# FILED
January 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE DECEMBER 1997 SESSION

) STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9702-CR-00070 Appellee, ) ) Davidson County V. ) ) Honorable Tho mas H. Shriver, Jud ge ) DANIEL S. BA

RNES, ) (Burglary and At tempted Theft) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Paula Blair John Knox Walkup Attorney at Law Attorney General & Repor ter 176 Second Avenue, North Nashville, TN 37201 Sarah M. Branch Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Nicholas Bailey Assistant District A

ttorney General Washington Square Building 222 Second Avenue, North Nashville, TN 37201

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N The appellant, Daniel S. Barnes, was convicted in a bench trial in Davidson County of burg lary and attempted theft of property valued under $500. He was sentenc ed to four

years for burg lary a nd six months fo r attemp ted theft and placed on probation, whi ch was later revok ed. The appellant’s sole iss ue on appeal is whether the ev idence was sufficient to suppor t his convictions for burglary and attempted theft. We affirm.
On January 20, 1996, Robert Haught, a Metro Nashville police officer, was dispatched to inv

estigate a burglary

at the Shelby Avenue Bapti st Church. When he arrived, he discovered that the window frame and all th e glass had been knocked out of a window at the rear of the church. He c alled for backup. An officer with the canine unit arrived, and he and his dog entered the church. Shortly thereafter, James M cIntosh, the appellant’s compani on, was arrested.

Officer Robert Brown w ith the canine divisio n testified that he entered the church with his dog after McIntosh was removed. Once inside, the officer twice shouted a warning, and w hen he did not receive any response, he released the dog into the building. The dog located the appellant hidi ng under a desk in an office. The officer stated that the appellant d id not appear to have been asleep. The appellant, who had been bitten on the leg, was broug ht out of the church, arrested, and taken to the hospital for treatmen t of his injuries.

Reverend Carl Martin, the minister at Shelby Avenue Baptist Church, testifi ed that t he church was locked and that the appe llant did not have permission to enter the chur ch. He also testified that a mi crowave had been moved from the nursery to the hallway outside the door to the church office; several children’s

comforters had been moved to the door of the church office; tables in the Sunday School office had been turned over; and the g lass tabletop-3- of one table had been broken. In additi on, a small refrigerator had been moved from its normal location.
First, the appellant chall enges the sufficiency of the ev idence regarding his burglary conv

iction. In his brief, the appe llant, who did not offer any proof at trial, argues that he di d not enter to commit a theft, just t o sleep and get warm. He contends that there w as no evide nce that he w as in posses

sion of any items and that his fingerprints were not found on any of the items. T he state, however, argues that the evidence clearly indicates that the appellant was gui lty of burglary. It notes that the appellant did not have permission to enter the chur ch, and that when the appellant w as apprehended, he was hiding under a desk and did not appear to be asleep. It also asserts that several items of church property, including

a microwave, a small

refrigerator, and comforters had been moved toward the window that had been broken by the appellant and his companion.
Second, the appellant argues that the evidence is insuff icient to sustain his conviction for attempted theft. He maintains that th e entered the church only to sleep and stay warm and that James McIntosh , his companion, alone committed the attempted thef t. The state, however, argues that both men were seen breaking into the chur ch together and that when app rehended, the appellant did not appear to be sl eeping under the desk and did not mention to police office rs that he ha d entered the church to st ay warm.

Tennessee Code Annotated § 39-14-402(a) (1) (Supp. 1996) provi des that “[a] person commits burgl ary who, without the effective consent of the property owner . . . [e]nters a bui lding other than a habitati on (or any portion there of) not open to the public, with i ntent to commit a felony, theft or as sault.” Tennessee-4- Code Annotated § 39-12-101(a)(3) (1991) provides that a person commits criminal attempt who “[a ]cts with [the] intent t

o complete a course of action or cause a result that woul d constitute the offense, under the cir cumstances surrounding the conduct as the person believes them to be, and th e conduct constitutes a substantial s tep toward the commission of the offense.” Theft of property is committed “if, with intent to depriv e the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.” Tenn. Code Ann. § 39-14 -103 (1991).
On appeal, the verdict in a bench trial is entitled to the same weight as a jury verdict. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978). Jury ver dicts accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s favor. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes , 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, th e state is entitled to both the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). Moreover, guilty

verdicts remove the presumption of innocence, enjoyed by defendants at trial, and replace i t with a presumption of gui lt. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, car ry the burden of overcoming a presumption of guilt when appealing jury convictions

. Id.
When appellants challen ge the sufficiency of the evidence, this Court must determine whether, after v iewing the evidenc

e in a light most favorabl e to the prosecution, any rati onal trier of fact could have found the essential elements of a crime beyond a reasonable doub t. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985).
Based upon the record before us, the e vidence is sufficient to sus tain the appellant’s conviction s for burglary and attempt ed theft. The appellant entered-5- the church without permis sion. Several items of chur ch property had been moved from their normal locati ons. In addition, tables w ere overturned and papers were scattered ar ound the church offices. The appellant, w hen apprehended by police officers, did not mention anything about entering the church to stay war

m or to sleep, and in fact, wh en apprehended, he appeared to be hiding under an office desk. Thus, the evidence is clearly suff icient to sustain the appellant’s convictions for burglary and attempted theft. Finding no error in the judgment

of the trial

court, we

affirm.

______________________________ PAUL G. SUMMERS, Ju dge

CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge-6- ______________________________ WILLIA M M. BARKER, Judge