### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON D ec em be r 6, 200 5 S es sio n

STA TE OF TEN NES SEE v. R OBER T F LUE LLEN
Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 04-06294 Chris Cr aft, Jud ge

No. W2005-01155-C CA-R 3-CD - F iled Fe bruary 7, 2006

Following a benc h trial, the De fenda nt, Robert Fluellen, was c onvicted of one count of burg lary of a building, a Class D felony

. The Defendant was sentenced a s a multiple offende r to six y ear s in the workhouse. O n appea l, the Defenda nt contends that the evidence presented at his bench trial is not

su ff ic ie nt t o s us ta in h is c on vic tio n. F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e tr ia l c ou rt ’s jud g me nt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of t he court, in which T H O M A S T. W O O D A LL and A L AN E. G L EN N , J J ., J oined.

Irw in C a nto r ( a t tria l) a nd Gerald S. G re e n ( on app e a l) , M e mph is, Te nn e sse e , f or the Ap pe lla nt, Robert Flue llen.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Se th P . K e stne r, As sis ta nt A tto rn e y Ge ne ra l; Willi a m L . G ibb on s, Di stric t A tto rn e y Ge ne ra l; A la nd a Dw y e r, As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l, for the A ppellee, State of Tenne ssee.

OP IN ION

I. F ac ts

This case arises f

rom the De fenda nt’s conviction for the burg lary of a building in violation of Tenne ssee Code A nnotated sec tion 39-14-402 (2 0 03), a Class D f elony . The trial c ourt held a bench trial wher e the following e vidence was pre sented: Jos eph A. Guido, the Re g ional Direc tor for Capta in D ’s re staur a nt, e xpla ine d th a t he ov e rs a w the op e ratio n o f t we nty Captain D ’s re staur a nts inc lud ing the on e inv olv e d in thi s c a se . G uid o te sti fi e d th a t th e Captain D ’s re staur a nt i nv olv e d in this case ha d caug ht on fire be fore J u n e 1 6 , 2 004. He r eca lled that, on J une 16, 2004, the police

c a lle d h is o ff

ic e a ndtol d h im tha t he wa s n e e de d a t th e Captain D ’s re staur a nt. Gu ido sa id tha t,-2-

when he arrived at the restaura nt, he saw se vera l police ca rs, some items from the r estaurant in a trash ca n at the ca

r wa sh next door, and the Def endant sitting in the ba ck of a squad ca r.

Gu id o te s ti f

ie d th a t h e v is it e d th e r e s ta u r a n t a f e w d a y s b e f

o r e Ju n e 1 6 , 2 0 0 4 , a n d the restaur ant was c omp l et el y b o arded up except for a hole that had burned throug h the roof. H e expla i n ed t h at t h e trash can a nd restaur ant items found with the Def endant we re loc ated in the

re staur a nt’ s f

ro nt l ob by . G uid o s a id that, w he n h e re turne d to th e re staur a nt o n th e da y of thi s incident, he noted that the g utter was bent, t he shut ters were broken, and a wire was wr apped a round a bac k entra nce door. He also saw the trash can and other restaura nt items at t he car wash next door. Ad dit ion a lly , G uid o te sti fi e d th a t fou r F re nc h f ry po ts, so me sta inl e ss s te e l ta ble s, a nda

sta inl e ss steel sink wer e no longer in the restaurant, and he described whe re those items ha d previously been located. Further, Guido said that he never g ave the Def

endant pe rmission to t ake pr operty from the restaur ant, and the total va lue of the property missing from the restaur ant was more than six thousand dollars, howeve r, only

betwee n four a nd five hundre d dollars worth of pr operty was re cover ed.
On cross-examination, Guido estim ated that the missing sink weig hed appr ox imately one hundred a nd fifty

to two hundred pounds, and e ach missi ng fry pot weig hed a “ couple hundr ed” pounds. He a lso testified that, after the fire, the ceiling was hang ing down in the dining r oom, the

r o o f w a s b u r n e d , l o t s o f

w a t e r w a s o n t h e f

l o o r , a n d a l o t o f s o o t w a s i n t h e r e s t a u r a n t

. A d d i t i o n a l l y, he testifi ed t h at the re staurant ha d been in a burnt condition for five months, no employ ees w ere reporting f

or work at the restaur ant, and the le ttering o n t he sig n in front of the r estaurant rea d, “close d due to fire .” He told the are a direc tor to c hang e the sig n in front of the r estaurant to read,

