### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J anuary

23, 2002
STATE O F TENN ESSEE v. TIMOTHY SCOTT BARNE S, DA VID GROOMS, and RICHA RD GROOMS
Appeal from the Criminal Court for Cocke County Nos. 8131, 8145, 8146 Ben W. Hooper II, Judge

No. E2001-01390-CCA-R3-CD March 27, 2002

The defendants, Timothy Scott Ba rnes, David Grooms, and R ichard Grooms, were convicted of attempted burglary , a Class E felony. The trial court imposed Range I sentences as follows: Timothy Scott Barnes, one y

ear, threemonths; Da

vid Grooms , one y

ear, six months; an d Richard

Grooms,
one ye ar, si x months. In this appeal of right, the def endants challenge the sufficienc y of the evidence. The judgments are af firmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and N ORMA M C G EE O GLE , JJ., joined.

John B. Bunnell , Newport, Tennessee, for the appellant, Timothy Scott Barnes, and Thomas V. Testerman, New

port, Ten nessee, for the a

ppellant s, David G

rooms and

Richard G

rooms.
Paul G. Summe

rs, Att orney Ge

neral & Reporter; Thomas E. Williams, II I, Assistant Attorney Gen eral; and Ronald C. Newcomb, Assistant District Attorney Ge neral, for the appellee, State of Tennessee.

OPINION

In the late fall of 1999 , Jo hn David Thacker, a building contractor , began the construction of a reside nce for the victim , Lee

Schilling . The con struction site, loca ted in a he avily

wooded area in Co ck e C ou nt y, w as ac ce ss ib le by a private driveway leading from Ogle' s Chapel Road. During the course of the construction, materials and equipment had been stolen from the property on three separat e occasions. The basement of the residence ha d been burglarized on two occasions. I n a n effort to protect against theft, Thacker placed a chain across the drivewa y, installed a

heavy duty

door
on the basement where appro xim ately $2,500.00 in equipment and mate rial had been stored, and asked Detective Bryan Murr of the Cocke County Sheriff' s Department to conduct surveillance of the property.-2-

On March 24, 2000, Thacker, who lived in relati vely

close pr oximity to the Schi lling tra

ct, left work at approximately 8:00 P.M. At 9:00 P.M. that night, he re turned to the const ruction s ite and saw no signs of any

break-in or theft. At about the same time, Detective Murr , assisted by Constable RichardValentine and reserve Deputy Steve Johnson, set up surveillance at a point from which he could

see any ve

hicle approaching the Schilling property by either Ogle's Chapel Road or by a privat e road which served as an alternative a ccess. About one hour later, Detective Murr saw
a truck traveling on the private road stop and bac k into the S chilling dri veway. F or a period of between15 and 20 minutes, Detective Murr could hear the truck's doors opening and other sounds he described as like a hammer striking wood. Detective Murr contacted Valentine and Johnson and inst ructed them to position themselves at the end of the private road access. As a nother vehicle, which never stopped, passed by the Schilling drivewa

y, the truck, occ

upied by t he three defenda nts, pulled out of the driveway a nd turned onto the private road. Detective Murr, despite sustaining a flat tire to his purs uing ve

hicle, wa s able to

maintain v

isual con tact with the tail lig

hts of the defenda nts' truck until the defendants were stopped by Constable Valentine and Deputy Johnson. I nside the cab of the truck, the officers found tools, including a pry ba

r, that were consistent with some damage that
was later discovered on the basement door of the Schilling property . At 10:30 P.M., Thacker inspectedthe base

ment door

and foun d damag e to the hasp, as i f someone had atte mpted to pr

y it off

. The wood near the hasp had been splintered a nd there was damage to the concrete block s adjacent to the door. After inspecting the construction site, which had an unpaved, mu dd y dr iv ew ay, Thacker met with the officers at the place of the defe ndants' arrest. He observed that two of the defenda nts had mud on their shoes and that the tires of their truck were muddy. T

he trailer hitched to the truck contained pieces of concre te block which were consistent with the marks on thedoor of the victim's basement. Thacker and Detective Murr

observe d tire tra

cks and f reshly made foo t prints near the victim's residence.

At the conclusion of the state's case in chief, the defense offered no pr oof but sought judgments of acquittal.

In this appe al, the defe

ndants argue

that the c ircumsta

ntial evid ence is i nsuffic ient bec ause the proof did nothing more than establish that each of them was pre sent at the crime scene. The defense argue s that the s tatefailed to establish that eac h of the th ree def endants a ctually participated in the burglary

attempt.
Rule 29 of the Te

nnessee Rules of Cr

iminal Proc edure e

mpowers t

he trial j udge to

direct a judgment of acquitta l when the

evidenc e is insuff

icient to w arrant

a conviction either at the time the state rests or at the conclusion of all the evidence. Overtur f v. State , 571 S.W.2d 837 (Tenn. 1978). At the point the motion is made, the t rial court must favor the opponent of the motion with the stronge st legitimate view of the evidence, including a l l reasonable inferences, and discard any countervailing evidence. Hill v. Stat e , 470 S.W.2d 853 (Tenn. Crim. App. 1971). The standard by which the trial court determines a motion for judgment of acquittal at that time is, in essence , t he
samestandard which applies on app eal in determining the sufficiency of the evidence after a conviction. That is, "whether, after reviewing the evidence in the light most favorable to the-3-

prosecution, any r

ational trier of

fact could havefound the essential elements of the crime bey ond
a reaso nable dou

bt." Ten n. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307 (1979).

