State v. Shirley Double

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1998 October 19, 1998

Cecil W. Crowson

STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9704-CR-00156 )

Appellee, )

)

) OVERTON COUNTY

VS. )

) HON. LEON BURNS, JR.

SHIRLEY DOUBLE, ) JUDGE )

Appe llant. ) (Direct Ap peal)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN C. HEATH JOHN KNOX WALKUP P. O. Box 737 Attorney General and Reporter Livingston, TN 38570 CLINTON J. MORGAN

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

BILL GIBSON

District Attorney General

OWEN G. BURNETT

Assistant District Attorney P. O. Box 706

Livingston, TN 38570

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Shirley Double was convicted by a jury on June 19, 1996 in the Overton County Criminal Court of aggravated burglary, theft over $1,000.00, conspiracy to com mit agg ravated b urglary, an d cons piracy to commit theft over $1,000.00. The four judgments were entered on October 1, 1996. As a Range I standard offender, Appellant received the following concurrent sentences and fines. (1) For the aggravated burglary conviction, Appellant was s enten ced to six years incarceration with the Tennessee Department of Correction, received a $1,500.00 fine, and w as orde red to pa y $2,000 .00 restitution to Mr. G erald Windle, the victim. (2) On the co nviction for theft over $1,00 0.00, the trial court sentenced Appellant to four ye ars imprisonment and assessed a $250.00 fine. (3) For conspiracy to commit aggravated burglary, Appellant was sente nced to four years incarceration and fined $500.00. (4) On the conviction for conspiracy to commit theft over $1,000.00, the trial court sentenced Appellant to two ye ars incarceration and im pose d a $2 50.00 fine. Ap pellant presents the following issues for our consideration on this dire ct app eal: (1) whether the trial court erred in denying Appellant's motion for judgment of acquittal as to conspiracy to com mit aggravated burglary and conspiracy to commit theft over $1,000.00 ; and (2) whether the evid ence was in sufficie nt to su stain A ppella nt's co nviction for aggravated burglary.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

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Mr. Gerald W indle, th e victim , testified that he arrived at his ho me in Overton County at 9:00 P.M. on the night o f April 28 , 1995 . As he entere d his driveway, Mr. Windle saw two people runn ing out of his home through French doors which led onto a patio. These people were later identified as Appellant and her co-defendant, Terry Hawn.1 Mr. W indle s tated th at one of the in dividua ls carried three rifles. Both App ellant and Mr. H awn ran around the side of Mr. W indle's hom e. After retrievin g a pis tol from his truc k, W indle pursued the pair on foot. Mr. Windle's daughter called 911 to report the incident. Terry Hawn evaded Mr. W indle, b ut App ellant d id not. W indle d irected Appe llant to w alk up an embankment and to lie down on the ground. Mr. W indle testified that a white truck backe d into his driveway, and he prevented it from leaving. He directed the female driver2 to exit the vehicle with he r hand s on h er hea d and to lie down on the grou nd bes ide App ellant.

Mr. Windle stated that his French doors had been broken. Three rifles were taken from his gun cabinet. He estimated the rifles to have a total value of $2,200.00. Additionally, two calculators, with a total value of approximately $120.00, were taken from the Windle residence. Officers found the rifles and calculators lying in a ditch behind the ho use and w rapped in a T -shirt. Finally, Mr. Win dle sta ted tha t neithe r App ellant n or her c o-defe ndan t had p ermis sion to be on his pro perty.

Depu ty Frank D ial with the O verton C ounty Sheriff's Department testified that he and Deputy Michael Hamilton responded to the b urglar y call. Ca ptain Greg Phillips, also with the Overton County Sheriff's Department, radioed Dial

1 App ellant 's an d Mr . Haw n's c ase s we re join ed fo r trial.

2 Ms. Patricia Cromer drove the truck. She was not tried for any offenses which sh e may have committed.

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and Hamilton to look for a shirtless white male. After driving approximately one mile, Deputies Dial and Hamilton spotted a male fitting Mr. Hawn's description. The deputies pursued Hawn on foot and then apprehended him.

Cap tain Greg Phillips testified that upon arriving at the Windle residence, he observed Appellant lying on the gr ound. Additionally, Captain Phillips noted that the patio doors had been broken open and that the interior of the home looked like a burglary scene. He stated that a T-shirt was recovered in a ditch outside the hou se and that the sh irt was wrapped around two calculators and three rifles.

