### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Fe br ua ry 14, 200 6 S es sio n

ST A TE OF TE N N ES SE E v

. JOEL M AR SHA LL JON ES

Direc t Appeal from the Circ uit Court for Marshall County

Nos. 16108, 16109 Lee Russell, Judge

No. M2005- 00619-CCA -R3-C D - F iled April 21, 2006

The De fenda nt, J oel Marsha ll J ones was convicted of ag g ravated burg lary
, theft of property valued at less than $500.00 a n d of theft of property valued at more than $1000.00. The Def endant wa s
se nte nc e d to pr iso n f

or fi ft e e n y e ars a s a Ra ng e I I of fe nd e r. On app e a l, the De fe nd a nt c on te nd s th a t: (1) the e vidence is insufficient to sustain his convictions; (2) the trial court erre d wh en i t d i d not allow a witness to testify ; and (3) the trial court e rre d when it e x tended the hours of the trial. Finding

no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nts of

the tr ia l c ou rt

.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of t he court, in which J A M ES C UR WO OD W I TT , J R ., J ., joined. G AR Y R. W ADE , P.J
., filed a dissenting opinion.

F a n n i e J

. H arr i s , N a s h v i l l e , T e n n e s s e e , f o r t h e ap p e l l a n t , J o e l M ar s h a l l J o n e s , III

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A s s i s t an t

At torne y Ge ne ra l; W. Mi chae l McCown, District Attorney Gene ral; and Micha el D. R an dles, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. Bac kgr ound

I n case number 16108, a

Marsha ll Count y

g rand jury

indicted the Defenda nt for one count of a g g ra va te d b urglary of th e ha bit a tio n o f T e rry

Mo or e , a ndtw o c ou nts of the ft of pr op e rt y belong ing to Moore and value d at less than $500.00. I n case number 16109, the D efe ndant was indicted for two c ounts of theft of pr operty owned by

CSX Transportation I nc. and va lued at more than $1000.00 but le ss tha n $10,000.00. The indictments wer e consolidate d for tria l and wer e tried joi ntl y wi th i de nti c a l c ha

rg e s a g a ins t Mi c he lle L e e Ho ote n ( Jone s) , a c o- de fe nd a nt. A M ars ha ll Countyjury

convicted the Def

endant of ag g ravated burg lary

and thef t of property

valued at less than $500.00 in case number 16108, a nd of theft of property valued a t more than $1000.00 in ca se number-2-

16109. The trial c ourt issued an e ffe ctive sente nce of fiftee n y ear s in prison.

II. F acts

This case arises from the De fenda nt’s convictions of burg lary and thef t. Phil lip Mit chell, an

a ssi st ant for e ma n w ith CSX Tr a ns po rt a tio n, te sti fi e d th a t CSX Tr a ns po rt a tio n h a s a fa c ili ty in L e wi sb ur g wh e re va

ri ou s su pp lie s a nd ra w ma te ri a ls a re ke pt i n th e su pp ly

y ard . H e e xpla ine d th a t, on the day

of the a lleg ed crime, he and othe r CSX employ ees loa ded a CSX tru ck with inventory from the CSX supply

y ard. H e said that, afte r they loaded the tr uck, appr ox imately

eig ht to ten pairs of “ c omp ro mis e joi nt b ars ” re ma ine d in the su pp ly y ard

. Mit c he ll te sti fi e d that the y le ft the su pp ly y ard, a nd, when they

returne d, they

saw a blue pick-up truc k with a woman in the driver’s se at and a man outside the truc k. He testified that the man appe are d to be in a hurry to ge t into the truck. Mitchell expl ained that he g ot close t o the blue pick- up truck a nd was a ble to peer

into the bed of the pick-up truc k wher e he sa w five to seve n co m promise joint bars ly ing in the tr uck’s be d. He

e xpla ine d th a t, a s the y pu lle d up be sid e thi s p ic k- up truc k, the truc k, wh ic h w a s a lr e a dy mov ing , d id not slow down. I nstead, the truc k “took off” and lef t the premises. He said that he tried to see the truck’s lice nse tag number, but the truc k was moving too quickly . Mitchell said that the eig ht to ten pairs of c ompromise joint bars that they had left in the supply y ard w ere missing. He te stified that he ca lled the police a nd provided them with a de scription of the drive r of the blue pi ck-up truc k and the man who a ccompa nied her

.

On c ro ss- e xami na tio n, Mit c he ll te sti fi e d that he did no t ha ve a lis t of the ma te ri a ls k e pt i n the supply

y ard, and the s tack of

joint bars was located next to a pile of trash, which w as four to five hundred f eet a way from the CSX buildings. He admitted that he did not know from which pile the Def endant took the ba

rs. He e x plained that a c ontrac tor collec ts and rese lls the materials from the trash pile.

On re direc t examinatio n , M i t ch ell explained that the joint bars wer e in a stac ked pile. He testified t hat t he pick-up truck sped awa y , and, af terwa rds, he notice d that there wer e no long er a ny
rema ining pa irs of compromise joint bars in the supply y ard. H e explained that non-CSX employ ees
are not allowed to come onto CSX property and to take w hat they

want fr om the pi le of trash. He further explained that the property contains si g ns indicating that the ar ea be longs to CSX and that trespassing is not permitted.

Cam Harmon te stified that he has a business located in Corne rsville, Tenne ssee that buy s and sells scrap me tal. He testified that, on the day of the alleg ed crime, he purcha sed more than one load of railroa d steel fr om the Def endant. Ha

rmon looked at ticke ts made to rec ord the purc hase of the steel and sa id th a t th e ti c k e ts id e n ti f ie d th e D e f

e n d a n t a s th e s e ll e r o f th e s te e l. H e te s ti f ie d that Detec tive Kevi n Patin and some CSX employ ees c ame to his place of business and identifie d the steel that Ha

rmon had purc hased f

rom the De fenda nt as steel that belong ed to the CSX corpor ation.

On cr oss-examination, Harmon testified that the Defe ndant came t o his business two to three-3-

times a wee k and sold items such as old stoves and r efrige rators. H e identified a rec eipt that he had g iven to the Def

endant that identifie d the m aterial as short steel. He further testified that he doe s not do a ny c omm e rc ia l bu sin e ss w ith CSX a ndthat CSX se lls mos t of the ir ma te ri a ls t o B oo ne Expr e ss. He r eca lled that the metal that the De fenda nt sold to hi m was rusty

. Dwig ht E merson, an eng ineering supe rvisor at CSX, testified that compromise joint bars a re unique to CSX. He explained that CS X compromise joint bars a re ide ntifiable bec ause the bars ha ve the nu mbe rs 13 6 a nd13 2 s ta mpe d o n th e m. H e te sti fi ed th at com pro mise joi nt b ars are re us able even if they are rusty . Emerson testifi ed that he we nt to the scrap me tal fac ilityin Cornersville, Te nn e sse e wi th D e te c tiv e Pa tin a ndoth e r C SX e mpl oy e e s w he re he saw thr e e to f ive CSX

c omp ro mis e joi nt bars wi th the nu mbe rs 13 2 a nd13 6 s ta mpe d o n th e m. H e sa id tha t th e se CSX compromise joint bars wer e made from new materia l and that he did not see any bars that we re ma de with scrap material.

B .K . M a lho tr a , a

ma na g e r o f m a te ri a l a t CSX, te sti fi e d th a t, d ur ing the tim e that th e c ri me
was c ommitt ed, CSX paid $142.25 per compromise joint bar. On cross-e x amination, he admitted that he did not know how many compromise joint bars we re at the fac ilityon the day of the c rime. He e x p l ai n ed t hat he ha d to arra ng e for a spec ial order

purcha sing c ompromise joint bars afte r he

rec eived a

call fr om the road ma ster at CSX informing him that the comp ro m i se joint bars we re missing.

Gre g ory Primm t estified that, on the da y of the c rime, he w as vi siting his wife’ s trailer a nd he sa w the De fe nd a nt’ s p ic k- up tr uc k p ull in f ro nt o f T e rry

Mo or e ’s tr a ile r. He te sti fi e d th a t hi s brother- in-law, Te rry

Moore, lived in the tra iler in front of his wife’ s trailer. He said that he saw a man and a

woman g et out of the pick-up truc k and g o inside Terry Moore’ s trailer, a nd he could se e the woman r ema i n i n the living r oom. The man lef t the living room a nd returne d and g ave the woman something that looked like a little g roce ry bag
, and she e x ited the trailer and g ot in the truck. He sa id that the man continued to wa lk throug h all of the rooms in Terry Moore’ s trailer, a nd then went outside and put something in the ba ck of the truck. Primm said that the man wa lked down the road, pic ked up a “ For

Rent” sig n that was ly ing dow n in front of a trailer that was further down the road, dr ove the sig n back into the g round, and then returne d to the truck. Primm said that his wife returne d, he told her w hat had happene d, and they both ta lked to Moor e. Primm t old Moore about the people w ho had bee n in Moore’s tra iler, and th ey ca l l ed the police . He e x plained that he provided the police with a desc ription of the pi ck -u p t ruck and the people that he had se en ente r Moore’ s trailer. He rec eived a call fr om the police asking him to come and identify the per petra tors of the c rime. He went to the locat i o n s p ec i fi ed by the police a nd identified the pe ople that they found as the pe rpetrators of the c rime.

Terry Moore testified that he lives in a trailer in f ront of his sister. He r eporte d that, on the day of the c rime, he r eturne d home and his brother -in-law told him what had happene d in his trailer. He e xpla ine d th a t a

lit tle he a dp ho ne ra dio , a ba g of c hic ke n, and tw o fi sh were mis sin g fr om h is trailer a nd that these i t em s wer e inside his trailer w hen he le ft for w ork in the morning . Moore further testified that he locke d the door to his trailer a nd that he did not gi v e t h e Defenda nt-4-

permission to go inside his trailer . He a lso said that he did not le ave a ny trash on his front porc h. On cr oss-examination, Moore admitted that, on the day of the c rime, hi s t railer

did not have any elec tricity or running water . He also acknow ledg ed that a “For Rent” sign r emained in the tr ailer’ s window and that he rente d the trailer from Pat Smith.

