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

Briefs D ecem

ber 3, 2002
STATE OF TENN ESSEE v. JOSHUA AL AN STEAKLEY Direct Appeal from the Circuit Court for Hardin County No. 8028 C. Creed McGinley, Judge

No. W2001-02996-CCA-R3-CD - Filed April 25, 2003

The defenda

nt was co nvicted o f burgl ary , a Class D felony , after

a jury trial and was sente

nced to two years, six months, with all but fifteen day s suspended, and the balance to be ser ved on supervisedprobation. The defendant was also ordered to pa y $353.95 in re stitution toNorth Elementary

School. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in deny ing full probation and orde ring that he ser ve fifte en day s in confine ment. Following our revie w, we af firm the j udgmen

t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T. W OODA LL , JJ., joined.
Ch ad wi ck G. Hu nt , S av an na h, Te nn es se e, fo r t he ap pe ll an t, Jo sh ua Al an St ea kl ey.
Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; G. Robert Radford, District Attorney General; and

John W. Overton, Jr., Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
FACTS
The defend ant , Joshua Alan Steakley, and two code fendants, Timothy L

ard and Stephen Copeland, burgla

rized the North Elem

entary School in Sa vannah, Tennessee, during the late e vening hours of September 23, 2000, taking two cases of toilet paper from a janitorial room and a stop light hanging on a wall in the cafeteria. Prior to the defenda nt’s August 8, 2001, trial, Lard and Copeland,
a juvenile , pled guilty

to burgla ry . At the de

fendant ’s trial, Lar

d testifie d that his sentencing hearing
was set for September 11, 2001, and Copeland testified that he was placed on probation and ordered to pay fines.1 Neill test ifi ed that each case contained forty-eight rolls of toilet paper.
2 Ne ill testi fied that

the stop li ght, by changing c olo rs from green, orange, and then to red, was used in the cafe ter ia t o quie ten the chil dren w hen t hey w ere t oo loud.

-2- Bobby Neill, a custodian at

North Elementary

School, testified that when he arrived at the school on the morning of

Sunday, September 24, 2000, he w ent upstairs to check the boiler system and found footprints coming into the school from a window in the hallway. He immediately went downstairs and called the police and the school principal. When the police arr i ve d, Neill and the officers began checking the building and discovered

that two cases of toilet paper 1 and a stop light 2
were missing. When Neill went up to the roof of t he school three or four day s later to check the drains, he found a ten-foot aluminum ladder that should not have been

there and subsequently

turned it over to the police.
Seventee n-y ear-ol d Stephen Copeland testified that on the evening of the burglary , he picked up Timothy L ard in his red Nissan pickup truck and then drove to the defe n dant ’s house, arriving “somewherearound e

ight thir ty or nine o’clock” p.m. About thirty minutes later, he, the de

fendant , and Lard “took off wa

l ki ng down

the road ,” leaving his tr

uck at the defenda nt’s house . The trio wound up at North Elementary School and decided to break in by climbing a ladder to thetop of the roof. Becau se the la

dder did n ot reach all the w ay to the top, they

had to climb up in two stages , pulling the ladder up behind them and propping it on another part of the building to climb up higher. They then entered the school through a “lift-up” window on the second floor. The defendant went in first, followed by L

ard and Copeland. They went downsta irs to a janitorial room and then to the cafeteria where the def

endant and Lard a

te some food. As they exited the cafe teria, the defendant grabbed the stop lig

ht off the wall. Ne xt, they found another

janitorial room andtook two or three “pretty good-sized” boxes and one or two smaller boxes of toilet paper. They

then left the school the same way

they had come

in, dropping the boxes of toilet paper and the stop light off the lower section of the roof to the ground. After walking back to the defend ant’s house an d getting Copeland’s truck, the trio ret urned to the school to get the toilet paper and stop light they had left behind. They hid the

toilet paper in “some kind of high grass are a” close to the defendant’s house before returning to the defendant’s house. Copeland and Lard then went to Lard’s house wher e they spent the night. Using some of the stolen toilet paper, the defendant, Lar d, and Copeland, along with Robert Michael s, “rolled” Ethan Regan’s yard the next night and hid the rest under a porch at a house behind
an Amoco station. Copeland acknowledged that they saw Officer Chris Franks at the Amoco station the night the

y r olled Reg an’s y ard and t

hat ther e was toil et paper

in the bed of his truck when Franks
saw them. During direct

examination, Copeland testified that the last time he saw the stop light was the night of the burglary

when the defendant had it in his hand at the school. Howeve r, duringcrossexamination, the defe

nse aske d him why

he did not recall telling the police in his second statement that he had se en the sto

p light a t the def endant’ s house and had see n the def endant pu t i t in his bedroom. Copeland

maintained that he d

id not rec all s eeing the stop light after that night at the school.3 Offic er Fran ks’s testimo ny is uncle ar as to when this occ urred in relation to the b urglary. On direc t

examination, he said that , when h e saw the t oilet paper in t

he back of t

he pickup t

ruck, he “didn’ t know at the time when all this t ook place. It was two or three days l ater. ” On cross- examination, h owever, h e said he had seen t he box of t oilet pap er be fore S eptem ber 2 3 be cause he gav e his “rep ort in Se ptem ber.” -3- On cross-e

xamination, Copeland

acknowl edged

that h e was untruthful when he told the police that

he did not know anything about the burglary

when he was questioned on October 2, 2000, at 9:40 a.m. However, when he was questioned ag ain that day at 2:30 p.m ., he told

the truth b ecause he knew they we

re “going to get c aught one way or another.” Copeland admitted that he hada prior
co nf li ct wi th th e d ef

en da nt ov er a g ir lf

ri en d b ut de ni ed th at th e c on fl ic t a ff ec te d h is te st im on y.
Ninetee n-y ear-ol d Timothy L ard testified that he and Copeland arri ved at t he defendant’s house betwee n 10:00 an d 10:30 p.m. , and they all went walking for about twenty -five minutes. At the school, they used a la

dder that was ly ing besi de the bui lding to c limb on top o f the fir st floor and then pulled the ladder up and used it to gain access to the sec ond floor where t hey climb ed in t hrough
a window. T

hey first we nt to a utility

room and t

hen to the cafete ria where they

ate some ice cream from the freezer. The defendant took the stop light fr om the cafeteria, and

they took two larg e boxes and tw o o r t hr ee sm al le r b ox es of to il et pa pe r f

ro m t he ut il it y room. They exited the school from the same window they ha d entered and threw t

he boxes of

toilet paper off the roof to the ground. Once they rea

ched the ground, they

hid the toilet paper in the “shadow of the building” and walked to the def endant’ s house to

get Copeland’s truck. They r eturned to the school in the truck, loaded the toilet paper, and took it to a field by the def endant’s house where they left it for “a little while” before hiding it under the porch of a hou se behind the Amoco station. Lard admitted they rolled someone’s yard with some of the toilet pape r, and he subsequently

show ed th e police

the house where the rest of

the toilet paper was hidden. Lar d did not know what had happened to the stop light but last saw it at the defendant’s house.
On cross-examination, Lard was questioned a s to whether a ladder or a gutter had been used to gain entry into the school bec ause, in Lard’s statement to the police , he had said, “We climbed on the walkway to the

first floor roof and climbed up the gutter to the second f loor.” After being shown his statement, Lard

said that a gutter “may

have been part of the way of how we got up there, but I do remem ber a la dder.” L ard admitted that h

e had ha d problem s with the d

efenda nt in the pa st.
Officer Chris Fra nks of the Savanna h Police D epartme

nt testified that, on a Sunday 3 morning around2:00 a.m. while off duty and not in uniform, he was visiting his wife at

the Amoco station where she worked. There, he saw the defendant, Timothy Lard, and others standing “in a huddle” beside Stephen Copeland’s red Nissan pickup truck and, because he wa s acquainted with them, he went over to speak to them. Franks saw a larg e box of toilet paper, which the defendant and La rd
were trying to cove

r up with a shirt or quilt, in the bed of the pickup truck. Franks did n o t say anything to them about the toiletpaper because he didnot think it was significant at the time. After learning of

the bre ak- in a

t the sch ool fro m Of fic er T .J. Barker, Franks told Bar ker what he had seen at the Amoco and gave a statement to Chief Dona ld Derr.-4-

Chief Donald Derr of

the Savannah Police Department testified that during his investigation of the burglary , he got the names of the defendant, L ard, and Copeland and interviewed each of them. He first

talked to Co pe la nd wh o i ni ti al ly s ai d h e d id no t k no w a nyt hi ng ab ou t t he bu rg la ry. However, when he talked to Copeland again later the sa me day, Copeland g ave a different statement which was consistent with the statement Lard had giv en. L ard show ed Derr the vaca nt house where the toilet paper was hidden, and a large a mount of toilet pa per in sma ll rolls was recovered and tu rned over to the school. Derr testified that the value of the toilet paper and the stop lig ht was approxima

tely $353. Derr said that

he did not have any indepe ndent proof implicating the defendant in the burglary

other than Cop eland and Lard’s testimony . Derr executed a search war rant at the home of the defendant on October 3, 2000, but did not find the stop light or the toilet paper. Testifying

as the first witness for the defense, eighteen-yea r-old Gary

Hutton said that he had known the defendant for five or six y ears and had seen him at the Amoco station on September 24, 2000, between 1:15 and 1:30 a.m. The defendant was alone in his red Camaro and talked to Hutton and Vincent Price for about thirty or forty-five

minutes. Lard and Copeland arr ived in Copeland’s truck at the Amoco between

1:30 and 2: 00 a.m . and a sked H utto n and P rice i f they want ed to “ go roll ya rds beca use they had the to ilet pape

r in the back of the truck.” After Hutton and Price decline d, La

rd and Cop eland left. Hutton an d Price ta lked to the

defenda nt “a few more min

utes” before going

home. Vincent Pric e testifi ed that he , Hutto n, and the defendant were at the Amoco station between 1:15 and 1:30 a.m. when Copeland and Lar d drove u p in a red Nissan and asked if they wante d to “go roll yards.” Shortly thereafter, the

defenda nt, Copela

nd, and L ard lef t separa tely butheaded in the same direction, the defendant in his vehicle a nd Copeland and L ard in

Copeland’s vehicle. JennySteakley, the def

endant’s mother, testified that the defendant had not been with L ard
or Copeland on September 23, 2000, and he came home alone about 1:45 a.m . the following morni ng, took a shower, and went to bed. She denied seeing the defendant with a stop light or boxes of toilet paper. Ms. Steakley sa id she was at home when the police executed the searc h warrant, and the police did not find the stop light or the toilet paper at her house.
Sharon Holt testif

ied that t he defe ndant, who was a friend of her daug hter’s, came to her house on September 23, 2000, between 5:00 and 6:00 p.m. to help them assemble a computer desk. The defendant remained at her house until about 1:30 a.m. but had left for about an hour with her daughter between 8:00 and 9:00 p.m. Although she did not believe the defendant could have been involved in the burglary

“between the hours he was at [her] house,” she never contacted the police to inform them that the defendant had been there that nig ht.
The twenty -one-y

ear-ol d defend ant testif

ied that Lard and Copeland had not been a

t his house
on Septembe

r 23, 2000 , and the f

irst time he had seen them that day was at the Amoco station. Lard and Co peland ha

d toil et paper in their truck and asked the defe ndant, Hutton, and Price if they wanted“to go roll ya

rds.” T he defe ndant s aid he went to Ms. Holt’s house around 5:00 p.m. and stay ed until approximately 1:30 a.m. except for an hour when he and Ms. Holt’s daughter “rod e throu gh town . . . [and] got a movie at Movie Gallery .” He denied seeing L ard or Copeland

during-5-

the hour he was away

from Ms. Holt’s. When he arrived back at Ms. Holt’s, he “finished putting
so me doors on th

e desk . . . and then

[they ] sat down a

nd watched the movie.” Aft er the mo vie ended, he went to the Amoco station where he talked to Hutton and Price for about twenty minutes before Lard and Copeland ar rived. He noticed toilet pa per in the back of Copeland’s truck. He left the Amoco station at

about the same time as Lard a nd Copeland but drove “straight home” and did notgo anywhere with Lard a nd Copeland. He arrived

home “[p]ro

bably around o ne forty

-five” a.m. and did notleave the house again. The defendant denied br eaking in the North Elementary School and said he did not know why Lard and Copeland had implicated him in the burglary , other than they had “never really

got along real well, and I guess they

figured if they

pointed it at me, they’d

get in less trouble or something.”
On cross-examination, the defenda nt testified that he a

nd La rd had pr oblems for “over a y

ear pr ob ab ly” and that he and Copeland had “got[ten] into it several months back.” He said that hedid notknow ChrisFranks and that Franks had seen him at the A

moco on “a

differe nt night, ” “the sa

me night [t he y] went to jail . . . several weeks later.”The def endant a dmitted tha

t Frankshad seen

him covering a box of toile

t p aper tha

t n ight in the back of Copeland’s truck and admitted that he had “roll[ed] yards that night.”
ANALYSIS I. Sufficiency of the Evidence
The d efendant argues that the evidenc e was insufficient to sustain his conviction for burg lary , asserting that the “State’s witnesse s did not pr ove bey ond a rea sonable

doubt that Appellant had the requisite Mens Rea for the offense of burglary .” He further argue s that there was “no demonstration that Defendant knowing ly o r intentio nally

entere d North El ementar y School with th

e intent to commit theft, other than the testimony of two individ

uals previous ly c onvicted of the ch arge, both of whom gave conflicting stories in their initial statements and at trial and both of whom admitted to a history of conflict with the Appe llant.” Additionally, he arg ues that the testimony of his alibi witnesse s “place d him in loca tions which would

have made it impossible for [him] to commit the burglary of the school.”

In consider

ing this issue, we apply the f amiliar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, af ter viewing the evidence in the lig

ht most fav orable

to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt.” Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. E d. 2d 560, 5 73 (1979) ; see also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1 992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findi ngs of guilt in c riminal actions whether by the trial court or jury

shall be set aside if the ev id en ce is in su ff ic ie nt to su pp or t t he fi nd in gs by t he tr ie r o f f ac t o f g ui lt be yo nd a reasona ble doubt.”) . All quest

ions involving the c

redibilit y of witnesse s, the we

ight and value to be giventhe evidence, and all factual issues are resolved by

the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 ( Tenn. Crim. App. 1987)

. “A guilty ve rdict by the jury , approved by the trial judge,-6-

accre dits the testimony

of the wit nesses f or the Sta te and re solves all conflic ts in favor of the theory of th e State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme cou rt stated th e rationale for this rule:
This well-se ttled rule rests o n a sound foundation. The trial judge and the ju

ry see the witnesses f

ace toface, hear their testimony and observe their demeanor o n th e stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court.
Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v . State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction remove s the presumption o f inn ocence with which a defendant is initially cloaked and repla ces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
The defendant’s ar g uments that the testimony of codefe ndants Timothy Lard and Stephen Copeland could not b e believ ed and tha t the polic e investig ation of th e burg lary was not a s complete
as it should have been overlook t he fa ct th at , a s e xp la in ed by Bolin , i t i s t he tr ia l j ud ge an d j ur y, rat her than this court, who “determine the weight and cr edibility to be given to the t es ti mo ny o f witnesses.” 405 S.W.2d at 771. In this matter, the jury , by its verdict, made the de termination, which was its prerogative, that the State’s proof of

the defe ndant’s g uilt was be

lievable and that h

is alibi proof was not. Thus, we conclude tha t the testimony of codefe ndants Timothy Lard and Stephen Copeland, corroborated by the testim

ony of Offic er Chris Franks, was sufficient evidence to su pp or t t he ve rd ic t o f t he ju ry.
II. Senten cing
The defendant argues that the trial court erred in deny

ing full probation and ordering that he serve fifteen day s in confinement.
While the record onappeal includes a copy of the defendant’s presentence r eport, showing that he had se veral mis demeano

r traff ic convictions prior

to his par ticipatin g in

the burglary

of the school, the record does not contain a transcript of the sente ncing hearing. I

t was the duty of the defendant to provide an adequate record for a ppellate review. See

Tenn. R. App. P. 24(b). “When
a party seeks ap pellate r eview the re is a duty

to prepare a record which c onveys a fa ir, accurate and complete accoun t o f what transpired with respect to the issues forming the basis of the appe al.” Statev. Balla

rd , 855 S.W.2d 5 57, 560 (T enn. 1993 ). Gene rally , when the

appella te reco rd is inadequate, the appellate court is precluded from considering the issue, and the trial court's ruling is presumed correct. Se e State v. Oody , 823 S.W.2d 5 54, 559 (T enn. Crim. App. 1991 ); State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Thus, since the record does not include a-7-

transcript of the sentencing hearing , at which the trial court would have e

xplained the basis for its determination that the defendant should serve fifteen da ys in jail before be ginning his period of probation, we are unable to review the trial court’s re asoning and are left with the presumption that “the determinations made by the court from which the appeal is taken are correct.” Tenn. Code

Ann. § 40-35-40 1(d). Ac cording ly, we pres ume that th e trial c ourt was c orrect in order ing that the defendant serve fifteen day s in jail before beginning his period of probation. See State v. Gibson , 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997).
CONCLUSION
Based upon the f

orego ing authorities a

nd reaso ning, the

judgmen t o f the trial court is affirmed.

___________________________________ ALAN E. GL

ENN, JUDGE