# FILED
July 1, 1998 Cecil W. Crowson Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE

AT NASHVILLE MAY SESSION, 1998

STATE OF TENNESSEE, ) ) No. 01C01-9707-CC-00258 Appellee ) ) COFFEE COUNTY vs. ) ) Hon. John W. Rollins, Judge EDWARD SHANE RUST, ) ) (Arson of Personal Pr operty) Appellant )
For the Appellant : For the Appellee : Margaret C. Lamb John Knox Walkup Asst. Public Defender Attorney General and Reporter 605 East Carroll Street Post Office Box 260 Janis L. Turner Tullahoma, TN 37388 Assistant Attorney General Criminal Justice D ivision 450 James Robertson Parkwa y Campbell Smoot Nashville, TN 37243-0493 District Public Def

ender C. Michael Layne District Attorney Gener al P. O. Box 147 Manchester, TN 37355

OPINION FILED: AFFIRMED
David G. Hayes Judge2 OPINION

The appellant, Edward Shane Rust, was indicted by a Coffee County

Grand Jury for the offenses of arson of personal property and reckless endangerment. F ollowing
a jury trial, the appell ant w as found gu ilty of arson of personal property, a class E felony, and received a two year sentence in the Department of Correction. The appellantwas found not guilty of reckless endangerment. In this appeal as of right, the appellant contends: I. The evidence is insuffi cient to support a convicti on for arson of personal property; II. The sentence imposed by the trial court is exces sive; and III. The trial court s hould have granted an alternativ e sentence.
After a review of the evidence, w e affirm theappellant’s conviction fo r arson of personal property.
Background

At trial, Officer Larry Miller, a corrections officer with the Coffee County Sheriff’s Department, testified as follows: I arrived [at the jail] on the 18th of June [1996] shortly before midnight .

. . . The second shift corpo ral informed me that [the appe llant] refused to go into his assigne d cubic le . . . for that night to be locked down because he wanted to go to the emergenc y r oom because he was complaining of back problems. . . . Approximately ten minut es after midnight, the fire alarm sounded and I proceeded to the back . . . .I went to the back of the Jail and peer ed in Cell 6. I saw[the appellant] sitting on a day room table with a fire burning [appr oximately four to eight inches tall] behind him in what we call the catwalk area, which is basically off limits to inmates. It’s where all the plum bing is for the jail cells. I then went down the hall, obtained the fire extinguisher, went in to the catwalk area to extingu ish the fi re, in which case the fir e extinguisher did not discharge. . . . I t hen went furt her down the hall, obtained the s econd fire extinguisher, extinguished the fire, and proceeded back to th e front of the cell where [the appellant] was. Officer Miller stat

ed that, as he extinguished the fi re, the appellant was “sitting o n the day room table with what appeared to be a bluebandana around his face, just sitting3

there whil e the fire was burning.” During the commotion, several inmates “we r e complaining about the smoke. They were screaming, coughing they were hollering if there was something I could do about the smoke because it had started filterin g into the
rear part of the cell where the inmates were housed. . . .” After putting out the fire , Officer Miller asked the appell ant why he started the fire. The appellant replied that he wanted to go to the emergency room because of h is back pain. Officer Miller i nformed the appellant that he would be able t o see the nurse in the m orni ng. The appellant started ranting and raving that if he didn’t go to the emergency room, “ the garbage can was next.”

Officer Miller further testified that “where the fir e was set on the counter . . . i t charred the paint . . . it [needs] to be freshly painted and sprayed.” Additionally, “once the items cooled down from the fire,” Officer Miller was able to determine that the items burning consisted of insulated under wear belonging to the

appellantand toilet paper. He confirmed that the toilet paper was dis pensed by the Coffee County Sheriff’s Department. Furthermore, he explai ned that, although family mem bers are permitted to bring inmates certain i tems of clothing other than j ail-issued greens or or anges, the jailer inspects the ite ms and determines whether the inmate can have the item.
Stacey Moseley, an inmate at

the Coffee County Jail at the time of the incident, testified that neither he nor any other

inmate was harmed in any way by the fire. He stated that at no time was he in fear of being hurt or in fear of his life because of smoke in halation. Moseley also informed the jury that inmates typ ically lit “coffee bongs” to “heatcoffee.” Moseley explai ned that, in order to create a “coffee bong,” inmates would wrap toilet paper around their hands and light a match in the center of it to heat t heir cof fee water. He further st ated that “[n]ine times out of the ten, you’ve got [a coffee bong] going every minute, eve ry minute of every day.” He conceded that no inmates were ever cri minally charged with l ighting a “coffee bong.”4 In his own defense, the appellant testified that he onl y lit the toilet paper in

order to attract attention so that he w ould be able to receive medi cal treatment for his back pain.

I. Sufficiency of the Evidence

In his first issue, the appellant contends that the e vi dence is not sufficient to sustain his conviction for ars on of personal property. After a review of the record, we affirm the appellant’s c onviction.

Wh en a challenge is made on appeal to the sufficiency of the convictin g evidence , t his court must adhere to certain well-established principles. First, a jury conviction removes the presumption o f innoc en ce with which a defendant is initially cloaked and replacesit with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evid ence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Next, the State is en title d to the strongest legitim ate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993). Mo reover, thi s court may not reweigh o r reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Ten n. 1978 ). Viewing the evidence under these criteria, it is the responsibility of this court to affirm the conv iction if the proof was sufficient for any rational trier of fact to have found the ess entia l elements of the offense beyond a reasonable d oubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

Before a n accused can be convicted of set ting fire to personal prope rty, the State must prove beyond a reasonabl e doubt that the accus ed knowi ngly damaged5

personal property, by fire or explosion, without the consent of all persons who have a possessory or proprietary interes t therein. Tenn. Code Ann. § 39-14-303 (1991). The indictment

in this case charged that th e a ppella nt did knowingly damage pers onal property, to-wit: “A JAIL COUNTER, CLO THING and TOILET TISSUE in [the] Coffee County Jail being the property of [the] Coffee County Sheri ff's Department, . . . by means of a fire. . . .”
The appellant contends that the State failed to prove that the Sheriff’s Department

held a possessory or proprietary interest in the toilet paper. Specifically, he ar g ues that the State failed to enter into evidence purchase order s for the toilet paper. Additionally, he maintains that “once the toilet paper was dispens ed to the cell, it became an item that

was not of returnable nature to the county.” While w e appreciate the novelty of the appellant’s ar gument, we find it legall y incorrect. There is

no dispute that the toilet paper was purchased by the Coffee County Sheriff's Department for use byinmates in the jail. N otwithstanding the appellant's possessory i nterest, the Sheriff's Department

retained a proprietary interest in the toilet paper. Moreover, the appellant's possessory interest in the personal pr operty would only extend to those lawful and intended hygienic purposes for whi ch the paper was d ispensed. There is no dispute that the appellant knowingly set fire to the toilet paper withou t the consent of the Sheriff’s Department and that it was dam aged or c onsumed as a result of the appellant’s conduct.
We note that the State need only prove a proprietary or possessory intere st in but one item of the damaged personal property as the incident was but one continuing offense. As such, we need not address the appellant’s rem aining challenges involving the insulated shirt and the jail counter. Nonetheless, we ag ree with the appellant that the insulated shirt belonged solely to him and that the Sheriff’s Department had neither
a proprietary nor posses sory interest in the shirt. Additionall y, although there is no doubt that the counter in the jail was a possession of the Sheriff’ s Department, we find,6

from the proof in the recor d, that the counter was a permanent fixture, thus, constituting real, and not, perso nal property. See Memphis Housing Authority v. Memphi s Steam Laundry-Cleaner, Inc. , 463 S.W.2d 677 (Tenn. 1971). A chattel becomes part of the real property if that chattel is so attached t o the freehold that, from the intention of the parties and the uses to which they are put,it is presumed to be p ermanently annexed, or its removal from the property would cause serious in jury t o the f reeh old. Id . at 679. No testimony or proof was introduced at tri al indicating that the counter

could be removedwithout causing serious damage to the building. On the contrary, the photograph of the metal counter indicates that it was “b uilt into” the building. Accordingly, the counter is not properly characterized as personal property.

In sum, we find that the burni ng of the jail counter and clothing will not support the appellant's conviction for the burning of personal property. However, as previously found, we conclude that the conflagr ation of the several sheets of toilet paper is against the peace and dignity of the State of Tennessee and is sufficient to restrain the appellant of his liberty.Tenn. R. App. P. 13(e).

II. Sentencing

After a sentencing hearing, the tri al cour t impos ed a two year Department of Correction s enten ce. The appellant complains , in this appeal, that the two year sentence is excessive and that the court should have gr anted an alternative sentence other than incarceration. This issue is moot.

The judgments of conviction were entered January 17, 1997. The appellant was released from confinement on October 8, 1997 . Becau se the appellant is no longer incarcerated, hi s issues regarding sentencin g no longer constitute a vali d case or controversy and, are, thereby, rendered m oot. See Spencer v. Kemna , No. 96-71717

(U.S. Mar. 3, 1998); see also State v. Wright , No. 01C01-9609-CR-00414 (Tenn. Crim. App. at Nashville, Dec. 12, 1997); State v. Hickman , N o. 01C01-9011-CR-00285 (Ten n. Crim. App. at Nashville, June 14, 1991).
The judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

_________________________________________ GARY R. WADE, Presidi ng Judge

_________________________________________ JERRY L. SMITH, Judge