Officer Phillips further testified that Appellant gave a statement at the sheriff's depa rtmen t after C aptain Phillips ad ministered Miranda rights. In her statem ent, Appellant said that Patricia Crom er was driving the truck when Cromer, Appellant, and Terry Haw n pulled up to the house. Acc ording to Appe llant's statement, Patricia Cromer informed her that Jerry Hyder lived in the house. Appellant got out of the truck and knocked on the door. She heard a crash and fell and injured her leg.3 Appellant testified on her own beha lf at trial. She explained that in 1992, she suffered a seve re leg injury in a motorcycle accident. As a result, she underwent approximately thirty operations to repair the broken bones an d torn ligame nts in her leg. During this time, she became addicted to prescription pain medication. On April 28, 1995--the night of the burglary--she continued to use drugs. According to Appellant's testimon y, she b elieved that T erry Ha wn, P atricia Crome r, and herself were going to Jerry Hyder's house to buy drugs. When the three arrived, Appellant got out of the truck and knocked on the door. Appellant saw that Cromer had driven away in the truck, and she could no t find Hawn. Mr.

3 Terry Hawn gave a statement in which he confessed to stealing three rifles.

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W indle arrived and began firing his pisto l. To avoid being sh ot, Appe llant fell to the ground . Appellant averred that she d id not e nter the Win dle res idenc e, did not go there intending to commit a burglary, did not know that there was to be a burglary, and did not steal anything from the home.

II. MOTIO N FOR JUDG MEN T OF AC QUITT AL Appellant first complains that the trial court erred in denying her motion for judgment of acquittal as to the ch arges for conspiracy to commit aggravated burglary and conspiracy to commit theft over $1,000.00. At the close of the State 's proof, Appellant's attorney moved for judgments of acquittal as to the two conspiracy charges. The trial court denied the motion on the ground that the evidence created an issue for the jury's determination. We agree.

T ENN. R. C RIM. P. 29(a) provides in pertinent part, "The court on motion of a defend ant. . . shall ord er the en try of judgm ent of acquittal of one or m ore offenses charged in the indictment or information. . . if the evidence is insufficient to sustain a conviction of such offe nse or o ffenses." Id. When presented with a motion for judgm ent of acq uittal, the trial court's only consideration is the legal sufficiency of the evidence. State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App. 1996). Sufficiency of the evidence is the appropriate standard by which both trial and appellate courts evaluate the ade quacy o f the eviden ce. State v. Cabbage, 571 S.W .2d 832, 836 (Tenn. 197 8).

Tenn . Code Ann. § 3 9-12-10 3 provide s in pertine nt part:

(a) The offens e of co nspira cy is committed if two (2) or more people, each having the culpable mental state required for the offense which is the object of the conspiracy and each acting for the purpose of promoting or facilitating commission of an offense, agree that on e (1) or more of them will eng age in conduct which constitutes such offense.

Tenn. C ode Ann . § 39-12-103 (a).

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"A conspiracy requires knowing involvement." State v. Shrops hire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993). The conspiracy need not be manifested by formal words or an express agreem ent. Shropsh ire, 874 S.W.2d 634, 641; State v. Cook, 749 S.W.2d 42, 44 (Tenn. Crim. App. 1987). The existence of the conspiracy may be established by circumstantial evidence and by the conduct of the parties in executin g the ob ject of their ag reeme nt. Shropsh ire, 874 S.W .2d 634 , 641; Cook, 749 S.W.2d 42, 44.

Appellant testified that on the evening in question, she was addicted to and under the influence of various narcotics. On April 28, 1995, Appellant had taken Valium, Soma, and Lorcet. According to Appellant's testimony, on the day of the incident, Terry Hawn picked up Appellant at her home in Crossville, Tennessee. Later that afternoon, the tw o met Pa tricia Cromer. Appella nt, Hawn, and Cromer drove to the W indle residence in Overton C ounty. Upon arriving, Appellant and Hawn got ou t of the tru ck, an d Cro mer d rove a way. A s Mr. W indle p ulled in to his driveway, he saw Hawn and Appellant running from his home. One of them carried guns. Subsequently, Appellant and Hawn were apprehended; Mr. Win dle appreh ended Ms. Cro mer wh en she drove into his drivewa y.

The trial court properly concluded that there was adequate evidence for the jury to determine whether or not the three individuals agreed among themselves to comm it both a burglary and a theft in Overton C ounty at a residence with no one at home and tha t they drove into Mr. W indle's drivew ay in furt heran ce of th eir criminal plan.

