FILED

April 21, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9807-CC-00293

)

Appellee, )

)

) MARSHALL COUNTY

VS. )

) HON. CHARLES LEE,

ROBERT P. THURMAN, ) JUDGE

)

Appellant. ) (Burglary, Theft)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF MARSHALL COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

N. ANDY MYRICK, JR. JOHN KNOX WALKUP

116 West Market Street Attorney General and Reporter

Fayetteville, TN 37334

KIM R. HELPER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE McCOWEN

District Attorney General

WEAKLEY E. BARNARD

Assistant District Attorney General

P.O. Box 45

Fayetteville, TN 37334

OPINION FILED ________________________

AFFIRMED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Robert P. Thurman, appeals as of right his convictions and

sentences for burglary and theft of property valued less than $500. On April 17,

1998, a jury convicted Defendant of burglary and misdemeanor theft. Following

a sentencing hearing, the trial judge sentenced Defendant to eleven months,

twenty-nine days for theft and twelve years for burglary, to be served concurrently

as a career offender. 

In this appeal, Defendant contests (1) the sufficiency of the evidence to

support his convictions, (2) the admissibility of his pretrial statement to police, (3)

the admissibility of testimony impeaching his pretrial statement to police, and (4)

his status as a career offender for the felony burglary. We find no error by the

trial court, and we affirm both Defendant’s convictions and his sentences.

I. SUFFICIENCY OF THE EVIDENCE

Tennessee Rule of Appellate Procedure 13(e) prescribes that “Findings of

guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,
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331 (Tenn. 1977)); State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Holt v.

State, 357 S.W.2d 57, 61 (Tenn. 1962).

In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate

inferences that may be drawn therefrom .” Tuggle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury verdict or trial court judgment. Tuggle, 639 S.W.2d at 914.

 

In this case, the proof was sufficient to permit the jury to find Defendant

guilty of theft and burglary. According to testimony at trial, Deputy Sheriff Steve

Holton of the Marshall County Sheriff’s Department was patrolling his designated

area at approximately 7:00 a.m. on January 1, 1998, when he observed a single

car in the parking lot of the Bethlehem Baptist Church. Deputy Holton noticed

that the vehicle was backed up to the church building, that the driver’s-side door

was open, that the trunk was open, and that a person was sitting in the

passenger seat. Holton also noted that no church services were scheduled

because it was not Sunday. His suspicions raised, he entered the parking lot to

investigate further.

Deputy Holton questioned the passenger of the vehicle and identified him

as Paul Pratt. Pratt stated that he was waiting on his friend, Robert Thurman,

who was relieving himself in the wooded area immediately behind the parking lot.
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Holton observed a microwave oven in the open trunk of the vehicle; and the

deputy then requested back-up law enforcement and waited with Pratt to ensure

his continued presence. Meanwhile, Pratt gave Holton the vehicle paperwork

from the glove compartment. These documents, including a bill of sale/security

agreem ent, odometer disclosure statement, buyer’s guide/warranty, and

autom obile insurance receipt, all indicated that Robert Thurman owned the car.

In addition, Deputy Holton testified that Pratt did not possess the ignition

key for the car, and deputies failed to locate an ignition key in the car, on the

ground, or inside the premises of the church. Holton stated that upon inspection

of the church, he discovered several broken windows, at least one of which was

large enough for a person and a microwave to slide through. However, Holton

opined that the hole was not situated so that a person could carry a microwave

through the window alone or place a microwave outside the window without

causing damage to it. 

Marshall County Deputy Phil Klarer testified that, upon arriving at the

scene, he observed tennis-shoe prints underneath the deadbolt lock on a door

to the church. In Klarer’s opinion, the door had been kicked several times,

creating multiple overlapping prints of the same shoe pattern. He testified that

he inspected Paul Pratt’s shoe to determine if Pratt’s shoe matched the print.

Klarer concluded that Pratt’s shoe did not make the particular marks on the door.