On appeal, of course, the state is entitled to the strongest leg itimate view of the evidence, and all reasonable inferences which may be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Th

e credi bility of the wit

nesses, t he weig ht to be g iven their testimony, and the reconciliation of confl

icts in the evidence are matters entrusted exclusively to the jury as the

trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A guilty verdict, approved by the trial judge, accredits the testimony of the witne sses for

the state and resolves all conflicts in the proof in favor of the state's theory

. State v. H atchett , 560 S.W.2d 627, 630 (Tenn. 1978).

An offense may

be proven by circumstantial evidence alone. Price v. State , 589 S.W.2d 929, 931 (Tenn. Crim. App. 1979). Our scope of revie w is the same when the conviction is based upon circumstantial evidenc e as it is w hen it is based upon direct evidence. State v. Brown , 551 S.W.2d 329, 331 ( Tenn. 197 7); Farmer v. State , 343 S.W.2d 895, 897 (Tenn. 1961).

With convicti ons such a s these, w here the evidenc e is entirely

circumst antial, the jury

must find that the proof is not only consistent with the guilt of the a ccused but incon sistent wit h his innocence. T here mus t be an ev identiar y ba sis upon wh

ich the ju

ry can exclu de ever

y ot h e r reasonab le theory or hy

pothesis except that of guilt. Pruitt v. Sta te , 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970). The trial court has the duty to char

ge the jury

on the weight and significance of circumstantial evidenc e when it i s the only basis upon

which the

state' s case

rests. Bishop v. State , 287 S.W.2d 49, 52 (Tenn. 1956). Like all other fa ct q uestions, the dete

rmination of whether all reasonable theories or hy

potheses are excluded

by the evidenc e is primarily a jury question. State v. Tharpe , 726 S.W.2d 8 96 (Tenn . 1987); Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958).

The jury is gove

rned by four

rules when testing the value of circumstantial evidence: (1) The evidence should be acted upon with caution; (2) all of the esse ntial facts must be c onsistent with the hyp othesis of guilt ; (3) the f acts must exclude every othe

r reasonable theory

except that of guilt; and (4) the f acts must e stablish su ch a cer tainty of guilt as to convincebeyond a re asonable doubt that the defendant is the perpetrator of the cr ime. Marable , 313 S.W.2d at 456.

In the light most favorable to the state, it was established that at 9:0 0 P.M. on March 24, 2000, there was no indication of an attempted burglary at the Schilling residence. At the same time, the Cocke Cou

nty Sheriff's Department set up a surveillance of the property . An hour later, a truck later determined to be oc cupied by the thre e defendants backe d i nt o t he Sc hi ll in g d ri ve wa y. Detective Murr heard doors open and sounds like a hammer striking wood. Fifteen to 20 minutes later, the truck l eft the driveway and traveled onto a private road which ultimately led to Rooster Town Road, whe

re Consta ble Vale ntine and Office r Johnso n waited. Detective Murr never lost sight of the truck's tail lights as it was driven from the scene until it was stopped. All three defe ndants
were in the cab of the vehicle. The contractor a nd the officers discovered damage to the basement door of the residence. A truck trailer hitch matched dents in the masonry and a

pry bar f ound in the vehicle was consistent with damage done to the premises. There were concrete particles a nd some-4-

small wooden splinters on the ball of the trailer hitch. The only other vehicle at the scene did not stop at the Schilling residence and proceeded onto Og le's Chapel Road. Two of the defendants had muddy shoes. There were truck tire trac ks in the mud near the Schilling residence. During the time Constable Valentine and Officer Johnson were stationed at the intersec tion of the private road and Rooster Town Road, no one else drove into the intersection from the direct ion of the Schilling residence.

A burglary

is committed when one, without the consent of the owner, enters a building other than a habitation with an intent to commit a felony, a the ft, or an assault. Tenn. Code Ann. § 39-14- 402. The crim

inal attempt of

a burg lary

occurs w

hen one ( a) with the requis ite intent takes a substantial step towards the commission of the offense. Tenn. C ode Ann. § 39-12-10 1. One is criminally

responsible for the conduct of another when one intends to promote or assist in the commission of the offe

nse or be nefit in th e proce eds and so licits, dir ects, ai ds, or att

empts to ai d another to commit the offense. Tenn. Code Ann. § 39-11-402(2).

In ou r view, th e state was able to exclude every reasonable hy

pothesis other than the three defenda nts' jointly

traveling to a co nstructio n sit e l ocated i n a remot e, woode d area in an eff

ort to commit a burglary . The truck

occupied by all three de

fendants was utilized in an effort to gain entry to the basement where valuables were stored. At least two of the three individuals had mud on their shoes. The truc

k's tire marks we re in the muddy driveway

of the construction site. No other vehicles stopped at the site

during t he perio d of time in

question. The def

endants fled together from the scene and when stopped by off

icers, their truck contained tools consistent with the burglary and bore marks of an attempt to force

entry into the Schilling b asement . The re cord est ablishes that the d

efenda nts either attempted to or were criminally responsible for forcibly ente

ring the Schilling basement. In
our view, a rational trier

of fact could have found each of the defenda nts guilty bey ond a rea sonable doubt based entirely upon the circumstantial evidence. Accordingly , the judgments are affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE