# FILED April 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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. T HURMAN, ) JUDGE ) Appe llant. ) (Burglar y, Theft)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF MARSHALL COUNTY FOR THE APPELLANT : FOR THE APPELLEE : N. ANDY MY RICK, JR. JOHN KNOX WALKUP 116 West Market Street Attorney Generaland Reporter Fayettevi lle, TN 37334 KIM R. HELPER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE McCOWEN Distri ct Attorney General WEAKLEY E. BARNARD Assistant Distri ct Attorney General P.O. Box 45 Fayettevi lle, TN 37334
OPINION FILED ________________________ AFFIRMED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Ro bert P. Thu rman , appe als as o f right his convicti ons and sentences for burglar y and the ft of prop erty valu ed les s than $500 . On A pril 17, 1998, a jury conv icted Defendant of burglar

y and misdemeanor thef t. Foll owing a sentencing hearing, the t ria l judge sentenced Defendant to eleven months, twenty-ni ne days for theft and twe lve years for burglary, to be served conc urren tly as a care er offend er.

In thi s appe al, De fendantcontests (1) the suffic iency of the evidenc e to support his convi ctions, (2) theadmissibil ity of his pretrial statement to police, (3) the admissibil ity of

testimony i mpeaching his pret rial statement to police, and (4) his status as a care er offe nder for t he felony bur glary. We find no error by the trial court , and we affirm both Defendant’s convi ctions and his sentences.

I. S UFFICI ENCY OF THE EVI DENCE Tennessee Rule of Appell ate Procedure 13( e) prescribes that“Findings of guilt in cri minal acti ons whether by t he trialcourt or j ury shallbe set aside if the evidence is insuffi cient to support the findings

by the trier of f

act of gui lt beyond a reaso nable doubt.” T enn. R . App. P. 1 3(e). In additio n, because convi ction by a trier of fact destroys t he presumption of innocence and imposes a pr esumption of guilt, a convicted criminaldefendant bears the bu rden of showingthat the evidence was insu fficient. McBee v. State , 372 S.W.2d 173, 176 (Tenn. 196 3); see also State v. Evans , 83 8 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,-3-

331 (T enn. 19 77)); State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of th e eviden ce, an ap pellate court must af ford the State “the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences

that may be d rawn therefrom .” Tug gle , 639 S.W.2d at 91 4 (c iting State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). Thecourt may not “ reweigh or r e-eva lu ate the ev idence ” in the reco rd below
. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particu lar con flicts in the tri al testi mony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

In thi s case, the pr

oof was suff icient

to permit t he jury to find Defendant guilty of theft and burglary. According to testimony

at trial, Deputy Sheriff Steve Holton of the Mars hall County Sherif f’s Depart ment was patroll ing his desi gnated area at app roxim ately 7:00 a.m. on January 1, 199 8, whe n he o bserv ed a s ingle carin the parking l ot of the Bet hlehem Baptist Church. Deputy Hol ton noticed thatthe vehicle was backed up to the church buildi ng, that t he driver’s-sidedoor was open, tha t the trunk w as ope n, and tha t a perso n was s itti ng in the passengerseat. Holton also noted t hat no church s ervi ces were scheduled because it was not

Sunday. His suspi cions raised, heentered theparking lo t to investigate further.
Depu ty Holton questioned t he passenger of the veh icle an d iden tified him as Paul Pra tt. Pratt s tated that he was waiti ng on his friend, Robert Thurman, who was relieving hims elf in the wood ed are a imm ediate ly behind the park ing lot.-4-

Holton observe d a micr owave oven in the open tru nk of t he veh icle; and the deputy then requestedback-up law enforcement and waited with Pratt to ensure his continued pre sence. Me anwhile, Pratt gave Holton the veh icle paperw or k from the glove comp artmen t. These documents, incl uding a bill of sale/sec urity agreem ent, odometerdi sclosure statement, buyer’s guide/ warranty, and autom obile insurance receipt, all i ndicated t hat Robert Th urman o wned the c ar.

In addition, D eputy H olton testified that Pratt did not possess the igniti on key for the car , and deputi es fail ed to locate an igni tion key in th e car, on the ground, or insi de the premises of the church. Holton stated that upon i nspection of the church, he di scovered sever al broken wi ndows, at l east one of which was large enough for

a person an d a microwav e to sl ide thr

ough. Howe ver , Holton opine d that th e hole was n ot situa ted so that a p erson could carry a microwave through the window al one or place a microwave outside t he window without causing dama ge to it.

M arsha ll Coun ty Dep uty Ph il Klarer testified that, up on arriv in g at th e scene, he observed tenni s-shoe pr ints und erneath the deadbolt lock on a door to the church. In Klarer’s opini on, the door had bee n kicked s everal times, creatingmultip le over lappin g print s of the same shoe pat tern. He testifi ed that he inspecte d Paul P ratt’s shoe to determ ine if Pratt’s sh oe ma tched the print. Klarer concluded that Pratt’ s shoe did not make the particular markson the door. Klarer also verif ied that d eputies conducted a fruit less search f or the ignition key to Defendant’ s vehicl e.-5- Paul Pratt, th e acc omp lice in this case, tes tified for the S tate followin g his plea of guilty to cha rges arisin g from th ese facts . Pratt sta t ed that he and Defendant attended a party on New Year’ s Eve, lef t the party, and drove to t he Bethlehem Baptist Church. Accordi ng to Pratt , Defendant dr ove into t he parking lot, exited the c ar, and w alked aro und to the rear of the church
. Defendantthen called out to Prat

t through a br

oken windo w to “com e and g ive him a hand.” Defendant hande d the m icrowave to Pratt throu gh the w indow, a nd Pra tt placed it in the t runk of the car. Pratt then sat down i n the passenger seat of the car while Defen dant we nt to the wo ods to re lieve hims elf. At th at time, Depu ty Horton arrived on the scene.

Detective Sam uel Brag g of the M arshall C ounty Sher iff’ s Department testif ied that he conducted a taped interview wi th Defendant af ter read i ng Defendant his Mirandarights. In thi s interv iew, Defendant stated th at he arrived home on January 1, 1998by 3:00 a .m. and went to sle ep. He told Bragg t hat the next morning he and his mother had breakfast

at Shoney’s at

approximatel y 8:00 and tha t they t hen vis ite d his gran dmothe r at

a nursinghome i n Nashv il le. He explained in this interview that he ha d loane d his car to Pratt after Pratt d rove h im home from the New Y ear’s Eve party.

Detective Bragg testi fied that at the con clusion o f his interview with Defen dant, he immediately telephoned Def enda nt’s m other to verify the alibi. The S tate entered into evidence a tape recording of t his conversation, i n which Defe ndan t’s mothe r to l d the detect ive that she had not eaten br eakfast at Shoney’s and that

she had worked allday on January 1. Bragg testified at t rial-6-

that whe n he confrontedDefendant wit h this i nformation f rom Defenda nt’s mothe r and asked him why he lied to police, Defendant responded that he did not know.

Tennessee Code Annotated § 39-14 -103 sta tes, “A pe rson co mm its theft of property if, wi th intent to deprive the owner of propert

y, the per

son know ingly obtainsor exercises con trol over the property w ithout the owne r’s effective conse nt.” Furthermore, “[a] person commits burgl ary who, wi thout theeffective consent of the property o wner . . . [e]nters a b uilding an d com mits or atte mpts to com mit a felony, theft or assault. ” Tenn. Code Ann. § 3 9-14-40 2(a)(3). W e find the evidence sufficient to support co nvictions for theft and bu rglary.

Defendant contends that his convi ctions were impermissibl y supported by th e uncorroborated testi mony of an accomplice. A defendant cannot be convictedon the unco rroborated testim ony o f an acc omplice
. Sherill v. Sta te , 321 S.W.2d 811, 814 (Tenn. 1959). This Court i nstructed in State v. Cald well , 977 S.W .2d 110 (Te nn. Crim. Ap p. 1997), To corroborate the test imony of an accompli ce, “ther e should be s ome f act tes tified to, e ntirely ind epen dent o f the ac com plice’s evidence, which, tak en by itself, leads to t he inference, not only t hat a crim e has been committed, but also t hat the defend ant i s implicated in it.” . . . This corroborat ion must consist of some fact or circumstance which affects theidentit y ofthe defen dant. Such cor rob orati ve evi dence “may be dire ct or en tirely circum stantia l, and it n eed n ot be a dequ ate, in a nd of it s elf, to support a convict ion” so lon g as it “fairly and legitimate ly tends to conne ct the defe ndant w ith the com mission of the crim e charg ed.” Id. at 115-16 (quoti ng 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).-7- In this case, we find thatthe accom plice testimony by P aul Pratt was m ore than sufficiently corroborated by law en forcement test imony that upon investi gating the scene o f the burglary, depu ties discove red a car reg istered to Defen dant, with the driver’ s-side door open and P ratt in the pass enger s eat, with a microwave oven in the opentrunk. Mor eover, of

ficers s earched in vai n the p erson of Pratt , the vehi cle, thegrounds of t he church, and t he interi or of the church for ignition keys to Defendant’ s car, l eading to t he inf erence t hat Defendant poss esse d the k eys. Fin all y, officers ex cluded Pratt’s shoes as th e shoes which m arked p rints on the church door. Th is issue lac ks me rit.

