire matched the prints found at the burglary scene. Also, one pair of tennis shoes, owned by the appellant, matched the distinguishable football prints found at the scene.
The appellant testified in his own defense that he went with one Danny Hopper to the Davis Brother's Block Company because he owed him a favor. Appellant testified that he initially stayed in the car while Danny climbed over a security fence and broke into the company building. Appellant stated that after waiting in the car for approximately thirty minutes, he entered the fenced area to help Danny load and carry numerous items out to the car. According to appellant's testimony, he did not enter the company building, but merely entered the fenced area and helped Danny push a wheelbarrow to and from the car. As to the charge of D.U.I., the appellant testified that he had only consumed one and one half beers when he was questioned by Deputy Mitchell.
The appellant made a written statement to the police that provided further details of the burglary. The statement was introduced into evidence as follows:
"It was on Friday night around two week (sic) ago. Me and Danny Hopper when (sic) to Davis Bros. Block Co. in Crump, TN. And we when (sic) in my car and I pull (sic) in a garden of (sic) field beside the fence. And I stayed in the car while Danny went over the fence a
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