# FILED
March 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9701-CC- 00023 Appellee, * COCKE COUNTY VS. * Hon. Will iam R. Holt, Jr., Ju dge JOHNNY BALL, * (Theft over $10,000)

Appellant. *

For Appellant : For Appellee : Thomas V. Testerman John Knox Walkup Attorney Attorney General and Repor ter 301 East Broadway Newport, TN 37821 Georgia Blythe Felner Counsel for the State Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Richard Vance Assistant District A

ttorney General 339 East Main Street Newport, TN 37821

OPINION FILED:__________________________

REVERSED AND DISMISSED

GARY R. WADE, JUDGE2 OPINION The defendant, Johnny Ball, was convicted of theft of property ov er the value of $10,000.00. Tenn. Code Ann. § 39- 14-103. The trial court impos ed a sentence of three years with six months to be served in jail followed by placement in the Community

Correctio ns Program.In this appe al of right,the defendant claims that the evidence was i nsufficient, that he should have been entitled to a judgment of acquittal and that he should hav e been granted a sentence of probati on.

Because we have concluded that the evidence is indeed insufficient, the judgment is revers

ed and the cause dismissed.
On June 18, 1995, at about 4:30 P.M., the defendant and his codefendant, Daniel Barnes, follow ed a 1995 TransAm occupied by Jenni fer Winstead and Teresa Cody into the Smoky Mountain Country Club parking lot in Cocke County. Both men had been drinking heavily throughout the day. W hen Ms. Winstead went inside the club, the defendant and Bar nes approached Ms. Cody and asked her several q uestions about her vehicl e. Ms. Winstead returned about ten minutes later and the tw o women left. At trial, eac h of the two women identified the defendant as the driver of a car resembling a Ford Must ang.
After the two women left, Bar nes stepped out of the passenger's side of the defendant's vehicle and used a s crewdriver to gain entry into a whi te 1989 Z-71 Silverado Chevrolet pickup truck which belonged to Joe Burchett. Within seconds, Barnes broke the steer ing column, started the tr uck, and left the parking lot at a high rate of speed. Bar nes did not testify in the defendant' s trial.

Don Meredith, a retired Tennessee Highway Patr olman, saw the3 pickup truck being dri

ven away from the club parking lot followed by a car looking like a Ford Mustang. Meredith testified that the pi ckup truck, which he l ater identified as belonging to the victim Burchett, entered a curve and then wrecked. He described the second vehic le as following betw

een fifty to seventy-fiv

e yards behind the truck. Meredith rec alled that the driver of the Mustang-type vehi cle did not stop.

The victim, Joe Burchett, es timated the value of his truck in excess of $15,000.00. He did not witnes s the theft.
Newport Police Officer J ames Holt, who investigated the incident, arrested the driver B

arnes and later took photogr aphs of the defendant's vehicle, which was identified as being in the club park ing lot just prior t

o the accident. Officer Holt had a warrant is

sued for the defendant and, about a week l ater, made the arrest. The defendant admitted that he w as present at the time of the offense but denied any involvement in the theft, although he acknow ledged to Officer Holt that he thought that Barnes was going "to get something ."
After the trial court denied a motion to acquit, the def endant testified in his own behalf. He recal led that he was in the company of Barnes in the club parking lot on the date of the offense and ha d been drinking with him most of the day. The defendant remembered that after Ms . Cody and Ms. Winstead left, Barnes got out of the defendant's car, broke into the Bu rchett vehicle, and quickly drove it away. The defendant, who ack nowledged a long-ter

m friendly relationship w ith Barnes, testified that he was frightened by Barnes' ac tions and conceded that he had driven away at a fast rate of speed. He denied, how ever, driving closely behind the stolen truck or wi

tnessing the wreck.The defendant explained that he left the scene because he just did not w ant to get involved.4 I Initially, the defendant ins ists that the evidence i s legally insufficient because it merely establi shes the presence of the defendant at the sc ene of the crime. He contends that the trial court should have granted the motion f or a judgment of acquittal. Section 39-14-103, Tenn. Code Ann., provides as follows:

A person commits the theft of property if, with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the proper ty without the owner's effective consent.
A person may be found criminall y responsible for the conduc t of another if "[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the of fense, the person solicits, directs, aids, or attempts to aid another perso n to commit the offense." Tenn. Code Ann. § 39- 11-402(2).
A motion for a judgment of acquittal made at the conclusion of the proof by the state is waived when the defendant elects to present evidence on his own behalf. Mathis v. State , 590 S.W.2d 449, 453 (Tenn. 1979); see Rule 29(a), Tenn. R. Crim. P. This court may not return to the midpoint of the trial and then order the trial court to

direct a judgment of acquit tal upon the basis of the record a s it then existed. See State v. Thompson , 549 S.W.2d 943, 945 (Tenn. 1977).

Rule 29 of the Rules of Criminal Procedure empowers the tr ial judge to direct a judgment of acquitt al when the evidence i s insufficient to warrant a conviction either at th e time the state rests or at the conclusion of all the ev idence. Overturf v. State , 571 S.W.2d 837 (Tenn. 1978). At the point the motion i s made, the trial court must favor the opponent of the motion with the s trongest legitimate view of the evidence, including all reasonabl e inferences, and discard any5 countervailing ev

idence. Hill v. State , 470 S.W.2d 853 (Tenn. Crim. App. 1971). Once the motion for acquittal i s made, the defendant must stand on the motion and present no other proof.

Here, the defendant again moved for a judgment of acquittal at the end of all of the proof. The standard by w hich the trial court deter mines a motion for judgment of acquittal at that time is, in essence, the same s tandard which applies on appeal in determining the sufficiency of the evidence af ter a conviction. That is, "whether, after review

ing the evidence in the light most favorable to th e prosecution, any ration al trier of fa

ct could hav

e found the esse ntial elements of the cri me beyond a reasonable doubt." Tenn. R . App. P. 13(e); Jackson v. Virginia , 443 U.S. 307 (1979). Obviously , the trial court conclu ded that the standard had been satisfied and later, after the entr y of the verdict, refused t o grant an acquittal. After providing the initia l set of instruct ions to the jury on t he crime of the ft, the trial jud ge asked that the jury be ret urned. He then provided a s upplemental instruction for criminal responsibili

ty for the acts of another. See Tenn. Code Ann. § 39-11-402.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence, and all reasonable inferences w hich may be drawn there from. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the evidence are matters entrusted exclusiv

ely to the jury as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A g uilty verdict, approved by the trial

judge, accredits the tes timony of the witnesses for the state and resolves all confli cts in the proof in favor of the s tate's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).6 An offense may be proven by ci rcumstantial evidence al one. Price v. State , 589 S.W.2d 929, 931 (Tenn. Crim. App. 1979). Our scope of review is th e same when the conviction is based upon circumstantial evidence as it is when it is based upon direct evidence. State v. B rown , 551 S.W.2d 329, 33 1 (Tenn. 1977); Farmer v. State , 343 S.W.2d 895, 897 (Tenn. 1961).

In convictions such as these, where the evidence is entirely circumstantial, the jury

must find that the proof is not only consistent with the g uilt of the accused but inconsistent with his innocence. There must be a n evidentiary basis upon which the jury can exclude every other reasonable theory or hypothesis except that of guilt. Pruitt v. State , 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970). The trial court has the duty to charge the jury on

the weight and sign ificance of circumstantial evidenc

e when it is the only

basis upon which the stat e's case rests. Bishop v. State , 287 S.W.2d 49, 52 (Tenn. 1956). Like all other fact questions, the determination of whether all reasonable theories or hy potheses are excluded by the evidence is primaril

y a jury questi on. Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958); State v. Tharpe , 726 S.W.2d 896 (1987).

The jury is gover

ned by four rules when tes ting the value of circumstantial evidence: (1) the evidence should be acted upon with caution; (2) all of the essential facts must be consis tent with the hypothesi s of guilt; (3) the facts must exclude every

other reasonable theory ex cept that of guilt; and (4) the facts must establish such a certai nty of guilt as to conv ince beyond a reasonable doubt that the defendant is the perpetrator of the crime. Marable , 313 S.W.2d at 456.
Even when our scope of review is so limited, however, there is precedent for overturning verdicts which are not supported by sufficient7 circumstances: In order to convict on circumstantial evidence

alone, the facts and circumstances must be so closely interwoven and connected that the finger of guilt is pointed unerringly at

the defendant and the defendant alone. A web of guilt must be woven around the defendant from which he cannot escape a nd from which facts and circumstances the jur y could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.... * * * We cannot speculate a defendant into the penitentiary or permit a jury to do so. State v. Crawford , 470 S.W.2d 610, 613 (Tenn. 1971).

