# FILED
October 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9801- CC-00030 Appellee, ) ) Henry County V. ) ) Honorable Julia n P. Guinn, Judge ) DARREN LEE P

ARSONS, ) (Aggravated Burglary, Theft)

) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jim L. Fields John Knox Walkup Attorney at Law Attorney General & Reporter 111 E Wood Street P.O. Box 248 Peter M. Coughlan Paris, TN 38242 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Robert “Gus” Radford District Attorney General 111 Church Street, P.O. Box 686 Huntingdon, TN 38344-0686 Steven L. Garrett Assistant District A

ttorney General P.O. Box 94 Paris, TN 38242 John C. Sorrels Assistant District A

ttorney General P.O. Box 503 Camden, TN 38320

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge-2- O P I N I O N
The appellant, Darren Lee Parsons , was convicted by a jury of aggrav

ated burglary and theft. He ap peals, challenging the sufficiency of the evidence and th e p ro pr ie ty

of an ev id en ti ar

y rul in g e

xc lu di ngce rt ai n d ef en se te st im on y. We find no error and affirm the judgment of the trial court.
The proof at trial showed that the appellant and an accomplice, E verett Daniel Lamb, broke into the home of Timo thy and Judy Walker of Paris, Tennessee. The two men vandaliz ed the property and stole s tereo equipment, compact disks, and other miscellaneous items. Lamb later admitted his part in the burglary and became one of the state’s key wit nesses at the appellant’s tr ial.
The appellant first argues that the evidence was insufficient to convict him. The testimony at trial, he contends, established a time line within which it would not have been possible for the appellant to have committe d the sequence of events described by v arious trial witne

sses. When an appellant challenges the sufficiency of the evidence, this Court must determine w hether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fa ct could have found the essential el ements of a crime beyond a reasonabl e doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). The appellee is entitled to both the strongest legitimate v

iew of the evidence and all reasonable inferences that may be drawn therefrom. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The weight and credibil ity of a witness’s t estimony are matters entrus ted exclusively t

o the trier of fact. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984). A jury verdict for the state accredits the testimony of the state’s witnesses and resolv

es all conflicts in favor

of the state. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, g uilty verdicts remove the presumption of innocence enjoyed b y defendants at trial and repl ace it with a-3- presumption of guilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant carries the burd en of overcoming this pres umption of guilt. See id.
Through the testimony of var ious witnesses, ev

idence was presented at trial as to the sequence and timing of events on the night of the app ellant’s crime. Sometime

betwee n nine an d ten o’c lock p. m., the a ppellant and Lamb left the appellant’s home to commit the burglary. The drive from the ap pellant’s home to t he victims ’ home ta kes betwee n ten and fiftee n minute s. On the wa y, the two men s

topped for an un specified ti me at a local hospital to

steal some rubber glo

ves. They spent approx imately th irty minut

es inside th e victims ’ home during their initial

break-in and then returned to the home twice, taking between ten and t wenty minu tes each time. Th e two men t hen mad e a twenty to twentyfive minu te drive to Lamb’s f ather’s h ome to un load som e of the stolen pr operty, arriving there at approximately 10:30 p.m.
Viewing this ev

idence in the light most fav orable to the state and, according ly, takin g the lowe r end of each of t he estimated t imes, the ent ire crime would have taken approximately one hour and twenty minutes. The evidence was, therefore, sufficient for the jury to have concluded that the appellant left his home at or shortly after nin e o’clock p.m., completed the se quence of events involved in the burg lary, and arrived at the home of Lamb’s father by approximately 10:30 p.m. Thi s issue is without mer it.
The appellant next argues that the trial court erred in refusing to permit the appellant’s mother, Joyce Ann Kelley, to testify to a statement alleged ly made by Lamb. At trial, the t heory of the appellant’s defense w as, in part, that he did not participate in the burglary but, rather, only helped Lamb unload some-4- of the stolen goods after Lamb alone had c ommitted the burglary. But for the state’s sustained hearsay objection, Ms. Kelley

apparently would hav

e testified that, du ring a phon e conversa tion with t he appel lant on th e night of the burgla ry, she overheard Lamb ask the appel lant to help him unload a stereo. Lamb had testified on cross-examin ation during the state’s case that he did not remember making such a statement but that he “might have.”
The appellant argues that the exclusion of Ms. Kelley’s account of La mb’s alleged statement violated the appellant’s right to confront the witness against him, as well as his right to put on witnesses in his defense. Thus framed, this issue is without meri

t. Lamb, the declarant of the excluded statement, testified at the appellant’s trial and w as cross-examined by

the appellant. The appellant, therefore, had the opportunity t o confront the witness agai nst him, as well as the opportunity to bring o ut favorable testimony in his defense.
Although not directly

argued, either to this C ourt or at trial, the appel lant suggests that the proffered test imony should have been admitt ed as a prior inconsistent statement for the li mited purpose of impeaching Lamb’s p revious testimony. The state’s objec tion to Ms. Kelley’s

testimony was sustai ned on the basis of the hearsay rule. Hearsay is defined as “ a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evi d. 801. Here, the proffered evi dence was clearly hearsay if offer ed as substantive proof t hat Lamb did in fact ask the appellant to h elp him unload a stereo and thus, inferentially, to prove that the appellant did not participate in the burglary. The appellant of fers no exception to the hearsay rule, and none is apparent to t he Court.

On the other hand, if offered for the limited purpose of impeaching the declarant, extrinsic

evidence of a prior incons istent statement may be-5- admissible. See Tenn. R. Evi d. 613(b). I n the present case, there

is some question whether the ex cluded testimony--that Lamb asked the appellant for help--was “inconsi stent” with Lamb’s prev ious testimony--that he “might have” made such a request. Nev ertheless, we need not deci de this issue. Even assuming that the excluded testimony qualifies as a prior inconsistent state ment, “the admissibility o

f evidence rests with in the sound discretion of the tr ial court, and its decisions in that r egard will be rev

ersed only by a show

ing of an abuse of that discretion.” Inman v. Aluminum Co. of America , 697 S.W.2d 350, 354 (Tenn. Ct. App. 1985). After a thor ough review of the rec

ord, we conclude that the trial court did not abus e its discretion. The state ment was hearsay on its face, and appellant did not argue o therwise at trial. Further, while w e conclude that the trial court did not err, any hypothetic

al error would not be p rejudicial given the evidence r

eviewed.
The judgment of the trial court i s affirmed.

__________________________-6- PAUL G. SUMMERS, Ju dge
CONCUR:

_____________________________ DAVID H. W ELLES, Judge

_____________________________ JOE G. RILEY, Judge