# FILED

Au gust 8, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON APRIL 1997 SESSI ON

STATE OF TENNESSEE, ) No. 02C01-9612- CC-00481 ) Appellee ) ) MCNA IRY C OUNTY V. ) ) HON. JON KERRY BLACKW OOD, JIMMY RAY CORNE LIUS, ) JUDGE ) Appellant. ) (Burg lary) ) ) For the Appell ant: For the Appell ee: Gary F. Antrican John Knox Walkup Distric t Public Defender Attorney Gen eral and Repor ter P.O. Box 700 Somervill e, TN 38068 Kenneth W. Rucker (At trial) Assistant Att orney Gener al 450 James Roberts on Parkway C. Michael Robbins Nashvil le, TN 37243-0493 202 S. Maple Str

eet Suite C Coving ton, TN 38019 Elizabeth T. Rice (On appeal) Distric t Attorney General Ed Neal McD aniel Assistant D istrict A

ttorney 300 Indu stria l Park Drive Selmer, TN 38375

OPINION FILE D: ___________________

AFFIRMED
W illiam M. B arker, Ju dge2 OPINION
The appellant, Ji mmy Ray C ornelius, appea ls as of rig ht his conv iction of burglary in the McN airy Co unty Circuit Court. He was sentenced to two years i n the Department of Corr

ection as a Ra nge I standar d offender. On appeal, appell ant challeng es the sufficiency of the convic

ting evi dence. After a complete review of the record, we find the evide nce adequate to s ustain the convicti on. Therefore, the j udgment of the tri al court is affirmed. On November 15, 1995, Jerry Kellough was employed by a vending company which distributed Tom’s snack foo ds in the McNairy County area. At the end of his work day , he returned to the warehous e on Highway 22 in M ichie, w here the merchandise was stored. Upon arrival, he noticed that a rear door of the warehouse had been removed. The door appeared to have been kic ked down; both the wood frame and the door were on the floor. As Kelloug h entered the buil ding, he noti ced the interior

in disarr ay. Soft dri nk cans, candy , and other items were str ewn on the floor. The contents of an office desk had also been thrown o n the floor. In addi tion, a Pepsi machine had been pried open and i ts coin box removed. When Kellough had departed the warehouse that morni ng, ever ything w as in order. Upon further ins pection, he dis covered a man, whom he identi fied as appellant, hiding behind a box of potato chips. Kellough immediately returned to his truck, retrieved a weapon and r emoved appellant

from the building . Law enforcement officials wer

e contacted and di spatched to the sc ene. When an officer examined the interior of the building, he discover ed a .22 caliber

pistol near the box w here appellant was found. The pistol belonged t o the owner of the building and was usual ly kept i n a3

desk draw er. As a res ult of these eve nts, appellant w as indicted and later conv icted of
one coun t of burgl ary. Appellant does not

deny that he i llegally

entered the warehouse. However, he contends that the ev idence is in sufficient to prove that he possess ed the intent to commit a theft. See Tenn. Code Ann. §39- 14-402(a)(1) (Supp. 1996). His testimony at trial reflected that he entered the building only to g et out of the cold and stay warm. He said he did not intend to st eal anythingor commit a cr ime once insidethe building

. W e must consider the evidence in the light most favorable to the prosecution in determining whether “ any rationa l trier of fact could have found t he essential el ements of the off ense beyond a reasonable do ubt.” Jackson v. Virginia , 443 U.S. 307, 319 , 99 S.Ct. 2781, 61 L.Ed .2d 560 (1979). W e do not reweigh or re-evaluate the evidence and are requi red to afford the State t he strongest legitimateview

of the proof contained in the record, as well as all reasonable and l egitimate i nferences whi ch may be drawn ther

efrom. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). “[S]pecific s ubstantive p roof of the intent to s teal is not i ndispensable to a conviction for burglary charged to have been committed with that intent.” Petr ee v. State , 530 S.W .2d 90, 94 (Tenn. Crim. Ap p. 1975). In fact, a jury is warranted in inferring that a breaking and entering of a building containing valuable property is made with the intent to commit a larceny therein. Hall v. State , 490 S.W.2d 495, 496 (Tenn. 1973); State v. Avery , 818 S.W.2d 365, 367-68 (Tenn. Cri m. App. 1991); State v. Burkl ey , 804 S.W.2d 458, 460 (Tenn. Crim. App . 1990). The building here obviously contained valuable goods, as it was used to store merchandise sol d by the vending company . The logo of Tom’s s nack foods was prominently

painted on the bui lding, very clos e to the door that appellant removed. Once inside the building, appellan t rummaged through the desk, rem oving the drawers and t hrow ing ite ms on the f loor . Heals o pr ied open a Pep si m achi ne, t hrew soft drinks on the floor, and discar ded the coin box . Although app ellant clai med no intent to steal any goods, the jury was entitled to reject his testimony in favor of the St ate’s4

theory. A guilty

verdict rendered by

the jury and approved b y the tri al court acc redits the testimony

of the witnes ses for the State, and a presumption of g uilt replac es the presumption of innoc ence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Moreover , it was

within the jury’ s purview to discredi t appellant’s explanation of the events. Questions conc erning the c redibilit y of the wi tnesses, the weight and value to be given to the evidence, as well as factual issues raised by the evidence are resolved by the tri er of fact. Cabbage , 571 S.W.2d at 835. Appellant’s testimony revealed th at he had been driv ing on Hig hway 22 and ran off the road int o a ditch. Intoxicated and fearing a ci tation for DUI, he abandoned his v ehicle and fled the scene. As he r

an from the accident, he saw the warehouse. Appellant cl aimed to have entered t he building only to st ay war m. He further ex plained that he r ummaged through the des k looking for something to start a fire. However, he created total disarray inside the w

arehouse, destr

oying s ome office items, scatt ering other items on the floor and remov ing the coi n box from the dr ink machine. H e also removed the gun from the desk, fired two rounds inside the bui lding, and kept it wi th him as he hid. The jury was certainl y justifie d in concludi ng that the appel lant was n ot merely s eeking shelter. We cannot say that the facts are insufficient, as a matter of law, for a rational trier of fact to find the appellant g uilty bey ond a reasonable do ubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The judg ment is affirmed.

_______________________________ W illiam M. B arker, Ju dge CONCUR:

____________________________ Joseph M. Tipto n, Judge

____________________________ David G. Haye s, Judge