In the light most favorable to the state, the most condem ning evidence against the defendant is that he used his vehicle to follow Ms. Cody and Ms. Winstead into the club parking lot on the afternoon of the offense, talked for about ten minutes with the two women and, after their departure, watched as his companion, Barnes, broke into th e stolen pickup truck and the n drove away at a high rate of speed. Favor able to the state's theory is that Barnes quickl

y fled the
scene an d the def endant f ollowed in the same directio n within f ifty to se venty-five yards. The defendant acknowledged that he was intoxicated and the evidence indicated that Barnes was as well. The two men had been together for the entire day preceding the eve nt. The defendant, who said he anticipated that Barnes was "going to get something " took no steps to disavow any involvement in

the theft. Whil e not ent irely certa in, some testimo ny suggeste d the def endant m ight have been in a position to see the acc ident and yet fled the scene.

The cumulative evidence i ndicated the probable guilt of the defendant as to the theft. Probable guilt, however, is not en ough. State v. Shannon Knight , No. 01C01-9606-CC-00279, sl ip op. at 7 (Tenn. Crim. App., at Nashville, Sept. 2,1 In State v. Carson , 950 S.W.2d 951 (Tenn. 1997), our supreme court hel d that t he criminal responsibi lit

y statu te, Tenn. Code Ann. § 39-11-402, embraces t he common law principl es of aidi ng and ab etting. 8 1997). There is no evidence that the defendant ever knowi ngly obtained or exercised control ov

er the vehicle or inte nded that Barnes do so. Barnes di d not incriminate the defendant. There w as no direct evidence of hi s participation in a plan or a scheme. While all of the testimony indicates that both the defendant and Barnes were intoxi cated, it is just as li kely from the evidence pr esented that Barnes acted on his own in steal ing the vehicle.

State witn esses tes tified t hat the d efenda nt appro ached th e two women when they stopped i n the parking lot of the countr y club. Ms. Cody acknowledged that the defendant talked with her for abou t ten minutes before Ms. Winstead returned from the club and the two w omen left. The enterprise occurr ed in broad daylight. The de fendant made no attempt to hide his identit y. Even under the theory of criminal res ponsibility for the acts of another, mere presence during the commission of the crime is not eno ugh to convict. See Flippen v. State , 365 S.W.2d 895, 899 (Tenn. 1963); Anglin v. State , 553 S.W.2d 616, 619 (Tenn. Crim. App. 1977). Presence and companionship with the perpetrator of a felo ny before and after the commission of the off ense are circumstances from which one's participation in the cri me may be inferred. No parti cular act need be shown. I t is not necessary for one to take a phy sical part in the crime.Mere encouragement of the principal is sufficient. State v. McBee , 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). 1
In order to be guilty of the crime, one must intentionall y promote or assist in the offense. State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994). While the defendant fled the scene at a high r ate of speed closely behind9 Barnes, there was simpl y no evidence that he ass isted or encouraged Barnes to break into the pickup truck or to drive it aw

ay from the lot. Tenn. Code Ann. § 39
- 11-402. Following after the stolen truck in the same direction, while incriminating, is not necessarily assi stance in or encouragement of the crime. In our view,the evidence was insufficient to show a shared, preconc eived intent to commit the theft. Thus the judgment is rever sed and dismissed.

II The defendant also argues that even if the evidence was sufficie nt, he should have been placed on immedia te probation. Age twenty -two at the time of the offense, the defendan t had a prior conviction of driving under the influence for which he served a jail term of forty-eight hours. That the defendan t was driving while intoxicated at the time of this theft was also a factor considere d by the trial court in denying immediate probation . The trial judge commented that auto theft was such a major problem in Cocke Count y that it had earned the reput ation of being the "chop shop capital of East Tennessee."

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at10 the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). There is no such pre sumption for a Class B felon. Tenn. C ode Ann. § 40- 35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence f or each conviction is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

A sentence of split confinement inv olves the grant of probati on after the partial service of a sentence. Tenn. Code Ann. § 40-35-306.It may include a jail or workhouse s

entence of up to one year with the probationary term to e xtend for any period thereafter up to the statutory maximum for the offense. Id.

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in11 front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the Act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

The defendant, twenty-two years old and unmarried at the time of this offense, dropped out of school in the tenth g rade. Employed as a cook and e arning $6.50 per hour at the time sentence was imposed, the de fendant had a sporadic employment history. H e had had some prior use of marijuana and conceded prior instances of alcohol abuse. Had the conviction been upheld, i t is our view that

the12 trial court properly

denied immediate probation. A si x-month period of incarcer ation in a Comm unity Corre ctions Pr ogram woul d have bee n an appr opriate a lternati ve sentence.
Nonetheless, the judgment must be reversed and the cause di smissed for insufficient evidence.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ William M. Barker, Judge

_____________________________ Curwood Witt, Judge