# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, * C.C.A. No. 03C01-9711-CR-00495 Appellee, * SULLIVAN CO UNTY VS. * Honorable Phyllis H. Miller, Judge ARTHUR IRESON, * (Facilita tion of a ggravated b urglary) Appellant. *

For Appellant : For Appellee : Thomas R. Bandy, III John Knox Walkup Attorney for Appellant Attorney General and Repor ter P.O. Box 1127 555 E. Main Street, Suite 102-F Ellen H. Pollack Kingsport, TN 37660 Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 Edward Wilson Assistant District A

ttorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:__________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Arthur Ireson, was convicted of facilitation of aggravated burglary, a Class D felony. The trial court imposed a Range II sentence of eight years in the Dep artment of Correction to be ser ved concurrently w

ith a prior unserved sentence. In this appeal of right, the defend ant challenges the sufficiency of the convicting evi dence and the sufficiency of the charg ing instrument.

We affirm the judgment of the trial court.
On February 21, 1996, Detec tive Tim Smith of the Sulliv an County Sheriff's Department investigated a burglary at the residence of the victim, Gerald Clark. Upon his arri

val at the scene, Detecti ve Smith discovered ev idence of forced entry through the rear

door of the residence; whil e inside, he found several g uns wrapped in a blanket behind a couch. The glass of a gun cas e had been shattered and the case was empty. Detective Smith found jewelry behind a displaced couch cushion. The victim identified the defenda nt and Timothy Henry as suspects. Henry was arrested on the same date of the burglary.
On November 1, 1996, the defendant w as arrested. In his statement to Detective Smith, the defendant admitted that he had accompanied Henry to the victim's residence. He told Detective Smith that he saw Henry w alk around the side of the house. When the defendant followed after Henry, he saw that the door had been kicked ajar and that Henr y was inside. The defendant c onfirmed that he entered the residence even though he knew it was wrong. He maintained that he went no further than the liv ing room. While the two men were i nside the residence, the victim and his son, J effery, arrived. The defendant, w ho said he did not know either of the victims, cl aimed that he and Henry left in his Camaro, taking nothing

.3 At trial, the victi m recalled that as he and his s on returned home the day of the offense, he noticed a black Cam aro parked across the street. While his son walked over to i nspect the vehicle, the v ictim discovered that the back door of the house was open. He testi fied that when he entered his r esidence, he saw Henry, whom he had know n for at least ten years, s tanding in the livin g room; when he heard noise from another bedroom, he turned to see the defendant. The victim remembered telling the defendant and H enry to wait wh ile he called the sheriff but the two men fled in the Camaro. Afterward, the victi m located his guns wr apped in a comforter behind a couch. The gun c ase had been smashed. The victim t estified that neither the defendant nor Henry had permission to be in his residence.
Jeffery Clark testified that he and the victim returned to their residence at approximately 3:00 P.M . He explained that w hen he saw the door to his J eep was open and walked acr oss the street to check on it, he heard the victim y ell and saw the defendant and Henry emerge from the rear door of his house. Jeffery recognized both the defendant and H enry whom he had known from grade school. When the victim went inside to call the sheriff, the defendant and Henry fled the
scene.
At trial, the defendant testified that he worked for Helping Hands as a Certified Nurse's Aide. He explained that on the day of the offense, a patient he attended was in the hospital so he decided to visit Henry on his way home. He admitted that he drove Henry to the victim's resi dence but claimed that he did not know his intentions. The d efendant contended that he waited w hile Henry walk

ed around the house and that he walk ed into the living r

oom only after Henry cal led him. At that point, he heard someone ask, "[W ]hat are you doing in my house?" He claimed that he turned to the v ictim and replied that he did not know and that he had4 only driven Henry there. The defendant then saw Henry emerge from the back bedroom, remove jewelr y from his pocket, and place i t under a couch cushion. When the victim picked up the telep hone to call "the law," the defendant overheard Henry threaten to kill

the victim if he placed a c all to the sheriff. The defendant admitted that he left the scene wi th Henry and acknowl edged, because he feared the consequences of the incident, he and his wife left the state tha t very night. The defendant admitted that he had four prior felony convictions, three for ag gravated burglary an d one fo r aggravate d robbery.

Tim Henry, an inmate with the Tennessee Department of Correc tion, admitted prior convicti ons for two attempted murders, ag gravated burglary of the victim's residence, auto burglary, and theft under five hundred dollars. H e testified that he asked the defendant to accompany him to the victim's res idence to look at a Jeep. Henry maintained that the defendant kne w nothing of his intentions. He claimed that the defendant waited in the car while Henry kicked in the back door, entered the house, and removed g uns from the gun cabinet. He ex plained that he called for the defendant only w hen he realized he could not carry the guns by himself. He admitted that the defen dant entered the residence, followed shortly thereafter by the victi m and his son. Henry testified that the defendant never touched anything in the hous e and was unaware that a theft was in process.

I The defendant has challenged the sufficiency of the evidence. On appeal, of course, the state is entitled to the strongest l egitimate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are5 matters entrusted to the jury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt

. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

The defendant was convicted of facil itation of aggravated bur glary. "A person commits [aggrav ated] burglary w

ho, without the effective cons ent of the property owner," enter

s a habitation "with inte nt to commit a felony or theft." Tenn. Code Ann. §§ 39-14-401, -402 & - 403. A person commits facilitat ion of a felony when knowing th at anoth er intend s to comm it a speci fic felo ny,

but without the intent req uired for criminal respons ibility under [Tenn. Code Ann.] § 39-11-402( 2), the person knowingly furnish es substantial assistance in the commiss ion of th e felony. Tenn. Code Ann. § 39-11-403(a).

"Knowing" refers to a pers on who acts knowing ly with respect to the conduct or to c ircumstances surrounding the conduct when the person i s aware of the nature of the conduct or that the circumstances exist. A perso n acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to c ause the result. Tenn. Code Ann. § 39-11-302(b).

It is uncontested that the defendant d rove Henry to the victim's residence and waited. The defendant entered the residence when H enry called even though he admitted to Detective Smith that he knew it was wrong t

o enter the house. By his own tes

timony, he watched Henr y remove jewelr

y from his pocket and hide it between the couch cushions. The defe ndant admits that he drove Henry6 home and that he fled to South Carolina to hid e from the authorities. From these facts, it was entirely

reasonable for the jury to have concluded that the defendant was aware of circumstances as soon as he entered the house and tha t he knowingly furnished substantial assistance to Henry. That is suff icient to support every element of the offense.

II

Next, the defendant claims that the presentment was fatally deficient because it failed to fully st ate the crime. The state responds that the presentment fully satisfies the statutor y and constitutional req uirements of notice and form.
The presentment charged as follows: [T]hat [the defendant] on or about February 21, 1996 ... did unlawfully and felonious ly enter the habitation of Gerald Clark witho ut the effective consent of the owner ... and with the intent to commit a theft therein, contrary to T.C.A. Section 39-14-403 .... The presentment includes the essenti al elements of aggravated burglary and makes reference to the relevant st atutory section. See State v. Carter , ___ S.W.2d ___, No. 02S01-9705-CR-00045 (Tenn., at Jackson, Feb. 1, 1999). M oreover, the presentment is sufficient to put the def endant on notice of all lesser offenses, including facilitation o

f aggravated burglar

y. See State v. Parker , 932 S.W.2d 945 (Tenn. Crim. App. 1996). Facilitation of aggrav ated burglary was

fairly raised by the evidence. In consequence, we conclude that the prese ntment was sufficient.

Accordingly, the j udgment of the trial court is affirmed.

_________________________________ Gary R. Wad e, Presiding Judge7 CONCUR:

________________________________ James Curwood W itt, Jr., Judge

________________________________ John K. Byers, Sen ior Judge