II. ADMISSI BILI TY OF PRETRI AL STATEMENT In his sec ond is sue, D efend ant co ntests the ad miss ibility of his statement to law enforcement

foll owi ng his arrest. He does not al lege a consti tutional violat ion, but on ly an evidenti ary viol ation—thatthe state ment was not rel evant to any fact of c onseq uence in the trial. In sup port, Defe ndant a rgues that t he statem ent, in which he told Detective Bragg that he had been with his motherat Shon ey’s and a nursin g hom e in Nashvill e on the dayof the theft and bu rglary, was not relev

ant to any i ssue at trialbecause he had decided not to present a n alibi defen se.

Defendant asserts that State v. Taylor , No. 02C01-9501-CR-00029, 1996 WL 580997 (Tenn. Crim. App. , Jackson, Oct. 10, 1996), s upports the ex clusion of this evidence. Specifical ly, hequotes Taylor for the pr

opositi on that “not hing in [Tennessee Rule of Cri minal Procedure 12. 1(d)] req uires the defendant to rely on an alibi , noris th ere any provi sion prevent ing him from abandoni ng an alibi-8-

defense. There fore the d ecision o f whethe r to provide an alibi is left en tirely to the discretion of the d efendant.” Id. at *9.

Howeve r, Taylor

does n ot preven t o r c aution agai nst the i ntroducti on of Defe ndan t’s statement i n the case at bar . In Taylor , this Court rejec ted the defen dant’s claim that the rule r

equiring di sclosure of

an alibidefense caused the defen dant’s silence to be interpre ted as an affirma tive sta tement that no alibi existed, in violation of his right against se lf-incrimination. The C ourt ’s words in Taylo r can not be co nstrued to mea n that De fendan t’s affirmative statem ent to police regarding hi s wher e abouts at t he time of t he crime is i rrelevant to a determinati on of his gu ilt. Defen dant’s exp lan ati on of his wher eabo utsat t he t ime of the crime, althou gh certainly prejudi cial to the defense, constit utes circumstant ial evidence qui te relevant to the j ury’s determination. This issue lacks m erit.

III . IMP EACHMENT TESTI MONY Defendant next argues t hat the trial court improperly admitted i mpeachment testimon y offered b y Detec tive Bragg to show that Defe ndant’ s motherhad n ot sup ported Defe ndan t’s alibi, and Defendant’s own statement that he did not know why he lied to police. Defendant chall enges the testimony as evidenc e of a prior b ad act un der Te nness ee Ru le of Evide nce 40 4.

The State responds that while evidence of other crimes, wr on gs, or acts is no t admissibl e t o prov e the c harac ter of a p erson in orde r to sho w actio n in conform ity wit h th e ch ara cte r t rai t, suc h ev ide nce ma y admiss ible for other purposes. Tenn. R. Evid. 404(b). I n t his case, the State argues that the-9-

evidence was not used to show that be cause D efendant wa s a liar, he wa s likely also a thi ef a nd bu rgl ar. Rat her , t he evide nce was u sed to s how t hat at t he t ime of the crime under

investi gation, Defendant was not at th e plac e that h e origin ally claimed to be. We agree with the State’s posi tion, andwe affirm the admission both of Def enda nt’s orig inal sta teme nts co ncern ing his whe reabouts and of evidence tendi ng to show that those statements were untrue.

IV. CAREER OFFENDER STA TUS Defendant chall enges the tri al court’ s findi ng that he i s a career off ender forsentencing purposes. He argues that the t rial court e rred by failing to find his nine prior felony convi ctions a “single cour se of conduct” within t he meaning of Tennessee Code An notated § 40-35-108(b)(4). Section 40-35-108 reads: Convicti ons for

mu ltiple felo nies co mm itted as part of a single course of conduct wi thin twent y-four (24) hours const itute one (1) conviction for the pur pose o f determ ining prior c onvictions
. . . . Tenn . Code Ann. § 4 0-35-10 8(b)(4).

Defe ndan t’s nine fel ony con vict ions a rose fro m his failure to disclos e his employmen t while rece iving unemployment compensation benef its. Although Defendant claims that procuringemployment without reporti ng the same to the Department of Emp loymen t Security c onstituted a single co urse of a ction, th e record reflect

s that Defendant’s convi ctions ar ose under Tenn esse e Code Annotated § 50-7-713, when he cashed unemployment benefi t checks fr om the Department of Employment Securi ty on ninesepara te occasions without reporti ng his emp loymen t. Exhibit 1 to Def enda nt’s senten cing hea ring cons ists of the nine indicted counts for which Defendant was c onv icted. T he exh ibit1 The judgment entered for the theft conviction contains an apparent error. The

judgmentreflects a conviction for a Class D felony wi th a s e ntence of eleven months and twenty-nine

days in the county jail. The record reflects that the convic ti on was for Class A misdemeanor theft. -10- reflects that these offenses di d not occur within t wenty-four hours, b ut rather spann ed three month s. This iss ue lacks merit.
The judgment of the t rial cour t is af firmed. 1

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE