# FILED
December 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9712-CC-00572 Appellee, ) ) Bedford County v. ) ) Honorable Charl es Lee, Judge JOHN WILLIE STONE, ) ) (Aggravated Burg lary; Theft over $1,000) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Andrew Jackson Dearin g, III John Knox Walkup P. O. Box 761 Attorney General & Repor ter Shelbyville, TN 37162 425 Fifth Avenue North Nashville, TN 37243-0493 Daryl J. Brand Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Willi am M. McCown District Attorney General 215 East College Fayetteville, TN 37

334-0878 Robert G. Crigler Assistant District A

ttorney General 215 East College Fayetteville, TN 37

334-0878

OPINION FILED: ____________________________

_____ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE 

### OPINION2 The appellant, John Willie Stone, referred herei n as the defendant, appeals as of right from a judgment entered bythe Bedford County Criminal Court as a result of a jury finding him guilty of aggr avated bu rglary and theft of property over $1,00 0. Following a sentencing hearing, the tria l court imposed Range II sentenc es of ten years for the aggravatedburglary and eight years for the theft convi ction to be served concur rently in the Departmentof Correction. These sentences were ordered to run con secutively to Bedford County Circuit Cause No. 12810.The defendant raises three issues for appe llate revie w:

1. Whether the evidence adduced at trial was sufficient

as a matter of law to

sustain the verdict of guilty beyond a reasonable doubt for th e c onviction of aggrav ated burglary and theft of propert y over $1,000. 2. Whether the trial court erred in denying the defendant’s mo tion for judgment of acquittal at th e close of th e state’s proof. 3. Whether the trial court erred in allowing the defendant’s statement to be introduced in tr ial numbers 2 and 3.
After a review of

the entire record, briefs of all partie s, and th e applica ble law, we affirm the trial court’s judg ment.

BACKGROUND

In Cause No. 13992, the Bedford County grand jury in d icted the defendant and Alexander

Guy Lester for

the aggravated burg lary of the residence of Keith White on July 19, 1996 and for the theft of a Quasar color TV, Quasar VCR, and assorted jewelryover the value $1,000. The defendant, alone, went to trial on Decembe r 13, 1996, which resulted in a hung jury. In a second trial on June 24, 1997, th e jury could not reach a n agreementon the accusations against the defendant. After a third jury trial

on August 12, 1997, the defendant was found guilty of aggravated burglary and theft of property. Since the defendant alleges an insufficiency of evidence error, w

e set forth the salient f acts conside red by the j ury.3 Donald Keith White and wife, Angela White, livedat 998 Old Nashville Dirt Road in Bedford County. Both Mr. and M rs. Whi te worke d afternoon shifts. On July 19, 1 996 at 1 :15 a. m., Mr. White arrived home from work and discovered his home had been burglarized. A TV, VCR, satellite receiver, and several pieces of jewelry were missing. Mr. Whi te found a rear window br oken out and called the sheriff’s dep artment. The victi m estimated the value of the TV, VCR, receiver, and assorted jewelry to be well over $1,000. The burglary occurr

ed between 2:30 p.m. on July 18, 1996 and 1:00 a.m. on July 19, 1996.

Mrs. Angela White arrived home from work at approxi mately 1:00 a.m. on July 19, 1996 and noticed all the lights we re on in the house. Mrs. White found a rear window had been broken. The house had been ransacked, and a TV, VCR, sate llite rece iver, jewelr y, and a bedsheet were missing. Mrs. W hite gave Deputy She riff George C. Marsh a list of the stolen property. Later that day, thesheriff’s de partment returned the TV, a remote control, the receiver, and one bedsheet to the W hites.

The deposition of JamesEwing Rhode s was read t o the jury. In his deposition, Mr. Rhodes testified he was the ow ner of Blanton Wrecker Service, and he received a phone call in the early morning hours of July 19, 1996 fromAlex Lester. Lester i nformed Rhodes that he had had an accident at a bridg e at the L. Bethel and Old Nashv ille Dirt Road intersection. As Rhodes was driving to th e accident site, he observed a man walking, alone approximately one mile from the site. The man did not have on a shirt. Rhodes could not identify the man. Rhodes tow ed Lester’s car to his s

torage lot. About 4:00 a.m., law enforcement officers arrived wi th a search warrant to

search the car. Rhodes di d not see a TV or any jewelr

y in the car.

