# FILED
July 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9711- CR-00451 Appellee, ) ) Shelby County V. ) ) Honorable Jose ph P. Dailey, Judge ) JOHNNY AK

INS, ) (Aggravate d Burglary)

) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: A C Wharton, Jr. John Knox Walkup Shelby County Public

Defender Attorney General & Reporter Walker Gwinn Janis L. Turner Assistant Public Defender Counsel for the State 201 Poplar Avenue, Suite 201 Criminal Justice Div ision Memphis, TN 38103 Cordell Hull Bldg., Second Floor (On Appeal) Nashville, TN 37243-0493 Dianne Thackery William L. Gibbons Assistant Public Defender District Attorney General 201 Poplar Avenue, Suite 201 Memphis, TN 38103 Jerry Harris (At Trial) James M. Lammey Assistant District A

ttorneys General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- Johnny Akins was found g uilty by a jury of aggravated burgl ary. He was sentenced to fifteen years in Tenness ee Department of Correction. The t rial court denied his motion for a new trial. He appeals. The sol e issue is whether the evidence is sufficient to support his convictio n. We affirm the judgment of conviction.
At approxi mately 12 no on on June 17, 1996, Malcol m Bruni left h is home to go to lunch. At approx imately 12:25, while on his way home, Bruni noticed a man riding a bicycl e and carrying a “boo m box.” Bruni testified that the man appeared too big for the bicy cle and that the sight w as “weird.” When he arrived home, Bruni discovered that someone had broken into his house. His bicycle and boom box were missing . Bruni called 911 and repor ted the burglary and the man on the bike. Officer Sharon Kell y of the Memphis Police Depar tment and two other officers spotted the appellant near Bruni’s home. When they stopped the appellant, he said that he had bou ght the bicycle. Br uni identified the appellant as the man riding the bike. Bruni identified the bike, b oom box, credit cards, and a glove as h is property. Bruni testified that between five an d ten minutes elapsed between w hen he saw the man on the bike and when he was called to identify the appell ant and his property. Br uni was approximately

100 yards from his house when he first saw the appellant on the bike. The appellant chose not to testify at tri al.
The appellant challenges the sufficiency of the evidence. In a sufficiency of the evidence challenge, the relevant question on appellate review is whether, after viewing the ev

idence in the light most fav orable to the prosecution, any rational trier of fact could ha ve found the essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); T.R.A.P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985).-3- In Tennessee, great weig ht is given to the re sult reached by the jury in a criminal trial. A j ury verdict accr edits the testimony of the state's witnesses and resolves all conflict

s in favor of the state. State v. Willia ms , 657 S.W.2d 405 (Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence enjoyed at trial wi

th the presumption of guilt on appea l. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). The appellant has the burden of ov ercoming the presumption of guilt. Id. On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonabl e inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Te nn. 1978).
A person commits burglary who, without the cons

ent of the property owner, enters a buildi ng, other than a habitation, not open to the public, with the intent of committing a felony, theft or assault. Tenn. Code Ann. § 39- 14- 402(a)(1) (Supp. 1996). Ag gravated burglary is the burglary of a habitation. Tenn. Code Ann. § 39-14-403(a) (1 991). A habitation is any structure adapted for the overnight accommodati on of persons. Tenn. Code Ann. § 39-14- 401(1)(A) (1991).
The appellant argues that the circumstantial evidence is insufficient to allow a jury to ex

clude every reasonabl e theory other than the appell ant’s guilt to explain the aggrav

ated burglary. He c

ontends that no one saw him brea k into the victim’s house, no one saw him in the vict im’s house, and that no one saw him leave the house.
The State may prove a cri minal offense by circumstantial evidence. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). Before a jury may convict a defendant of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant, an d that beyond a reasonable doubt." State v. Crawford , 470 S.W.2d 610, 61 2 (Tenn. 1971). As in-4- the case of direct evidence, the weight to be giv en circumstantial evid ence and “[t]he inferences to be draw n from such evidence, and the ex tent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily

for the jury." Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted).

The state contends that the evidenc e is sufficient to support the conviction. We agree. Most burg laries are not witnes sed. The appellant was caught “red handed” wi th property that had been stol en from Bruni’s home. Bruni testified that his w indow was broken so as to allow entry i nto his home. Bruni saw the appellant ap proximately 100 yar ds from his house minutes after the burglary occurr

ed. Bruni identified the appell ant and his property w ithin an hour of when the burglary could have occurred. Al though the appellant told the police that he had bought the bi ke, he offered no details to support this theory. Finally, in addition to the bike and boom box, the appel lant was in possession of Bruni’s credit cards.
The judgment of the trial court i s affirmed.-5- _____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

____________________________ DAVID H. W ELLES, Judge

____________________________ JOE G. RILEY, Judge