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

Briefs N ovembe

r 5, 2002
STATE OF TENNESSEE v. RO BERT MILLER
Appeal from the Circuit Court for Madison County No. 01-495 Roger A. Page, Judge

No. W2002-00640-CCA-R3-CD - Filed Mar ch 28, 2003

The defendant, Robert Miller, who represented himself at trial, wa s convicted of vandalism over $500 and criminal trespass. After the trial, the defendant wa s appointed counsel. The trial court orde red concurren t s en te nc es of tw o ye ar s a nd th ir ty d ays , r es pe ct iv el y, w it h a ll bu t t en da ys suspended, to be ser

ved in community corrections. In this appeal of rig ht, the defendant asserts (1) that he did not knowin gly

and volun

tarily waive hisright to

counsel; (2) that the trial court erred by the omission of

a jury instructi on; and (3 ) that the evidenc e was insufficien

t. Because the defendant
was denied the assistance of counsel at trial, the judgmen ts of conviction are reversed and the c auses are re manded f or a new trial.
Tenn. R. App. P. 3; Judgments of the Trial Court Reversed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which N ORMA M C G EE O GLE and R OBERT W. W EDEMEYER , JJ., joined.
George Morton Googe, District Public Defender (on appe al), and David H. Cri chton, Assistant District Public Defender (on appeal and at sentenc ing), for the appellant, Roger Miller.

Paul G. Summers, Attorney Gene ral & Reporter; Thomas E. Williams, II I, Assistant

Attorn ey Genera l; and James W. Thompson, Assistant District A

ttorneyGeneral, for the appellee, State of Tennessee.

OPINION

At appr oxi matel y 7: 00 p.m. on O ctober 9 , 2000, the victim, Joe M iller, re

turned to his Jackson re s id en ce to fi nd th at a F or d E sc or t a ut om ob il e r eg is te re d i n t he na me of hi s w if e, Ge rr y, had been vandalized. The windshield was shattered, ther e we re four flat tires with inch-wide puncture s, and the hood and front bumper had been scratc hed. At trial, the victim, who is the defend ant's brother, testified that he had notified the defendant two day s earlier that he and his wife could no longer

provide p art-time

care f or the defendant 's daug

hter. The brother s talked a

gain on2

Sunday and the offense occurred on Monday , about two hours aft er the vict im informed the defendant that his wife would not reconsider her decision.

When confronted by

the victim, the defendant denied any responsibility for

the car damage butdi d s ay, "Your wifeowed me. And when somebody owed me, I’m g oing to get what somebody owedme one way

or another." According to the victim, the defendant also remarked, "Well, what’s done is done. I can’t undo it. When y ou mess with my little gi rl, you’re me ssing with me." The victim testified that his garage door had be en closedand locked but claimed that the defendant could have opened it without causing d amage. The victim asserted that he had pr eviously given the defendant key s to the house and garage.
Gerry Miller testified that she a

nd her hu sband lef

t their residence at ap

proximatel

y 6: 15 p.m.
on the date of the crime. She planned to attend a church program

with a friend and her husband went to a hardware store accompa nied by their son. Ms. Miller claimed that on the

way to church, she saw the defendant stopped at

a red light near her residence. She e xplained that she had initially agreed to care for the defendant' s child because the defendant, who was in the process of a divorce, was
w orking third shift. She testified that she changed her mind after the de fendan t and his wi f

e reconciled. Ms. Miller acknowledged that she and the defe ndant hadprevious ly

been close friends and that she h ad neve

r seen the defendant beha

ve violen tly t oward a nyo ne. She te stified th at the co st of repairs for the automobile exceeded $1,200.00.

The defendant, who did not have an attorney at trial, denied that he had damaged the vehicle. He contended that

Ms. Miller was angry

because "she had a problem with the fa ct that I was seeing another woman."

