### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 10, 200 7

STA TE OF TEN NES SEE v. DA RR YEL WEBB a/k

/a DA RR YL WEBB

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 05-08596 Chris Cr aft, Jud ge

No. W2006-01804-C CA-R 3-CD - F iled Jul y 10, 2007

The de fenda

nt was convic ted of a g g ravated burglar y , a C lass C felony
, by a S helby County Criminal Court jury . He wa s sentence d to fifteen y ear s as a Caree r Offe nder to be serve d in the Depa rtment of Corre ction consec utively to a prior c onviction. I n this appea l, he cla ims that the circumstantial proof of his guilt is insufficient to support his conviction. We disag ree and af firm the judg ment of the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , P.J ., delivere d the opinion of the cour t, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.

Robert Wils on J ones, District Public Defe nder, Tony N. Br ay ton ( on appea l) and Rober t T. Hall (at trial), Assistant Public Defe nders, f or the a ppellant, Dar

ry el Webb a/k/a Da

rry l Webb.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, Dis t ri ct Attorney Gene ral; and A landa Hor ne Dwy er, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

At the def

endant’ s trial, Eloise Worship testified t hat on Marc h 2, 2005, she lived alone at her home in Memphis. She said she came home that af ternoon and saw the def

endant pushing her trash ca n down t he st ree t. She rec og nized the t rash can as being hers be cause her c an had a broken ho ok on the top . Sh e sa id she a sk e d the de fe nd ant wh a t he wa s doin g wi th he r tr a sh c an. She sa id he re sponded, “I ’ll bringit right ba ck.” She sa id she told him he could not take the trash c an. She

sa id s he tur

ne d he r ca

r a ro un d, jum

pe d o ut o f t

he c ar, we nt u

p to the de fe nd ant, and

sa id, “ Gi ve me my trash ca n, what ar e y ou doing with my stuff? ” She said she could see the top of her te levision stick i n g u p o ut of the trash c an. She said she ha d no doubt the television was her s beca use she

rec og nized the trim on the t o p and edge s. She said she looked towa rd her house and sa

w that her window was broke n and that the blinds wer e slanted. She sa id the defe ndant bec ame “ rea lly ag itated-2-

an d a n g r y ” an d “ s w u n g a t” h e r

. Sh e te s ti f ie d h e s a id
, “ ‘ B ’
, I ’ ll ‘ F ’ y o u u p

. ” T h e w it

n e s s s a id the defe ndant used prof

anity , which she did not re peat on the w itness stand.

Ms. Worship s aid she we nt to Cl ara Fr an k lin’s house to call the police . She said the defe n d ant left the sc ene w hile she wa s waiting for the police . She said that when she went inside her home , she discover ed that it wa s in disa rra y and that sever al items ha d been taken. She said the
pr op e rt y take n in c lud e d a

te le vis ion , v ide o ca sse tte re c or de r, and va ri ou s p ie c e s o f j e we lr

y . Sh e sa id there wa s gl as s from broke n windows in the house and a crowbar outside the f

ront door. She identified photog raphs of the interior a

nd exterior of h er h o m e which showe d the damag e and disarra y from the bur g lary

. Ms. Worship said she recog nized the defendant as being the s ame indivi dual who used to li ve wi th h is s on ’s g ra

ndmot he r i n th e ho us e ne xt doo r t o h e r h ome . Sh e sa id s he late r l e arn e d h is wher eabouts by

calling her f

ormer ne ighbor

with whom the defe ndant had lived. She said that she notifie d th e po lic e and

that sh e we nt w iththe m to the loc a tio n th e nig ht f oll ow ingthe da

y tim e burg lary of her home. She said that while there , the police br oug ht a per son out of the house a nd that sh e ide nti fi e d th a t pe rs on a s th e on e sh e ha d s e e n p us hin g he r t ra shc an d ow n th e str e e t. S he sa id that person wa s the defe ndant and that she was positive in her ide ntification.

Offic er V ik k i S aine of the Memphis Poli ce D epar tment testified that she re sponded to a burg lary c a ll at th e vic tim ’s ho me . Sh e de sc ri be d the dis arr ay ins ide the vic tim ’s ho me

. She sa id that sh e ma de a

re po rt bu t th a t sh e did

no t c a ll “ c ri me sc e ne ” to pr oc e ss t he sc e ne fo r f

ing e rp ri nts

. Of fi c e r S a ine sa id t

hat th e vic timdid

no t kn owthe name of

the pe rs on sh e ha d s e e n p us hin g he r t ra sh can but that the vic tim recog nized him from the neig hborhood. Officer Saine said her pa rtner, Of fi c e r S tin e s, a lso re sp on de d to the c a ll.

Cla ra F ra nk lin te sti fi e d th a t sh e liv e d d ia g on a lly a c ro ss t he str e e t f ro m th e vic tim

. She sa id the victim came to her

house to use the tele phone on the date in question. Ms. Fra nklin said that the victim reported to he r that “the g uy next door wa s pushing her g arba g e ca n down the stree t with her belong ings.” She said the victim had to call the police a sec ond time when they did not arrive a fter the fi rs t c a ll.

Offic er Daniel Wallace of the Memphis Police Depa rtment testified that on Mar ch 2, 2005, he wa s dispatched in re sponse to a call that the victim knew the whe rea bouts of the per son who had burg larized her home ear lie r t h at d ay . He sa id he and his par tner, Of fice r Coleman, we nt to the addre ss with the vi ctim. He sa id he obtained the home owner ’s per mission t o g o inside the house. He sa id he observe d cra ck pipes a nd drug para

pherna lia and seve ral indi v i d u al s inside the house. He sa id the defe ndant wa s h i d i n g behind a bathroom door. He sa id he broug ht ever y one into the living room and inquired which of them wa s Darr y el Webb. He sa id that no one re sponded until he threatened to have the Org anized Crime Unit searc h the house for drug s and that the homeowner then identified the de fenda

nt. He identified the house whe re the defe ndant was a pprehe nded as a

“cr ack house.”-3-

After rec eiving this proof, the jury found the defe n d ant g uilty of the c harg ed off

ense of
ag g ravated burglar

y

. Following sentenc ing and an unsucce ssful motion for new tria l, the defe ndant fi le d th is a

pp e a l.

The sole issue before us is the suffic iency of the c onvicting e vidence . Our standa rd of r eview when the suf

ficienc y of the e vidence is questioned on appea l is “whe ther, afte r viewingthe evidenc e in the l ight most favor able to the prosecution, any rational trier of fact could have found the e ssential

e le me nts of the c ri me be y on d a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 2781, 2789 (1979). This means that we do not r ewe igh the evidenc e but pre sume that the jury ha s r e so lve d a ll c on fl ic ts in the te sti mony and dr awn a ll re a so na ble inf e re nc e s fr om the e vid e nc e in favor of the state. See State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Cabbag e, 571 S.W. 2d 83 2, 83 5 ( Te nn . 1 97 8) . F or an a c c us e d to be co nv ic te d of a c ri min a l of fe ns e ba se d s ole ly
up on c ir c ums tanti a l e vid e nc e , th e fa c ts a nd the c ir c ums tanc e s “ mus t be so str on g and c og e nt a s to exclude ever

y other re asonable hy

pothesis save the guilt of the defe n d an t , and that beyond a

rea sonable doubt.” State v. Sutton, 166 S.W .3d 686, 691 (Tenn. 2005) (quoting State v. Crawf ord, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971)).

“Ag g ravated burg lary

is bur g lary of a habitation

. . . .” T.C.A. § 39-14-403( a). A s releva nt to this appeal, burg lary

is committ ed when a person enter s a buil ding without the owner ’s conse nt and with the intent to commit a theft. I d. § 39-14-402( a).

Th e de fe nd ant ar g ue s tha t the pr oo f doe s n ot e xclu de the po ssi bil ity that th e de fe nd ant c a me into possession of the vi ctim’s proper ty afte r t he burgla

ry

. I n the l ight most favor able to the state
, the evidenc e esta

blishes that the defe ndant was in possession of the victim’s tr ash ca n filled with her be lon g ing s and that the vic tim ’s ho me ha d be e n burg la ri zed wi thi n a fe w- ho ur pe ri od tha t th e vic tim ha d b e e n g on e

. Th e de fe nd ant wa s in the imm e diate are a of the vic tim ’s ho me wh e n s he saw h im pushing he r trash c an conta ining he r prope rt y d own the stree t. The victim attempted to stop the defe ndant, and he attempted to hit her, c ursed he r, and thre atene d to hurt her. There is no evidence that any one other

than the def

endant wa s involved in the crime. The defe ndant’s pre sence in the imm e diate are a , h is p os se ssi on of the vic tim ’s pr op e rt

y , a nd his a tte mpt to extr ic a te him se lf fo rc ibl y from the situation when c halleng ed by the victim all point the f

inge r of guilt unerring ly

at him as the
perpe trator of

the ag g ravated burg lary

of the victim’s home.

I n consideration of the fore g oing and t he record as a whole , the judg ment of the trial c ourt is affirme d.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE