# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9802- CC-00039 ) Appellee, ) ) HENRY COUNTY V. ) ) ) HON. J ULIA N P. GUI NN, JU DGE JERRY WAYNE PA

TTERSON, )

) Appe llant. ) (BURG LARY)

FOR THE APPELLANT : FOR THE APPELLEE : GUY T. WILKI NSON JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter W. JEF FREY FAGAN CLINTON J.MORGAN Assistant Public Defender Assistant Attorney General 117 North Forrest

Avenue 2nd Floor, Cordel l Hull Bui lding Camden, TN 38320-0663 425 Fifth Avenu e North Nashvill e, TN 37243 G. ROBERT RA DFORD District Attorn ey Ge neral STEVEN L. GARRETT Assistant Distri ct Attorney General P.O. Box 94 Paris, TN 38242

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION
Jerry Wayne Patterson, the Defendant, appeal s as of right from his convicti ons in the He nry Cou nty Circuit C ourt. Followinga jury t rial, Defendant was found guilty

of the off

enses of burgl ary, cri minal attempt to commit burgl ary, and theft of property less than f ive hundred dollars ($500.00). Defendant’s o nly issue on appeal is whether

the evide nce wa s sufficient to justify a rationaltrier of fact finding guilt of these offenses beyond a reaso nable d oubt. We affirm the judgment of the trial court.

When an accused chall enges the suffic iency of t he convicti ng evidence, t he standard is wh ether, after reviewi ng the evidence in the l ight most favorable to the prosecution , any rati onal tri er of fact could have fou nd the essenti al elements of the crime b eyond a reason able do ubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979). Questions concerning t he credibi lity of the wit nesses, the wei ght and v alue to be given the evidence, as well as al l factua l issues r aised by the evidence, ar e resolved by the trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cri m. App.), perm . to appeal denied , id . (Tenn. 198 7). Nor ma y this court reweigh
or reevalua te the evide nce. State v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978 ).

A jury verdict ap proved b y the trial judg e accre dits the State’s witnesses and resolvesall conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). O n appe al, the State is entitled to the strongest legit imate view of the evidence and a ll inference s therefro m. Cabbage , 571 S.W.2d at 835. Because a verdict of guilt r

emoves the presumpti on of innocence and replaces i t with a presumption of guilt, the accused has t he burden in t his court of il lustrat ing why the-3-

e vide nce is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W .2d at 476
. George Edwin Wofford test ified t hat he is t he o wne r and propri etor of W offord’s Nursery in Paris , Ten ness ee. W offord’s Nursery is located at 1414 East W ood, appr oxima tely two (2) bloc ks from the Av alon M otel. O rdinar ily, W offord’s employees arri ved at wor k between the hour s of 7:00 and 7: 30 a.m., al though Wo fford did receive del iveri es of stone during the early morning hours f rom overnight trucks from Ar kansa s. On Ju ne 9, 19 97, s tone was d eliver ed by the Steve ns Company t o the nursery. Wofford was called t o the nursery

between the hours

of 4:00 and 5:00 a.m . becau se the ala rm had gone o ff. The truck driver from Stevens Comp any was the re when W offord arrived at the nu rsery.
Upon his arrival, Wofford discoveredthat the ba ck door to hi s office, a metal clad door, was completely torn open . A filing c abine t was k ept ne xt to his d esk in thatoffice, and the fi ling cabi net typi cally had money in it. Wofford recall ed that the Defendant had worked as his em ployee appro ximate ly nine (9 ) mon ths prio r to this incident, and that Defendant would have had knowl edge thatmon ey was kept in that fili ng cabinet. On this p articular nig ht, Wofford thought t hat there was a money bag of change from the Coke mac hine in the filing cabin et, but c ould n ot reca ll for sure. Wo fford could not tell that anything was mi ssing from the nurs ery, but the entire door and door frame to hi s office had to be repl aced.
Rayford Anthon y Caldw ell, the cod efenda nt, testified that he had been f riends with the Defendant for the past t wo (2) years. On Ju n e 9, 1997, he and t he Defendant rented a room with a woman at t he Avalon Motel . The woman had earlier-4-

passed out after

theyhad all been drinking. Caldwell and Defendant then discuss ed taking a truck duri ng the early morning hours of

