# FILED
October 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9712-CC-00487 Appellee ) ) FAYETTE COUNTY vs. ) ) Hon. Jon Kerry Blackwood, Judge PAUL EDWARD EPPS, ) ) (Aggravated Burglary; Theft of Property Appellant ) over $10 00; Attem pted Thef t of P rope rty over $1000)
For the Appellant : For the Appellee : Shana C. McCoy-Johnson John Knox Walkup Senior Asst. Public Defender Attorney General and Repor ter Post Office Box 700 Somerville, TN 38068-0700 Elizabeth T. Ry an Assistant Attorney Gener al Gary F. A

ntrican Criminal Justice Div ision District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED: AFFIRMED IN PART; REVERSED AND VACATED IN PART
David G. Hay

es Judge1 The indictment char ged the appell ant and his co- defendant with three counts of aggravated bur

glary,one count of t heft of prop erty ov er $1000, one count

of theft of propert

y over $500 a nd one count of attem pted thef t of prope rty over $10 00. The appellant’s co-defe ndant, Micha el E. Craig , pled guilty to all of the indicted off enses prior to the a ppellant’s trial. 2 OPINION
The appellant, Paul Edward Epps , appeals the verdict of a F ayette County jury finding him gui lty of one count of aggrav ated burglary, one count of theft of property over $1000, and attempted theft of property over $1000. 1 For these crimes, the appellant was sentenced, as a range II offender, to seven years for aggravated burgl ary, four years for theft ov er $1000, and three years for attempted theft. These sentences were orde red to be served concurr ently with each other

but consecutive to a prior outstanding sentence. The appellant’s sole issue o n appeal is whether the evidence pr esented at trial is sufficient to support his convicti ons on these charges.

After a review of the rec ord, the judgment for attempted theft is vacated and dismissed. The judgments of conv iction for aggravate

d burglary and theft of property over $1000 ar e affirmed.

Background
On February 20, 1997, shor tly before 1:00 p.m., Eliz abeth Franklin, accompanied by her son, left her residence located at 153 0 Franklin Road in Moscow. The two, after g rocery shopping, re turned to the house at 3:00 p.m. Upon entering the kitchen, Mr s. Franklin noticed that there was a chair sit ting by the refrigerator, there w

ere three pistol cartri dges lying on the floor, and several empty drink cans were scat

tered over the floor. Fear ing that she had been burgl arized,2 The trialcourt inst ructed the j ury that Craig’s prior in consistent statement could not be conside red as s ubstan tive evidenc e. See State v. Reece , 637 S.W .2d 858, 8 61 (Te nn. 1982 ); See also Tenn. R. Evid. 613. 3 Mrs. Franklin proceed ed to her bedroom where she di scovered that her .38 pis tol was missing from her dr esser drawer. Further investigation r evealed that the perpetrator(s) had also t aken a .20 gauge shotgun, a .38 long barrel pistol , and a Winchester rifle. There was evidenc e that the burglars had als o attempted to steal Mrs. Franklin’s 1972 Ford automobile, which “ was in good running

condition.” The automobile was parked “under the shed” on the Franklin premises. Mrs. Franklin and her son discovered that the perpetrators had entered th e residence by breaking a window and pulling

the screen up. The burglar s apparently pushed the scr een back down when they left to conceal their entry

.
That same day, between 2:30 and 3:00 p.m., Percy Henderson , a neighbor, saw two men walking up the road “a little piece from [Mrs. Franklin’s] house.” He identified the two men as the appel lant and his co-defendant, Michael Craig. The two men asked Mr. Hender son for a ride to Will Smith’s home. En rout e, the men asked Mr. Henderson if he w as interested in a “new .38.” Mr. Henderson decl ined their offer. At trial, he testified that he did not see any w eapons on either the appellant or Cra ig.

As a result of their inv

estigation, the Fayette

County Sheriff’s Department discovered an abandoned house w here the appellant and Craig were living. Although the two suspects attempted to elude the police, au thorities eventually apprehended both men. On February 24, 1997, Investigator D on Pugh questioned co-defendant Craig about various burglaries in the area. After waiving his rights, Michael Craig prov

ided a statement accepting res ponsibility for the burg lary and theft committed at Mrs. Frankl in’s residence. In so doi ng, Craig implicat ed the appellant as his accomplice in the crimes. 2 At trial, however, Craig could not recall involving the appel lant in the crimes in his statement to authorities. Ra ther, he3 Evide nce was also in trodu ced at trial e stab lishing that c o-de fend ant C raig p articip ated in two other r

elated bur

glarie s of the homes of Ben Wilson and Larry Carpenter. However, the t rial court granted the appell ant’s motion for judgment of acqui ttal,findi ng that t here was no corrob oration of C raig’s later rec anted s tatem ent imp licating the ap pellant in thes e offens es. Accordingly, the trial court di smissed two c ounts of aggravated burglary and one co unt of theft over $500. 4 stated that he alone committed the cr imes. Indeed, although Craig stated that he and the appellant were lifelong friends and cousins, he tes tified that “me and Paul never did nothing tog ether.” He explained th e inconsistency betw een his trial testimony and his statement to Investigator Pugh by stating that he was under the influence of drugs at the time of the st atement and he would have sai d anything to get out of jail.
Investigator Pugh r

ebutted the testimony of Michael Craig by stating

that, at the time of Craig’s statement,Craig did not appear under the influence of any drug or other intoxicant. H e further stated that two dis tinctive sets of footprints had been found at the Franklin residence . One set of tracks was i dentified as belonging to Michael Craig.
Based upon this evidence, the jury returned guil ty verdicts as to one count of aggravated burgl ary, one count of theft of property over $1000, and one count of attempted theft of property over $1000. 3

Analysis
Although the appellant does not d ispute the fact that the State’s pr oof established the elements of agg ravated burglary , theft, and attempted theft, he argues that the proof fails to establish his involvement as the perpetrat or of these crimes. See Tenn. Code Ann. 39-14-401, -402, - 403 (1997); Tenn. Code Ann. § 39-14-103, -105(3) (1997); Tenn. Code Ann. § 39-12-101 (1997). Specifically, he argues that no evidence w as presented, other than his pr esence in the area of the5

crimes, to show that he ent ered the home of Mrs. Frankli n or stole or attempted to take items belonging to her

.
Initially, a defendant is c loaked with the presumptio n of innocence. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). However,a jury convicti on removes this presumption of innocence and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. Id . In determining the sufficienc y of the evidence, this c ourt does not reweigh or reev

aluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest l egitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellat e court's duty to affirm the conviction if the ev idence viewed under the se standards was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e)

. This rule is applicable t o findings of guilt predic ated upon direct evidence, circumstantial evidenc

e, or a combination of both direct and circumstantial evi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Before an accused may be convicted of a criminal offense based only upon c ircumstantial evidence, the facts and circ umstances "must be so strong and cogent as to exclude every other reasonabl e hypothesis save the g uilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W .2d 610, 612 (Tenn.1971).

In sum, the proof before the jury i mplicating the

appella nt consi sted of: (1) The offenses

occurred be

tween 1:00 p .m. and 3:00 p. m; (2) Although Michael C raig stated at trial that he acted alone, Investigator Pugh di scovered two distinctive sets of footpri nts at the Franklin residence, revealing that more than one person participated in the commission of the offense s; (3) Between 2:30 and 3:00 p.m.,Percy Henderson pick ed up both the appellant and Michael Craig a short distance from Mrs. Franklin’s home; and6 (4) Henderson stated that the two men asked him if he was interested in a “new .38,” the same type weapon stolen from the Franklin residence. Based upon this proof, we find the evidence sufficient from whic h a rational trier of fact could have found the appellant’s guilt beyond a reasonabl e doubt as to the offenses of theft of property and aggravated burglary. Tenn. R. App. P. 13. This issue is without meri

t.
However, after further r eview of the facts of this cas e, we conclude that the appellant’s conviction