“ Ne w r e staur a nt c omi ng so on .” Gu ido e xpla ine d tha t he ha d his ma int e na nc e e mpl oy e e pu t so me of the re staurant’ s items into t he re staurant’ s trash ca n. He testified that larg e trash container s for the re staurant sa t on a conc rete pad behind a wooden fence behind t he restaura nt. Guido admitted that he did not know who moved the items out of the re staurant. He also explained that the building had no sec urity

alarms or device s because the fir e depa rtment shut off the building ’s elec tricity

.
On re direc t examination, Guido testified t hat t he items inside the trash c an we re be ing move d to a wa re ho us e . H e sa id t hat he was no t allo we d to thr ow a nythi ng a way be c a us e he ne e de d to pr ov ide the ins ur a nc e c omp a ny wi th i nf ormat io n. He e xpla ine d th a t he ha d n ot thr ow n th e ite ms
a way , h e ha d n ot a

uth or ize d an y on e e lse to thr ow the m aw a y , an d he is the so le pe rs on wh o w a s a ble to ma ke such authorizations. On re- cross examination, Guido said that only he and the maintenanc e
ma n h a ve ke y s to the re staur a nt.

Marsha ll Ch is m, th e o w n e r o f Wa te r Wo r ldD e tail e r

lo c a te d n e xt t o th e Ca

p tain D’s

re staur a nt, te sti fi e d th a t, o n J un e 16 , 200 4, he sa w the De fe nd a nt, a ndthe De fe nd a nt a sk e d th e m if he knew any

body who nee ded dee p fry ers or chair s. Chism said that the Def endant told him that he would not take long to g et the dee p fry ers a nd chair s because the items wer e “right at Captain D’s over he re.” He e x plained that he c alled the police beca use, over a three -day

period, the D efe ndant kept asking Chism if he wanted to buy anything. Chism ex plained that he did not see the Def endant g o in sid e the re staur a nt, bu t he didse e the De fe nd a nt go to the ba c k o f the re staur a nt. Chi sm testified that, when the police came to the scene of this incident, he told them that the Def endant wa s-3-

in his ga rag e, and the police saw the Def endant with the tra sh can a nd various items from the restaur ant in Chism’s gar ag e.

On c ro ss- e xami na tio n, Chi sm t e sti fi e d th a t he wa s sca re d tha t the po lic e we re try ing to f ra me him. He said that he has felony convictions for assault and for theft of property , and his first drug

case is presently

pending

. He ex plained that the “Feds” wer e watching him and making sure that he did not ge t into trouble was his primary conce rn whe n he ca lled the police.

On dir e c t e xami natio n, Mil ton B on ds , Jr. , a n of fi c e r wi th the Me mph is Po lic e De pa rt me nt, testified that, when he first saw the Def endant, the Def

endant told him that he “just g ot the trash out of the Captain D’ s.” On cross-e x amination, Offic er Bonds said that he did not know about Chism’s Fe d er al d ru g char g e until he spoke with the prose cutor. Of fice r B onds could not rec all if Guido reported that the stainless steel sink and the fry pots were missing on the day of the c rime.

Th e De fe nd a nt t e sti fi e d th a t, o n Jun e 16 , 20 04 , he g ot dr op pe d of f a t th e Gridi ro n r e staur a nt, which is locate d on the same r oad as the Captain D’s re staurant, a nd he then wa lked to the Natur e Store furthe r down the r oad whe re he believed he could find some wor k. When the Def

endant

arrive d a t thi s sto re , h e sa w a sig n in the wi nd ow statin g that th e ow ne r w a s o ut t o lu nc h a ndwo uld

re turn a ro un d 1 :45 or

2:0 0 p .m. Th e De fe nd a nt l e ft the sto re a ndwe nt t o a no the r s tor e in or de r t o purcha se a pa ck of c iga

rettes. He explained that a pathway runs along the side of this store a nd, afte r cutting thr oug h the pathway , one ends up on a parking lot on the bac k s i d e of the Captain D’s restaur ant wher e the dumpster is located. The Defendant said that he headed towa rd the Captain D’ s restaur ant to look for his homeless friend who usually camps out there

. He said that he did not see his ho me le ss f

ri e ndne ar the du mp st er beh in d th e re staur a nt, bu t he didse e a tr a sh c a n w ith so me i t e m s i n s i d e o f

i t

. T h e D e f

e n d a n tt e s t i f

i e d t h a th e n e v e r

w e n ti n s i d e t h e r e s t a u r a n t , n e v e r “ j e rr yrig g ed” a door or c limbed throug h a hole in the r oof to g et inside the re staurant, a nd never climbed the g utters of the roof to g et i nto the re staurant. He testified that he ne ver sa w the four Fr ench f ry pots or the stainless steel sink that Guido testified about. He said that he thought that the trash c an and the items inside it were g arba g e, and he took the trash can to a diffe rent dumpster loc ated c loser to the car wash. He testified that he was sorting throug h the i tems from the trash can when the police pulled into the car

wash. The Def

en d ant denied of

fering to se ll Chi sm any

of the items from the tr a sh c a n a ndde nie d te lli ng the po lic e of fi c e r that he g ot the ite ms f ro m th e Captain D ’s re staur a nt.

On cr o s s -e x am i n at i o n , t h e D ef en d an tre ad a s t at em en tt h at h e ga v e t o t h e p o l i ce , s t at i n g “ther e is another

g rate like on the s ide of the bui lding. I t just slides open and I slid it part of the way open. That’s when I

g ot the g arba g e can from the g rate .” Upon f urther que stioning, the De fenda nt responde d that he had also told the police office rs that, “I had been there drinking a bee r. I saw the big g uy from the car -wa sh next door and fig ured he could use the paper towels and stuff. So I took them to him to t ry t o s el l t h em.” The Def endant de nied ly ing w hile g iving this statement to the police and de nied ly ing while testify ing in c ourt. Upon further questioning, the Def endant a dmitted that he tried to sell the items at the c ar- wash ne x t door and th at h e h ad a p ri or convic tion for b u r g l ar y.-4-

On re dir e c t e xami na tio n, the De fe nd a nt a c kn ow le dg e d th a t, wh e n he g a ve his state me nt t o the police on the day

of the c rime, he w as desc ribing his state of mind a nd not w hat was coming out of his mouth. On re-cr oss-examination, the Defenda nt rea d from the statement that he g ave to the police which de scribed how he aske d someone at the car wash if they could use the items that the Def endant f ound inside the trash c an.

I n rebuttal, the State r e-c alled Guido, who testified that no metal g rate or g ate is loca ted nea r the dumpster behind the Captain D’s restaura nt. Guido stated t hat t here is a metal gate on the side of the building, but he could not r eca ll if that g ate was pad-loc ked on J une 16 , 2 0 0 4

. He acknow ledg ed that the metal g rate was an exterior door and acknow ledg ed that the metal g rate leads to a walkway

betwee n the building a nd another door. He explained that no r oof cove rs this walkway and ac knowledg ed that the meta l gr ate or g ate would not lea d to the restaur ant’s interior.

Ba sed on this e vidence , the Def endant was convicted of

burg lary of a building and sentenc ed as a

multipl e off

ender to six y ear s in the work house.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th a t th e e vid e nc e pr e se nte d a t hi s b e nc h tria l is insufficient to sustain his conviction.

A. Waiver

The De fenda nt’s brief is a rg uably inadequate to a llow a meaning ful revie w of the issue he attempts to assert as e rror on appea l. See Tenn. Crim. App. R. 10(b). Unde r Rule 10(b), Rules of the Cou rt of Cr imi na l A pp e a ls, “ I ssu e s w hic h a re no t su pp orte d by arg ume nt, c itatio n to a uth or iti e s, or appr opriate r efe renc es to the re cord w ill be treate d as wa ived in th i s co urt.” The Def endant’ s arg uments do not contain any ref ere nces to the record. The ref ore, the Def

endant risks waiving the issue he pre sents. Howeve r, rather than tre at this issue as waived pursuant to T ennesse e Court of Criminal Appeals Rule 10(b), w e will addre ss the Def endant’ s contention.

B. Su ff iciency of the Evid ence

Th e De fe nd a nt c on te nd s th a t th e e vid e nc e pr e se nte d at tria l is ins uf fi c ie nt t o s up po rt

his convicti o n o f b urg lary . Specifica lly , he conte nds that the State failed to pr ove that he e ntere d the pr e mi s e s a t i s s u e

. H e a ls o a ll e g e s th a t th e b u il d in g th e St a te h a s a c c u s e d h im o f e n te r in g is n ot delineate d in Tennesse e Code Annota ted sec tion 39-14-402. The Defe ndant furthe r ar g ues that the

ev i d en ce s hows that he ha d no intent to commit t heft be cause he did not believe that any owner place d value on the i tems that he found. The S tate counters t hat t he Defenda nt waived these issues-5-

by fa iling to make a de qu a te re fe re nc e s to the re c or d a ndthat th e e vid e nc e is l e g a lly su ff ic ie nt t o support the Def

endant’ s conviction.