Rebec ca Mitche ll, a patrol-woma n with the L ewisburg Police Depa rtment, testified that, on the day of the c rime, she r esponded to a dispatch call and went to Moor e’s trailer. She explained that Primm told her what he had seen occur in T erry Moore’ s trailer on the day of the c rime. She testified that Primm provided her with a description of t he Defenda nt, the woman that he was with, and the vehicle that they

drove. She r elay ed this information to the rest of her shift, and later Off icer Curley inf or me d h e r t o g o to Park

Av e nu e wh e re a

ve hic le th at fi t th e de sc ri pti on wa s lo c a te d. Mit c he ll tes ti fie d th a t sh e we nt t o th is l oc a tio n, se arc he d th e ve hic le , a ndfo un d a wa lkm a n w ith a

ra dio headphone , two fish, and two pac kag es of c hicken br easts.
David Curley , a patr olman with the L ewisburg Police Depa rtment, testified that, on the day of the c rime, he r ece ived t wo “be on the lookout” advisories a nd found a truc k that matched the descriptions provided parke d in a drivew ay on Park Ave n u e. He sa id that he saw f our people
, including the Def

endant, sitting on the apartment’s front porch. He pulled his patrol car behind the truck in the drive way

and f o u n d t h e Defenda nt and Hooten, the w oman who ac companied the Def endant. Hoote n and the De fenda nt provided him with the ir identification car ds and other police office rs ar

rived a t the scene . He testified t h at P ri m m arrived at the sc ene a nd identified the Def endant a nd Hooten as the individuals who were inside Terry Moore’ s trailer.

Detec ti v e Ke v i n Patin, with the L ewisburg Police Depa rtment, testified that Ter

ry Moore identified picture s of items that were taken f rom the De fenda nt’s truck a s his possessions. He further testified that he observe d the compromise joint bar s at Harmon’s scra p y ard and ac knowledg ed that CSX employ ees ide ntified the joint bars as CSX property . He de scribed how he tra nspo rt ed the Def endant a nd Hooten to t he poli ce department and how he spoke w ith them each individually . He explained that he provided the Def endant wi th his Miranda rig hts, had a c onversa tion with the De fe nd a nt, a ndthe n a sk e d th e De fe nd a nt t o p ro vid e a wri tt e n s ta te me nt s umm ari zing the ir

conver sation. The Def

endant said that he could not spell very well, and Of

fice r Patin wrote down wh a t th e De fe nd a nt tol d him a nd the n we nt ov e r this state me nt w ith the De fe nd a nt. Of fi c e r P a tin testified that the De fenda nt admitted that he went into Moore’ s trailer a nd took a fish, chicke n, and

a w a l k m a n o u to f

t h e ap ar t m e n ta n d t h a t h e t o o k t h e c o m p r o m i s e j o i n tb ar s f r o mC S X p r o p e r t y. Of fi c e r P a tin re a d th e fo llo wi ng De fe nd a nt’ s w ri tte n s ta te me nt t o th e jury :

M ic h e ll e p ic k e d me u p a t my s is te r ’ s h o u s e th is mo r n in g ab o u t 7: 3 0 a

. m. We went and pa id her bill at the bank, t h en [ w] e went to m y mother’s house on Par

k Street. We ca lled around to try and find us a place to live. We left and rode ar ound a little w h il e

. T h e n I to ld M ic h e ll e to p u ll in to th e r a il r o a d p la c e

. I g o t out and loaded up the r ailroad tie joint bars. I g ot about twenty

of them.

Then we went to Cornersville to Cam Harmon’s junk y ard and sold them for-5-

$53.10. Then we went bac k to my mother’s house - - we nt back to my mother’s a nd while my mother wa s calling to try to find us a place , me and Miche lle went riding

aro und again to tr y

to l oo k f or a pla c e to l ive . T ha t is wh e n w e se e n a “ F or Re nt” sign at a trailer

on 4 Avenue

. th

The door w as open so we went in and looked around. A l ady that lives in one of the tra ilers said g o in and look around.

That is when I

looked in the re frig erator and found some chicke n that looked like it was bad.

So I took it to feed my

sister’s dog

. Then we found some fish things on the floor so we took them, and an e arphone set was on the pa tio.

I told Michelle to put them in her pants and she did.

Then [we] went bac k to my mother’s. My

mother told us that Sue Allen had an apa rtment so we we nt and looked at the a part m en t and Michelle f

illed out the p ap e r w o rk

a n d w e p a i d h e r

t h e m o n e y.
Then [we] went to g et my mother to show the apa

rtment to her.

T h e n w e to o k

mo th e r b a c k to h e r h o u s e

. T h a t i s w h e n th e p o li c e g o t u s

. We

w e r e h o m e l e s s l i v i n g i n a s t o r a g e b u i l d i n g w i t h n o w a y t o e a to r b a t h e

. I a ms o rr y. We j us t do n’ t ha ve a ny

mon e y

. I jus t w a nt s ome on e to h e lp u s. Sig ne d Joe l Jone s.

Detec tive Patin testified that he re ad Hooten he r rig hts and then had a conver sation with her. Pa tin re a d th e fo llo wi ng state me nt tha t H oo te n w ro te to the jury :

After I pulled up J o el at W en d y ’s
, drove - - we went to - - looks like I ris’s mom’s. Then we went to the cr edit union.

We went to CSX and g ot some me t al and sold i t in Cornersville. We went to the trailer be cause it was for r ent and we nt in and g ot a couple of things.

We w ent to the storag e building for a while. I paid a de posit on an apartment and then we went bac k to J oel’s mom’s house.

We took from the t railer a portable stere o, two singing fish and some c hicken. Signed Mic helle Hooten.