III. SUFFICIENCY OF THE EVIDENCE Appe llant's final contention is that the ev idence was insu fficient to susta in her conviction for aggravated burglary. We disagree.

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This Court is obliged to review challenges to the sufficiency of the convicting evidence according to certain w ell-settled pr inciples. A verdict o f guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's witnesses and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficiency of the convic ting evidence. Id. On appeal, "the [S]tate is entitled to the strongest legitimate view of the e vidence as well as all reason able an d legitima te inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571 S.W.2d 832, 8 35 (T enn. 1 978)) . Wh ere the sufficie ncy of th e evidence is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a re asona ble dou bt. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circu mstan tial evidenc e." Matthews, 805 S.W.2d 776, 779. Finally, T ENN. R. A PP. P. 13( e) prov ides, "F inding s of gu ilt in criminal actions whethe r by the trial co urt or jury sha ll be set asid e if the evidenc e is insufficient to support the findings by the trier of fact o f guilt be yond a reaso nable doubt." See also Matthews, 805 S.W.2d 776, 780.

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Tenn. Code Ann. § 39-14-401(1) provides that, "(1) `Habitation' (A) Means any structure, including buildin gs, module units, mobile homes, trailers, and tents, which is design ed or ad apted fo r the overn ight acco mm odation of perso ns." Tenn. C ode Ann . § 39-14-401 (1)(A). Tenn. Code Ann. § 39-14-402(a) provides in part: "(a) A person commits burglary who with out the effe ctive cons ent of the property owner: (3) Enters a building a nd com mits or atte mpts to comm it a felony, the ft or assau lt. Tenn. C ode Ann . § 39-14-402 (a)(3). Tenn. Code A nn. § 39-14-4 03 states in part, "(a) Ag gravated bu rglary is burglary of a habitation as defined in §§ 39-1 4-401 a nd 39-1 4-402." Tenn . Code Ann. § 39-14-403 (a). The State was required to prove each and every element of the charge d offense beyond a reaso nable d oubt.

Burglary may be establish ed by circu mstan tial evidenc e. State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. A pp. 199 3); State v. Bohanan, 745 S.W.2d 892, 895 (Tenn . Crim. A pp. 198 7). Moreover, the jury may infer an accused's criminal intent from the circums tances . Holland, 860 S.W.2d 53, 59. However, before an accused may be convicted of a crime based solely upon circumstantial evidence, the facts and circumstances "`must be so strong and cogent as to e xclude every other reason able hyp othesis s ave the g uilt of the defe ndant.'" Bohanan, 745 S.W.2d 892, 895 (quoting State v. Crawfo rd, 470 S.W .2d 610, 612 (Tenn. 197 1)). Once the breaking and entering have been established, the jury may infer the accu sed's intent to com mit a theft there in. State v. Avery, 818 S.W.2d 365, 367- 68 (Tenn. Crim. App. 1991). Finally, a defendant's flight, coupled with other facts and circumstances, is evidenc e of guilt. State v. Zagorski, 701 S.W.2d 808, 813 (Tenn. 19 85).

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Appellant and her co-defendant entered a habitation. Additionally, neither Appellant nor Te rry Hawn had be en given permis sion from Gerald Win dle to enter his hom e. Finally, Ap pellant an d her co -defend ant intend ed to com mit a theft inside the residence.

Appellant admits being at Mr. Windle's residence on the day of the incident. However, she denies entering the home and participating in the burglary. Appellant contends that some of Mr. W indle's testim ony is n ot cred ible and that the burglary could not have occurred as Gerald Windle claims in his testimony. Specifica lly, Appellan t points to Windle's statement that Appellant ran from his home and around the house. Further, W indle testified that Appellant and Hawn jumped over a bank. Appellant urges this Court to conclude that the burglary did no t occu r as Mr . W indle described beca use s he wa s serio usly injured in a severe motorcycle accident in 1992 which severely damaged the bones of her leg, rendering her incapable of running. However, it is not the function o f this Cou rt to evaluate the credibility of witn esses. State v. Williams, 784 S.W .2d 66 0, 663 (Ten n. Crim . App. 1 989). R ather, th at is a matter entrusted exclusively to the trier of fact. Id. The ju ry obvio usly reje cted A ppella nt's assertion of her inab ility to run and accred ited the tes timony o f the victim. W e declin e to dis turb its ve rdict on this ap peal.

The judgment of the trial court is affirmed.

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JERRY L. SMITH, JUDGE

CONCUR:

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JOHN H. PEAY, JUDGE

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DAVID H. WELLES, JUDGE

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