I Initially , the defendant argues that his waiver of counsel at trial was involuntary because it
was based on

his i nability to affor

d counsel and that the trial court had failed to make a prope r determination of

his indigency pur suant to Tennessee Code Annotated section 40-14-20 2. The sta

te asserts that the record supports the trial court’s determination that the defenda nt was not indig ent. The findings of a trial judge who presided a t a hearing where hesaw and heard the witnesses testify and heard an d consider

ed confl icting te stimony

will be g iven the w eight of a jury verdict . His findi ngs will not be disturbed on appeal unless the evidence prepondera tes otherwise. State v. Pritchett , 621 S.W.2d 1 27, 129 (T enn. 1991 ); State v. O'Guinn , 709 S.W.2d 561 , 565-566 (Tenn. 1986); Rya

n v. State , 97 Tenn. 206, 36 S.W. 930, 931 (1896).

The Sixth Amendme

nt to the Un

ited State s Constitutio n guar antees t hat "[i]n a

ll crimin a l prosecu tions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense ." U.S. Const. amend VI. Likewise, Ar ticle I , section

9 of the Te

nnessee Constitution

providesthat "in all criminal prosecutions, the accused hath the r ight to be heard by himself a nd his counsel." Tenn. Const. art. I , § 9. A def

endant ha s the rig

ht to couns el at all

"'cr itical' stages in the criminal justice process'where the results might well settle the ac cused's fate and redu ce the tr ia l itself to a mere forma lity.'" Maine v. Moulton , 474 U .S. 1 59, 17 0 (198 5) (qu otin g United States v. Wade , 388 U.S.3

218, 224 (1967)). Where a defend ant is fi nancially u nable to o btain re present ation, counsel must be provided by the sta

te. Gideon v. Wainwright , 372 U.S. 335, 343 (1963).

An "indigent person" is "any person who does not po ssess suf ficient m eans topay

reasona ble compen sation for the services of a competent attorney ." Tenn. Code Ann. § 40-14-201(1). Tennessee Code Annotated section 40-14-202, which governs cour t appointment of couns el for indigen t defend ants, pro vides in pe rtinent pa rt as foll ows: (a) In a ll felony cases, i f the ac cused is n ot repre se nted by couns el, and the court determines by the manner provided in subsection (b) that the accused is an indigent person who has not

compete ntly waived th

e right to counse l, the cou rt shall appoint to repre sent the a

ccused e it her t he public defender, if there is one for the
co un ty, or, in the absence of a public defender , a compete nt attorne y lic ensed in t

his state. The court may

call upon any leg al aid agency operating in conjunction with an accredited

college of law to recommend attorney s for appointment under the provisions of this part. The court may , upon its own motion or upon application of counsel appointed under

this secti on, name

additiona l attorne ys t o aid and a ssist in the defense. Each appointment of counsel shall be denoted b y a

n approp riate entry upon the minute s of the c ourt, which shall state the name of counsel and the date of counsel’s appointment, but failure of the court to make such a minute entry shall not in any way invalida te the proceeding if an attorney was in fact appointed. Upon the appointment

of an attorney

hereunder, no further proce eding shall be had until the attorney so appointed has had

sufficient opportunity to prepa re the case. If the c ourt should determine that the accused is not an indigent person, the court shall then advise the accused with re spe ct to the accused's right to counsel a nd afford the
accuse d an oppor

tunity to acquir e counse l.
(b) Whenever an accused informs the cour t that such

accuse d is financially unable to obtain the assistance of counsel, it is the duty of the cour t to conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance of counsel , and, therea fter, ma ke a find ing as to the indig ency

of the ac cused. A

ll statemen ts made by the accused seeking the appointment of counse l shall be by sworn testimony in open court or wr itten affidavit sworn to before the judge.
(c) When making a finding as to the indigency of an ac cused, th

e court shall take into consideration : (1) The nature of the services to be re ndered; (2) The usual and customary cha rges of an attorney

in the community for render ing like or similar

service s; (3) The income of the accused re gardless of source; (4) The pove

rty level inc ome guid

elines c ompiled a

nd publish ed bythe United States department of labor;4 (5 ) T he ow ne rs hi p o r e qu it y in an y re al or pe rs on al pr op er ty; (6) The amount of the appearance or a ppeal bond, whether the party has been able to obtain release by

making such bond, and, if the party obtained r elease by making such bond, the amount of money paid and the source of such money ; and (7) Any other

circumstances presented to the court which are relevant to the is su e o f i nd ig en cy. (d) If a social se rvice a gency service s the crim

inal justi ce system of the judicial district, and the co urt has reasonable cause to believe the a ccused has the financial resourc es to employ c ounsel, the court shall order the agency

to conduct an investigation into the financi al affa irs of the accuse d and rep ort its fin dings dir ectly to th e court . The co urt sh all co nsid er the c onten ts of t he agenc y's report in making its determination, and the report shall be made a part of the record in the cause.
(e) If th e court a ppoints counsel torepres ent an ac cused in a felony case under th is section or in a misd

emeanor case asrequire d by

law, but f

inds the a ccused i s financi ally

able to de

fray a portion or all of t he cost of the accuse d's representation, the court shall enter an order directing the pa rty to pay into the registry

of the clerk of such court

such sum a s the cour

t determi nes the a

ccused i s able

to pay. Such sum shallbe subject to execution as any othe r judgment and may

also be made a condition of a discharge from probation. Th e court m a y provide for pa yments to be made at interva ls, which the court

shall establish, and upon such terms and conditions as are fair and just. The court may also modify

its order when there ha s been a c hange in circumstances of the accused.

Tenn. Code Ann. § 40-14-202(a) – (e) (emphasis adde d). This court has previously interpr eted the st at ut e’ s h ea ri ng re qu ir em en t a s m an da to ry:

We think it is c lear fr

om the pla

in me an ing of the statute that an indigency hearing must be held whenever a cr iminal def

endant c laim s th at he is financially unable to retain counsel. Furthermore, the legislature has placed no l imits on the word “whenever.” Thus, an ind igency

hearing is required at any point that the de fe nd an t c la im s i nd ig en cy.
Statev. Dubrock

, 649 S.W.2d 602 (Tenn. Crim. App. 1983) (holding that the defendant

was entitled to indigency

hearing even though a third pa rty had re tained private counsel on his behalf).

In this case, the defendant first appeared be fore the trial court at the

arraignment on June 11, 2001. On that date, he informed the trial court that he could not affor d an attorney a

nd completed
an affida vit of indigency

indicating that he was employed at Quebecor World where he earned $240 per week. The affidavit included information that the defendant rec eived food stamps and had two dependent

child ren. It l isted asset s in t he form of a ho use va lued a t $63 ,000 s ubjec t to a m ortgage in tha t same amo

unt. A miniv an was va

lued at $2 ,500. The

affida vit also ind

icated th at th e5

defendant owned furniture valued at $800 for which he owed $720. The $5,000 bail had been posted by his mother. After the trial co urt reviewed the affidavit and expressed doubt that the defe ndant qualified as indigent, the defendant stated that he had filed f or bankruptcy

under Chapter 13 and was making reorganization plan pay ments of $60 per week. He also stated that he paid $100 per week in child support for one of his children and day care expenses for the other. The trial court c oncluded that the defe ndant cou ld affor d an attor ney and should

sell his vehicle for

the fee. The defendant was given o ne month to

employ counsel.
Approximat

ely six weeks la

ter, the defenda nt again appear

ed in the t rial cou rt, contending that he had a ttempted t

o hire counsel but w as unable to do so for

$2,500, th

e value o f his minivan. He had completed a second affidavit of indige ncy, this time indicating

that he was employe d at Color World, earning $185 per week. The trial court appointed the public defender and or dered that the defendant pay $1,000 in fee s to that office, stating that the defendant was not entitled to free counsel because he was working and had "minimal assets." One month later, the defendant aga in appeared before the trial court. At that time, the defendant's appointed counsel informe d the trial judge that the defendant had telephoned his office, say ing that he "didn’t need [the public defender’ s] services anymore." When quest

ioned by the trial judge, the defe

ndant sta ted that he in tended to represent himself. At a hearing two weeks later, the trial court determined that the defendant was competent to act as his own counsel.

In State v. Gardner, 626 S.W.2d 721 (Tenn. Cr im. App. 1981), the trial court found that the defendant was not ind

igent a nd relieved appo inted cou nsel afte r the def endant’ s father

attempte d to post a cash bond for his son’s release. On appeal, this court reve rsed the trial court’s judgment and orde r ed the reinstatement of appointed counsel, finding that the financ ial condition of the defendant’s father was irrelevant and that the evidenc e did not support the trial court’s determination that the d efenda nt was not indigen

t. The court obser

ved as fo llows:

It is not nec ess ary

th at one be a “pauper” in order to be “indigent” for purposes of

having appointed counsel in a criminal case. Rather , when one lacks the financial resources which would allow him to retain a competent criminal lawy er at the particular time he needs one, he is entitled to appointed counsel. Anaya v. B aker , 427 F.2d 73, 75 (10th Cir. 1970).
Indigency in the sen se of ability to employ competent counsel is not
necess arily

eq uatable with “destitution”. The judge need only be satisfied that representationessential to an ade quate de fense is bey ond the me ans of the defenda nt. United States v. Cohen , 419 F.2d 1124, 1127 (8th Cir. 1969). Indigenc y is a relative concep t, and must be defined with reference to the par ticular right

asserted. State ex rel. Riendeau v. Tahash , 276 Minn. 26, 148 N.W.2d 5 57, 559-5 60 (1967) . One abl e to employ counsel to defe nd a minor

misd emeano r charge may be unable to afford counsel t o defend a serious felony charge. State v. H arris , 5 Conn. Cir. 313, 250 A.2d 719, 721 (1968).6

626 S.W.2d at 725.

In State v. Dale Gray , No. 87-304-II I (Tenn. Crim. App., at Nashville, Dec . 15, 1988), the trial c ourt appointed counsel to represent the defendant on the da te he appeared for arra

ignment

. When the defendant appeared, howeve r, he reported that his appointed counsel had determinedthat he was not ind

igent a nd had ad vised him th at he could sell his house, in which he had $20 ,000 in eq ui ty, to pay for c ounsel. The court agreed that the defenda

nt was not indigent and set the case for trial, a t which the defe

ndant re present ed himself

and was c onvicted

of rece iving sto len prope

rty under the value of $200. O n appea

l, this court reversed the

conviction, finding that the “trial court committed error o f prejud icial dime nsions in failing to make a more thorough inquiry into the financial status of the defendant.” No. 87-304-I II , slip op. at 8.

In our view, the holdings in Gardner and Gray require a similar result in th is cas e. Alt hough t he trial cou

rt consid ered the defenda nt's cla im of indig ency , there w as not a " full and compl ete " indigency hearing within the meaning of Tenne ssee Code Annotatedsection 40-14-202. See also Statev. Stephen John Abbott , No. 01C01-9607-CC-00293 (Tenn. Crim. App., at Nashville, July 24, 1996) (holding that indigent defendant was entitled to appointed counsel even though a third party had retained counselon behalf of the defendant). The statute make s it mandatory that a trial court consider the nature of the services to be render ed; the usual and customary charges of

an att orney in the community for rende ring like services; the income of the defe ndant regardless of source; the poverty level income guidelines compiled and published by the United States Department of La bor; the ownership or equity in a ny real or pers onal property; the a

mount of the appearance or appea l bond, whether the defendant has been able to obtai n release by

making such bond, and, if so, the amount and source of any

money paid; and any

other relevant circumstances. Tenn. Code Ann. § 40-14-202(c). Here, however , the trial court considered only the affidavits of indigency

. Our review of the record

in light o f the relevant sta tutory factor s sugg ests that the defendant did, in fact, qualify

as an "indigent person" and w as, therefore, entitled to the appointment of counsel without any corr

esponding duty to pay . When he appeared for arraignment, his monthly income was $960 and he qual ified for gover nment ass istance

in the for

m of food s tamps. He

reporte d child support payments in the amount

of $400 per month and Chapter 13 bankruptcy reorganization plan pay ments in the amount of $240 per month, two-thirds of his income. Additionally, the defenda nt had legal c usto dy of his d augh ter, for whomhe had so me day care e xpenses. T

he reco rd also indicates that the defenda nt had bee

n making pay ments tohis brother and sister-in-law for clothing and o ther item s t hey had purc hased for his daughter. Although he likely had other, non-fixed expenses, the record contains no further information. When the defendant appeared befor e the court
a second time, his employment had cha nged and his income had decrea sed by $220 per month to $740 and his expenses were the same. Although the defe ndant owned a h ouse, t he record demonstrates he had no equity. B eca use a bankru

ptcy reorg anization p lan was st ill in eff ect, it is unlikely that he could have sold either the ho use or the min ivan without permission of the bankruptcy

court. By our calculations, the defendant would have fallen w ell below the 2001 poverty guidelines. See

2001 HHS Poverty Guidelines, 66 Fe d. Reg. 10695 – 10697 (Feb. 16, 2001).7

In our view , the tria

l court' s failure

to appoint

counsel q

ualifies as an error of "prejudicial dimensions." See Dale Gray , No. 87-304-II I, slip op. at 8. The defendant wa s charged wi th two felonie s, burglary

and vandalism over $500. He was convicted of the vandalism as charged and the conviction for criminal trespass, a misdemeanor, w as a lesser included offense of the burglary charge. Further, prior to sentencing, the def endant completed another affidavit of indigen cy , this time showing

no income . Under t

hese cir cums tance s, the defendant should have been appointed counsel. See Alabama v. Shelton , 535 U .S. 6 54 (20 02) (af firmi ng r eversal of m isdemeanor conviction and suspended sentence where counse l wa s n ot provided to indigent defendant and conviction could have led to “imprisonment even for a br ief per iod”); Gideon , 372 U.S. at 343-45; State v. Garrison , 40 S.W.3d 426, 433 n.9 (2000) (noting that complete denial of the assistance of counsel “def[ies ] harmlesserror a naly sis and require[s] re

versal” ); cf. T e nn. Sup. Ct. R . 13 § 1(j) (providing that

a trial court’s failure to follow the procedural provisions relative to a ppointment of indigent counsel shall not constitute grounds for relief from convicti on); Statev. Earley Story , No. W2 001-0052 9-CCA-R3- CD (Tenn. Crim. App., at Jackson, Sept. 13, 2002) (applying Rule 13 wher e de fendant’s s ole compl aint was t hat trial court fa iled to co nduct indi gency hearing prior to appointing counsel).

In Dubrock , Judge Martha Craig Daughtre y, writing f

or this court, concluded that "the only circumstances under wh

ich [a] def

endant c ould const

itutionall y be put to trial without an attorney would be pursua

nt to a valid waiver

of his rig

ht to couns e l." 64 9 S.W.2d at 605. This record supports the defendant’s contention that his waiver of co un se l w as ne it he r k no wi ng no r v ol un ta ry. A waiver of the assistance of counsel "must not only be voluntary, but consti tute a knowing and intelligent

relinquishment

or abandonment of a known right or privileg e, a matter which depends in eachc ase 'upon the particular facts and circumstances surrounding that case, inc luding the back-ground, experience an d conduct of t he accused.'" Edwards v. Arizona , 451 U.S. 477, 482 (1981); see also Johnson v. Zerbs t , 304 U.S. 4 58, 465 (1 938); State v. Burkhart , 541 S.W.2d 365, 368 (Tenn. 1 976); State v. Coleman , 519 S.W.2d 581, 583 (Tenn. 1975). "When an accused cannot afford an attorney, how ever, it is obvious that his failure to hire a lawyer can not be regarde d as a waiver of the right t o counsel." Dubrock , 649 S.W.2d at 60 6; see Tobin v. United States , 402 F.2d 307, 308 (7 th Cir. 1968).
Here, the defendant consistently maintained that

he desir ed couns el but wasunable to afford the fee. At the hearing to determine his compe tency to repr

esent himself, the trial cou rt dida thoro ugh job of advising the defendant of his rights and e nsuringthat h e understood them. The defendant explained that he was exercising his right of self-representation only because he could not pay the public defender’s fees. Under our law, this does not qualify as a "knowing and intelligent relinquishment

or abandonment" of the right to counsel . Becau se the trial court failed to conduct
a "full and complet

e " heari ng o n the defendant’s claim of indigency and the evidence presented appears to haveestablished that the defendant was an "indig ent person," the waiver of the rig ht to counsel would not qualify as voluntary

. See Dway ne Murre ll v. State , No. 302 (Tenn. Crim. App., at Knoxville, Aug. 15, 1990) (holding that the trial court committed rever sib le erro r by failing to conduct an indigency

hearing and allowing the def endant to proceed pro se after the defendant had requested appointment of counsel).8 II Next, the defendant contends that the trial court

erred b y f ailing to instruct t he jury on express statemen ts against interest. The state arg ues that the defendant has waived th is issue by

failing to request the instru ction or o

bject at t rial to th e jury

in structions provided. See Tenn. R. Cr im. P. 30 (a)(b); see al so State v. Cravens , 764 S.W.2d 754, 756-57 (Tenn. 1989). In the alternative, the state asserts t hat an ins truction o n stateme nts aga inst inter est was not necessary

given the evidence in the case.

The trial court has a duty “ to give a comple

te char ge of th e law ap plicable to the facts of a case.” State v. Harbison , 704 S.W.2d 3 14, 319 (T enn. 1986 ); see also Tenn. R. Crim. P. 30. “[The] defendant has a constitutional right to a correct and

complete charge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the ele ments of each offense be describe d and defined in connection with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Jury instructions must, however, be reviewed in the context of the overall charge rather

than in isolation. See Sandstrom v. Montana , 442 U.S. 5 10 (1979) ; see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charg e is preju dicial er ror “if i tfails to fairly submit the leg al issues or if it misleads the jury as to the ap plicable law. ” State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997).

While the defendant may request special instructions, the jury charge provided

by the trial judge is suffic ient wher

e it adequately

stat es the law. See, e .g. , State v. Tyson , 603 S.W.2d 748 (Tenn. Crim. App. 1980). When a trial cou rt's ch arge t

o the jury is acc

urate and complete, the court neednot give additional special instructions requested by the defen dant. See State v. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

The defendant assert s th at the trial court shoul d have provi ded th e jury wit h the c harge containe d in Tenne ssee Crim inal Patte rn In struction

42.11, wh

ich provi des as fo llows:

Evidence of an admission has been introduced in this case. An admission i s an acknowl edgmen

t by the defe ndant of c ertain f

acts which tend, together with other facts, to establis h [his] [her] guilt. It must be corroborated by other independent evidence to warrant and support a conviction.

The court has permitted admission of this evidence, but it rema ins y our duty to decide if in fact such statement was ever ma de. If y ou do not believe it was ever made, you should not

consider it. If y

ou decide the state

ment was made, y

ou must then judge the truth of the facts stated. In determining whe ther the statement

is true, you should con sider the

circumst ances under which it was ma de. You should also consi der whether any of the oth

er evide nce bef ore you tends to

contrad ic t th e statement in whole or in part. You should not arbitrarily disregard any

part of the statement, but should consider all of the statement y ou believe is true.9 If you find the

statement is true, you ar e the sole judge of the weight that should be given it. You should consider it along with all the other evidence in the case in determining the defendant’s g uilt or innocence.

T.P.I. – Crim. 42.11.

In this case, Joe Miller testified that the defendant, in a telephone conversation shortly after the crimes, s tated, " Your wif e owed me . And whe

n somebody

owed me, I’m g oing to get wh at somebody

owedme one way

or another." The defendant a lso allegedly

told Joe Miller that "what’s done is done. I can’t undo it . When you mess with my little girl, you’re

messing with me." The defendant categorically

denied making the statements. The trial court instructed the jury that it had the responsi

bility of assig ning cr

edibility of the witnesses and reconciling conflicts in the pro of. In addition, the trial court em phasized t hat a gu ilty verdict could not be supported solely by the fact that the defendant had made statements imply ing his guilt. In our view, the pattern jury instructi on would have been preferable. Never theless, the trial court adequately covered thesubstance of the pattern charg e on admis sions ag ainst inte rest. In consequence , the trial court did not err by failing to give such an instruction. See State v. Z irkle , 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (holding that the trial court's failure to provide a reque sted instruction was not error wh ere the substance of the requested instruction was covered by the general charg e).

III Fi na ll y, the defendant contends that the evide nce was insuffic ient to sup port his c onviction s. On appeal, of course, the state is entitled to the strongest leg itimate view of the eviden ce a nd all
reasona ble inferences which might be drawn the refrom

. State v. Cabba ge , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony , and t h e reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 29 2, 295 (Te nn. Crim . App. 1978 ). When the sufficie ncy of the ev idence i s challenged, the rele

vant ques tion is whe

ther, af ter reviewing

the evide nce in the light most

favora ble to the state, any r

ational trier

of fact could have found the essential elements of the crime bey ond a
reasona ble doubt. Te

nn. R. App. P. 13(e); State v. Will iams , 6 57 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the evide nce, as w ell
as all factual issues raised by the evidence are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S

. W.2d 856, 859 (1956). Because a verdict of g uilt against a defendant removes the presumption of

innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of

showing that the evidence was legally insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

A criminal offense may

be es tablished exclusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 23 7, 241 (Te nn. 1973) ; Marable

v. State , 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958); State v. Hailey , 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983). Th e facts and circumstances must “be so strong and cogent as to e xclude every other

reasonable hy

pothesis save the guilt of the defen dant.” State v. Crawford , 225 Tenn . 478, 470 S. W.2d 610, 61 2 (1971). The weig ht of th e circumstantial evidenc e is for th e jury to determine. Williams v. State , 520 S.W.2d 371, 374 (Tenn.10

Crim. App. 1974) (citi ng Patterso n v. State , 4 Tenn. Crim. App. 657, 475 S.W.2d 201 (1971)). The
samest an da rd of

re vi ew fo r s uf

fi ci en cy claims i s applicable to guilt based upon direct as well as circumstantial evidence. State v. Brown , 551 S.W.2d 3 29, 331 (T enn. 1977 ); Farmer v. State , 208 Tenn. 75, 343 S.W.2d 895, 897 (1971). The court may not substitute its inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas , 286 S.W.2d a t 859; Farmer

v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).

“A perso n comm its cr imin al tre spass who, k nowin g the pe rson d oes no t have the ow ner's effectiveconsent to do so, enters or remains on property , or a portion thereof.” Tenn. Code Ann. § 39-14-405(a). A person is guilty of vanda lism when he “knowingly causes damage to or the destruction of any re al or personal property of another or

of th e s ta te , t he Un it ed St at es , a ny c ou nt y, ci ty, or town kn owing th at the p erson does not have the owner’s effective consent.” Tenn. Code Ann. § 39-14-408(a).

Taken in the l ight most favorable to the state, the evidence at trial showed that someone broke into the victims’ locked garage and da maged their For d Escort automobile, shattering the windshiel d and flattening the tires. Gerry Miller testified that

repair of the damage excee ded $1,200. The defendant, who had argued with the victims just hours earlier, was seen in the vicinity of the victims’ h ome at the time the offe nses wer e committe d. He had

key s to the vic tims’ garage door. There were no signs of a forcible entry . When confronted by Joe Miller, the d efenda nt made statemen ts implicating his i nvolveme nt. Althoug

h much of t

he evide nce was circumst antial, it would hav e been sufficien t to suppor

t the convictions.

Becau se the defendant should havebeen appointed counsel at trial, the judgments of the trial court are reversed and the

cause is remanded for a new trial on the c harges of criminal

trespass and vandalism in excess of $500.

___________________________________ GARY R. WADE, PRESIDING JUDGE