State v. Dunlap

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 21, 1997
• Docket: 03C01-9607-CR-00251
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY 1997 SESSION FILED August 21, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) No. 03-C-01-9607-CR-00251 APPELLEE, ) ) Knox County v. ) ) Ray L. Jenkins, Judge JEFFREY EUGENE DUNLAP, ) ) (Burglary) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

William C. Talman John Knox Walkup P. O. Box 506 Attorney General & Reporter Knoxville, TN 37901-0506 500 Charlotte Avenue (On Appeal and At Trial) Nashville, TN 37243-0497

Leslie M. Jeffress Clinton J. Morgan 1776 Riverview Tower Assistant Attorney General 900 South Gay Street 450 James Robertson Parkway Knoxville, TN 37902 Nashville, TN 37243-0493 (At Trial) Randall E. Nichols District Attorney General P. O. Box 1468 Knoxville, TN 37901-1468

Robert L. Jolley, Jr. Assistant District Attorney General P. O. Box 1468 Knoxville, TN 37901-1468

Sally Jo Helm Assistant District Attorney General P. O. Box 1468 Knoxville, TN 37901-1468

OPINION FILED: _________________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

The appellant, Jeffrey Eugene Dunlap (defendant), was convicted of burglary, a

class D felony, by a jury of his peers. The trial court sentenced the defendant to

confinement for twelve (12) years in the Department of Correction as a career offender.

In this appeal, the defendant claims the evidence was insufficient to support his conviction

and the sentence imposed was excessive. As both contentions are without merit, the

judgment of the trial court is affirmed.

On the evening of May 16, 1993, Patrolman Kenneth Robertson responded to a call

instructing him to go to the Mugford Pharmacy at 4013 Martin Mill in Knoxville. When

Officer Robertson arrived at the pharmacy, he saw two black males standing inside the

pharmacy. A bay window had been broken. The men were holding boxes. As soon as

the officer arrived at the pharmacy, the men exited the building and fled on foot.

The officer pursued the two men. He apprehended the defendant behind the

building. The other suspect was not apprehended. The officer testified he followed the

defendant from the time he fled the store until he was apprehended. He never lost sight

of the defendant.

Approximately $1,000 worth of merchandise had been placed in boxes. Some of

the merchandise contained in the boxes was inside the store. Other merchandise had

been moved outside. The manager testified approximately $900 worth of pills were found

outside the building and had to be destroyed. The manager further testified he did not

authorize anyone to break out the bay window or take or move any of the merchandise in

question.

I.

The appellant contends the evidence is insufficient to support his conviction. He

argues the state did not prove he had actually stolen merchandise or intended to steal any

merchandise from the pharmacy.

When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient “to support

1 the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e).

This rule is applicable to findings based upon direct evidence, circumstantial evidence, or

a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253

(Tenn. Crim. App.), per. app. denied (Tenn. 1990).

In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the weight and value to be given

the evidence, as well as all factual issues raised by the evidence are resolved by the trier

of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973), our Supreme Court said: “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.”

Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdict returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.

In this case, the state was required to prove beyond a reasonable doubt (a) the

defendant entered a building other than a habitation, which was not open to the public, (b)

with the intent to commit larceny. Tenn. Code Ann. § 39-14-402. The defendant was

seen inside a building which was not open to the public. The manager of the building

2 testified he had given no one permission to enter. The defendant’s intent to commit

larceny may be inferred from the surrounding circumstances. See Duchac v. State, 505

S.W.2d 237, 240 (Tenn. 1973), cert. denied, 419 U.S. 877, 95 S.Ct. 141, 42 L.Ed.2d 117

(1974). Packaging items which the defendant neither owned, nor had permission to take

from the pharmacy, in the middle of the night, in front of a broken window constitute

circumstances from which an intent to commit larceny may be fairly drawn. Some of the

merchandise had been placed outside the building. Additionally, the defendant’s flight is

evidence from which a conclusion of guilt may be drawn. State v. Zagorski, 701 S.W.2d

808, 813 (Tenn. 1985), cert. denied 478 U.S. 1010, 106 S.Ct. 3309, 92 L.Ed.2d 722

(1986).

This issue is without merit.

II.

The defendant contends the sentence is excessive. The court found the defendant

had at least eleven prior felony conviction. Since the offense was a Class D felony, the

defendant was properly sentenced as a career offender to the maximum Range III

sentence, twelve years. See Tenn. Code Ann. §§ 40-35-108(a)(3) and -108(c).1 No

presentence report appears in the record. The lack of a report impairs this Court’s ability

to conduct a full de novo review of the sentence imposed.

_____________________________________ JOE B. JONES, PRESIDING JUDGE

1 The record contains discussions about the prior convictions between the trial judge and the attorneys. However, the record does not contain copies of the judgment forms or a presentence report indicating prior convictions. In this appeal, however, the defendant does not challenge the judge’s reliance on the prior convictions.

3 CONCUR:

__________________________________ JOSEPH M. TIPTON, JUDGE

__________________________________ CURWOOD WITT, JUDGE