June 9, 1997. In order to b reak into the tr uck , Ca ldwelland theDef enda nt cont emp late d on how to get a scr ewdriver which theycould inser t in the steering colum n and tu rn into the k ey hole. T hey left
on foot f rom the Avalon Motellooking for a servi ce stati on. While en route, the y passed by Wofford’s Nurser y where the Defendant had been an employ e e. They decided to walk arou nd the back of t he nursery, but they r an into a t ruck driv

er and had to speak to him alth ough C aldwell co uld not r ecal l the en tire exte nt of the ir conversati on. Caldw ell admi tted that they represented themselves to the t ruck driver as employees of t he nursery. They left the truck driver a nd continued to go around the back of the bui lding where t hey stopped at t he back door a nd bo th kicke d it once or twice. C aldwe ll stated th at nothing happened and they left. The alarm was not set off at

that ti me.

Defen dant an d Caldw ell left and continued to walk towards Melton’s service station. They “messed with” a window at t he side of t he buildi ng tryi ng to enter t he buildi ng. Wh en they w ere uns uccess ful, they walk ed to the front of the buil ding and Defendant broke out a w indow with a p iece o f meta l. They b oth entered the bui lding, where they saw toolboxes, cars and a Harley Davi dson motorcycl e. Caldwe ll
reme mbered “how prett y it [ the motorcycl e] was and how much [he] wanted i t. ” Cald well raised theback door and pushed i t out, but he did not

know whe re the Defendant was at that time. C aldwell did not take a ny mone y f rom Melton’ s. He pushed the mo torcycle to th e road, d ropped it, then pu shed it ba ck to the park ing lot, sat down o n it, cranke d it and the n drove it aw ay. Before driving it away, h e heard
an alarm s ound fro m the d irection of W offord’s N ursery. C aldwell th ought the Defen dant ha d been gone fo r approxim ately fifteen (1 5) minu tes.-5- After the alarm sounded, hedrove back toward the Av alon, p assin g W offord’s Nursery where he spotted a ci ty poli ce car. He pull ed around back of t he motel and shut the motorcycl e off. As he was tryi ng to hide t he motorcycle, it fel l on top of h im and the Defendant ar rived i n time to hel p him. The police o fficer h ad followed C aldwe ll to the motel. Caldwellwas taken into police custody by the Paris P olic e Depa rtment. On the way to the policedepartment, Cal dwell saw t he truck driver they had earlier

seen at Wofford’s Nur sery. Cald well ple d g uilty to the off enses of attempted burglary, theft of propert y, and burgl ary and was serv ing his sentence at the tim e of the Defe ndan t’s trial.

On cross- e xamination, C aldwell adm itted that he had g iven a contradictory statementto the Paris police o fficers the m orning followin g his arrest. He read it to the jury as fol lows: I never went i nto Wofford’s Nurser y. I cr awled t hroug h a broken window in the front of

the store at Melton’ s Service Center. The window was alread y broke n. I did not brea k it. I walked around for a minute or two, and then I saw t he motorc ycle. I fli pped a chrome switch, it started and I drove it to the motel. I was ve ry dru nk. I need help. I walked from the m otel to Melton’s Se rvice Center.

Robert F. Sha nkle, m anag er of M elton’s Service Cen ter, was ca lled down to his station during the early morning hours of June 9, 1997. Melton’s ServiceCenter is in the gener

al vici nity of

Wofford’s Nursery , on the same side of the street wi th an optom etrist’s office in betwe en the two. W hen S hank le arrive d, a m otorcy cle t hey
were storing t here was gone and the dr awers in the office h ad be en ran sacked. Some money was missing fr om the cash drawe r which was lyin g in the middle of the floor. The va lue of the m oto rcycle w as approxim ately $12,000.0 0. A set of tire tracks wi th a s et of foot steps on each si de were found ins ide, wit h additi onal-6-

footprints from one side of the shop into the other. The file ca bine t drawers ha d been pulled open, with the desk drawers opened and rifled through. Shankl e kept
a zippered bank bag with hi s bank deposit f or the next day i n the drawers, and the zippered bag had been opened and an envel ope with checks an d some cash had been taken ou t. Approximatel y $100.00 was tak en from Melton’s. Entry was made into the business through a broken out window on the front bay door of the westend of the build ing.

Robert Doug las Futre ll, shift sergea nt with the Paris Police D epartm ent, saw the Defendant and Caldwel l together just af ter midnight

on June 9, 1997. They were standing at Patrio t’s Corn er, app roxim ately fou r (4) blo cks w est of th e Ava lon Mo tel. He later res pond ed to a burgla ry call at a pprox imate ly 4:13 a .m. at W offord’s Nursery. Wh en he a rrived, Futr el l saw a semi truck in the r ear of the bui lding and he interv iewed the driver. Futr ell was advi sed by the drive r to search for empl oyees of the nursery a nd was given a description of t he two (2) subjects. Fut rell also learned that a deputy spotted t wo (2) subjects in f ront of Wofford’s Nurser y approxim ately ten (10 ) minute s prior to the alarm g oing off.

After ten (10) minu tes, Futrell observed Caldwell dri ving d own the street on a motorcycle. As soon as he saw Caldwell , Futrel l went to h is patr ol car and followedhim to theAvalon Motel. When he pulled into the parkin g lot, he turned his lights out because he knew Defendant and Cal dwellwere stayin g ther e. AsFutrell rounded the buildin g, he o bserv ed Ca ldwell and the Defendant attempting to push the motorcycle ar

ound the buil ding into an alcove. They were standing no more t han thirty (30) to fifty (50) feet from the entra nce to their motelroom. The Defendant was fully clothed.-7- Futre ll jum p ed out of th e car and both Caldwel l and Defendant dr opped the
mo torcycle and ran for t heir room, Number 48. Futrellwas able to gr ab hold of Ca ldwel l, so he handcuffed hi m and took Caldwellinto custody. By that time, Defendant had gone into Room Numbe r 48. Offi cer Cagle arr ived and they approached the door to Room Number 48, t hen knoc ked. Defendant ca me to the door nake d, ask ing “wh at the h ell we wanted, he hadn’ t done anythi ng and he had j ust been in his room having sex with the lady that was laying o n the bed.” Futrel l observed the woman lying on the bed, and she appear ed to have passed out due to intoxi cation. They could not r ouse her, so t hey had to callan ambulance. They then too k Defen dant into c ustody.

On their way

to the pol ice stat ion, they transported Caldwell and Defendant back d own to W offord’s for th e truck drive r to identify.
Gary Thom as Cag le, corpora l with the Pa ris Police D epartm ent, was on patrol during the early morning h ours of June 9, 1997. He identif ied a clear plasti c bag which he took possessi on of from the r oom occupied by Caldwel l and the Defendant thatnight. He found it o n a night st and near the head of the bed, wi th a totalof $119.5 0 inside.

Earlier thatevening, Cagl e observed the Defendant and Caldwell t ogether at Patriot ’s Corner j ust after midnight. Thereafter, between 3:30 to 4:30 a.m. hesaw the dama ge at W offord’s N ursery. H e then w ent to Ava lon Mote l in an atte mpt t o apprehend Caldwell. When he arrived, Futr ell advi sed him that Defend ant had run in to the motelroom. Caldwellwas already i n custodyat that t ime. They then went-8-

together and kn ocked on the motel door, and Defendant answered t he door nude.

Defendant argue s that th e only perso n who can p lace h im at eithe r W offord’s Nursery or Me lton’s Service Cente r is the co-def

endant , Ray

ford Cald well . He further allegesthat Caldwel l’s testimonyfails to place the De fendant at the n ursery at the time o f the alarm . A defen dant, of c o urse, cannot be convictedupon the uncorroborated testimon y of an ac comp lice. Sher ril l v. State , 204 Tenn. 427, 321 S.W.2d 811, 814-15 (Tenn. 1959). The generalrule is that there must be some fact testif ied to entirely

independent of accomplice testimony whi ch, taken by itself , leads to an infe rence not onl y that a crime has been committed but t hat the defen dant is implicated in that crim e. State v. Fowler , 213 Tenn. 239, 373 S. W.2d 460, 463 (Tenn. 1963). Only s li ght circu mstances, however, are requir ed to furni sh the
necessa ry corrobora tion. Garton v. State , 206 Tenn. 79, 332 S. W.2d 169, 175 (Tenn. 19 60) (citations om itted).

Defendant was convicted of crimi nal attempt based upon Defe ndan t’s attempt to com mit bu rglary a t W offord’s Nurs ery. Th is offense i s committed when a person acts with the kind of culpa bility otherwise required for the offense to com mit burglary and acts wit h the inte nt to complete a course of action or cause a result thatwould constitute the offense, under the ci rcumstances s urroun ding the conduct as the person believes them to be, and the conduct constitutes a substantial step tow ard the commission of t he offense. Tenn. Code Ann. § 39-12-101 (a)(3). Caldw ell testif ied that he and t he Defendant approached Woffor d’s Nursery and ran into a truckdriver as the y attemp ted to go to the b ack o f the bu ilding. F rom C aldwe ll’s testimony, the two w ere in sea rch of som e tools so th at they could steal a truck. T he y spoke to a truck driver who was there and rep resented themsel ves to be-9-

employees of Wofford’s Nurser y, then cont inued t owards the back of the buil ding. Cald well stated th at each ofthem attem pted to kick in the ba ck door of the n ursery, but that they w ere una ble to com plete the a ct. However, George Wofford, the owner of the nursery , testified that the back door a nd its fra me w ere co mple tely torn open. Othercircumstantial ev idence corroborating the testimony of Caldwell was the t ruck driver’s identificatio n of the Defendant to the police as one of the t wo (2) subject

s he had seen at W offord’s nursery rep resenting him self as an em ployee of that nurs ery.

Defe ndan t’s second co nviction, burglary, was based upon the acts committed at Melton’s Service Center. A pe rson com mits burglary wh o, without the effective consent of the property ow ner, enters a building other tha n a hab itation not o pen to the public , with the intent to com mit a felony, the ft or assau lt. Tenn. C ode An n. § 39- 14-402(a)(1 ). Caldwe ll testi fied th at he and the Defendant looked for

an open window to enter t he stati on, and when they could not f ind one that Defendantbroke the window. Both entered the stat ion. Caldwel l became o bsesse d with a Harl ey D avidson motorcycle and left by himself wi th it. Testimony fr om Robert Sha nkl e demonstrated that drawers and fil es h ad been ransacked, wi th an amount of appro ximate ly $100.00 taken from th e statio n. Offi cer Cagle test ifiedthat he fou nd
a bag in D efenda nt’s mote l room containing $1 19.50. Two sets of footprints were found inside t he stati on , ve rifyi ng the presence of two intruders, Caldwel l and the Defen dant. Both Cagle and Shankle’ s testi mony corroborate Caldwell’ s testi mony of Defenda nt’s involvemen t in the burglary.

Defendant was convicted of the of fense oftheft of prop erty less than $500. 00. Theft of pro perty i s committed when a person, wi th the intent t o deprive t he owner of property, know ingly obtains or exerc ises control over t he pr operty wi thout the-10-

owne r’s effective co nsent. Tenn . Code Ann. § 3 9-14-10 3. He wa s indicted for theft
over$10,00 0.00 alleg ing theft of b ot h money and a 1976 Harley Davi dson motorcycle. The only proof of Defendant’ s involv ement in the act ual theft of the moto rcycle was testimony that two (2)sets of footpri nts were s een where the moto rcycle was rolledout of the station, and thatthe Defendant was di scovered by the police at

the Avalon Mote l assist ing Caldwellin attempt ing to hide the m otorcy cle behind the motel. However, the t heft the j ury found Defen dant gu ilty of was the ft of
an amoun t of property less than $500.00. R obert Shankle test ified t hat an amount of approximatel y $100.00 was missi ng from the station. Defendant was found i n the motel room with a bag containing $119. 50 lying on a night stand near the bed. There was no proof that co-defendant Cal dwell was i n the motel ro om followi ng the
com miss io n of the cr ime prior to his arrest . The strongest legiti mate view of t he evidence and the reasonabl e i nference t herefrom is t hat the Defendant took the money from M elton’s and th en too k it inside hi s motel room where it was l ater found by the po lice. Th e State is entitle d to this inference, and we willnot reevaluate the evidence. See Cabbage , 571 S .W .2d at 8 35. In a ddition , the circ ums tance s in which the money was found in the motel room corroborates Defendant’s p artici pation in the burglary of Me lton’s Service Ce nter.

The requirements of

the corrobo ration ru le are met “if there is some other evidence fairly

tending to connectthe defendant to the commissi on of the crime, so thathis con viction w ill not rest entirely upon the evidence o f the accom plice.” Dykes
v. State , 589 S.W .2d 384, 389 (Tenn. Crim . App. 1979 ) ( citing Stanley v. S tate , 189 Ten n. 110, 222 S .W.2d 384, 386 (19 49)). There w as sufficient evi denc e corroborat ing the three (3) offenses forwhich Defendant was convi cted by which a rationaltrier

of fact could have fou nd Defendant guilty beyond areason able do ubt.-11- We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge