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

Briefs D ecember

18, 2001 STATE OF TENNESSEE v. DE RRANN WILLIAM ESTILL Direct Appeal from the Circuit Court for Bedford County

No. 14,829 F. Lee Russell, Judge

No. M2001-01859-CCA-R3-CD - Filed January 25, 2002

The Defendant was convicted of theft of prope rty valued b etween $1, 000 and $1 0,000, a Cl ass D felony, and crim

inal tres pass. The trial cou rt senten ced him a s a Range

II, multip le offe

nder to si x years incarceration

for the theft conviction and to thir ty days inc arcer

ation for the crimi nal tresp ass c onviction, with the se

ntencesto be ser

ved conc urrently . The Def

endant a rgues tha t i nsufficien t evidence was presented at trial to convict him of theft or criminal trespass. We a ffirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med and Case Remanded
R OBERT W. W EDEMEYER , J., delive red the o pinion of t

he court , in which J OS EPH M. T IPT ON and T HOM AS T. W OODALL , JJ., joined. Greg ory D. Smith, Clarksville, Tennessee (on appeal); Andrew J. Dear ing, III, Fayetteville, Tennessee (at trial and on appeal); Curtis H. Gann, and Larry F. Wa llace, Jr., Shelbyville, Tennessee (at tria l), for th e Appella nt, Derr ann Willia

m Estill.
Paul G. Summers , Attorney General and Reporter; Kathy D. A slinger, Assistant Attorney Genera l; William Michael McCown, District Attorney General; Michael D. Rand le s, Assistant District Attorney General; and

Hollynn L. Hewgley, Assistant District Attorney General, for the Appellee , State of Tennessee.
OPINION
The Defendant was indicted for theft of p roperty valued between $1,000 and $10,000, criminal trespas s and public intoxication. The Defendant waived his right to a jury trial. Following a bench trial, the Defendant was convicted of theft of pr operty between

$1,000 and $10,000 and of criminal trespass. He was found not g uilty of public intoxication. The trial court sentenced him as a Range I I , multiple offender to six years incarceration for the theft conviction and to thirty days incarceration

for the tr espass c onviction , with the s entence s to be ser ved conc urrently . In this a

ppeal,-2-

the Defendant challenges the sufficienc y of the evidencepresent ed to conv

ict him of b oth crimes. We conc lude that

the evide nce is suf ficient a nd affir m the judgme

nts of the trial cou rt.
FACTS
William Boyce testified that he owns Boy ce Equip me nt, a farm equipment retailer. According to Boyce, much of their equipment is too large to store in the show room, so i t is kept outside. The outside lot is enclos ed in the front and on the sides by a fence and in the back by a river. There isa gate

in the front of the lot at the m ain entr ance to t he busine ss. During

non-busin

ess hours, tractors are usually pulled in front of the main entrance gate. The normal business hours for Boyce Equ

ipment ar e from 8:0 0 a.m. until 5:00 p.m., Monday through Friday, and 8:00 a.m. u ntil 12:00 p.m. on Saturday. An Emergency Medical Services (EMS) building is located on one side of Boyce Equipment

. There is a small gate on the side of Boyce’s lot that leads to the EMS building. Boyce testifie d that the

re is a fi eld

between the EMS building andBoyce Equipment and that no road or driveway leads up to the gate. This gate was unlocked on the night of the offense. Boyce testifie d that p olice came to his home around 4:30 a.m. on October 14, 2000 and informed him that there had been an incident at the dea lership. When Boyce arrived at the dealership, he noticed a white truck inside the business lot. Boyce recalled that the truck wa s facing the main entrance. Boyce testified that a trailer wa s attached to the truck with a sa fety chain, and a lawn mowe

r was pa rked dir ectly be hind the tr

ailer. Bo yce stat

ed that bo th the tr ailer and t he mower were owned

by Boyce Equipment and that the trailer had previously been parke d “under a tree beside th

e building .” Acco

rding to Boy ce, the t

railer t ilts so that

equipmen

t ma y be easi ly loaded onto the trailer. The trailer was tilted when Boyce a rrived at the scene.
Officer Rod Lewis Stacy, a member of t h e patrol division of the Shelbyville Police Departm ent, testified that around 4:30 a.m. on October 14, 2000, he was in his patrol car in a parking lot at the inte

rsection of Madiso n Street a

nd Wartr ace Highway wa

iting for Se

rgeant D avid Williams, Jr ., of the B edford County Sheriff’s Department. According to Stacy, the drive r’s side window was down, and he “kept hearing like a metal banging noise, like two pieces of metal beating together.” Stacy testified that he drove into the back parking lot of the EMS building where he could see the front doors and part of the front lot of Boyce Equipment. Stacy testified that in fr ont of B oyce Equipment, he observed the Defendant “ in front of a white pickup tr uck with a small trailer attached to the back of it.” Stacy stated that the Defendant was “pushing on a lawn mower and rocking it.” Stacy then drove ar ound to the main gate of Boyce Equipmentand walked towards the building. Stacy testified that he caught the Defendant’s attention and said, “Boy, you’re getting an awfully early start this morning, aren’t you ?”, to w hich the Defendant

replied , “Yeah , yeah, I

got to get these mowers loaded.” Once Stacy got a bit closer, he told the Defendant, “You don’t work here. Put your hands on the truck.” Stacy testified that when he began speaking, the Defendant was in between the truck and the trailer. Stacy testified that he asked the Defendant how he got his truck into the Boyce Equipment lot, and the Defendant said that he drove it in “[t]hr ough the little gate over there” which Stacy-3-

understood to mean the gate leading to the EMS building. Stacy stated that he began to look around and could see where the Defenda nt had driven through the gras s to get to the gate. Stacy testified that safety chains attached to the trailer had bee n wrapped around the ball hitch on the truck.
The Defendant testified that on the night of the offense, he and hisgirlfriend had been at an engagement

pa rty. His girlfriend was two months pregnant, so they had decided to get married. According to the Defendant, around 2:00 a.m., he “knew it was time . . . to go home.” However, he and his girlfriend got into an argument because she did not want to leave the party. The Defendant testified that he left the party, but later went back hopingthat his girlfriend would leave also. The Defendant

stated that his girlfriend still did not wantto leave so they “got in an argument, and [the Defendant] just got in [his] truck and started driving.”
The Defendant testified that he was worried about ge tting a r rested for driving under the influence, that he was “getting sick,” and that he had to “relieve [himself],” so he pulled off the road. The Defendant recalled that he “ pulled into the side” of

a building, which he later learned was the EMS building; got out of the car; and relieved himself on a nearby tree. The Defe ndant testified that he heard a noise coming from the EMS building and saw a “red/black mustang sitting there.” The Defendant

stated that he a

lso saw the

lights come

on in a nearby house and “panicked.” Ac cording to the Defendant, he got in his truck and backed it towards the EMS building. The Defendant stated that he couldn’t “circle out” so he “pushed through [the] little gate” behind Boyce Equipment

. The Defendant

recalled that he drove through the grass to g et to the g ate and t hat he “s cratched [his] truck up pretty good” getting through the gate. The Defend ant mainta ined that he went th

rough the gate because he did not want to go back thr ough the E

MS parking

lot, and he was “trying to find another way out.”
The De fenda nt testified that once inside the gate, he drove around Boyce Equipment and discovered

that he could not get

out. The Defendant stated that he could not exit the way he enter ed because the small gate through which he entered “only opened outward,” and “there was no way for [him] to sq

ueeze b ack through.” The Defend ant testif

ied that he hooked

the trail er up tohis truck because he “figured that maybe [by] pushing that trailer up to there, maybe [he] could just run the truck up, there since it’s a small wheeled truck, across that f ence.” The Defendant maintained tha t he did not try to move the mower onto the trail er and th at he wa s just going to use the

trailer as a ramp to cross over

the fence surrounding the lot. The Defendant claimed that he never hooked the trailer up to the truck and that the officers who said that he did we re lying.
ANALYSI S
The Defendant argues that insufficie nt evidence was presented at trial to convict him of

theft and criminal trespass. When an accused challeng es the sufficiency of the evi dence, a n appella te court’s standard of review is whether, after considering the evidence in the lig ht most fav orable t

o the prosecution, any r

ational trier of fact could have found the essential e lements of the crime bey ond a reasona ble doubt. Tenn. R. A

pp. P. 13(e ); Jackson v. V irginia , 443 U.S. 307, 3 2 4 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct-4-

evidence, circumst

antial ev idence, or a comb ination of bothdirect a

nd circumstantial evidence. State v. Pe

nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
In determining the sufficiency of the evidence, this Court should not re-weigh or

re-eva luate the evidence. Sta t e v. Matthews , 805 S.W.2d 7 76, 779 (T enn. Crim. App. 1990 ). Nor ma y th is Courtsubstitute its inferences for those drawn by the trier of fact

from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 105 (Ten n. 1999); Liak

as v. State , 286 S.W.2d 856, 859 (Tenn. 1956)