When an ac cused c halleng es the suff iciency of the e vidence , this Court’s standard of revie w is whether, a fter c onsidering the evidenc e in the lig ht most favor able to the prosecution, any rational trier of fac t could have f

ound the essential e lements of the crime bey ond a reasonable doubt. Tenn. R. App. P.13(e); State v. Goodwin, 143 S.W.3d 771, 7 75 (Tenn. 2004) (citing State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002) ). This rule applies to finding s of guilt based upon the dire ct evidenc e, circ umstantial evidence , or a c ombination of both direc t an d circ umstantial evidence . State v. Penderg rass, 13 S .W.3d 389, 392-93 (Te nn. Crim. App. 1999). I n determining the suff iciency of the evidenc e, this Court should not re-weig h or re-e valuate the evidenc e. State v. Matthew s, 805 S.W. 2d 77 6, 77 9 (T e nn . Crim . App . 199 0)

. No r ma y thi s Court subs titute its inf e re nc e s f or tho se draw n by the trier of

fac t from the evide nce. State v. B ug g s, 995 S.W .2d 102, 105 (Tenn. 1999) ; L iakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)
Questions conce rning the cr edibilityof t he witnesses, the weight and value of the evidenc e, and all fa ctual issues ra ised by the evidence are resolved by the trier of

fac t. L iakas, 286 S.W.2d at 859

. T h i s C o urt must affor d the State of Te nnessee the strong est leg itimate view of the e vidence contained in the r ecor d, as we ll as all rea sonable inferenc es which may be dra wn from the e vidence

. Go od wi n, 14 3 S. W.3 d a t 775 (c iti ng Sta te v. Smith, 24 S.W. 3d27 4, 27 9 ( Te nn . 2 00 0) ). I t is we llse ttl e d la w i n T e nn e sse e that “ the te sti mon y of a vi ctim, by its e lf, is su ff

ic ie nt t o s up po rt

a conviction.” State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993); S tate v. Willi ams, 623 S.W .2d 118, 120 (Tenn. Crim. App. 1981). Be cause a ver dict of g uilt against a defe ndant re moves the pre sumption of innocence and ra ises a pre sumption of guilt, the convicte d defe ndant bea rs the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o s us ta in a

g uil ty ve rd ic t. I d. ; se e Sta te v. Carruthe rs, 35 S.W.3d 516, 557-58 (Tenn. 2000).

To c o n v ic t th e D e f

e n d a n t o f b u r g la r y , th e St a te w a s r e q u ir e d to p r o v e th a t th e D efe ndant “without the ef

fec tive consent of the property owner : enter[ed] a building other than a ha bitation (or any portion thereof

) not open to the publ ic, wit h the i ntent to commit a fe lony , theft, or a ssault; . . . .” See Te nn. Code Ann. § 39-14- 402(a) (1). Ac cording to Tennesse e Code Annota ted sec tion 39- 14-103 (2003) , “A pe rson commits theft of prope rty if, with the i n t en t t o deprive the owner of property , the per son knowing ly obtains or exercises c ontrol over the pr operty without the owner’ s eff ective c onsent.” A pr operty owner is de fined as one in la wful possession of the property . Tenn. Code Ann. § 39-14-401( 3) (2003) . Be fore the ac cused ma y be convic ted from pur ely circ umstantial

e vid e nc e , “t he cir c ums ta nc e s mu st b e so str on g a ndc og e nt a s to e xclu de d e ve ry oth e r r e a so na

ble hypothesis save the g uilt of the defe ndant

. . . .” State v. Wil son, 924 S.W .2d 648, 649 (Tenn. 1996)

. We n ote that, i n o rd e r t o co nv ic t a def e nd a nt of bu rg lary , the Sta te is not re qu ir e d to off e r a wi tne ss who ac tually

saw the de fenda nt brea

k and enter t h e burgla

rized premises. Ramsey

v. State, 571 S.W .2d 822, 824 (Tenn. 1978) . Further, un s at isfactorily explained possession of rec ently stolen property may be sufficie nt in and of itself to sustain a burg lary conviction. See State v. Jones, 901 S.W .2d 393, 396 (Tenn. Crim. App. 1995) . I n the abse nce of an ac cepta

ble excuse, a jury may-6-

rea sonably

infer that by

brea king a nd entering a building conta ining va luable prope rty , the def endant intended to commit theft. State v. I ng ram, 986 S.W.2d 598 (Tenn. Crim. App. 1998).