On cr oss-examination, Detective Patin ac knowledg ed that he ma y have ha d trouble re ading

so me of Ho ote n’ s han dw ri tte n wor ds a nd that she ma y ha ve a c tua lly writt e n th a t, “ We w e nt t o CSX-6-

and g ot scrap me tal” instead of “we went to CSX and got s ome m etal.” He acknowledg ed that the De fe nd a nt a ndHo ote n n e ve r c ha ng e d th e ir sto ri e s th a t th e y we nt to the tr a ile r i n o rd e r t o lo ok a t it

as a possible pla ce to r ent. He admitted that the Def endant may

have me ntioned something a bout the trailer ’s lack of

elec tricity . He a cknowledg ed that the De fenda nt had informed him that, when he opene d the re frig erator, one of the b ag s of chicke n smelled rotten. He did not reca ll if the Def end an t t o l d him that there wa s g arba g e on the tra iler’s pa tio porch. He did not reca ll the Def endant telling him that the home lacke d curta ins or furniture

. He a dmitted that the Defe ndant may have told him that the Def endant thoug ht the materia l he had obtained from CSX prope rty was
scra p metal.

On re direc t, Patin testi fied that both t h e De fenda nt and Hooten a dmitted that they took Moore’ s property once they wer e inside his tra iler. He further testified that they both reporte d that Hooten hid something underne ath her clothes.

The De fenda nt testified that he was homeless and that he kept his persona l belong ings in a storag e building. H e said that, on the day of the crime, Hooten picked him up and they drove a round picking up scra

p. He e x plained that he ha s been collecting scra p his e ntire life and that he sells the

scra p materia l that he collects to H armon’s junky ard. He said that he and H ooten passed a railroa d trac k, and he sa w a sig n that said “scr ap.” He told Hooten about the s ign, they pulled over, a nd the Def endant c ollected a few joint bar s. He e x plained that he sa w a lot of buc kets and piles of pla stic, and he thoug ht that these materials were trash. He said that, afte r he c ollected a few joint bars, he went to Harmon’s junky ard a nd sold him t he joint bars, and then ca shed the c heck at the cre dit union that Woo te n u se s.

He t e s ti f ie d th a t h e a n d H o o te n th e n lo o k e d f o r a p la c e to li v e

. H e e xp la in ed that he a nd Hooten had looke d at Pat Smit h’s properties, and they saw a “F or Rent” sig n with the phone number for Pat Smith’s properties in fr ont of the trailer . He sa id th at M s. Moore c ame out of the trailer, explained that the trailer was for rent, and g ave the Def endant and Hooten pe rmission to go inside the trailer . He e x plained that he kne w Ms. Moore beca use he knew her son, Randy Moore, a nd that he thoug ht that he could ente r the tra iler bec ause its door wa s wi d e o p en . He testified that, once insi d e , h e o p e n e d th e r e f r ig e r a to r , a n d f

o u n d a p a c k a g e o f

ru in e d c h ic k e n , w h ic h h e to o k

. He testified that the trailer did not have any furniture inside, except for a kitchen table, and did not have working elec tricity

or running water. He said that he st ay ed ins ide t he tra iler for about four to f

ive min ute s. He te sti fi e d th a t he too k a garbage bag fu ll o f i te ms f ro m th e tr a ile r’ s f

ro nt p a tio to h is mother’s house a nd that he we nt thr oug h the items inside the ga rbag e bag . He sa id that the fish and the walkman w ere inside the g arba g e bag that he found on the patio. He e x plained that he thoug ht the chicke n and the headphone s wer e trash. He f urther te stified that he had intende d to contact Pat Smit h in order to r ent the trailer, but
, when he g ot to his mother’s home, he learned that his mot her had found a nother plac e for them to live.

The De f e n d a n t te s ti f

ie d th a t, w h e n h e to o k th e mate r ia ls f r o m CS X p r o p e r ty , h e d id not

rea liz e that he c ould be cha rg ed with stealing . He sa id that h e under stood that he had done something w rong afte r discussing the incident with Dete ctive Patin, but he di d n o t i n t end to do-7-

something w rong

. He ag ree d that the chicke n and the fish wer e in the bac k of his pick-up truc k and that he wa s not try ing to hide these it ems. He also said that the walkman wa s ly ing in the f ront of his pick-up truck and that he was not try ing to hide the wa lkman. The De fenda nt did not reca ll that

a CSX employ ee ha d driven up c lose to the Def endant’ s truck while the D efe ndant was pic king up t h e j o i n tb ar s o n C S X p r o p e r t y.

On cr oss-examination, t h e De fe n d ant agr eed tha t he told the jury that the two fish and the walkman we re in a

g arba g e bag that he took from the trailer. He testified that, when he e ncounter ed the pol i ce , t h e t wo fish wer e inside a w hite bucket a nd wer e not inside the g arba g e bag . The following portion was read from the Defenda nt’s statement “I took it to feed my sister’s dog . Then we f ound some fish things on the fl o o r s o we took them, and a n ear phone set wa s on the patio.” When asked if that wa s what the De fenda nt said, the Defen d an t re p l i ed that he sa id those words beca use he w as intimidated. He testified tha t Woot en did not sti ck t h e ra d io in her pants, but he admitted that he told De tective Patin that she stuck the radio in he r pants. The De fenda nt said that he kn e w that the CSX pr op e rt y did no t be lon g to him
, bu t that he didno t st e a l th e ma te ri a ls b e c a us e he tho ug ht the y

we re sc ra p. He a c kn ow le dg e d tha

t no on e g a ve him

pe rm iss ion to t a ke the pr op e rt y that did not belong to him.

Joy c e Mo or e te sti fi e d th a t sh e kn e w the De fe nd a nt thr ou g h he r so n, Ra nd y

. She sa id tha t, on the day

of the c rime, she did not see the Defenda nt, and she did not g ive him permission to enter the trailer . She said that, when she was inside Moore’s t railer
, she had seen a fish on a plaque ly ing on the kitchen table

.

III . A nal ys is A. Suf fi ciency of the Evidence

The De fenda nt co n t en d s that the evidenc e is insufficient to support his convictions for ag g ravated burg lary

and for thef t of property

valued at more than $1000. When an a ccuse d challeng es the suff

iciency of the e vidence, t his Court’s standard of r eview is whe ther, a fter considering the evidenc e in the li g ht most favor able to the State, a ny rational trier

of fa ct could have fo un d th e e sse nti a l ele me nts of the c ri me be y on d a re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); Sta te v. Goodwin, 143 S.W.3d 7 7 1, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002)). This rule applies to f indings of g uilt based upon direc t evidence , circ umstantial evidence
, or a c ombination of both direct and circ umstantial evidenc e. State v. Pender g rass,13 S.W.3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is C ou rt sh ou ld n ot r e -w e ig h o r r e -e va luate the e vid e nc e . St a te v. Ma tth e ws , 8 05 S.W. 2d77 6, 77 9 ( Te nn . Crim. Ap p. 19 90 ). No r m a y thi s Cou rt su bs titute its inf

e re nc e s f or tho se dr a wn by

the tr ie r o f f

a c t f ro m th e e vid e nc e . St a te v. B ug g s, 995 S.W .2d 102, 105 (Tenn. 1999) ; L iakas v. State, 286 S.W .2d 856, 859 (Tenn. 1956) . Questions

conce rning the cr edibilityof the witn es s es , t h e weig ht and value of the evidenc e, and a ll factua l iss ue s r a ise d b y

the e vid e nc e are re so lve d b y the tr ie r o f f

a c t. L iaka s, 28 6 S.W. 2d a t 85 9. “ A g uil ty

ve rd ic t by the jury , a

pp ro ve d by the tr ia l judg e , ac c re dit s the te sti mon y of the wi tne sse s f

or the Sta te-8-

and re solves all conflicts in f avor of the theory

of the State.” State v. Gra ce, 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 f oundation. T h e t ri al judge and the jury see the witnesses fa ce to f ace , hear their testimony

and observe their demeanor on the stand. Thus the trial judge and j ury are the primary

instrumentality

of justice t o d e t e r m i n e t h e w e i g h t a n d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the trial for

um alone i s t h er e human atmosphere and the totality of the e vidence cannot be repr oduced w ith a written re cord in this Court.

Bolin v. State, 405 S.W.2d 768, 7 7 1 (1966) (citing Car oll v. St ate, 370 S.W.2d 523, 527 (Tenn. 1963)). This Court must a ffor d the State of Tenne ssee the strong est leg itimate view of the e vidence contained in the rec ord, as well as all reasona ble infer ence s which may be dra wn from the e vidence

. Go od wi n, 14 3 S. W.3 d a t 77 5 ( c iti ng Sta te v. Smith, 24 S.W. 3d27 4, 27 9 ( Te nn . 2 00 0) ). B e c a us e
a ver dict of g uilt aga inst a defe ndant remove s the presumption of innocenc e and raises a pre sumption of g uil t, the c on vic te d c ri min a l de fe nd a nt be ars the bu rd e n of sh ow ing that th e e vid e nc e wa s le g a lly insufficient to sustain a g uiltyverdic t. I d.; se e State v. Carruthe rs, 35 S.W .3d 516, 557-58 (Te nn. 2000). Howeve r, befor e an acc used can be convic ted of a criminal off

ense ba sed on circ umstantial evidenc e alone , the fa cts and circumstance s “‘must be so strong and cog ent as to exclude eve ry other

rea sonable hy

pothesis save the g uilt of the defe ndant . . . .’” Goodwin, 143 S.W .3d at 775. “In other words, a web of g uilt must be woven around the defe ndant from which he cannot escape and fr om which fa cts and c ircumstance s the jury could dra w no other r easona ble infer ence save the g uilt of the def endant be y ond a reasonable doubt.” I d. We note t hat i t is well-e stablished law in Tenne ssee that the testimony

of a vic tim, st anding alone, is suffic ient to support a co nviction. State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993); State v. Wi lliams, 623 S .W.2d 118, 120 (Tenn. Crim. App. 1981)

. 1. Aggravat ed Burglary

The De fenda nt contends that the e vidence is insufficient to sustain his conviction for ag g ravated burg lary . Specifica lly
, t h e De fe ndant ar g ues that the State fa iled to prove be y ond a

re a so na ble do ub t tha t he en te re d Te rry Mo or e ’s tr a ile r w ith the int e nt t o c omm it a the ft . T he Sta te contends that the e vidence is sufficient to support the De fenda nt’s conviction.

Aggra vated bur g lary

occur s when, without the ef fec tive consent of the property owner , a person e nters a habitation with intent to c ommit a f elony , theft, or a ssault. Tenn. Code Ann. § 39- 14- 4 0 3 ( 2 0 0 3 )

. “ A p e r s o n c o m m i t s t h e f to f p r o p e r t y i f
, w i t h i n t e n tt o d e p r i v e t h e o w n e r o f p r o p e r t y, the per son knowing ly

obtains or exercises c ontrol over the pr operty without the owner’ s eff

ective consent.” I d. § 39-14-103 ( 2003). I mportantly , we note he re tha t “unsatisfac torily explained po sse ssi on of

re c e ntl y sto le n p ro pe rt y

ma y be su ff ic ie nt i n a nd of its e lf to es ta bli sh a bu rg lary .” Sta te v. J ones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995).

We conclude tha t sufficie nt evidenc e was prese nted for a rational jury

to find the Def

endant-9-

g uilty o f a g g r a v a te d b u r g la r y

. I n th e s tate me n t th a t th e D e f e n d a n t g a v e to O f

f ic e r Pa tin, he acknow ledg ed that h e t o o k fi s h , chicke n, and a w alkman fr om Terry Moore’ s trailer a nd that he asked H ooten to hide the wa lkman in her pa n t s

. P ri m m t es tified that he saw the Def endant a nd Ho ote n en te r Te rry Mo or e ’s tr a ile r an d tak e his po sse ssi on s. F urthe r, the De fe nd a nt wa s f ou ndin possession of the two fish, the c hicken, an d the walkman, a ll of which we re r ece ntly stolen. The Def endant c laims that he entered the trailer to determine if he wanted t o rent the premises and that Ms. Moore g ave him permission to enter Te rry Moore’ s trailer, but Ms. Moore testified that she

never ev en s aw t he De fenda nt on the day of the c rime. The jur

y was e ntitled to accr edit the testimonyof Ms. Moore. The jury , as they wer e entitled to, chose not to believe the De fenda nt’s version of the incident. Given t h e co n fl i cti ng testimony betwee n the Def

endant a nd Ms. Moore about whethe r the De fenda nt had permission t o enter the trailer , Terry

Moore ’s testimonythat he locked the door of his tra iler, and the De fenda nt’s own sworn state ment that he aske d Hooten to hide the walkman in he r pants, the jury could proper ly infer that the Def endant planned to c ommit a theft of Ter ry Moore’ s trailer w hen he e ntered t h e premises. The evidenc e esta blished at trial was sufficie nt to support the verdict of the jury . The De fenda nt is not entit led to relief on this iss ue.

2

. Th e ft

The Defenda nt contends that the evidence is insufficient to support his conviction for theft of pr op e rt y va lue d a t mor e tha n $1 00 0. Spe c if ic a lly
, the De fe nd a nt c on te nd s that th e Sta te fa ile d to prove be y ond a reasonable doubt that the Def endant took CSX Transportation’s property knowing that he did not have c onsent to do so. The State c ontends that the evide nce is suff icient to support the Def endant’ s conviction.

Pursuant to Tennesse e Code A n n o t ated se ction 39-14-103, “ A per son commits theft of property if, with intent to deprive the owne r of pr operty , the per son knowing ly obtains or exercise s
co n tr o l o v e r

th e p r o p e r ty

w ith o u t th e o w n e r ’ s e f

f e c ti v e c o n s e n t. ” I d

. § 3 9

- 1 4

- 1 0 3

. T h e e v id e n ce, viewed in the light mos t favor able to the S tate, established that the Def endant took eig ht to ten pairs of comprom i s e j o int bars costing $142.25 eac h from CSX property , for a total value of approximately

$1138.00 to $1422.00. I n the Def endant’ s sworn statement, he explained that he took about twenty

railroa d joint bars from CSX property and sold them t o Harmon. The De fenda nt

co n t en d s t h at h e sa w a si gn re ad i n g “s cr ap ” n ea r t h e m at er i al s t h at h e t o o k an d b el i ev ed t h at t h e s i gn provided e ffe ctive conse nt by CSX Transportation for

any person to take the prope rty . The State’s

e vid ence, ho weve r, a mpl y re fu te s th e De fe nd a nt’ s th e ory . M itc he ll t e sti fi e d th a t th e c omp ro mis e joi nt b ars we re ke pt s ta c ke d in a pil e se pa rate fr om the bu c ke ts a ndpil e of pla sti c tr a sh on CSX pr op e rt y

. Mit c he ll a lso te sti fi e d that, wh e n he sa w the De fe nd a nt, the De fe nd a nt app e are d to b e in a hurry to ge t into the pi ck-up truck, and the Defenda nt’s truck “took off” and left the pre mises after Mit c he ll p e e re d into the be d of the truc k an d s a w the joi nt b ars that th e De fe nd a nt t oo k f ro m CSX property . Ad d i t i o n al l y , Emerson testified tha t the CSX compromise joint bars that he saw at Harmon’s junk y ard were made from new material and did not l ook like “scr ap.” Considering the Def endant’ s admission that he took the materials, the te stimonyof Mitchell that the De fenda nt’s truck sped a way

when Mitche ll approac hed, and E merson’s testim o n y that the materials did not appea r to be scr ap, the e vidence is sufficie n t t o s u s t ai n the Def endant’ s conviction for the ft ofT he D ef endan t made offer s of

proof t hat cons i s t ed of

t wo wi t nes s es t es t i f

y i ng about wh et her M cCo ol was 1

p re se n t i n the c o u rtro o m d u rin g trial.

-10- property . Further, the te stimonyof Malhorta established tha t t h e v alue of the stolen materia l exceede d $1000.00. The De fenda nt is not entit led to relief on this iss ue.

B. M c Co ol’ s Te st im ony

I n his brief, the D efe ndant asserts t h at P am el a McCool would have testified that the De fe nd a nt a ndHo ote n c a me to he r hom e on Park Av e nu e a ndsa id tha t th e y ha d f ou nda tr a ile r t o rent. At trial, the D efe ndant attempted to ca l l McCool as a witness, and the State objected to he r t e s t i f y i n g b e c a u s e s h e c l a i m e d t h a t s h e h a d b e e n i n s i d e t h e c o u r t r o o m d u r i n g t h e t ri a l. T he Sta te questioned McCool about her prese nce in the courtroom. McCool sta ted that she ha d been outside the c ou rt ro om a ll d a y

a nd that sh e did no t he ar a ny of the te sti mon y

that w a s p re se nte d to the c ou rt

. The trial c ourt judg e found tha t McCool had been inside the courtroom during the trial and that she had “slipped in twice . . . . [and] took her c hild out at differe nt times.”

The De fenda nt contends that the trial court abused i ts discretion when it disqualified McCool

a s a wi tne ss. Spe c if

ic all y , th e Defenda nt c on te nd s th a t Mc Coo l’ s te sti mon y wa s c ru c ia l to his defe nse bec ause it would have proved that the Def endant lac ked the r equisite intent in the ag g ravated burg lary char g e. The Def

endant further contends t hat, i f McCool hear d any testimony , such ac tions

wer e inadve rtent and unintentional, a nd her c onduct caused no harm or prejudice to the State. The Sta te c on te nd s th a t Mc Coo l’ s c on du c t w arr a nte d th e tr ia l c ou rt ’s de c isi on to d isqual if y her as a wi tne ss.

Tenne ssee Rule of E vidence 615 provides: “At the r equest of a par t y t he court shall order witnesses, includin g re b u t t al wit nesses, e x cluded at trial or other a djudicatory hearing.” Our Supreme Court has r

uled t hat “[ t] he purpose of t he rule is to preve nt one witness from he aring the testimonyof anothe r and adjusting his te stimonyacc ording ly .” State v. Ha rris, 839 S.W.2d 54, 68 (Tenn. 1992) . “‘The rule’ ma y be invoke d at anytime and is mandatory .” State v. Anthony , 836 S.W .2d 600, 605 (Tenn . Crim. App. 1992) . Despite the f act that the rule is m andatory , there is no

e sta bli sh e d s a nc tio n f

or its vio la tio n. Ra the r, tr ia l ju dg e s a re “ a ff or de d w ide dis c re tio n” in the ir determination of how to best handle a violation of the rule. State v. Coulter, 67 S.W.3d 3, 52 (Tenn. Crim. App. 2001). “The trial judg e has br oad discre tion in the decision reg arding the exclusion of witnesses in ac corda nce w ith the rule, and unle ss this di scre tion is abused his action will not be

reve rsed.” State v. Wicks, 729 S .W.2d 283, 286 (Tenn. Crim. App. 1987).

Although the Def

endant c ontends that Ms. McCool’s testimonywould have pr oven that he la c ke d th e re qu isi te int e nt t o c omm it a g g ra va te d b ur g lary , the r e c or d d oe s n ot c on ta in this inf or ma tio n b e c a us e the De fe nd a nt d id n ot m a ke a n o ff e r o f p ro of

de sc ri bin g the e xpe c te d c on te nts of McCool’s testimony

. Tenn. R. Evid. 103. Since the r ec o rd d o es not contain any information 1

re g ard ing the e xpe c te d te sti mon y , w e c a nn ot d e te rm ine wh e the r the dis qu a lif ic a tio n o f this wi tne ss constitutes reve rsible er

ror. How ever , we doubt that the trial court’s re fusal to let McCool testify-11-

was pre judicial in light of other

overw helming e vidence of t h e De fe n d ant’s guilt, including the testimonyof Primm and the statements that the Def endant a nd Hooten g ave to the police . Reversa l is re qu ir e d on ly if the e rr or a ff ir ma tiv e ly app e ars to h a ve a ff e c te d th e re su lt o f the tr ia l on the me ri ts, or, in other wor ds, reve rsal is requir ed only if th e error more pr obably than not aff

ecte d the j u d g e m e n tt o t h e D e f

e n d a n t ’ s p r e

j u d i c e

. S e e T e n n

. R

. C r i m

. P

. 5 2 ( a ) ; T e n n

. R

. A p p

. P

. 3 6 ( b )

. In the c a se un de r s ub mis sio n, the e vid e nc e wa s st ro ng a g a ins t the Defen dan t. I f the re wa s e rr or in exclusion of the testimonyof the witness, it was no more than harmless error

. C. Length of

Trial

The De fenda nt contends that the trial c ourt err ed whe n it ex tended the trial into late eve ning ho ur s. Spe c if

ic a lly , the De fe nd a nt co nte nd s tha t his rig ht to a fa ir tr ia l w a s c omp ro mis e d b e c a us e the jury was fatigue d. The State contends that the Def endant waived this c omplaint be cause he fa iled to object at trial a nd failed to ra ise this issue in his motion for new trial. We note that the Def endant failed to objec t at trial, and he did not raise this issue in his motion for new tria l. There fore , he has ri sk e d w a ivi ng thi s is su e . T e nn

. R. Ap p. P. 36 (a ); Te nn

. R. Ap p. P. 3. We w ill , h ow e ve r, a dd re ss this iss ue on its merits.

