# FILED October 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9804-CC-00103 Appellee, )

) McNairy County v. ) ) Honorable Jon K erry Blackwood, Judge MICKEY WHITE, ) ) (Burglary, Theft of Propert y over $1,000) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Gary F. Antrican John Knox Walkup District Public Defender Attorney General & Repor ter P. O. Box 700 425 Fifth Avenue, North Somerville, TN 38068 Nashville, TN 37243-0493 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068 Ed Neal McDaniel Assistant District A

ttorney General 300 Indu strial Par k Drive Selmer, TN 38375

OPINION FILED: ____________________________

_ REVERSED AND DISMISSED L. T. LAFFERTY, SENIOR JU DGE 

### O P I N I O N2 The defendant, Mickey White, ap peals as of right from a McNairy Co unty C ircuit Court jury fi nding h im guilty of bur glary and theft

of property over $1,000. The trial court, as result of these jury v erdicts, imposed sentenc es of for ty months for the offenses of burglary and theft of property over $1, 000, to run concurrently to each other. Also, the tr ial court held these two sentences w ere to be served conse cutively to prior sentences for which the defendant was still obl igated. The sole issue pres ented for review is whether the evidence is suf ficient to sustain the defendant’s c onvictions for burglar

y and theft of property over $1,000. After a careful review of the trial record, brie

fs of all parties, and the appropriate law, we reverse the convictions and dismiss the charges.
TESTIMONY
Mr. Simon Mast owned and operated the Bethel Springs Texaco Service Station on Mai n Street. Mr. Mast closed his serv ice station on Saturday, J uly 27, 1996, at 5:00 p.m. On Monda

y, July 29, 1996, Mr.Mast received a teleph one call

from one o

f h i s employeesto cometo his service stati on in Bethel Springs. Upon his arrival at the station, Mr. Mast found the back window s broken out and the steel shutte rs pried apart. Entrance to the se rvice station was acco mplished by push ing in a Plexiglas window in th e garage door.
Mr. Mast found the followin g items were missing : a jug of chocolate milk from the refrigerator, a cordless telephone ripped from the wall, a bank bag containing approximately $1,000 to $1,100 in checks and cash, and vari ous tools. Also missing was a five-gallonwhite pla stic bucket used for dry walling. Mr. M ast believed the missing bu cke t was last seen outside his office. Another similar buck et was found outside containing tools, inner tubes, and drill bits.
Mr. Mast spoke to the defendant on July 27, 1996 when the defendant came in the service station and as ked to use the phone. The defendant was on the phone3

approximately thirty minutes and se emed unhappy over a job he had do ne. Later, the defendant again requested to use the phone, but M r. Mast told him to use the p ayphone outside the service station, about fifty feet from the station. Later that day, the defendant returned and pawned some Ray-Ban glasses and a wristwatch with one of Mr. Mast’s employees.
On the side of the se rvice statio n are two public restrooms facing a grocery store owned by Mr. Louis Perrigo.There was a question as

to whether

the two re

strooms were locked on the night

of July 27, 1996. Mr. M ast did not s ee the defendant

commi t th ese offenses, nor did anyone else. Mr. Mast had

several white pl astic buckets, similar to the one missing, about his ser vice station.
On July 28, 1996 at approxi mately 8:00 p.m., Mr. Louis Perrigo observed th e defendant going in and out of the service station restrooms three or four times. Mr. Perrigo called to the defendant about what he was doing in these outside toilets. The defendant did not have a bucket.
Mrs. Barbara Kraus lives across the street fromthe Bethel Springs Texaco Service Station at a distance of 100 to 125 feet. At approximately 9:00 p.m. on July 28, 1996, Mrs. Kraus observed the defendant coming down Fo urth Stre et which runs between Walker Streetand her pr operty acr oss from the service station. The def endant wa s carryinga whiteplastic bucket and went to the phone booth by the serv ice station. Approximate ly twenty minutes later, someone picked up the defendant. Mrs. Kraus did not see the defendant go near the service station. Mrs. Kraus hadobserved many persons use this phone, including the defendant, on pri or occasions. The defen dant left i n a green Ford pickup.
Mrs. Deborah Price, Mrs. Kraus’s sister-in-law,saw thedefendant going towards a phone. Mrs. Price did not see the defendant with anything in his hands. Mrs. Price did not see the defe ndant use the phone or do anyth ing.4 Shelley Price, age 15, was at her aunt’s home, Barbara Kraus, on July 28, 1996. Ms. Price saw

the defendant c

ome from behind the se rvice station with a bucket in his hand. Ms. Price also obser ved a towel wrapped around the defendant’s other hand. The defendant was going tow ard the phone booth. The d efe ndant used the phone and someone in a light-colored Ford truck picked up the defendan t fifteen minutes later.
Also at his aunt’s home was Jonathan Price, age 12. Jona than saw the defendant come from behind the Texaco service stati on with a bucket in his hand. He also observed the defendant had atowel wrapped around his other hand. Jonathan saw the defendant use the phone and later someone in a tr uck picked up the defend ant. J onathan saw nothing that indicated a break-in at the service station.
In behalf of the defendant, Mickey Farl ey related that he had seen plastic buckets every day about the service station. Mr. Farley stated that tra ffic at 9:00 p.m. on Sundays was pretty bus y. Mr. Farley advised the jury the defendant stayed with him at his home for a few days. Mr. Farley denied ownin g a Ford truck, but did ow n a gray Dodge or a yellow GMC. Mr. Farley

had observed white pl astic buckets inside the s ervice station.
Mr. Randle Holley, an acq uaintan ce of t he defenda nt, stated he had gone by the service station to pick up his tools. Mr. Holley had pawned the tools and a log chain w ith A nd yMast, brother of the station ow ner. Mr. Simon Mast adv ised Holley the tools “had been took,” and also possibly the log chain. Mr. Holley rel ated he attempted to obtain the tools in July or Aug ust, 1996.
The def endant d id not tes tify.
LEGAL ANALYSIS The defendant strongly contends, based on the evidence in this r ecord, a rational tr ier of fact could not have found the essent ial elements of the offenses b eyond a5

re asonable doubt. The State counters that in v iewing the evidenc

e in the light m os t favorable to the State the evidence w as sufficient to suppo rt a conviction for these offenses.
When there is a challenge to the sufficiency of the evidence,the State is entitled to the strongest legitimate view of the proof at trial and all reasonable inferences which might have been drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 83 6 (Tenn. 1978). A jury verdict approved by the trial judge, accredits the tes timony of

the witnesses for the

State and resolves any conflicts in the evidence in favor of the State’s theory. State v. Williams, 657 S.W.2d 405, 410 (T enn . 1983), cert . denied , 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). This court may neither reweigh nor

reevaluate th e proof offered at trial and must not substitute its i nferences fo r those drawn by the t rier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, cert . denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed .2d 49 (1956). The ultimate issue i s whether any ration al trier o f fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); T enn. R. App. P. 13(e).
Acrimin al of fense may be established excl usively by ci rcumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973), cert . denied , 419 U.S. 877, 95 S.Ct. 141, 42 L.Ed.2d 117 (1974). However, before an accu sed may be convicted of a cri minal offense based upon circumstantial evi dence alone, the facts andcircumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant. . . .” In other words, “[a] w eb of guilt must be woven around the defendant from which he cannot escape and from w hich facts and circumstances the jury could draw no other reasonable inference save the guilt of the defen dant beyond a reaso nable dou bt.” State v. Crawford, 470 S.W.2d 610, 612-13 (Tenn. 1971); State v. Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App.), per . app . denied (Tenn. 1990).
Since a verdictof guilt removes the pres umption of innocence and replaces it with a presump tion of gu ilt, the d efenda nt has th e burden in this Cou rt of illu strating wh y th e6

evidence is insufficient to support the v erdict returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not dis turb a verdict of guilt due to the sufficiency of the evidence unless the facts contained i n the record and any inferences which may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.
Aclear analysis of the ev idence i n this record reveals the State’s proof is wholly circumstantial. Therefore, does the evidence w eave a web of guilt ar

ound the defendant from which he cannot escape?
In order for the State to meet its bu rden of proof, t he State must prove beyond a reasonable doubt the essential elements of the offenses o f burglary and theft of property over $1,000. In indictment no . 966, count one alleges the defendant:

on or about the 28th day of July , 1 996 , . . . did un lawfully, felonio usly, knowingly , and without the effective cons ent of Simmon Mask d/b/a Beth el Texaco, the o wner of the build ing, enter a building other than a habit ation which was not open to the public with the

intentto commit theft, in violati on of T.C.A. § 39-14-402. Count two alleges the defendant:

on or about

the 28th day of J uly 2 8, 1996, . . . did unlawfully and knowingly ex

ercise control over

property, to-wit : a telephone, to ols , and money, a more particular description thereofbeing to the Grand Jurors unknown, valued at ov

er one thousand dollars ($1,00 0) but less than ten thousand dollars ($10,000), of Simmon Mask without his effective consent, wi th the intent t

o depriv e said Si mmon Mas k thereo f, in violationof T.C.A. § 39-14-103.

The S tate pro ved beyond a reasona ble doub t that th e Bethel Springs Te xa c o Service Station was burglar ized and certain items w ere taken. Entry was

made into the service s tation by

pushing a window in the garage door. There was additional evidence of unsuccessful attempts to enter the station through the rear windows. The State’s only witness to place the defendant at the serv ice station between 5:00 p.m. on July 27, 1996 and 6:00 a.m. on July 29, 1996 was Mr. Louis Perrigo. Mr. Perrigo, at 8:00 p.m. on July7

28, 1996, observed the defendant en ter ing and leaving the service station’s public restrooms

approximately five times, which caused Mr. Per rigo to yell at the defendant. Mr. Perrigo did not observe the defendant with a white bucket. There was a controversy in the record as to whether these publi c restroom s w ere in working or der and locked on the weekend of July 27-29, 1 996. The walls of the restrooms were not damaged to permit entry into the servi ce station.
Three State w itnesses, Barbara Kraus, S helley Price, and Jonathan Price, observed the defendant at 9:00 p.m. on July 28, 1996, lea ving the side of the service station witha whitebucket in his hand and walking toward a phonebooth. They observed the defendant make a call and was picked up by an unknown individual in a pickup truck fifteen minutes later. Two witnesses obser ved the defendant’s other hand wr apped with a towel. The witnesses

saw nor heard anythi ng thatsuggested the servi ce station had been burglarized. Mrs. Deborah Price, mother of Shelley and Jonathan Price, observed the defendant go to a phone booth with nothing i n his hands.
The record establishes that, in addition to there being w hite buckets in the service station, there were white bu ckets scattered outside the service station in various places. The record is absent

as to any law enforcement i nvestigation or any results thereof, such as fingerprint s, blood at the scene, or w hether any of the stolen items w ere found in the defendant’s possession, directl y or circumstantiall

y.
In conclusion, we find that the State has not suff iciently tightened the web of guilt surroundin g the defendant to support these convic tions. Therefore, we rev erse the trial court’s judgments and dismiss these charges.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE8

CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ DAVID G. HAYES, JUDG E