I n the ca se under

submissi on, we c onclude that sufficie nt evidenc e was prese nted to support the Def endant’ s conviction. The trier of the fa ct could re asonably infer f rom the evide nce that the De fe nd a nt e nte re d th e Capta in D ’s re staur a nt. Th e De fe nd a nt a lle g e s th a t th e e vi den ce fai ls to establish that he ente red a building as de lineated in Te nnessee Code Annotated se ction 39-14-402. Howeve r, in the De fenda nt’s own brief, he admits that the evidenc e in this case “ establishes that the [Defenda nt] took some thought to be a bandoned items fr om a trash bin in a burned out building former ly used as a

Captain D’s re staurant [sic].” There i s n o t h ing in Te nnessee statutes or controlling case law that sug g ests that the re staurant was n o t a b u i l d ing f or the purpose s of Tenne ssee Code A nnotated section 39-14-402. The trier of fac t a ccr edited the testimony of Guido and Chism. Further , the trier of fac t re jected the Def

endant’ s assertion that he did not ente r the restaur ant. The t ri er o f fa ct di d not find any cre dible proof that the items we re f ound near

the

re staur a nt’ s d ump ste r, a ndbe lie ve d th a t th e De fe nd a nt of fe re d to se ll Chi sm a fry e r that G uid o s a id was missing f

rom the re st au ra n t ’s co o king a rea on J anuary

16, 2004. I n addition, Office r B onds testified that the Def

endant told him that the items f rom the restaur ant found i n t h e D ef endant’ s possession came f

rom the Captain D’s restaur ant. I n other words, in order to g ain possession of the tr a sh c a n a nd the oth e r ite ms fr om the re staur a nt, the De fe nd a nt wo uld ha ve ha d to ha ve br ok e n in to the restaur ant. When a sked to e x plain how he c ame into possession of these items, the D efe ndant pr e se nte d c on fl ic tin g sto ri es. B a se d o n th e a fo re me nti on e d e vid e nc e , th e tr ie r o f f a c t c ou ld

rea sonably

infer that the Def

endant ha d been inside the restaur ant.
The proof

at trial, viewe d in the light most favor ab l e t o t h e S tate, also shows that the Def endant e ntere d the restaur ant with the intent to commit t heft. Althoug h the Def endant c laimed that he did not think that any one had an owner ship inter est in the trash can and lettering , he fa iled t o p r e s e n ta n y p r o o f

t o s u b s t a n t i a t e h i s c l a i m

. G u i d o t e s t i f i e d t h a th e h a d n o tt h r o w n t h e i t e m s a w a y, he had not a

uthorized a ny one else to throw them away , and he is the sole pe rson who is able to make

su c h auth or iza tio ns . The tr ie r of the fa c t f ou ndthat th e De fe nd a nt’ s c on tin uo us of fe rs to s e ll Ch ism ite ms f ro m th e re staur a nt e sta

bli sh e d th a t, w he n e nte ri ng the re staur a nt, the De fe nd a nt i nte nd e d to take ite ms f

ro m th e bu ild ing . T he tr ie r of the fa c t c ou ld i nf e r that th e De fe nd a nt e nte re d th e Capta in D’s re staurant with the intent of stealing pr operty in order to se ll it for profit. Questions conce rning the c re dib ili ty

of wi tne sse s a ndthe we ig ht andva lue of thee vid e nc e are lef

t to the t ri e r o f f a c t. L iakas, 286 S.W.2d at 859.

The evidenc e whe n taken tog ether is sufficient to justify

the finding of the trial c ourt. Any rational trier

of fa ct could conc lude bey ond a re asonable doubt that the Def endant illeg ally

enter ed the Capta in D ’s re staur a nt w ith the int e nt t o c omm it the ft . T he re fo re , w e con clu de th at th e Sta te pr ov e d e a c h e le me nt o f the of fe ns e be y on d a

re a so na ble do ub t. T he De fe nd a nt i s no t e nti tle d to relief on this iss ue.-7- III. Conclusi on

I n a c c or da nc e wi th the fo re g oin g , we c on c lud e that th e tr ia l c ou rt didno t c omm it r e ve rs ibl e
err or. Ther efor e, the judg ment of the trial c ourt is affirmed.

__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____________ ROBERT W. WEDEMEYER, J UDGE