IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2015

STATE OF TENNESSEE v. PATRICIA SMITH

Appeal from the Criminal Court for Shelby County

No. 12-04743 W. Mark Ward, Judge

No. W2014-02106-CCA-R3-CD - Filed June 1, 2015

Appellant, Patricia Smith, was convicted of aggravated burglary, a Class C felony, and 

the trial court sentenced her to three years, suspended to probation after forty-five days in 

confinement. On appeal, appellant argues that there was insufficient evidence to support 

her conviction. Following our review of the parties‟ briefs, the record, and the applicable 

law, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROBERT W. WEDEMEYER, JJ., joined.

Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal) and Jim N. 

Hale, Jr. (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the 

appellant, Patricia Smith.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior 

Counsel; Amy P. Weirich, District Attorney General; and Omar Zia Malik, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

This case concerns appellant‟s entry into a rental property under the guise of 

working for the bank responsible for the property. When the deception was discovered, 

appellant was arrested and indicted for aggravated burglary. Appellant‟s trial began on 

May 27, 2014. 
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I. Facts 

At trial, Hunter Burks testified that on April 7 and 8, 2012, he was in the process 

of moving from a rental home on Colonial Road in Memphis, Tennessee, to a house that 

was located six to eight houses down the road from the rental home. On April 7, he 

arrived at the rental home and noticed an unfamiliar “light grayish silver” Oldsmobile 

Alero parked in the driveway. Mr. Burks noticed that his Nintendo Wii gaming system, 

“shop vac,” and bagged clothing were in the back of the car. When Mr. Burks went 

inside the home, appellant informed Mr. Burks that she had been hired by the bank to 

“clear the property.” Mr. Burks informed appellant that there must have been a mistake 

and that he was authorized to be in the house that day. Mr. Burks told her that he should 

be finished moving that day and requested that she return the items in her car. Appellant 

complied, and Mr. Burks retrieved the items. Appellant told Mr. Burks that he needed to 

be finished moving by dark so that she could begin clearing the property, and appellant 

left. Approximately six hours later, while Mr. Burks was removing some ceiling fans 

that he had purchased, appellant returned and inquired why appellant was taking fixtures 

out of the house. Appellant informed Mr. Burks that the ceiling fans were part of the 

house and could not be removed. Appellant then told Mr. Burks that he would no longer 

be allowed entry into the house and that he would be arrested for trespassing if he 

returned, which Mr. Burks considered “a pretty big red flag . . . that now something 

wasn‟t right.” Mr. Burks continued moving his property, disregarding appellant‟s 

assertion as untrue because he had until April 9 to vacate the property. Appellant 

finished moving about 3:00 or 4:00 a.m. on the morning of April 8. Appellant noticed 

that some more of his property was missing, specifically his 3D glasses for his 3D 

television, some clothing, a sports jacket with a letter from his deceased mother in the 

pocket, a deep freezer, and “a few big items.” Mr. Burks valued the missing property at 

$3000 to $5000. 

Mr. Burks further testified that after he noticed the missing items, he sent a text 

message to Carol Stout, the real estate agent handling the rental property, and requested 

that “the cleaning lady” return the missing items. Ms. Stout responded that she had not 

hired anyone to clear the property. Mr. Burks described appellant, and Ms. Stout 

indicated that such a person had not been hired by her or the bank. Due to this 

conversation, Mr. Burks watched from his new home and saw appellant return to the 

rental property on the morning of April 8. Mr. Burks drove his vehicle to the rental 

property and attempted to block appellant‟s car in the driveway. Appellant exited the 

house and began yelling at Mr. Burks. He informed her that he was calling the police 

because she was trespassing. Appellant got back into her car and exited the driveway 

around Mr. Burks‟ vehicle. Mr. Burks followed appellant in his own vehicle and 

informed the 9-1-1 operator about the situation and appellant‟s location. Shortly 

thereafter, Memphis police officers apprehended appellant. Mr. Burks explained that 
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prior to April 7, 2012, he did not know appellant and that he did not give her permission 

to be inside the house.

During cross-examination, Mr. Burks stated that he only owned one deep freezer 

and that it was stolen. Mr. Burks agreed that while he was moving, the utilities to the 

house were turned off. Mr. Burks testified that he was moving due to a foreclosure on 

the property. Mr. Burks agreed that he did not tell appellant about the foreclosure but 

explained that foreclosures were listed in the Memphis Business Journal. Mr. Burks 

explained that he began noticing that items were missing throughout the process of his 

move and that after carrying items to his new home, he would return to the rental 

property and notice that items had been “shimmied around” and were missing. Mr. Burks 

also noticed that some of the doors were open when he returned to the property even 

though he locked the doors each time he left. Mr. Burks attempted to solve the problem 

by putting bungee cords on the doors at issue. Mr. Burks explained that he noticed the 

missing deep freezer in the early morning hours of April 8 because it was the last item 

that he intended to move. However, when he returned to the rental property, the freezer 

was missing. Mr. Burks asserted that he never had a personal conversation with appellant 

and that he did not ask her to go on a date with him. Mr. Burks estimated that the cost of 

the 3D glasses was $300, that the sports jacket was $500, and that the deep freezer was 

$1000. 

Carol Stout testified that she was employed as a realtor and that she represented 

Regions Bank in the majority of their foreclosures in Memphis because the bank did not 

have an office in Memphis. When the bank informed her of a foreclosure, she notified 

the bank as to the property‟s occupancy status, and once the property was vacated, she 

hired a crew to change the locks, clean the property, make minor repairs, and prepare the 

property for the real estate market. Ms. Stout explained that she had been working with 

the same crew in this capacity for about five years. Ms. Stout recalled Mr. Burks‟ calling 

her about a woman removing his belongings from the rental property. Ms. Stout testified 

that she informed Mr. Burks that no one should be at the property. Ms. Stout explained 

that she was not taking possession of the property until April 9 and that if someone had 

been authorized to come onto the property, she would have sent them, which she did not. 

Ms. Stout did not know appellant, and she did not give appellant permission to enter the 

rental property. 

Robert Brown, an investigator with the Memphis Police Department, testified that 

on April 8, 2012, he was working as a patrol officer. Investigator Brown explained that 

while on patrol, he received a call from dispatch reporting the incident and giving a 

description of appellant. Investigator Brown, along with another officer, stopped 

appellant‟s vehicle, and Mr. Burks informed Investigator Brown that appellant had 

entered his house and was removing property from the home. The officers observed a 

chainsaw and some lawn equipment in the back of appellant‟s car, and in response to 
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questioning, appellant asserted that she worked for the bank and that she was clearing out 

the property. She even provided the officers with the address of the rental property. 

Appellant was arrested and charged with aggravated burglary. 

During cross-examination, Investigator Brown could not recall if Mr. Burks told 

him that some of his property was still missing or if appellant had returned all of the 

items. Investigator Brown stated that he did not think that the chainsaw and other

equipment belonged to Mr. Burks. Following this testimony, the State rested its case-inchief. 

Appellant testified in her own defense and stated on April 7, she drove by a house 

that had garbage on the front sidewalk consisting of clothes, beer bottles, and “junk.” 

Appellant explained that she stopped to see what items were being thrown away because 

she liked looking at what other people threw away and because some people throw away 

“some really good stuff.” Appellant explained that when going through other people‟s 

garbage, she retrieved things that she could sell in a yard sale or that she could give to 

others. While appellant was sorting through the trash bags, Mr. Burks, whom she did not 

know, walked out of the house carrying two garbage bags. Appellant claimed that she 

asked to continue looking through the bags, and Mr. Burks gave her permission. She 

found a “little glass knickknack” that she kept. Appellant stated that Mr. Burks gave her 

permission to enter the home alone so that she could look around to see if there were 

other items that would be good for her yard sales. Upon entering the home, appellant 

noticed that the home had an unpleasant odor, that there were roaches, that there were 

holes in the walls, and that there was a lot of trash. Appellant also noticed the light 

covers, light switches, and ceiling fans had been removed. Appellant testified that she 

did not tell Mr. Burks that she was from the bank, but rather, she told him that her sister 

worked for a real estate attorney and that the bank could “come back on” him if the house 

had been “gutted” or destroyed. Appellant claimed that she became uncomfortable when 

Mr. Burks asked about the location of her home, her marital status, and if she would meet 

him for a drink in the future. Appellant explained that after she repeatedly refused to go 

out with Mr. Burks, his face turned red, and he told her that she could have what items 

remained after he was finished moving. 

Appellant returned to the rental home on April 8 to look through the items left on 

the street at the house. Appellant explained that she had only been at the house for “20 

seconds maybe” when Mr. Burks drove into the driveway so fast that he hit the bumper 

of her car. Mr. Burks exited his vehicle and claimed that she was not allowed on the 

property. Appellant explained that Mr. Burks had been sweating and his face was red 

and that he scared her, so she left the property. Appellant claimed that when she saw that 

Mr. Burks was following her, she drove toward a police station. However, en route, she 

was stopped by officers. Appellant testified that she never told either Mr. Burks or 

Investigator Brown that she worked at a bank. Appellant asserted that she only went to 
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the property one time on April 7 and one time on April 8. Appellant said that she did not 

remove a freezer or any clothing from Mr. Burks‟ home. Appellant also stated that she 

never put a Nintendo Wii or a “shop vac[]” in her car. 

During cross-examination, appellant testified that she was a nurse, that she had not 

attended law school, and that she was not a certified real estate agent; therefore, she had 

no formal training to support her advice to Mr. Burks. Appellant testified that both 

Investigator Brown and Mr. Burks lied in their testimony. Appellant also denied going 

inside the rental house on April 8. 

Rita Trigg testified that she was appellant‟s sister and that on April 8, 2012, 

appellant called her “hysterical” and “crying” because she had been arrested. Appellant 

told Ms. Trigg where the rental house was located, and Ms. Trigg went to the house with 

her camera and took pictures of the house. Some of the pictures that Ms. Trigg took were

entered as exhibits. Most relevant was a picture taken of the back of the house that 

showed a freezer pushed against the back door of the home. Ms. Trigg described the 

property as having a lot of garbage and an overgrown lawn. Ms. Trigg stated that the 

freezer “had stuff in it that was just rancid.” 