. Questions concerning the credibility of the witnesse s, the weight and value of the evidence , as well a s a ll factual issues raised by the e vidence are r esolved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the re cord, aswell as all reasonable inferences whic h may be dra

wn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defe ndant removes the presumption of innocence and raises a presumption of g uilt, the co n victed criminal defendant bears the burden of showing that the evidenc e was leg ally insuffic ient to sust

ain a gu ilty verdict. Id.
The Defenda nt was charged with and convicted of theft of prope rty, which is defined as follows: "A person commits theft of property if, with intent to d epri ve the owner of property, the person knowingly

obtains or

exerci ses contr

ol over the proper

ty with out the own er's effective consent." Tenn. Code An n. § 39-14-103 . Because the value of the property in this case wa s estimated to be between $1,000 and $10,000, the crime is a Class D felony. Id. § 39-14-105(3). In finding the Defendant guilty of theft, the trial court stated, It does appear to me that there was an exe rcise of control. The t

railer was move d. And it a ppears to me likewise that there was an effort; and there was not only an effort, but there

was an e xercise of contr ol over th e mower a s well. The trial court

also found the testimony of William Boyce and Officer Stacy to be more credible than that of the Defendant.
We agree that

the State presented sufficient evidence to support the Def endant’s conviction for theft of property valued between $1,000 and $10,000. Of

ficer Stacy testified that he saw the Defendant

“pus h ing a lawn mower and rocking it.” When Stacy approa ched the Defendant and commented on the time, the Defendant stated that he needed “to get these mowers loaded.” Officer Stacy and William Boyce also observed that a trailer was attache d to the Defendant’s truck with a chain. Boyce testifiedthat the Defe ndant did n ot have pe

rmission to

take any propert y from the

lot. Boyce estimated the trailer’s value to be between $700 and $1,200, and he estimated the mower’s wor th to be abou

t $5,000. W

e conclu de that the evidence pres ented at trial supp orts the jury’ s finding that

the Defend ant, with t

he intent to depriv e the owner of the propert y, did know ingly exerci se contr

ol over the proper

ty without Bo yce’s effectiv e consen t.
There was also sufficient evidence presented to convict the Defend ant of cr iminal tre spass. The offense of criminal trespass is co mmitted when a pe rson ente rs or re mains on the proper

ty wit houtthe owne

r's eff ective c onsent. T enn. Code Ann. § 39- 14-405(a

); State v. Langford , 99 4 S.W.2d 126, 129 (Tenn. 1999). “The accused’s knowledge that he or she did not have the ‘effective consent’ to enter the property may be inferred fr om ‘(1) personal communication to the [accused]-5-

by the owner or by someone with apparent authority to act for the owner,’ and (2) ‘[f]enc ing or other enclosure obviously designed to exclude intruders.’” State v. H ollingswor th , 944 S.W.2d 625, 628 (Tenn. Crim. App. 1996) (quoting Tenn. Code Ann. § 39-14-405(a)(1)-( 2)). In this case, Boyce Equipment was enclosed with a fence. The only openings to the fence included a main gate in the front and a s mall gate near the EMS building. The main gate was secured by pulling tractors in front of it. The small gate, although not locked, was located on th e side of the building and was only accessible through a grassy area. There wa s no road or driveway leading to the small gate. Th e Defe ndant wa s on the pro perty at 4:30 a.m. T

he norma l business hours for Boyc e Equipme nt were f rom 8:00 a .m. until

5:00 p.m., Monday through Friday, and 8:00 a.m. until 12:00 p.m. on Saturday. We conclude that the trial court prop erly fo und that the Defendant was on the property without the owner’s e ffective consent. Finally, the Defendant

argues that although the charge of public intoxication (Count 3 of the indictmen t) was dismissed, the judgment shows that the Defend ant was sentenced to thirty days incarceration

for this charge, c oncurre nt with t he theft and criminal trespass sentences. The judgmentindicates that the Defendant was found “[n]ot [g]uilty” of public intoxication. Thus, the judgmentsho uld be ame nded to sho w that the

Defend ant did not

receiv e a sente

nce for public intoxication, and we therefore remand this case to the trial court solely for that purpose. Accordingly, the judgments of the trial court are AFFIRMED and the c ase is REMANDED for the entry of an amended judgment in Count 3.

___________________________________ ROBERT W. WEDEMEYER, JUDGE