Klarer also verified that deputies conducted a fruitless search for the ignition key

to Defendant’s vehicle.
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Paul Pratt, the accomplice in this case, testified for the State following his

plea of guilty to charges arising from these facts. Pratt stated that he and

Defendant attended a party on New Year’s Eve, left the party, and drove to the

Bethlehem Baptist Church. According to Pratt, Defendant drove into the parking

lot, exited the car, and walked around to the rear of the church. Defendant then

called out to Pratt through a broken window to “come and give him a hand.”

Defendant handed the microwave to Pratt through the window, and Pratt placed

it in the trunk of the car. Pratt then sat down in the passenger seat of the car

while Defendant went to the woods to relieve himself. At that time, Deputy

Horton arrived on the scene.

Detective Samuel Bragg of the Marshall County Sheriff’s Department

testified that he conducted a taped interview with Defendant after reading

Defendant his Miranda rights. In this interview, Defendant stated that he arrived

home on January 1, 1998 by 3:00 a.m. and went to sleep. He told Bragg that the

next morning he and his mother had breakfast at Shoney’s at approximately 8:00

and that they then visited his grandmother at a nursing home in Nashville. He

explained in this interview that he had loaned his car to Pratt after Pratt drove him

home from the New Year’s Eve party. 

Detective Bragg testified that at the conclusion of his interview with

Defendant, he immediately telephoned Defendant’s mother to verify the alibi.

The State entered into evidence a tape recording of this conversation, in which

Defendant’s mother told the detective that she had not eaten breakfast at

Shoney’s and that she had worked all day on January 1. Bragg testified at trial
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that when he confronted Defendant with this information from Defendant’s mother

and asked him why he lied to police, Defendant responded that he did not know.

Tennessee Code Annotated § 39-14-103 states, “A person commits theft

of property if, with intent to deprive the owner of property, the person knowingly

obtains or exercises control over the property without the owner’s effective

consent.” Furthermore, “[a] person commits burglary who, without the effective

consent of the property owner . . . [e]nters a building and commits or attempts to

commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)(3). W e find

the evidence sufficient to support convictions for theft and burglary.

Defendant contends that his convictions were impermissibly supported by

the uncorroborated testimony of an accomplice. A defendant cannot be

convicted on the uncorroborated testimony of an accomplice. Sherill v. State,

321 S.W.2d 811, 814 (Tenn. 1959). This Court instructed in State v. Caldwell,

977 S.W .2d 110 (Tenn. Crim. App. 1997),

To corroborate the testimony of an accomplice, “there should be

some fact testified to, entirely independent of the accomplice’s

evidence, which, taken by itself, leads to the inference, not only that

a crime has been committed, but also that the defendant is

implicated in it.” . . . This corroboration must consist of some fact or

circumstance which affects the identity of the defendant. 

Such corroborative evidence “may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to

support a conviction” so long as it “fairly and legitimately tends to

connect the defendant with the com mission of the crime charged.”

Id. at 115-16 (quoting Clapp v. State, 30 S.W. 214, 216 (Tenn. 1895), and State

v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992), respectively).
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In this case, we find that the accomplice testimony by Paul Pratt was more

than sufficiently corroborated by law enforcement testimony that upon

investigating the scene of the burglary, deputies discovered a car registered to

Defendant, with the driver’s-side door open and Pratt in the passenger seat, with

a microwave oven in the open trunk. Moreover, officers searched in vain the

person of Pratt, the vehicle, the grounds of the church, and the interior of the

church for ignition keys to Defendant’s car, leading to the inference that

Defendant possessed the keys. Finally, officers excluded Pratt’s shoes as the

shoes which marked prints on the church door. This issue lacks merit.

