State of Tennessee v. Larry Wayne Webb

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2011

STATE OF TENNESSEE v. LARRY WAYNE WEBB

Direct Appeal from the Criminal Court for Knox County

No. 90487 Mary Beth Leibowitz, Judge

No. E2010-02204-CCA-R3-CD - Filed September 14, 2011

The defendant, Larry Wayne Webb, was convicted by a Knox County jury of attempted theft,

a Class E felony, and vandalism less than $500, a Class A misdemeanor. He was

subsequently sentenced by the trial court to concurrent sentences of six years and eleven

months and twenty-nine days. On appeal, he raises the single issue of sufficiency of the

evidence. Specifically, he contends that the State failed to establish his identity as the

perpetrator of the crimes beyond a reasonable doubt. Following a careful review of the

record, we affirm the attempted theft judgment of conviction as entered but remand the

vandalism judgment to be completed by the trial court as it is presently incomplete.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

in Part and Remanded in Part

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH

and D. K ELLY T HOMAS, J R., JJ., joined.

Christopher M. Rodgers, Knoxville, Tennessee, for the appellant, Larry Wayne Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Randall Eugene Nichols, District Attorney General; and Jason Lee Hunnicutt,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

The events leading to the defendant’s convictions arose from his actions at Dayton’s

Pest Control on the evening of June 21, 2008. At approximately 6:30 p.m. on that evening,

Dayton Hilton, the owner of the company, and his wife were working in the front office

when they heard their dogs barking at the back of the office. After hearing his dogs bark, the

victim looked out the rear window and saw a man walking between the storage building and

rental pod, which were located behind the main office. The victim observed that the man

was pulling an air compressor toward the back parking lot.

The victim informed his wife, ran outside, and yelled at the man demanding to know

what he was doing. The man replied, “I’m trying to get out of here.” The victim picked up

a two-by-four board and gave chase. At some point during the chase, the man dropped the

air compressor. The victim continued to pursue the man up an embankment, at which time

the man got into a small black car. The victim, who was approximately ten yards from the

man at this point, threw the board at the car and took note of the car’s license plate number.

The victim saw the man’s profile as he stepped into the car and noted that he was tall and had

a “skinny” build and shoulder length black hair.

As the victim was returning to his office, in addition to the air compressor on the

ground, he also noticed a drill on the embankment near where the car had been parked.

According to the victim, these items belonged to him and were normally kept in the storage

building located on his property. He also noted that the door to the storage building was

open and that the lock had been broken. He also observed that a rental pod located on the

property had sustained damage, specifically that the latch had been pried off and the door was

damaged.

The police were subsequently called and, upon an officer’s arrival, the victim gave

him a description of the man, as well as the license plate number from the car. At that time,

Officer Barnham of the Knoxville Police Department checked the tag number and discovered

that it had been registered to the defendant in 2006. No subsequent registration of the car

was located. The defendant’s driver’s license picture was then shown to the victim, and he

identified the defendant as the man he had seen pulling the air compressor. Additionally, five

days later, the victim was shown a photographic lineup and again picked the defendant as the

perpetrator.

Based upon this evidence, the defendant was indicted by a Knox County grand jury

for one count of theft over $1000 and misdemeanor vandalism less than $500. Following a

jury trial, the defendant was convicted of the lesser offense of attempted theft and the

charged offense of vandalism. Following a sentencing hearing, the trial court sentenced the

defendant, as a career offender, to concurrent sentences of six years and eleven months and

twenty-nine days. Following the denial of his motion for new trial, the defendant filed the

instant timely appeal.

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Analysis

On appeal, the defendant has raised the single issue of sufficiency of the evidence.

When an accused challenges the sufficiency of the convicting evidence, the standard of

review is “whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original); State v. Franklin, 308 S.W.3d 799, 825 (Tenn. 2010); see also Tenn. R. App. P.

13(e). “[T]he State is entitled to the strongest legitimate view of the evidence and to all

reasonable and legitimate inferences that may be drawn therefrom.” State v. Smith, 24

S.W.3d 274, 279 (Tenn. 2000); see also State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

Questions involving the credibility of witnesses, the weight and value of the evidence, as

well as all factual issues raised by the evidence are resolved by the trier of fact, and an

appellate court does not reweigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d

231, 236 (Tenn. 2003).

A jury verdict approved by the trial court accredits the State’s witnesses and resolves

all conflicts in the evidence in favor of the State. State v. Evans, 108 S.W.3d 231, 236 (Tenn.

