### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

ugust 15, 2001 STATE OF TEN

NESSEE v. AN

THONY S. CA

RIE Direct Appeal from the Criminal Court for Williamson County

No. I-899-275 Timothy L. Easter, Judge

No. M2000-02942-CCA-R3-CD - Filed October 1, 2001

The defendant, Anthony

S. Carie, appeals his bench trial convictions for burglary of a building other than a habitation and theft over $ 1,000. This case presents three issues for our determination: (1) whether the evidence wa

s sufficient to supp

ort t hedefendant's convictions; (2) whether the trial court erred in not exa min ing t he d efen dan t in ope n co urt rega rdi ng hi s ri ght t o te sti fy; and (3) whether the def end ant received effective assistance of counsel at trial. For the reasons set forth be low, we conclude there is no reversible error; therefore, we affirm the judg ment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. John H. Henderson, District Public Def ender; C. Diane Crosier, Assistant District Public Defender (at trial); and C. Edward

Fowlkes, Nashville, Tennessee (on appeal), fo

r the appellant, A

nthony S. Carie. Paul G. Summers, Attorney General and Reporter; La ura McMullen Ford, Assistant Attorney General; Ronald L. Davis, District Attorne y General ; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION On March 21, 1998, the employees of Houdeshell Tire, an auto repair business in B rentwood, Tennessee, arrived at

work to find a break-in had occurred while the business was close

d overnight. Tools belonging to several employees were stolen, some of which were valued at

over $1,000. The apparent point of entry was the bottom left panel of a door to a service bay, which had been damaged. The police conclude d the panel was kicked and then pushed in to allow entry into the-2-

building. The police conducted an investigation

and found a shoe p

rint and five fing

erprints close together on the panel. The fingerprints were later identified as belong ing to the defendant. The proof showed the defendant ha d be en a customer at Houdeshell Tire on at least two oc ca sions prior to the burglary. He had also stopped by the business to visit friends who worked the re. Employee John Reeves, a close friend of the defendant’s, testified for the def ense that the defendant had, once or twice, performed work on his own car in the garage. However, John Stickler, who worked at Houdeshell Tire from 1997 until

1999, testified that only technicians were allowed to work on vehicles and so, to the best of his knowledge, the defendant was not allowed to work on his ve h icle there. Former service manager Christopher Hockin, who worked at the busine ss from 1997 until 1999, testifie

d that, to his knowledge, the defendant did not wor k on vehicl es at the garage prior to the burglary. David Jason Kasinger, another former employee, testified that

he worked at the shop during the time of the burglary and did not

recall the defendant working on vehicles there. After the burglary, the defendant went to work at Houdeshell Tire for two brief periods of time. John Stickler testified that the garage door opened from the inside. Stickler also stated that if it was necessary

to open the door from the outside, one would push up on the center of the door andthen reach underneath the door to push it open. He opined that there would neve

r be a need to open the door by pushi

ng on the damag

ed panel becaus

e the panels, whic

h were not "stur

dy," would p ull o ut if used for lifting the door. Stickler further testified on cross-examination that a person would not need to touch the door from the outside when closing it because there is nothing to “grab on to” on the outside of the door. Stickler also testified that the doors to the service bays were cleaned twice each

month. Hockin testified that no one would ever need to touch the damaged panel in order to open the door from the outside. John Reeves testified for the defenda

nt that, prior to

the burglary, he had observed the defendant a ssisting with the opening and closing of the bay door.
At trial, the defen

dant’s statements

t o the police were read into evidence. In an interview withDetective Thoma

s Campsey, th

e defendant den

ied that he was inv

olved in the crime. He stated that the only knowledge he had of the bur glar y came from his fri

end John Reeves, who

in April 1998, after defenda

nt had accepted

a job at the busines s, advis ed him to lock up his tools at night because there had been a burglary. The def endant told the detective that prior to his employment at Houdeshell

Tire, he had been a

customer in the sho

p on two or three oc

casions. The def

endant also said that during 1998 he had changed his own oil and checked his brakes at the business. Detective Campsey test

ifie d that during the inter view, he could not g

et the defendan

t to specify by date, mon

th, or season the ti

mes he was prese

n t in Houdeshell Tire

before his employment.

The detec tive said the defendant would change the subject by mentioning anothe r occasionwhen he could hav e been present in

the business each

time the detective

would try to pin down the times when the defendant was present in the business. Elizabeth Reid, a forensic

scientist for the T

BI, testifie

d the latent fin

g erprints collected from the panel matched the defendant’s. She further testified that while a fingerprint can l ast ind efi nit ely, e nvironmental factors such as heat and humidity can make it dissipate. She stated tha t if a1 The defendant was also convicted on th ree counts of mi sdemeanor theft ; however, th es e co nvictions were subseque ntly set aside by the trial court as be ing barred by the statute of limita tions. -3- fingerprint

were outside where it was expose d to the elements, it

would be less likely

to remain than if it were inside. Following a bench trial, the defendant was convicted of burglary and theft over $1,000. 1

I. SUFFICIENCY OF THE EVIDENCE The defendant attacks the sufficiency of the state’s proof, claiming that the

evidence aga

inst him consisted solely of circ umstantial evidence; namely, the fingerprints linking him to the scene of the crime. The defendant also argues that the trial court applied an incorrect standar d of proof in considerin

g the circumstantial evidence because the trial judge, acting as the finder of f act at the benchtrial, articulated he had a doubt but questioned whether the doubt was reasonable. He further claims the trial court incorrectly made an inference from an inference when it found, based on the fact that the defendant’s fingerprints were on the panel, that he had committed the burg lary an d theft. Since all these issues raised by the defendant

in his brief relate to whether the state’s proof was legally sufficient to support his convictions, we will address them together. A. Standard of Review Although the evidence of the defendant’s guilt is circumstantial in nature, circum st antial evidencealone may

be sufficient to support a conviction. Statev. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order for this to occur, the circumstantial evidence must be not only

consistent with

the guilt of the accused butit must

also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis

except that of guilt. Tharpe , 726 S.W.2d at 900. In addition, “it must establish such a certainty of guilt of the accused as to convince the mind beyond a rea sonable doubt that [the defendant] is the one who committedthe crime.” Id. (quoting Pruitt v. State , 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)). Whilefollowing the above guidelines, this court must remember that the finder of fact decides the weight to be g iven tocircumstantial evidence and the inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with gu

ilt and inconsistent w

ith innocenceare questions primarily for the finder of fact. Marable v. State , 3 13 S.W.2d 451, 457 (Tenn. 1958); see also Gregory , 862 S.W.2d at 577; State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt , 460 S.W.2d at 391.
In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as a jury verdict. State v. Holder , 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).-4- B. Analysis Viewing the evidence in a light most favorable to the stat e, the de fendant’s fingerprints at the point of entry of the burglary are consistent with the defen d ant’s guilt, inco nsistent with his innocence, and exclude every other reasonable theory or hypothesis except guilt. The state’s proof establishedthat it was unlikely a person would have touched the outside of the bottom left panel of th e doo r to the service bay while opening or shutting the door. One witness a lso testified that the doors to the service bays were cleaned routinely. TBI forensic scientist Elizabeth Reid stated that while fingerprints can remain indefinitely, t hey are less likely to remain if they are outside where they are exposed to the elements. Viewing the evidence in a light most favorab le to the state, the evidence was sufficient to support the finding of guilty. The defendant contends the trial judge failed to apply the proper “beyond a reasonable doubt standard” to the circumstantial evidence presented by the state. The basis for this contention is found in the following r

emarks made by

the trial judge ju

st prior to issuing t

he verdict: It’s interesting every

time I’m put in this position of trying a bench trial, its usu

ally on a close call like this. . . . What it normally requires me to do i

n my own mind is to revi sit the who le t heo ry of proo f beyond a reasonable doubt . . . and what that really means. .

. . Occasionally, in cases like this, I might have a doubt, but ag ain I go back to the theory of, well, is it based on a reason, a rea sonable doubt?”
We disagree with the defendant’s contentions and f ind nothing in the trial court’s comments that indicate the misapplication of the proper standard of proof. The defendant argues the trial court inferred the defendant’s fingerprints were left on the door at the time of the burglary

andthen, based on that inference, improperly inferred that he e ntered the building through the pane l and stole the tools. A fact may be inferred from circumstantial evidence andfrom the fact thus inferred, another fact may be inferred. Benton v. Snyder , 825 S.W.2d 409, 415 (Tenn. 1992). The finder of fact may arrive a t “a fact” by

in direct or circumstantial evidence which is “of such a character and so strong that it justifies a conclusion or a finding of fact which becomes a proper basis for another inference.” Id . The n, t his fact may s erve as a basis for an inference. Id

. In this case, the trial court properly arrived at a fact,that the defenda nt entered the bus

iness, through c ircumstant ial evidence, the defendant’s fingerprints found on the damaged panel of the door. We conclude the tr ial court’s findin

g that the defen

dant committed the b

urglary w as also sufficient to properly support the inference that the defendant c ommitted the theft as well.
For the foregoing

reasons, we con

clude that th

e evidence w as legally sufficient to support the trial court’s

judgments of con

viction. This issue i

s without merit.-5- II. DEFENDA NT’S RIGHT TO TESTI FY The defe nda nt a lso cla ims the tri al c our t er red b y failin g to examine him in open court regarding his de cision not t

o testify. In a decision issued shortly before the defendant’s trial, the TennesseeSupreme Court anno unced requireme

nts to be imp le mented prospecti vely in orde

r to protect the acc

used’s right to te

stify. Our su

preme court state

d:
At any time before c onclus ion of the proof, d efense counsel

shall request a hearing . . . to inquire of the defendant whether the defendant has made a knowing, vol unt ary, and intelligent waiver of the right to testify

. This hearing shall be placed on the record and

shall be in the presence of the trial judge. Defense counsel is not required to engage in any particular litany , but counsel must show at a minimum that the defendant kn

ows and understan

ds that: (1) the defe nda nt h as t he ri ght n ot t o te sti fy, and if the defendant does nottestify, then

the jury (or court) may not draw any inferences from the defe nda nt’ s fa ilu re t o te sti fy; (2) the defendant has the rig ht to testify and that if the defendant wishes to exercise that right, no one can prevent the defendant from testifying; (3) the defendant

has consulted with

his or her counse

l in making the decision whether or not to testify; that the defendant has been

advised o f the ad vantages and disadvantages of testifying ; and that the defe nda nt h as v olu nta ril y and pers ona lly w aiv ed t he ri ght t o te sti fy.
Momon v. State , 18 S.W. 3d 152, 162 (Tenn. 1999). Our supreme court went on to state that the mere failure to follow

these guideline

s will not, in

and of itself, support a claim for the deprivation of the right to te stify where

there is evidenc

e in the record to

establish the def

endant otherwise personally waived the right. Id . at 163.
In the case before

this court, the test

imony of the d

efendant at the m

otion for new tr

ia l hearing estab

lished he persona

lly waived h

is right to testify

. He testified tha

t his attorney

advised him of his righ t to tes tif y, and, after a discussion with her, he decided that he would not testify based upon her advice. This is unlike thesituation in Momon where defense counsel unilaterally decided the defe nda nt w oul d no t te sti fy. Id . Therefore, w e conclude the de

fendant was not de

prived of his right to testify.-6- III. EFFECTIVE ASS

ISTANCE OF COUNSEL
T he defendant also argues that he did not receive effective assistance of c ounsel at trial because his trial counsel (1) failed to object to the int roduction of evidence referencing the defendant’s prior conviction, (2) failed to pro

perly advis

e the defendant

regarding hi

s decision not to testify, and (3) failed to argue the law reg arding the standard of proof required in circumstantial evidence cases. We respectfully disagree

. A. Standard of Review This court reviews a claim of ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W .2d 93 0 (Tenn. 1975), and Strickland v. Washington , 466 U.S. 668, 104 S. Ct

. 2052, 80 L. E d. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance

was deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goadv. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Ten n. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). In ord er to establish pre

judice, the petitio

ner must establish a “reasonable

probability that, but

f or counsel’s unprofessional errors, the result of the proceeding would hav e bee n di ffer ent . A r easo nab le p rob abi lit y is a pro bab ili ty sufficientto undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. B. Analysis At trial, the state

read into evidence a transcript of the defendant’s statement to police. A portion of the statement madereference to a prior criminal conviction. Trial counsel objected to this portion of the statement,

and the trial court sustained the objection. When the state moved to enter the transcript of the statement as an exhibit, trial counsel requested that the portion of the transcript relating to the prior conviction be redacted. The state conceded that portion of the transcript should notbe considered by the trial court, and the trial court specifically stated that it would not consider it. Therefore, trial counsel was not ineffective for failing to ob

ject to the entry

of the transcrip

t into evidence. According to the testimony of the defendant at the motion for new trial hearing, trial counsel advisedhim during trial that if he testified, his prior criminal history could be “brought up.” Therefore, it was her recommendation that he not testify. The defendant said that, based upon her advice, he decided he would not testify. Following this discussion, the state presented th e defendant’s statement into evid ence. The defe

ndant claims

that since the trial court was aware that he had a pri or cr imi nal his tor y, hi s tr ial cou nse l sh oul d ha ve s ugge ste d th at d efen dan t te sti fy. However, as previo usly set forth, the trial court specifically said it would not consider the information contained in the transcript regarding the defendant’s criminal history

. Had the defend ant chosen to t est ify, his prior convictions for burglary of an automobile and theft could have been used-7-

to impeach his

credibility. See Tenn.R. Evid. 609. Therefore, we are unable to conclude that trial counsel was deficient.

Her actions in this regard do not constitute ineffective assistance of counsel. The defendant fina lly contends the trial court applied the incorrect standard of proof regarding circumstantial evidence, and trial counsel was ineffective for failing to argue the appropriate

standard. As pre

viously state

d in this opinion, we do notfind that the trial court applied an incorrect standard of proof to the evidence. Accordingly , trial counsel was not deficient. Defendant has failed to establish his claim of ineffective assistance of counsel.

CONCLUSION Accordingly

, we affirm the ju

dgment of the tri

al court.

_____________________________ JOE G. RILEY, JUDGE