State of Tennessee v. Terry Tarrant

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 17, 2003

STATE OF TENNESSEE v. TERRY TARRANT

Direct Appeal from the Circuit Court for Franklin County

No. 13903 Buddy D. Perry, Judge

No. M2002-01805-CCA-R3-CD - Filed July 24, 2003

The Franklin County Grand Jury indicted the Defendant and Susan Davis, the co-defendant, for one

count of aggravated robbery and for one count of theft of property valued between five hundred and

one thousand dollars. A jury convicted the Defendant and co-defendant on both counts. The

Defendant now appeals, contesting the sufficiency of the State’s evidence. Specifically, the

Defendant contends that the State did not introduce sufficient evidence for a rational jury to find

beyond a reasonable doubt that the Defendant entered the home of the alleged victims. Finding no

error, we affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

David O. McGovern, Assistant Public Defender, Jasper, Tennessee, for the appellant, Terry Tarrant.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;

J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. FACTS

James Clark testified that he and his wife, Frieda, stayed with the Defendant, Clark’s lifelong

friend, on the night of February 2, 2001, because the heater was broken at the Clarks’ home. Clark

stated that the Defendant invited the Clarks to spend the night at his home where the heater was

working. He testified that the Clarks drove their own car to the Defendant’s home. Clark recounted

the events of that night, stating that around 5:00 p.m., he and his wife arrived at the Defendant’s

home, where the Defendant, Ms. Davis, and Ms. Brown were sitting around, drinking beer, and

watching television. Clark stated that he had not seen the co-defendant, Ms. Davis, before that night

at the Defendant’s house and only knew Ms. Brown through her father. He testified that he had

consumed three or four beers before arriving at the Defendant’s home and continued to drink beer

after he arrived. He testified that when he went to bed, he had consumed six or eight beers, “maybe

a little more.” Clark said that he saw no one leave the house after he and his wife joined the group.

However, he also stated that sometime before midnight, he and his wife were the first of the group

to go to bed. Clark testified that he and his wife slept in the Defendant’s bed in the bedroom while

the others stayed out in the living room. He did not recall being awakened from his sleep that night.

Clark testified that the Defendant and Ms. Davis were at the house when the Clarks awoke,

but that they were leaving to go “do some barbering.” Clark stated that he and Mrs. Clark did not

stay at the Defendant’s home for very long and left for their own home around 7:30 or 8:00 a.m.

Clark explained that when he and Mrs. Clark returned to their home, Mrs. Clark noticed that their

eleven-year-old son’s Play Station was missing. He testified that he did not find any evidence that

somebody had broken in, but that the house might have been left unlocked since his mother lived

next door. Clark stated that he and Mrs. Clark lived in a trailer next to his mother’s home in

Franklin County.

Clark stated that his wife spoke to the sheriff’s deputy, Mr. Dyer, and reported the Play

Station, a boom box, and Play Station games missing. He stated that he later learned that his son had

twenty-two games. Clark testified that had he sold the Play Station unit, the games, and the stereo

some time before they were stolen, he would have accepted six or seven hundred dollars in exchange

for the items. Clark testified that, on the suggestion of his nephew, he and his wife went to P & B

pawn shop to look for the stolen items. He stated that he spoke to Ms. Grubbs, the lady who was

running the place, and told her why he was there. He stated that Grubbs took the Clarks into the

back room of the store and showed them the items that the Clarks had described to her as missing:

the Play Station unit, the twenty-two games, and the boom box. Clark stated that no one had

permission to enter his home while he was at the Defendant’s house.

Freida Clark testified that she had known the Defendant as long as she had been married to

Mr. Clark. Mrs. Clark testified that the Defendant had been in her home at least thirty times, but

never without Mr. or Mrs. Clark present. She also testified that the Defendant had problems walking

and therefore used a cane. Mrs. Clark stated that she did not believe, and did not want to believe,

that the Defendant stole her son’s things.

Mrs. Clark testified that she knew Ms. Davis from when they were in jail together about two

or three months before this incident. Mrs. Clark stated that she was in jail at that time for public

drunkenness. She later agreed when the defense attorney suggested that Mrs. Clark had been in jail

with Ms. Davis in 1997 rather than a couple of months before this incident. She stated that Ms.

Davis had also been to her home once or twice after being released from jail. She later stated that

Ms. Davis had visited her home “two or three times . . . every once in a while” to sit around, watch

TV, drink beer, and “talk about the good old times.” Mrs. Clark testified that she did not remember

-2-

the dates very well, but she thought she bought the Play Station for her son for Christmas in 1999.

Mrs. Clark stated that she was confused about whether Ms. Davis was in the Clarks’ home when they

had a Play Station, but Mrs. Clark testified that she assumed that Ms. Davis knew it was there.

Mrs. Clark testified that the Clarks’ heat and electricity stopped working on February 2, 2001,

so the Clarks drove to the Defendant’s home, where they spent the night. She stated that the

Defendant, Ms. Davis, and Ms. Brown were at the Defendant’s home when the Clarks arrived. She

recalled sitting around and drinking a few beers that night before going to bed around midnight. She

stated that she drank three beers at the Defendant’s house and no beers before she arrived.

Mrs. Clark stated that when she and Mr. Clark retired for bed, the Defendant, Ms. Davis, and

Ms. Brown were still awake and in the house. She testified that she and Mr. Clark went to bed in

the Defendant’s bedroom, which was located near the front door. Mrs. Clark also stated that the

bedroom did not have a door, but did have a curtain in the door frame. She testified that she did not

hear anyone leave the house that night. Mrs. Clark also testified that when she went to bed, she was

“pretty well out” and slept soundly. She recalled waking up “pretty early” the next morning,

sometime between 7:00 and 9:00 a.m. Mrs. Clark testified that when she awoke, the Defendant and

Ms. Davis were not at the house because they had gone to “do some hair cutting.” When pressed

for clarification, Mrs. Clark testified that the Defendant and Ms. Davis were at the house when she

awoke but that they left before the Clarks did.

Mrs. Clark testified that on the way home, she noticed that her child support check was

missing from her purse and became worried that something was wrong at her house. She stated that

when the Clarks returned to their home, she discovered that her son’s Play Station and his twenty-

two Play Station games were missing. She testified that these items were in the house before she

went to the Defendant’s house to spend the night. Mrs. Clark stated that she called the police about

the missing items from the phone in her mother-in-law’s house next door. She testified that a

policeman, Mr. Dyer, came out to her residence and helped her make a report. Mrs. Clark testified

that she and her husband also went looking for the stolen items at P & B pawn shop independently

of the police. She stated that she spoke to Ms. Grubbs, a pawn shop employee, who showed the

Clarks items that they identified as their son’s Play Station, games, and boom box. Mrs. Clark

testified that she had not given anyone permission to pawn her son’s items and specifically stated

that she did not give the Defendant or co-defendant, Ms. Davis, permission to pawn the items.

Mrs. Clark stated that the Clarks sometimes left the doors of their trailer unlocked because

they lived right next door to Mr. Clark’s mother. She also testified that her mother-in-law could see

what was going on at the trailer from her own home. Mrs. Clark stated that her mother-in-law saw

Ms. Davis driving the Defendant’s car into the Clarks’ driveway the night before they discovered

that the Play Station unit, Play Station games, and boom box were missing. Mrs. Clark conceded

that she did not discuss what her mother-in-law told her with the district attorney or her husband.

Mrs. Clark testified that she had been in a car wreck and had “brain problems” that caused her to

have trouble with her memory.

-3-

Jennifer Grubbs, an employee of P & B pawn shop and the Franklin County Sheriff’s

Department, testified that she had worked for the pawn shop for about two years and was working

there on February 3, 2001. Ms. Grubbs described her duties as running the store when she is there,

taking pawns when people pawn items, allowing people to buy back their pawned items, and also

running retail of items that were not taken out of pawn. She testified that she opened P & B Pawn

at 8:00 a.m. on February 3, 2001. Ms. Grubbs stated that she knew the Defendant and Ms. Davis by

sight prior to that day. She testified that the Defendant and Ms. Davis arrived at the store in a large

car driven by the Defendant. She stated that the Defendant and Ms. Davis brought items into the

store that morning. Referencing the pawn ticket from that day, Ms. Grubbs testified that the

Defendant and Ms. Davis sold a Sanyo boom box, a Play Station unit, and twenty-two Play Station

games to the pawn shop for ninety-six dollars at 8:32 a.m. Ms. Grubbs identified pictures of the Play

Station unit, a bag of games, and a Sanyo boom box as the items or as items similar to those that the

Defendant and Ms. Davis pawned that day.

Ms. Grubbs recalled the events of the morning: “They were my first customers of the day.

Mr. Tarrant walked around the store. When he made eye contact with me he went back out to his

car and that’s where he stayed. Ms. Davis is the one who did the pawn transaction.” She did not

recall whether the Defendant walked in using a cane or a walker or if he was carrying any items. She

stated that she saw Ms. Davis’s driver’s license, wrote the driver’s license number on the pawn

ticket, and had Ms. Davis sign her name on the pawn ticket as well. She remembered that Ms. Davis

seemed “extremely nervous and acted like something was wrong with her.” Ms. Grubbs also

testified that the Clarks came to her store later that day asking about the aforementioned items. She

stated that in her presence the Clarks identified the items as their belongings. She stated that Officer

Bell with the sheriff’s department became involved in the case and took the items from the pawn

shop.

Michael Bell, an investigator for the Franklin County Sheriff’s Department, testified that he

investigated this case on February 3, 2001. He stated that he spoke with Mrs. Clark and someone

from P & B pawn shop during the course of his investigation. He testified that he never went to the

Clarks’ trailer or investigated how someone had gotten into the trailer. Bell also testified that he

retrieved the boom box, the Play Station, and twenty-two Play Station games from the pawn shop;

photographed the items; and then returned the items to the Clarks. He identified the photographs

that he took of the items. He stated that he did not perform fingerprint tests because doing so might

have ruined the electronic equipment and because he did not think that the tests were necessary in

this case since he had the statements regarding the Defendant and Ms. Davis bringing the items into

the pawn shop soon after they were stolen.

Sheylon “Cody” Brown testified that she was at the Defendant’s home on the night of

February 2, 2001 in the company of Mr. and Mrs. Clark, the Defendant, and Ms. Davis. Brown

stated that the group sat around watching TV, drinking beer, and talking. She stated that the Clarks

arrived around “dusty dark.” She testified that Ms. Davis borrowed the Defendant’s car to go to her

mother’s house and did not return while Brown was there. Brown also testified that the Clarks did

not go to bed while she was at the Defendant’s house. Brown stated that she left around 3:00 a.m.

-4-

when her boyfriend picked her up to go to Atlanta. She estimated that she drank probably twelve

beers, but was not very drunk because she had a high tolerance to alcohol. Brown denied that she

was an alcoholic. She stated that Mrs. Clark drank enough that night to become so tipsy that she fell

over and broke a toilet. She testified that all five people in the group were drinking out of a case of

beer.

II. ANALYSIS

The Defendant contends that the State did not present sufficient evidence to prove an element

of burglary, specifically that the Defendant entered the home of the alleged victims, the Clarks.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review

is whether, after considering 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. Tenn.

R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63,

67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13

S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the 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. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.

To prove aggravated burglary, the State must convince the trier of fact beyond a reasonable

doubt that a defendant (1) entered a habitation, (2) without effective consent of the property owner,

and (3) committed or attempted to commit a felony, theft, or assault in the building. Tenn. Code

Ann. §§ 39-14-402(a)(3), -403(a). For the purposes of aggravated burglary, “habitation” means “any

structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or

adapted for the overnight accommodation of persons.” Id. § 39-14-401(1)(A). The Code defines

“enter” for the purposes of burglary as an “[i]ntrusion of any part of the body,” id. § 39-14-402(b)(1)

or “[i]ntrusion of any object in physical contact with the body or any object controlled by remote

control, electronic or otherwise.” Id. § 39-14-402(b)(2). “A person commits theft of property if,

with intent to deprive the owner of property, the person knowingly obtains or exercises control over

the property without the owner’s effective consent.” Id. § 39-14-103. In order to convict a defendant

-5-

of burglary, the State is not required to offer a witness who saw the defendant break and enter the

burglarized premises. Ramsey v. State, 571 S.W.2d 822, 824 (Tenn. 1978).

“A person is criminally responsible for an offense committed by the conduct 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 offense, the person solicits, directs, aids, or attempts to aid another person

to commit the offense . . . .” Tenn. Code Ann. § 39-11-402(2). “Each party to an offense may be

charged with commission of the offense.” Id. § 39-11-401(b).

The State presented the following testimony at the trial. Mrs. Clark testified that the

Defendant and the co-defendant were familiar with the Clarks’ residence and that both had visited

it prior to this incident. She stated that the Defendant had been there at least thirty times before. Mr.

Clark testified that the Defendant had never been to the Clark home without Mr. or Mrs. Clark

present. Mr. and Mrs. Clark testified that the Defendant invited them to stay in his home overnight

since they did not have any heat in their own home. The Clarks stated that Ms. Davis and Ms.

Brown were at the Defendant’s home that night as well. They both claimed that they went to bed

in the bedroom around or before midnight while the rest of the group was still awake in the living

room. Mrs. Clark stated that her mother-in-law, who lived next door to the Clarks, told her that she

saw the Defendant’s car in the Clarks’ driveway that night. Mr. Clark testified that they drove their

own car to the Defendant’s house.

The Clarks stated that their home was robbed during the night while they were at the

Defendant’s home. They claimed that a boom box, a Play Station unit, and twenty-two Play Station

games that were present at their residence before they went to the Defendant’s home were missing

the next morning when they returned to their own home. The Clarks recalled filing a report with the

police that morning. A pawn shop employee, Ms. Grubbs, testified that she saw the Defendant and

Ms. Davis come into the store together the next morning with items later identified as those stolen

from the Clarks’ home. She said that the Defendant walked in, made eye contact with her, and then

walked out to wait in the car. She also said that co-defendant was acting nervous as she pawned the

items. Ms. Grubbs testified that she gave the co-defendant ninety-six dollars in exchange for the

pawned items. She stated that the Clarks came in later that day and identified the items pawned by

the co-defendant as the boom box, Play Station, and Play Station games that were missing from their

home. Officer Bell with the sheriff’s department testified that he photographed the items,

determined that they were the items that Mrs. Clark reported missing, and eventually returned them

to the Clarks.

The strongest legitimate view of the foregoing facts which is most favorable to the State is

that the Defendant lured the Clarks away from their own home and invited them to sleep in his

bedroom where they would not be aware of his activities. Then, the Defendant left his house,

possibly accompanied by Ms. Davis, and went to the Clarks’ home where he entered their home

without the Clarks’ permission in order to remove the Play Station unit, games, and boom box. The

next morning, the Defendant pawned the items in exchange for ninety-six dollars.

-6-

From the Clarks’ testimony that the items were previously in the their home and from Ms.

Grubbs’ testimony that the Defendant and Ms. Davis brought the items to the pawn shop the next

morning, the jury could reasonably infer that either the Defendant or Ms. Davis entered the Clarks’

home. As the Defendant notes, the evidence does not exclude the possibility that Ms. Davis entered

the Clarks’ home and removed the items rather than the Defendant. However, the jury was not

required to make an inference that the Defendant himself entered the home in order to find him guilty

of aggravated burglary because the trial court properly instructed the jury to consider the principles

of criminal responsibility. Once the jury found that all of the elements of aggravated burglary had

been committed by either the Defendant or Ms. Davis, the co-defendant, then the jury could

reasonably convict both the Defendant and Ms. Davis as criminally responsible for each other’s acts.

The State’s evidence was sufficient for a rational jury to conclude that either the Defendant

or Ms. Davis, the co-defendant, or both, actually entered the victims’ home without the victims’

consent and with the purpose of committing theft therein. Therefore, the State presented sufficient

evidence for a jury, by applying the principles of criminal responsibility, to find the Defendant guilty

of aggravated burglary and theft.

For the foregoing reasons, we AFFIRM the judgments of the trial court.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

-7-