During cross-examination, Ms. Trigg agreed that she was not at the property with 

appellant on April 8 and that she did not witness any of the interactions at issue. Ms. 

Trigg also conceded that she had no property rights at the rental property and that she had 

gone into the backyard of the rental property on April 8. 

The jury convicted appellant of aggravated burglary, and the trial court sentenced 

appellant to three years, suspended to probation after forty-five days of confinement.

II. Analysis

On appeal, appellant argues that the evidence was insufficient to support her 

conviction of aggravated burglary. Specifically, she contends that at the time of the 

crime, the rental home was not a habitation under the statute and that Mr. Burks was not a 

credible witness. The State responds that the evidence was sufficient to uphold 

appellant‟s conviction. We agree with the State. 

The standard for appellate review of a claim challenging the sufficiency of the 

State‟s evidence is “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing 

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. 

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient 

evidence, appellant must demonstrate that no reasonable trier of fact could have found the 
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essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 

319. This standard of review is identical whether the conviction is predicated on direct or 

circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370, 

379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “„we afford the prosecution the strongest legitimate view of 

the evidence as well as all reasonable and legitimate inferences which may be drawn 

therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of 

witnesses and the weight and value to be given the evidence, as well as all factual 

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). 

This court presumes that the jury has afforded the State all reasonable inferences from the 

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will 

not substitute our own inferences drawn from the evidence for those drawn by the jury, 

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; 

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). 

Because a jury conviction removes the presumption of innocence that appellant enjoyed 

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts 

from the State to the convicted appellant, who must demonstrate to this court that the 

evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing 

State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

To sustain a conviction for aggravated burglary as charged in the indictment, the 

State must prove beyond a reasonable doubt that appellant entered a habitation without 

the effective consent of the property owner and with the intent to commit theft. Tenn. 

Code Ann. § 39-14-402, -403. “As used in this section, „enter‟ means . . . [i]ntrusion of 

any part of the body[] or [i]ntrusion of any object in physical contact with the body or 

any object controlled by remote control, electronic or otherwise.” Id. § 39-14-402(b).

Burglary can be proven through direct or circumstantial evidence. See State v. Holland, 

860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). 

There was sufficient evidence to support appellant‟s conviction. The evidence, 

viewed in the light most favorable to the State, showed that on April 7, 2012, appellant 

went inside the rental home and began removing Mr. Burks‟ items, initially putting Mr. 

Burks‟ Nintendo Wii, “shop vac,” and bagged clothing in the back of her car, although 

these items were later returned. Mr. Burks also noticed that more of his property was 

missing on the morning of April 8. Appellant told both Mr. Burks and Investigator 

Brown that she worked for the bank; however, Ms. Stout, who was responsible for the 

property and who represented the bank, testified that she did not know appellant and had 
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not hired appellant to clear the property. Neither Mr. Burks nor Ms. Stout consented to 

appellant‟s entering the property. 

Appellant argues that the rental property was no longer a habitation pursuant to 

Tennessee Code Annotated section 39-14-403(a) because Mr. Burks no longer lived at 

the residence and because the residence was uninhabitable. She claims that the

“[c]abinets had been ripped out in the kitchen, trash was everywhere, and the utilities had 

been turned off.” However, a habitation is defined, in relevant part, as “any structure, 

including buildings, module units, mobile homes, trailers, and tents, which is designed or 

adapted for the overnight accommodation of persons.” Id. § 39-14-401(a)(1). A house 

does not need to be occupied to be a habitation. See State v. Langford, 994 S.W.2d 126, 

128 (Tenn. 1999). Furthermore, a house is still a habitation even if it is in disarray and in 

need of structural repairs. See State v. Dwayne Tyrone Simmons, No. M2004-01105-

CCA-R3-CD, 2005 WL 1931409, at *3 (Tenn. Crim. App. Aug. 10, 2005). Although the 

rental property may have been in a state of disrepair, it was still “designed or adapted” for 

individuals to stay overnight inside the house and had served as a rental property until 

Mr. Burks vacated it. The structure in question met the applicable statutory definition of

a habitation; therefore, appellant‟s argument in this regard is unavailing. 

Appellant also argues that Mr. Burks was not a credible witness because he 

testified that appellant took his freezer; however, the freezer, as depicted in the 

photograph taken by Ms. Trigg, was still located on the rental property at the back of the 

house. This argument is also unavailing because in a jury trial, questions involving the 

credibility of witnesses and the weight and value to be given the evidence, as well as all 

factual disputes raised by the evidence, are resolved by the jury as the trier of fact. Bland, 

958 S.W.2d at 659; Pruett, 788 S.W.2d at 561. We will not re-evaluate issues of 

credibility on appeal. Appellant is not entitled to relief. 

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we affirm the 

judgment of the trial court.

_________________________________ 

ROGER A. PAGE, JUDGE