I n H e mbr e e v. Sta te , 5 46 S.W. 2d23 5 ( Te nn . Crim Ap p. 19 76 ), thi s Co urt la id d ow n th e ru le reg arding night trial sessions. I d. at 242; se e also State v. McMullin, 801 S.W .2d 826, 827-32 (Te nn. Crim. App. 1990). I n Hembre e the de fense counsel stated that they were tired, they wer e not thinking clear ly
, a n d th e y c o u ldn o t e f

f e c ti v e ly a s s is t th e ir

c li e n ts

. I d

. a t 2 4 2

. Co u n s e l a s k e d the court to adjourn unti l the nex t day
, and the trial court re fused this reque st. I d. This Court held that the trial court erre d in not adjourning at midnight and sta ted:

We are also mindful of the fatig ue of the jurors. We think that abse nt unusual and compe lling cir cumstance s, the jury should not be permitted to listen to evidence until 1:00 a.m. No reasona ble cause was g iven for pr ocee ding until this hour and a defe ndant being tried for

murder is not only

entitled to rea sonably

alert counsel, but to witnesses who ar e re asonably alert and that the jury

should likewise be cl ea rheade d and not unduly

fatig ued. We think that the 14th Amendment o f t he United Sta te s Co ns tituti on a ndArt. 1 , § 8 o f the Te nn e sse e Con sti tut ion g ra nts app e lla nts these rig hts. This is not to say that night sessions per se ar e improper under unusua l

c ir c ums ta nc e s; h ow e ve r, we do ho ld tha t ni g ht s e ss io ns sh ould b e te rm inate d a t a

m o r e r e a s o n a

b l e h o u r , ab s e n tc o n s e n to f t h e p ar t i e s a n d a l l m e m b e r s o f t h e j u r y.

I d. at 242-43.

I n State v. Craig , 655 S.W .2d 186 (Tenn. Crim. App. 1983) , this Court found that the defe ndant’s rig ht to a fair trial was not v i o l ated by the trial court’s denial of his motion for adjournment de spite his alleg ations of j ury fatig ue caused by the t rial’s ex tended hours. I d. at 191. L ike the ca se under

su b m i s s ion, the defe ndant in Craig did not arg ue that he r ece ived ineff ective

c ou ns e l du e to th e tr ial’ s e xten de d h ou rs . I d. I n Cr a ig , th is C ou rt no te d th a t sh ort r e c e sse s, in-12-

addition to lunch and dinner br eaks, w ere taken during the t ri al an d that no member of the jury reque sted an a djournment. I d. T h i s C o urt in Craig further noted that the re cord la cked a ny indication of j ury fatig ue and concluded that, “The jury was obviously

fully capa ble of c onsidering the evidenc e. We find nothing in the rec ord to indicate tha t the jury ’s ver dict was in any way aff ecte d or influenc ed by

the nig ht session of which complaint is made.” I d.

I n th e c a se un de r s ub mis si on , a jur or e xpla ine d th a t he c ou ld n ot m e e t th e ne xt da y du e to prior oblig ations. After

inform i n g the jury

that the pre sentation of the e vidence and the jury instructions would probably not be g iven until mi dnight, the trial court polled the jury by questioning

eac h member a

bout whether

he or she felt that he or

she could c oncentr ate a nd finish the case that night. The jurors all re sponded that they could conce ntrate and finish the case that night. The rec ord ind ic a te s th a t th e jury

too k s e ve ra l ho ur s to re a c h a ve rd ic t. Jury

de lib e ratio ns be g a n a t 11 :20 p. m. and the jury

returne d a ver dict at 3: 35 a.m. Therefor e, the recor d does not ref lect that the jury

rushed deliberations due to fatig ue. Like the trial discussed in Cra ig, there was no juror complaint or a ny
e vid e nc e of

jur or fatig ue du ri ng the tr ia l of

thi s c a se , a ndthe de lib e ratio ns be g a n a pp ro xima te ly

fo rt y minutes prior to the time to w hich all of the jurors had c onsented. This ca se is distinguishable f rom Hembre e bec ause the Def endant doe s not claim that counse l was ineffec tive due to the trial’s extended ho u rs , t h e Defense counsel made no motions t o rec ess at norma l hours, the trial court obtained permission from t h e j u rors to work f or extended hours, a nd the trial wa s ext ended at the reque st of one of the jurors. We f ind that the extended hours involved in this particular tria l, which

wer e prolong ed to ac commodate the ne eds of a juror, without protest of De fenda nt’s counsel a nd with the express ag ree ment of the juror s, does not v i o late the r ule laid down in Hembr ee v. State. The De fenda nt is not entit led to relief on this iss ue.

III. Conclusi on

I n acc ordanc e with the for eg oing a uthorities and reasoning , we a ffirm the judg ments of the tr ia l c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE