# FILED

Au gust 21, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE MAY 1997 SESSI ON

STATE OF TENNESSEE, ) ) No. 03-C-01- 9607-CR-00251 APPELLEE, ) ) Knox County v. ) ) Ray L. Jenk ins, Jud ge JEFFREY EUGENE DUN LAP, ) ) (Burg lary) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: William C. Talman John Knox Walkup P. O. Box 506 Attorney Gen eral & Repor ter Knoxvil le, TN 37901-0506 500 Charlotte A venue (On Appeal and At Trial) Nashvil le, TN 37243-0497 Leslie M. Jeffress Clinton J. M organ 1776 River

view Tower Assistant Att orney Gener al 900 South Gay St reet 450 James Roberts on Parkway Knoxvil le, TN 37902 Nashvil le, TN 37243-0493 (At Trial) Randall E. Nichols Distric t Attorney General P. O. Box 1468 Knoxvil le, TN 37901-1468 Robert L. Jolley, Jr. Assistant D istrict A

ttorney Gener

al P. O. Box 1468 Knoxvil le, TN 37901-1468 Sally Jo Helm Assistant D istrict A

ttorney Gener

al P. O. Box 1468 Knoxvil le, TN 37901-1468

OPINION FILE D: _____________________________

____ AFFIRMED
Joe B. Jo nes, Pre siding Jud ge1 

### O P I N I O N

The appellant, Jeffrey

Eugene Dunlap (d efendant), was convicted of burglary , a class D felony, by a jury of his peers. The tria l court sent enced the defendant to confinementfor twelve (12) yea rs in the D epartment of Corre ction as a car eer of fend er. In this appeal, the defe ndant claims the evidence was insuff icient to support his convicti on and the sentence impos ed was excessive. As both contenti ons are wi thout merit, the judgment of the tr ial court i s affirmed. On the eveningof May 16, 1993, Patrolman Kenneth R obertson respond ed to a call instructingh im to go to the Mugford Phar macy at 4013 M artin Mil l in Knoxv ille. When Officer Robertson ar rived at the pharmacy, he saw two black males standing insi de the p harmacy

. A bay w indow had been broken. The men were holding boxes. As soon as the officer arri ved at the phar macy, the men ex ited the buildi ng and fled on foot. T h e officer pursued the two men. He apprehended the defendant behi nd the buildin g. The o ther susp ect wa s not ap prehended. The officer testified he followed the defendant from thetime he fled the store until he was appreh ended. He never lost sight of the defendant. Approximatel y $1,000 worth of merc handise had been pla ced in boxes

. Some of the merchandi se containe d in the boxes was ins ide the store. Other merchandi se had been moved outside. The manager testified approx imately $900worth of pil ls werefound outside the buildin g and had to be destr oyed. The manager

further testified he did not auth orize anyone to break out the bay window or take or move any of the merchandise in question.

I. The appellant contend s the eviden ce is insuffici ent to supp o rt his conviction. He arguesthe state did not prove he had actually stolen merchandi se or intended t o steal any
merc han dise from the p harm acy. When an accused chal lenges thesufficiency of the con victing evidence, this Court must review

the record to

determine if the ev idence adduced at trial is sufficient “to support2

the finding by the trier of fact of guilt beyond a reasonable doubt.” Te nn. R. App. P. 13(e). This rule is applicab le to findings based upon direc

t evidence, circumstanti al evidenc e, or a combination of direct and circ umstantial ev idence. Stat e v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. Ap p.), per . app . denied (Tenn. 1990). In determining th e suffici ency of the conv icting ev idence, this C ourt does not reweigh or reeval uate the evide nce. Stat e v. Mat thews , 805 S.W.2d 776, 779 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). N or may this Court substi tute its inferences for those d rawn by the tri er of fact from circ umstantial ev idence. Liakas v. State , 199 Tenn. 298 , 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview of the evidence contained in the record as well as a l l reasonable an d legitimateinferences w hich may be drawn from the evidence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Questionsconcerning the credibil ity of w itnesses, theweight and value to be given the evidence, as well as all factual issues raised by the evidenc e are resolv ed by the tri er of fact, not this Court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our

Supreme Court s aid: “A gui lty verdic t by th e jury, approved by the trial judge, accr

edits the testi mony of the wi tnesses for the St ate and resolves all conflic ts in favor of the theory of the State.” Since a verdict of guilt removes the presumption of innocence and replaces i t with
a presum ption of guilt , the accused, as the appellant, ha s the burden in this Court of illust rating w hy the ev idence is in sufficient to suppor t the verdi ct returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 19 82). Th is Court w ill not disturb a verdict of guilt due to the su ffici ency of t he evidence un less the facts contained in the record are insufficient, as a matter of law , for a rational trier of fact to find that the ac cused is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914. In this case, t he state was required to prove bey ond a reasonable do ubt (a) th e defendant entered a buil ding other t han a habitation, which was not open to the public, (b) with the intent to commit larceny . Tenn. Code Ann. § 39 -14-402. The defendant was seen inside a buil ding whic h was not open to the public. The manager of the bui lding1 The record contai ns discussi ons aboutthe prio r convictio ns betwee n the tria l judge

and the attorneys. However, the recor d does not contain copies of the judg ment forms or a presentence report indicating prior convictions. In this appeal, howev er, the defendant does not challenge the judge’s reliance on the prior convictions. 3 test ified he had given no one permissi on to enter. The defendant’ s intent to com mi t larceny may

be inferred from the surroundi ng circumstances. See Duchac v. State , 505 S.W.2d 237, 240 (Tenn. 19 73), cert
. denied , 419 U.S. 877, 95 S.Ct. 141, 42 L.Ed.2d 117 (1974). Packagingitems whi ch the defendant neither owned, nor had permission to take from the pharmacy, in the middle of thenight, i n front of a broken w indow constitute circumstances

from which an intentto comm it lar ceny may befairl y drawn. Some of the merchandise had bee n placed outside the buil ding. Additionall y, the defendant’s f light is evidence from w hich a conclus ion of guilt may be drawn. State v. Zagorski , 701 S.W.2d 808, 813 (Tenn. 1985), cert
. de nied 478 U.S. 1010, 106 S.Ct. 3309, 92 L.E d.2d 722 (1986). This issue is

without mer it.

II. The defendant contends the sentence is excessi ve. The court found the defendant had at least eleven prior felony convicti on. Since the offense was a Class Dfelony, the defendant was proper ly sentenc ed as a career offender to the ma ximum Rang e III sentence, twel ve ye ars. See Tenn. Code Ann. §§ 40-35-108(a)(3) and -108(c). 1 No presentence report appears in the record. The lackof a report impai rs this C ourt’s abil ity to conduct a full de novo review of the sentence impose d.

_____________________________________ JOE B. JONES, PRESID ING JUDGE4

CONCUR:

__________________________________ JOSEPH M. TIPTON, JU DGE

__________________________________ CU RWOOD W ITT, JUDGE