# FILED

April 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1998

STATE OF TENNESSEE, ) No. 02C01-9706-CR-00225 ) Appellee, ) SHELBY COU NTY ) v. ) HON. JOSEPH B. DAIL EY, ) JUDGE SIDNEY AND DONALD ) MCGLOWAN, ) (Burglary and Theft of ) Property) Appellants. )

For the Appellants: For the Appellee: Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General and Repor ter Memphis, Tennessee (Defendant Sidney McGlow an) Thomas C. Fila Marvin E. Clements, Jr. Memphis, Tennessee Assistant Attorney Gener al (Defendant Donald McGlowan ) Nashville, Tennessee John W. Pierotti District Attorney General Memphis, Tennessee Terrell Harris Assistant District A

ttorney General Memphis, Tennessee

OPINION FILED: ___________

AFFIRMED

William M. Barker, Specia l Judge

OPINION1 Sidney and Donal d McGlowan are brother s. For clar

ity , we wil l refer to them either by thei r first names or their ful l names. 2 The appellants, Sidney McGl owan and Donald McGlow an, appeal as of right from their convictions i n Shelby County Cri minal Court. 1 Both appellants were convicted of burglary

of a building and theft of property with a value gr

eater than $1,000 but less than $10,000. See Tenn. Code Ann. §§39-14-402 (1997) & 39-14- 103 (1997). Appellant Sidney McGlowan was sent

enced to serve two conc urrent sentences of twelve y

ears, as a career offender. The cour t sentenced appellant Donald McGlowan to serve two concurrent sentences of six years. On appeal, appellants each rais e the following two issues: (1) whether the trial court properly denied Si dney McGlowan’s moti on for a severance; and (2) whether the trial court properly

denied their motion to suppres s evidence. In addition, appellant Sidney McGlowan ar

gues that the evidence is insufficient to sustain his c onviction. Our review of the rec

ord reveals that no rev

ersible error was

committed in the trial court. Accordingly, we affirm the appellants’ convictions and sentences. BACKGROUND During the early mor

ning hours of July 25, 1995,Officers Joseph Boerner and James McCluskey, of the M emphis Police Department, w ere driving we

stbound on Deerskin Road. Officer McC luskey was follow ing Officer Boerner in a separ ate patrol car. Between approxi mately 2:30 a.m. and 2:50 a.m., the officer s saw an approaching car turn off its headlights. The car continued moving for twenty yards, w ithout headlights, until it tur

ned into the driveway

at 615 Deerskin Road. This behavior caused the officers to become suspicious. T he officers turned on their patrol car’s blue lights and pulled up t o the house. After stopping their car, both appellants exited the vehicle and walked quickly toward the residence. The officer s stopped the appellants before they entered the house. Officer Boerner questi oned Donald while Officer M cCluskey questioned Sidney. Of ficer Bo erner ask ed Donald to show him his driver’ s license . In reply,3

Donald admitted that he did not hav e a license in his possess ion. Officer Boerner subsequently arrested Donald for driving without a license and placed him in the back of his patrol car. While Officer McCluskey was speaking with Sidney, he noticed a clear plastic bag sitting on the passenger seat of the vehicle. The bag contained seven miniatu re televisions with

price tags attached to them. Sidney initially told Officer McCluskey that he had gotten the televisions from a friend who lived down the street. However, he later stated that he acqui red the televisions by trading cocaine for them. Officer McCluskey then c alled the dispatcher, w ho reported that seven televisions had been stol en from McDuff Electronics earli er that evening. A sear ch of the trunk revealed four camcor ders with McDuff Electr onics price tags hang ing on them. Based on the foregoing, the officers also arrested Sidney McGlowan. The appellants were thereafter indicted for one count of burglar y of a building and two counts of theft of property with a value more than $1,000 but less than $10,000. Before trial, both appell ants filed a motion to suppress ev idence. The trial court denied the motions to suppr ess. It also denied Sidney McGlowan’s motion for severance of the appellants. At the suppression hearing , the appellants testified that th ey were drinking beer in their yard at Deer

skin Road when the officers app roached them. Both appellants testified that Sidney had not been in the car that night. Donald said that he purchased the televisions from a man dow n the street. ANAL YSIS Appellants first contend that the trial court improperl y denied the motion to sever the proceedings.Appellant Sidney McGLow an contends that he was found guilty by associ ation because both appellants hav e the same last name and live i n the same house. However, he does not identify any prej udicial use of evidence dur ing the joint trial. Appellant Donald McGlowan argues that he was prejudiced by antagonistic4

defenses and was forced to defend himself against his co-defendant as wel l as the State. The rec ord does not ref lect any such anta gonistic defen se or “finger poin ting” from his co-defendant. Donald further argues that during openi ng and closing arguments, Sidney’s cou nsel stated that Donald wa s solely responsibl e for the crime. However, these arg uments do not appear in the record before us, which precludes our review. Tenn. R. App. P. 24(g); State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993) (citations omitted). Tennessee Rules of Criminal Pr ocedure 14(c)(2)(i)

and (ii) provide tha

t a trial court shall grant a motion to sever if deemed appropriate to promo te or achieve a fair determination of the guilt or innocence of one or more of the defendants. The tr ial court possesses substantial discretion to grant or

deny a motion for severanc e and its decision will not be reversed absent a show ing of prejudice. State v. Hutchinson , 898 S.W.2d 161, 166 (T enn. 1994). Moreover, “mere hostility between defendants, attempts to cast the blame for the offense on eac h other, or other ‘finger pointing and tattling will not , standing alone, justify the granting of [a] sev

erance on the ground the defendants’ respective defenses are antagon istic.’” State v. Mabry , 1992 Tenn. Cr im. App. LEXIS 535, C.C.A. N o. 01C01-911 2-CC-00369 , Davidson County (Te nn. Crim. App., Nashville, June 19,1992), perm. to appeal denied (Tenn. 1992) (qu oting United States v. Arruda , 715 F.2d 671, 679 (1st Cir.1983)). The record must show that the appellants w

ere clearly prejudi ced to the poi nt that the g ranting of s everance became a judicial duty. State v. Burton , 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988). Appellants have failed to demonstr ate any prejudice resulting from the denial of the motion for severance. We are of the opinion the trial court did not abu se its discretion in deny ing the motion for a severance. This i ssue is without merit. In their second issue, appellants argue that the trial court erred in denying their motions to suppress all ev idence obtained as a result of an i nvestigatory stop and2 Neith er pa rty has elect ed to argu e tha t the c ontra ban d in the fron t sea t of the car c am e with in the “p lain vie w” do ctrine . W e also have elect ed to not a ddre ss th at do ctrine since the s earc h wa s clea rly justified as being a s earch inc ident to a law ful arrest. 5 search of the vehicle. 2 Following a r eview of th e record a nd applic able law, we conclude that the trial cour t did not err in denying

the motions to suppress. Initially, we note

that appellant Sidney McG lowan does not have standi ng to challenge the search and sei zure of appellant Donald’s car. One who challeng es the reasonableness of a search or s eizure has the burden of establ ishing a legitimate expectation of privacy

in the place or property searched. Rawlings v. Kentucky , 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 6 33 (1980); State v. Roberge , 642 S.W.2d 716, 718 (Tenn. 1982). Appellant Sidney has failed to establish that he h ad a legitimate expectation of privacy

in appellant Donald’s car. Therefore, we conclude that appellant Sidney has no standi ng to object to the search an d seizure. His motion to suppress was properly

overruled. Appellant Donald first contends that the investigator

y stop of his vehicle was an unconstitutional seizur

e within the meaning of the F ourth Amendment. To make an investigatory s

top, an officer must, at minimum, have a reasonable suspicion, based upon specific articulable facts , that a criminal offense has been or is about to be committed. See Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 188 0, 20 L.Ed.2d 889 (1968); State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992). To determine the specific and articulable facts , the Court must consider the “totality of the circumstances.” Watkins , 827 S.W.2d at 294 (citation omitted). This includes, but is not limited to, objective observations, information obtained from other police officers, and the rational inferences and deduc tions that a trained police officer may draw from the facts and circumstances. Id. At approximately 2:30 a.m.to 2:50 a.m., Officers Boerner and M cCluskey saw the appellant’s car driv ing toward them on Deer skin Road. As the car appr oached the officers, the driver turne d the automobile’s head light s off and continued driving for an6

additional twenty y

ards before turning into a dr iveway of a house. Both appellants exited the vehicle and walked toward the hous e at a quick pace. Because o f the suspicious nature of the appellants’ behavior, the officers p ulled up to the house to question the appellants. C onsidering the “totality of the circumstances,” we agree with the trial court that the officer s had a reasonable suspicion,supported by specific and articulable facts, that the appel lants were committing or about to commit a criminal offense. Therefore, we find no merit in the appellant’s contention that he was subjected to an unconstitutional stop. Appellant Donald next contend s that the search of his automobil e was an unconstitutional search which violated his Fourth Amendment protectio n against

unreaso nable se arches an d seizures and, as a r esult, th e trial cou rt should have granted his motion to suppres s the evidence obtained in the search. The analysis of any warrantless search must begin with the proposition that such searches are presumed unreasonable under the Four th Amendment of the United States Constitution and Article I, Section 7 of the Tennessee Constitution. This presumption against the lawfulness of warrantless searches is subject only to a few specifically established exceptions. See Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Tyler , 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980). Before the fruits of a war rantless search are admiss ible as evidence, the State must establish by a preponder ance of the evidence that the sear ch falls into one of those limited exceptions to the warrant requi rement. State v. Shaw , 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980). One such exception is a s earch incident to a law

ful arrest. When an officer makes a custodial arrest of a moto r vehicle operator, the officer has full authority to search the passenger compartment of the motor vehicle contempor aneously to the arrest. New York v. Bel ton , 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1990); Watkins , 827 S.W.2d at 295-96. The “contemporaneous” requi rement of the search is not destroy ed when a defendant is placed in a patrol car. United States7

v. White , 871 F.2d 41, 44 (6th Cir. 1 989); Watkins , 827 S.W.2d at 296. A driver is requ ired to have a valid operator’s license in hi s immediate possessi on at all t imes. Te nn. Code Ann. §55 -50-351 (1998). Fa ilure to h ave possession of a driver’s license is a Class C

misdemeanor, and any law enforcement officer is empowered to arres t any person found violati ng the statute. Id. Appellant Donald does not dispute the fact that he did no t have a driver’s license in his possession when Officer Boern er requested him to produce it. Immediately after Officer Boerner discovered that Donald had been drivin g without a license,he arrested him, handcuffed him and placed him in the back of his patrol car. Thus, Donal d had been lawfully arrest

ed prior to the search of the v ehicle. After Officer Boerner made a valid custodial arr

est of the appellant, he had a rig ht to search the passenger compartment of the appellant’s vehi cle. The stolen property discovered as a result of this search was admiss ible. This court must next determine whether the search of the trunk of the vehicle was valid. An automobi le may be searched without a warrant if the officer has probable cause to believe that the vehicle contains c ontraband and if exigent circumstances requir

e an immediate search. Carroll v. United States , 267 U.S. 132, 149, 155-56, 69 L.Ed.2d 543, 45 S.Ct. 280 (1925); State v. L eveye , 796 S.W.2d 948 (Tenn. 1990). If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of ever y part of the vehicle, i ncluding the trunk area. United States v. Ross , 456 U.S. 798, 72 L.Ed.2d 572, 102 S.C t. 2157 (1982). The discover y of the televisions coupled w

ith the dispatcher’s repor t regarding the recent

burglary at McDuff’s Electronics prov ided the officers with probabl e cause to believe that the vehicle contained additi onal stolen property. The mobility of the vehicl e itself supplied the requi site exigent circumstances to conduct a warrantless search. Shaw , 603 S.W.2d at 744. There was a substantial risk th at the v

ehicle or the c

ontraba nd woul d have been remo ved if t he office rs had l eft the scene to procure a search warrant. Though it w

ould have been impossible for3 Appellant Donald McGlowan does not chal lenge the suf ficiency of the evi dence. 8 Donald to move the vehicle or the contents of its trunk since he had been arrested, his brother, Sidney, was in a position to remove the vehicle and its contents. Given these facts, we conclude that the pol ice officers acted reasonably under the circumstances and the search of the trunk area of the c ar was supported by pr obable cause and exigent circumstances . For the reasons giv en, the evidence does not prepond erate against the trial cour

t’s denial of the appellant’s motion to suppress. In appellant Sidney McGl owan’s final issue, he contends that the evidence w as insufficient to support his conv iction. 3 Specifically, he argues that the fact he was a passenger in a vehicl e carrying recentl y stolen goods is not sufficient evidence to support a convicti on for bu rglary and t heft of property. An appellant challenging the sufficiency of the evidence has the burden of illustrating to this

Court why the ev

idence is insufficient to suppor t the verdict returned by the trier of fact. This C ourt will not distur

b a verdict of guilt for lack of sufficient evidence unless the facts cont ained in the record and any inferences which may be drawn from the facts are insuffici ent, as a matter of law, for a r ational trier of fact to find the appellant guilty beyond a reasonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In our review, we must consider the evidence in the light most favorable to the prosecution in determining whether “any rational trier of fact cou ld have found the essential elements beyond a reasona ble doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L .Ed.2d 560 (1979). We do not reweigh or reevaluate the evidence and ar e required to afford the State the s trongest legitimate view of the proof contained i n the record, as well as all reasonable and legi timate inferences which may be dr awn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Criminal conduct may be es tablished exclusiv

ely by circumstanti al evidence. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). Howev er, the circumstantial9

evidence “must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). The trier of fact decides the weight to be given to circumstantial evidence and to the inferences drawn from such evidence, and the extent to which such circumstanc es are consistent with guilt and inconsistent with inno

cence. See Marable v. State , 313 S.W.2d 451,457 (Tenn. 1958); State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985). One may be convicted for theft of pr operty if the State proves that with the intent to deprive the ow ner, the defendant knowingly obtained or exercised c ontrol over property w

ithout the owner’s consent. See Tenn. Code Ann. §39-14-103 (1997). To sustain a conviction for burglary, the State must prove beyond a reasonabl e doubt that the accused entered a building with an intent to commit a fe lony, theft or assault and committed or attempted to commit a felony, theft or assault. See Tenn. Code Ann. §39-14-402 (1997). The State i s not required to produce a witness who saw the defendants break and enter the premises in order to convict them of burglary. Ramsey v. State , 571 S.W.2d 822, 824 (Tenn. 1978). Unexplained pos session of recently stolen proper

ty is sufficient evidenc

e to sustain a burglary

conviction. Smart v. State , 544 S.W.2d 109, 110-111 (Tenn. Crim. App. 1976). At trial, the evidence s howed that at approximatel y 2:10 a.m., a burglary

was reported at McDuff Electronics. Seven mini-televisions and four camco rders were stolen from the store. Sometime betw een 2:30 a.m. and 2:50 a.m., Officers Boerner and McCluskey observ ed the appellants driving suspiciously dow

n Deerskin Road. When Officer McCluskey approach ed appellant Sidney McGlowan, he saw a plastic bag containing seven televisions in the passenger seat of the vehicle. A later search of the trunk pr oduced four ca mcorders, all of which had McDuff Electronics price tags attached to them . The appe llants were i n posses

sion of t he items

stolen from McD uff Electronics only twenty to forty minutes earlier. Although the appellants clai m that they did not steal the goods, the jury was10

entitled to reject their theory in favor of the State’ s theory. Questions conc erning the credibility of the witnesses, the weight and value to be given to the evidence, as well as factual issues raised by the evidence are resolv ed by the trier of fact. Cabbage , 571 S.W.2d at 835. A guilty verdic t rendered by the jury

and approved by the tri al court accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the presumption of innocen ce. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Accordingly , we conclude that sufficient ev idence existed to sustai n the convictions. Having considered the entire record before us, we conclude that the trial court committed no reversible er ror. Hence, we affirm the appel lants’ convictions and respective sentences.

_________________________________ WILLIAM M. BARKER, SPECIAL JUDGE CONCUR:

_______________________ DAVID G. HAYES, JUDG E

_______________________ JOE G. RILEY, JUDGE