2003). “Because a verdict of guilt removes the presumption of innocence and imposes a

presumption of guilt, the burden shifts to the defendant upon conviction to show why the

evidence is insufficient to support the verdict.” State v. Thacker, 164 S.W.3d 208, 221

(Tenn. 2005). These rules are applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence, or a combination of both. State v. Pendergrass, 13 S.W.3d 389,

392-93 (Tenn. Crim. App. 1999). With respect to circumstantial evidence, our supreme court

recently overruled State v. Crawford, 470 S.W.2d 610 (Tenn. 1971), and its requirement that,

to prove a defendant’s guilty based on circumstantial evidence alone, the State must present

proof “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. Dorantes, 331 S.W.3d 370,

380-81 (Tenn. 2011). The court held that direct and circumstantial evidence should be

treated the same way in evaluating sufficiency of the evidence challenges. Id.

The defendant stands convicted of attempted theft and vandalism. Theft occurs when

a person “knowingly obtains or exercises control over the property without the owner’s

effective consent” and with the intent to deprive the owner of the property. T.C.A. § 39-14-

103 (2010). A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would constitute

an offense, if the circumstances surrounding the conduct were as the

person believes them to be;

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(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the

person’s part; or

(3) Acts with intent to complete a course of action or cause a result that

would constitute the offense, under the circumstances surrounding the

conduct as the person believes them to be, and the conduct constitutes

a substantial step toward the commission of the offense.

T.C.A. § 39-12-101(a) (2010). The offense of vandalism is committed by “[a]ny person who

knowingly causes damage to or the destruction of any real or personal property of another

. . . knowing that the person does not have the owner’s effective consent[.]” T.C.A. § 39-14-

408(a) (2010). “‘Damage’ includes, but is not limited to: (A) [d]estroying, polluting or

contaminating property; or (B) [t]ampering with property and causing pecuniary loss or

substantial inconvenience to the owner or a third person[.]” Id. at -408(b).

The defendant’s only contention on appeal is that the State failed to sufficiently

establish his identity as the perpetrator. In support of his argument, the defendant relies upon

the following evidence: (1) the victim indicated at one point during his testimony that he had

not seen the defendant’s face; (2) the victim was predisposed to pick the defendant from the

photographic lineup because he had seen the defendant’s driver’s license picture on the night

of the incident; (3) no fingerprints connected the defendant to the crime scene; (4) a two-

year-old registration of a car was the only evidence placing the defendant at the scene; and

(5) the victim testified that he had not checked the condition of the storage building within

twenty-four hours prior to the crime. We are not persuaded by the defendant’s argument.

In fact, his reliance upon these asserted facts and evidence, which were all placed before the

jury, is nothing more than a challenge to the weight of the evidence or a challenge to the

credibility of the witnesses who testified. It has been repeatedly stated that it is not the

province of this court to reweigh evidence or re-evaluate credibility determinations which

have been made by a jury. See Evans, 108 S.W.3d at 236.

When viewed in the light most favorable to the State, the evidence amply supports the

defendant’s convictions. The victim testified that he saw a man through the window, gave

chase while the man was carrying an air compressor, and chased him up an embankment to

a parked car, getting close enough to the car to throw a board and hit it. While the victim

did indicate on cross-examination that he had only seen the man from the rear, he testified

on redirect that he had seen the man’s profile. The victim gave a description to the

responding police officer that matched the description of the defendant. When the victim

was shown the picture from the defendant’s drivers license, he identified the defendant as the

man he had chased. Additionally, a car which had been registered by the defendant two years

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previously was located at the scene of the crime. That the car had not been registered in the

ensuing two years does not discount the fact that the defendant was the last person who had

registered the car with the state.

While the victim never saw the defendant in possession of the drill, it was certainly

reasonable for a jury to assume that it had been moved by the defendant. The drill had

clearly been removed from the storage building where the victim kept it stored, and it was

found in an area near the defendant’s car, incidently, in an area to which the defendant was

seen running with the air compressor. The fact that the victim did not actually see the

defendant break into the storage building and remove the drill does not negate the strong

circumstantial inference that the defendant did, in fact, do so.

Contrary to the defendant’s assertion, we must conclude that the State presented

sufficient evidence to establish the defendant’s identity as the perpetrator of the crimes.

Direct evidence was presented by the victim’s eyewitness testimony that placed the defendant

at the scene of the crime in possession of the air compressor. In light of this evidence, as

well as all of the circumstantial evidence presented, we conclude that there was sufficient

evidence to allow the jury to find beyond a reasonable doubt that the defendant attempted to

exercise control over the victim’s property with the intent to deprive him thereof. Further,

the evidence also supports the conclusion that the defendant knowingly caused damage to the

store building and rental pod, which resulted in pecuniary loss to the victim. As such, the

defendant is entitled to no relief on this issue.

CONCLUSION

Based upon the foregoing, the judgment for attempted theft is affirmed. The judgment

for vandalism is incomplete; therefore, we remand for the trial court to complete said

judgment.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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