and accompanying sentence for attempted theft must be reversed and vacated. Although not raised in the trial court, we find, as plain error, that the appellant’s convi ctions for both theft and attempted theft vi olate principles of double jeopardy. See Tenn. R. Crim. P. 52(b); State v. Ogle , 666 S.W.2d 58, 60 (Tenn. 1984). Specifically , the proof established that the offenses of theft and attempted theft arose from a single criminal episode, invol ved the property of one victim, and both occurr ed at the same location.
The issue of multiple punishments ar ising from a single cr

iminal episode was addressed by our supreme cou rt in State v. Phillips , 924 S.W.2d 662 (Tenn. 1996). To determine whether offenses are multiplicitous, several general principals mus t be considered: 1. A single offens e may not b e divided i nto sepa rate part s; genera lly, a single wrongful ac

t may not furnish the basis for more than one criminal prosecution; 2. If each offense charged requires proof of a fact not required in proving the other, the o ffenses are not multiplicitous; an d 3. Where time and location separate and distin guish the commission of the offen ses, the

offenses cannot be said t o have a risen o ut of a single wrongful act

.7

Id . at 665. Additional factors su ch as the nature of the act; the time elapsed between the alleged conduct ; the intent of the accused, i.e. , was a new intent formed; and cumulative punishment may be considered for guidance i n determining whether the multiple conv ictions violate double jeopardy. Id

.
Again, the cond uct at i ssue inv olves the theft o

f proper ty and a ttempted theft of property from the premises of El izabeth Franklin. There is no dispute that the four weapons taken from inside the home and the automobile, parked under th e shed, were the property of Elizabeth Franklin. Where several articles are stole n from the same owner at the same time and place, only a singl e crime is committed. See 52A C.J.S. Larceny § 53 (1968); see also Nelson v. State , 344 S.W.2d 540, 542 (Tenn. 1960); People v. Timmons , 599 N.E.2d 162, 165 (Ill. App. 2 Dist. 1992); Holt v. State , 383 N.E.2d 467, 472 (Ind. App. 1978)

. Cf

. State v. Byrd , 968 S.W.2d 290 (Tenn. 1998) (holding that theft off enses may be aggregated into one single charge when the separate larcenous acts are from the same l ocation, and pursuant to a continuing criminal impulse); State v. Lewis , 958 S.W.2d 736, 739 (Tenn. 1997) (holding that act of setting apartment building on fire was single action and double jeopardy prohibits separ ate convictions for each apar tment destroyed). Whether the acts of the defendant constitute sever al thefts or one single cr ime must be determined by the facts and cir cumstances of each case. Id . If each taking is the result of a separate intent, each is a separate crime; however, where the takings are all pursuant to a singl e intent, there is but a sing le larceny. Id

. See also Phillips , 924 S.W.2d at 665. It is of no consequence whether the taking is completed, or, but, a mere attempt. See Dellenbach v. State , 508 N.E.2d 1309, 1314 (Ind. App. 3 Div. 1987). Cf . A MERICAN L AW I NSTITUTE , M ODEL P ENAL C ODE § 223.1(2)(c) & Comment (1980).
Applying these principles to the case sub judice , we cannot conclude that the appellant’s actions wer e independently motivated. Rather, the theft and the8

attempted theft arose from a single i ntent to steal, were conti guous in time and place, and involved the same victim. According ly, only one offense was committed and only one convictio n may stand. We acknowledge, howev er, that had the State charged and the jury convicted the appellant of the burglary of Mrs. Franklin’s automobile, Tenn. Code Ann. § 39-14-402( a)(4) (1996 Supp.), double j eopardy would not have barred s uch a conviction.
The judgment and sentence upon the char ge of attempted theft is, therefore, vacated and dismissed. This cause is remanded to the trial court solely for the purpose of permitting the cour t to amend its minutes and accompany ing judgments of conviction to reflect the s ame. In all other respects,the judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________ JOHN H. PEAY, Judge

_________________________________ L. T. LAFFERTY, Special Judge