The c o-defendant and accomplice, Alexander Guy Lester, testif ied for the st ate
. Lester testified he met the defendant at Grable V an Lines where they both worked. Lester and the defendant becam e friends and usually had beer together after work. On the day in question, both men got off work at 3:00 p.m. and began drinking beer. Between 3:00 p.m. on July 18 and 4:00 a.m. on July 19, Lester and the defendant each drank a twelv e-4

pack. After

going to Murfreesboro, Lester and the defendant returned to Bedford County and turned onto Old Nashvil le Dirt Road. Because they had run out o f money, the defendant suggested they rob a house. Lester dropped the defendant off at a house and then proceeded to drive up and dow n the road. U pon Lest er’s return, he did not see the defendant so he pulled into the drive way adjacent to the house.Lester went to the back door and knocked. The defendant let Lester inside.

Lester testified he took

the TV and VCR and placed them on the back steps. The defendant got the satellite recei ver and put it beside the back door. While the defendant
was in the bedroom, Lester put the TV and VCR in th e trunk of his car. The defendant
came out with the satellit e receiver

and they both left. Because Lester was dri ving too fast, without headlights, he missed a corner and slid down into a creek. Both men struck their foreheads on the windshield. The defendant left on foot, and Lester walk ed to a nearby house and called for a wrecker. However, the police arrived fir st and arrested him for DUI. After being questioned by the sheriff’s department, Lester admit ted he and the defendant “robbed the house.” Lester denied entering into any ty pe of deal with the police w hen he
was questioned. Le ster testified he pled gu ilty to DUI and aggravated burglary and received a 120-day jail sentence and four years probat ion. While Lester and the defendant
were riding around drinking, Lester stole some fishing ro ds and reels in Coffee County while the defendant was asleep. These theft charges were dis missed as part of Lester’s plea agreement. After the accid ent, Lester threw the “s tuff” from his car into the creek.

Dale Elliott, chief

deputy sheriff for Bedford County,testified a man found a satellite receiver at the site of an accident and brought it to the sheriff’s department. Chief Deputy Elliott went to the accident sit e where hefound a 19-inc h Quasar TV

in the water. Deputy Elliott returned to search the sit e the fol lowing morn ing, but d id not fi nd any jewe lry. Deput y Ell iott determined the recovered property came from the burglary of the W hites’ residence.

Robert Filer, detective se rgeantwith thesheriff’s department, testified he as sisted5

Deputy Elliott in recover

ing a Quasar TV at t he wreck site. Sergeant Filer obtaine d a search warrant for the

vehicle of Alex Lester. During the search, Sergeant Fil er recovered
a Quasar remote control and a uni que patterned bedsheet from the car’s floorboard. No jewelry was found.

After a search of Lester’s car, Detective D avid Adam s, accompanied by other officers, went to Lester’s home. Detective Adams advised Lester of his r ights and Lester confessed his part in the burglar y. Lester implicated th e defendant in the bur glary. Detective Adams told Lester if he co operated with the officers, they would inform the district attorney’s

office of his cooperation.

Steve Elliott, captain detective with the sheriff’s department,testified he interview ed the defendant. The defendant admitted being with Alex Lester on July 18 and 19. They had been riding around drink ing, including goi ng to Murfreesboro and back. The defendant admitted they had been in an accident an d he left walking, not w anting toget into trouble. The def endant d enied an y knowledge of a burgl ary.
The defendant elected not to testify or offer any proof.

LEGAL ANALYSIS

Since the defendant complains the evide nce is ins ufficient to sustain a verdic t of guilty of aggr avated burgla ry and theft of property and that the tri al court erred in denying his motion for

a judgment of acquittal at the conclusion of the state’s proo f, we will address both issues.

When reviewing a tr

ial court’s judgment, the appellate court will not disturb a verdict of guilty unless the facts in the record and inferences w hich may be drawn from it are sufficient as a matt

er of law for a rational tr

ier of f act to f ind the defendant guilty bey ond
a reasonable doubt. Tenn. R. App. P. 13 (e ); State v. Tuggle, 639 S.W.2d 913 (Tenn.6

1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Initially, a defendant is cloaked with the presumpt ion of innoc ence. Tuggl e, 639 S.W.2d at 914. However, a juryconviction removes the presumption of innocence and replaces it w ith one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. Id. In determining the sufficiency of evidence, this Court does notreweigh
or reevalu a te the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the s trongest legitimate

view of theevidence and all legitimateor reas

onable i nfe rences whic h may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the con viction if the evidence viewed under these st andards was

suffici ent for a ny rationa l trier of fact to h ave found the essential elements of the offense bey on d a r easonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 19 94). This rule is ap plicable to fin dings of guilt predicated upon the direct evidence, circumstantia l evide nce, or a combination of both direc t and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Cri m. App. 1990).

As part of his argument, the defendant cont ends the record is devoi d of any evidence establis hing his co mplicity in the bur glary and the proof fails t o meet the corroboration of the accomplice, Alex Leste r. First, we addr es s the sufficiency of the corroboratingevidence of the accomplice. A conviction may not be ba sed solely upon the uncorroborated testimony of an accompli ce. St ate v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997). In St ate v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994), our supreme court reit erated t he rule re lating to c orrobora tion of a ccomplic e testim ony:

There must be some fact testified to, entir ely ind ependent of the accomplice’s testimony,which, taken by its elf, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corrobor ative testimony must also include some fact establishing the defendant’s identity. This c orrobora tive evidence may be direct or entirely circumstantial, and it need not be a dequa te, in and of itself, to support a conviction; it is s ufficient to meet the requirements of the r ule if it fairly and legitimately tends to connect the defendant wi th the commission of the crime charg ed.7

Id. at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992).

The c or roboration is sufficient “if this evidence, of itself, tends to connect the defendant with the commissionof the offense, although the evidence be slight and entitled, when standing alone, to little consideration.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995). Furthermore, the jury is to determine the degree of evidence necessary to corroboratethe testimony of an accomplice. State v. Chris Billingsley, No. 01C01-9506- CC-00166, 1996 LEXIS 304 (Tenn. C rim. App., Nashville,May 16, 1996).

Fro m the facts in this record, there is sufficient evidence to c orroborate the testimony

of Alex Lester. The proo f amply reflect

s an agg ravated burgl ary and theft occurred at the Whites’ home. A TV, VCR, satellite receiver, jewelry, and a bedsheet were taken. The sheriff’s office corroborated the accomplice ’s statementsby finding the TV in the creek water. James R hodes, the tow truck dri ver, corroborated the defendant’ s statement he was walking from the scene of the accomplice’s ac cident. The sheriff found the Qu asar remote control and a bedsheet taken from the victim’s bedr oom in th e accomplice’s car. The defendant, through his st atement, admitted be ing with the
accom plice at or about the time of the burglary, but denied any involvement. There is sufficient corroborating evi dence of the accomplice’s testimony to support thedefendant’s convictions.

We further find the trial court did no t err in de nying the defendant’s motion for a judgmentof acquittal. At the close of the state’s proof, the defendant request ed a motion forjudgment of acquittal. The tri al court denied the motion on the basis the proof was an obvious jury ques

tion and the state met the slig ht corroboration burden. At thepoint the motion is made, the trial court must favor the state with the strongest legiti mate view of the evidence, i ncluding all reasonable inferences, and discard any countervailing ev idence. State v. Anderson, 880 S.W.2d 720 (Te nn. Crim. App.) per. app. denied (Tenn. 1994). There is no merit to this is sue.8 The defendant complains the trial cour t was in error for per

mitting the sta te to introduce his written statement i n the third trial. Apparentl y, in the first trial , the state failed to disclose a statement made by the d efendan t to Captain Steve Elli ott and the state elected not to introduce this statement . In the th ird tri al, Captain Steve Elli ott testified regarding what the defendant stated about being with the accomplice on the night of July 18 and the early morning ho urs of July 19. However, afte r a thorough review of the record , the defendant made no objection to Captain El liott’s testimony regarding the substance of the defendant’s statement in this trial. Since the defendant raised this issue in his motion for a new trial, we will address this issue.

We believe the defendant’s reliance on State v. West, 825 S.W.2d 695, 696 (Tenn. Crim. App. 1992) is misplaced. In West, the state failed to disclose a factual witn ess to a homicide upon a demand for discovery of all state witnesses. Sinc e discovery rules

were not followed, the conviction was reversed. However, in this ca se, th e defendant was on notice, through the two remai ning trials, that the state w ould seek to introduce the defendant’s statement. The defendant has failed to cite any case law restricting the use of such evidence in a retr ial where the defendant is on notic e the state has such evidence. We believe th e unobjected admission of this stateme nt at the defendant’s third trial w as proper. There is no merit to this issue.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

___________________________________ PAUL G. SUMMERS, JUD GE

___________________________________ JOE G. RILEY, JUDGE9