# FILED
April 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1999 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9806-CR-00198

) ) Shelby County v. ) ) Honorable Joseph B. Dailey, Judge ) JAMELL RICHMOND, ) (Aggravate d Burglary) ) Appellant. )
For the Appellant : For the Appellee : James V. Ball Paul G. Summers 217 Exchange Avenue Attorney General of Tennessee Memphis, TN 38103 and (AT TRIAL) Patricia C. Kussmann Assistant Attorney Gener al of Tennessee A. C. Warton, Jr. 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 and Walker Gwinn William L. Gibbons Assistant Public Defender District Attorney General 201 Poplar Avenue and Memphis, TN 38103 David Henr y (ON APPEAL) Assistant District A ttorney General 201 Poplar Avenue, 3rd Floo r Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Jamell Richmond, appeals as of right from his convic tion by a jury in the Shel by County Criminal Court for aggravated

burglary, a Clas

s C felony. He was sentenced as a Range II, multiple offender to ten year s in the custody of the Department of Correction. The defend ant contends that there was insufficient evidence to convict. We affirm the trial court.

The evidence showed that the victim, Henry Earl James, arrived at his apartment at 4:50 p.m. on December 6, 199 5, and found his front door open. He le ft, called the authorities, and r eturned with two Shel by County Sheriff’s officers.Upon entering his apartment, the v ictim found his stereo sys tem, two television s

ets and some other items piled by the front door.

One officer observed marks re flecting that the front door had been pried open. A detective arriv ed and tested the various items in the pile for fingerpri nts. The only latent fingerprint came from a glass candy j ar that was on one of the telev ision sets.
A fingerprint expert t estified that the latent print c ame from the defendant’s left middle finger. He testified that he requires eight matching points of comparison in order to form an opi nion and that he had fifteen matching point s with the latent fingerprint and the defendant’s known fingerprint. The victim testified that he neither knew the defendant nor gave him permission to be i n the apartment. Based upon thi s evidence , the jury co nvicted th e defen dant of aggravated burglary.

The defendant contends that the fingerpri nt evidence was insuffici ent to prove circumstantially beyond a reasonable doubt that he committed the burglary. It is1 The citation provided by the defendant for Borum was incorrect as to both vol ume and date. We assume that the Borum case found by us is the one upon whi ch the defendant relie s. 3 well established that c

ircumstantial evidence alone may be sufficient to support a conviction. State v. Buttrey , 756 S.W.2d 718, 72 1 (Tenn. Crim. App. 1988). However, the circumstantial evi dence “‘must be not only con sistent with the gui lt of the accused but it must also be inconsistent with his [or her] innocence and must exclude every other reasonable theory or hypothesis except that of guilt.’” State v. Tharpe , 726 S.W.2d 896, 900 (Ten n. 1987) (quotin g Pruitt v. State , 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970)). In this way, “‘it must establish su ch a certainty of guilt of the accused as to convince the mind beyond a reasonable doub t that [the defendant] is the one who committed the crime.’” Id. at 896 (quoting Pruitt , 3 Tenn. Crim. App. at 267, 460 S.W.2d at 390). While following these guidelines, we must note tha t the jury decides the weight to be given to circumstantial evidence and that “[t ]he inferences to be drawn from such evidenc e, and the extent to whic h the circumstances are cons istent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State , 203 Tenn. 440, 452, 313 S.W .2d 451, 457 (1958).

The defendant does not contest the fact that the ev idence proved that an aggravated burgl ary occurred. Rather, he indicates that the finger print could have been placed upon the candy jar innocently. In support, he advances Borum v. United States , 380 F.2d 595 (D.C. Cir. 1967) 1 , in which the court, i n a split opinion, concluded that matching fingerprints were insufficient evidence in a burglary case when no evidence existed that the objects i n question were gener ally inaccessible t

o the defendant.
First, we questi on whether the evidence d isclosed in the Borum case was insuff icient to prove that the def endant b roke into the home . In any even t, we belie ve that the evidence in the pre sent case shows suf ficient inaccess ibility. Un question ably, a burglary occurred. The victim did not know the defendant and had never given him access to the apartment. Aside from idle speculation, nothing indicates an innocent4

reason for the defendant’s fingerpri nt to be on the candy jar. I n State v. Evans , this court was faced with similar circumsta ntial evidence an d stated the f ollowing:

The locked filing cabinet was bro ken in to and property was stolen from a microfilm box that pri or to the burglary w as in the filing cabi net. The defendant’s fingerprint w as found on the microfilm box. Fingerprint evidence alone may sup port a convic tion and the weight to be given to such evidence is fo r the jury’s dete rminatio n. Furthe r, we point out that the record containsno evidence that could reas onably be s aid t o show th at the defendant’s fingerprint coul d have gotten on th e microfilm box in some innocent manner. 669 S.W.2d 708, 710 (Tenn. Crim. App. 1984) (citations omitted). We hold that the evidence was sufficient to convict the defendant for the agg ravated burglary

.
In consideration of the foregoing and the record as a whole , the judgment of conviction is affirmed.

_________________________ Joseph M. Tipton, Judge CONCUR:

__________________________ David G. Hayes, Ju dge

__________________________ L. Terry Laff erty, Special Judge