II. ADMISSIBILITY OF PRETRIAL STATEMENT

In his second issue, Defendant contests the admissibility of his statement

to law enforcement following his arrest. He does not allege a constitutional

violation, but only an evidentiary violation—that the statement was not relevant

to any fact of consequence in the trial. In support, Defendant argues that the

statement, in which he told Detective Bragg that he had been with his mother at

Shoney’s and a nursing home in Nashville on the day of the theft and burglary,

was not relevant to any issue at trial because he had decided not to present an

alibi defense. 

Defendant asserts that State v. Taylor, No. 02C01-9501-CR-00029, 1996

WL 580997 (Tenn. Crim. App., Jackson, Oct. 10, 1996), supports the exclusion

of this evidence. Specifically, he quotes Taylor for the proposition that “nothing

in [Tennessee Rule of Criminal Procedure 12.1(d)] requires the defendant to rely

on an alibi, nor is there any provision preventing him from abandoning an alibi
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defense. Therefore the decision of whether to provide an alibi is left entirely to

the discretion of the defendant.” Id. at *9. 

However, Taylor does not prevent or caution against the introduction of

Defendant’s statement in the case at bar. In Taylor, this Court rejected the

defendant’s claim that the rule requiring disclosure of an alibi defense caused the

defendant’s silence to be interpreted as an affirmative statement that no alibi

existed, in violation of his right against self-incrimination. The Court’s words in

Taylor cannot be construed to mean that Defendant’s affirmative statement to

police regarding his whereabouts at the time of the crime is irrelevant to a

determination of his guilt. Defendant’s explanation of his whereabouts at the time

of the crime, although certainly prejudicial to the defense, constitutes

circumstantial evidence quite relevant to the jury’s determination. This issue

lacks merit.

III. IMPEACHMENT TESTIMONY

Defendant next argues that the trial court improperly admitted

impeachment testimony offered by Detective Bragg to show that Defendant’s

mother had not supported Defendant’s alibi, and Defendant’s own statement that

he did not know why he lied to police. Defendant challenges the testimony as

evidence of a prior bad act under Tennessee Rule of Evidence 404. 

The State responds that while evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity with the character trait, such evidence may admissible for other

purposes. Tenn. R. Evid. 404(b). In this case, the State argues that the
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evidence was not used to show that because Defendant was a liar, he was likely

also a thief and burglar. Rather, the evidence was used to show that at the time

of the crime under investigation, Defendant was not at the place that he originally

claimed to be. We agree with the State’s position, and we affirm the admission

both of Defendant’s original statements concerning his whereabouts and of

evidence tending to show that those statements were untrue.

IV. CAREER OFFENDER STATUS

Defendant challenges the trial court’s finding that he is a career offender

for sentencing purposes. He argues that the trial court erred by failing to find his

nine prior felony convictions a “single course of conduct” within the meaning of

Tennessee Code Annotated § 40-35-108(b)(4). Section 40-35-108 reads:

Convictions for multiple felonies committed as part of a single

course of conduct within twenty-four (24) hours constitute one (1)

conviction for the purpose of determining prior convictions . . . .

Tenn. Code Ann. § 40-35-108(b)(4). 

Defendant’s nine felony convictions arose from his failure to disclose his

employment while receiving unemployment compensation benefits. Although

Defendant claims that procuring employment without reporting the same to the

Department of Employment Security constituted a single course of action, the

record reflects that Defendant’s convictions arose under Tennessee Code

Annotated § 50-7-713, when he cashed unemployment benefit checks from the

Department of Employment Security on nine separate occasions without

reporting his employment. Exhibit 1 to Defendant’s sentencing hearing consists

of the nine indicted counts for which Defendant was convicted. The exhibit
1

 The judgment entered for the theft conviction contains an apparent error. The

judgment reflects a conviction for a Class D felony with a sentence of eleven months and

twenty-nine days in the county jail. The record reflects that the conviction was for Class A

misdemeanor theft.

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reflects that these offenses did not occur within twenty-four hours, but rather

spanned three months. This issue lacks merit.

The judgment of the trial court is affirmed.1

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE