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

Briefs M arch 12, 2002

STATE OF TENNESSEE v. LUE J. HOLC OMB
Direct Appeal from the Criminal Court for Shelby County

No. 99-11802 J. C. McLin, Judge

No. W2001-00743-CCA-R3-CD - Filed March 25, 2002

The appellan t, Lue J. Holcomb, was convicted by a jury in the Shelby County Criminal Court of aggravated

burglary. The trial court imposed a sentence of three a nd one-half years and ordered tha t six months of the se

ntence b e serve d in confi nement wi th the balance on probation. The appellant timely appealed, arguing that the evidence is not sufficient to support his conviction. After a review of the record and the parties' briefs, we affirm the judgment of the trial court.
Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med.

N O RMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., an d A LAN E. G LENN , J., joined.

A. C. Wharton, Jr., Garland Ergüden, and Amy Ma yne, Memp

his, Tenn essee, f

or the ap pellant, Lue J. Holcomb.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney Genera l; William L. Gibbons , Distric t Attorne y Gener al; and Da vidZak, Assistant

District A

ttorney G eneral , for the appellee, State of Tennessee.

OPINION

I. Factua

l Background On April 18, 1999, the victim, JoAnn Wilkins, was living on Wagon Wheel Drive in Shelby County . At appr

oximately 7:30 a.m., she rec eived a t elephone call fro m the appe

llant, who advised her that

he was c oming to

her house . Althoug

h the vict im told the appellant not to come, he arrive d at the house appr oximately thirty to forty

minutes after the call. Upon hearing a knock, the victim went to the front door and saw the a ppellant standing outside. Sh

e told the appellant that he could not come in and asked him to leave. After being told that he c ould not come in, the appellant started t o “kick th e door in. ” The ap

pellant w as able t

o open an oute r security door a

nd then kick the wooden door open to gain acce ss to the house.-2- Once inside, the appellant grabbed the victim’s arms and beg an shaking her, telling her that he was going to kill her. The victim’s twenty-seve n-year -old son, Twan Boxley, who wa s living with his mother, was awakened when he heard loud noises at the door. He came out of the bedroom and saw his mother at the window. She told him to return to bed, and he complied. Approximat

ely five to ten minutes later, he again h eard several loud noises a nd, at the request of his mother, called the police.

Officers Aaron Merritt, Adam Merritt, and Melanie Howe of the Memphi s Po lice Department

responded to the call from thevictim’s home. Upon arrival, they found the front door open and the door fra

me damaged. Officer Ada m Merritt described the victim as “visibly upse t, and just kind of hy sterica

l.” The victim told

the officers that her former boy friend had broken into her house, threate

ned to kill h

er, and w as still in

the house. The police discovered the appellant in a rea r bedroom.

The victim denied that the appellant was living in the home or that he had spent the night there. Sh e conce ded that s he had pr eviously been invo lved in

a relationship with the appellant and further admitted that they had been on a date the night prior to the offe nse.

The appella

nt claime d that he h ad spent t he nigh t prior to the offense at the home of the victim. He and the victim had a date and had spent the evening at a club. While at the club, he

was involved in an altercationwith another woman. The victim was jealous, and they argued. The argument “carried on until the next morning.” After they awoke, the appella

nt went ou

tside bec ause he did not want the victim to call the police. The appellant claimed that the victim then locked the door and that he was simply try ing to g et b ack insid

e to obtai n a jacke

t and the r

emainde r of his clothes. The appellant denied kicking the door, insisting that, when the vic tim opened the door to give him his jacket, he stuck his hand in the door and walked inside. He claim ed that he did not grab, stri ke, or threat en the victi m. Acc ordin g t o the ap pellant, the door had been broken by the victim’s son.
Following a jury trial, the a ppellant was co nv ic te d o f a ggr av at ed bu rg la ry. He asse rts that the evidence is insufficient to support his conviction.
II. Analysis On appea l, the State

is entitle d to the str

ongest legitimate view of the evidence and all reasonable inferences that might be dr awn t herefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Th

e credi bility of the wit

nesses, the we ight to be given their testimony , and the reconciliation of confl

icts in the proof are matters entrusted to the jury as the trier of fact. State v. Sheffield , 676 S.W.2d 54 2, 547 (Te nn. 1984) ; By

rge v. State , 575 S.W.2d 292, 295 (Tenn. Cr im. App. 1978). Th

e appell ate cour

ts should no t substitute

their judgment for that of the jury on such factual issues. See Statev. Morris , 24 S.W.3d 788, 795 (Tenn. 2000), cert. denied , 531 U.S. 1082, 121 S. Ct. 786 (2 001); Liaka s v. State , 286 S.W.2d 856, 859 (Tenn. 1956). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact

could hav e found th

e essent ial eleme nts-3-

of the crime bey ond a rea sonable d

oubt. Ten n. R. App. P. 13(e); Statev. Smith , 24 S.W.3d 274, 278 (T enn. 2000); S tate v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Becau se a ver dict of g uilt
removes the presumption of innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showing that the evidenc e is legal ly in suffic ient to sust ain a gu ilty verdict

. Stat e v. Buggs , 995 S.W.2d 1 02, 105-1 06 (Tenn . 1999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

Aggravated

burglary is “burg lary

of a habi tation as d

efined i n §§ 39-14-401 and 39- 14 -402.” Tenn. Code Ann. § 39-14-403(a) (1997). Tenn. Code Ann. § 39-14- 401( 1)(A) (1997 ) defines “h ab itation” as “any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the over night ac commod ation of p ersons.” Burgl ary

is defined as follow s: (a) A person commits burglary who, without the effectiveconsent of the property owner:

. . . . (3) Enter s a bu il di ng an d c om mi ts or at te mp ts to co mm it a f el on y, theft or a ssault;

. . . . (b) As used in this section, “en ter” mea ns: (1) Intrusion of any

part of the body. . . . Tenn. Code Ann. § 39-14-402 (1997). Additionally, Tenn. Code Ann. § 39-13-101( a) (1997) states that a person commits assault who:

(1) Intentionally , knowingly or r ecklessly ca

uses bodily injur

y t o another; (2) Inte ntionally or knowin gly

causes another to reasonably fear imminent bodily injury ; or (3) Intentionally

or knowingly c auses physical c ontact with another and a reasonable pers on would r egard the conta

ct as extre

mely offensive or provocative. Therefore, the State

was req uired to prove that the appellant

entered the victim’s residence, without her consent, and committed or attempted to commit an assault.

The evidenc e, in

the ligh t most favo

rable to the State , shows tha

t the appe llant cam e to the home of the victim and demanded entry . When the victim refused to allow him to come inside her home, the appellant

kicked th e door in a

nd gra bbed the a

ppellant by t he arms, threate

ning to ki ll her. The jury, as wa s their prer oga tive, chos e to a

ccredit th e tes timon

y o f the State ’s wi tness es. We conclude that the e

vidence is suffic ient to find the appellant guilty of aggravated bur

glary

. Cf. State v. Langford , 994 S.W.2d 1 26, 128 (T enn. 1999 ). This iss ue is without merit.

III. Conclusion Accord ingly , we aff

irm the jud

gment of the trial court.-4- ___________________________________ NORMA McGEE OGLE, JUDGE