The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH SESSION , 1999 April 21, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9807-CC-00293
)
Appellee, )
)
) MARSHALL COUNTY
VS. )
) HON. CHARLES LEE,
ROBERT P. THURMAN, ) JUDGE
)
Appe llant. ) (Burglar y, Theft)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MARSHALL COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
N. ANDY MYRICK, JR. JOHN KNOX WALKUP
116 West Market Street Attorney General and Reporter
Fayetteville, TN 37334
KIM R. HELPER
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE McCOWEN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney General
P.O. Box 45
Fayetteville, TN 37334
OPINION FILED ________________________
AFFIRMED AND REMANDED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Robert P. Thu rman , appe als as o f right his convictions and
sentences for burglar y and the ft of prop erty valu ed les s than $500 . On A pril 17,
1998, a jury convicted Defendant of burglary and misdemeanor theft. Following
a sentencing hearing, the trial judge sentenced Defendant to eleven months,
twenty-nine days for theft and twe lve years for burglary, to be served conc urren tly
as a care er offend er.
In this appeal, Defendant contests (1) the suffic iency of the evidenc e to
support his convictions, (2) the admissibility of his pretrial statement to police, (3)
the admissibility of testimony impeaching his pretrial statement to police, and (4)
his status as a care er offender for the felony burglary. We find no error by the
trial court, and we affirm both Defendant’s convictions and his sentences.
I. SUFFICIENCY OF THE EVIDENCE
Tennessee Rule of Appellate Procedure 13(e) prescribes that “Findings of
guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond
a reaso nable doubt.” T enn. R . App. P. 1 3(e). In addition, because conviction by
a trier of fact destroys the presumption of innocence and imposes a presumption
of guilt, a convicted criminal defendant bears the burden of showing that the
evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 196 3);
see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,
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331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v.
State, 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of th e eviden ce, an ap pellate court must afford the State “the
strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate
inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-
weigh or re-eva luate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at
191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court
find particu lar con flicts in the trial testimony, the court must resolve them in favor
of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
In this case, the proof was sufficient to permit the jury to find Defendant
guilty of theft and burglary. According to testimony at trial, Deputy Sheriff Steve
Holton of the Mars hall County Sheriff’s Department was patrolling his designated
area at app roxim ately 7:00 a.m. on January 1, 199 8, whe n he o bserv ed a s ingle
car in the parking lot of the Bethlehem Baptist Church. Deputy Holton noticed
that the vehicle was backed up to the church building, that the driver’s-side door
was open, tha t the trunk w as ope n, and tha t a perso n was s itting in the
passenger seat. Holton also noted that no church services were scheduled
because it was not Sunday. His suspicions raised, he entered the parking lo t to
investigate further.
Depu ty Holton questioned the passenger of the veh icle an d iden tified him
as Paul Pra tt. Pratt stated that he was waiting on his friend, Robert Thurman,
who was relieving hims elf in the wood ed are a imm ediate ly behind the park ing lot.
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Holton observe d a micr owave oven in the open tru nk of the vehicle; and the
deputy then requested back-up law enforcement and waited with Pratt to ensure
his continued pre sence. Me anwhile, Pratt gave Holton the veh icle paperwork
from the glove comp artmen t. These documents, including a bill of sale/sec urity
agreem ent, odometer disclosure statement, buyer’s guide/warranty, and
autom obile insurance receipt, all indicated that Robert Th urman o wned the c ar.
In addition, D eputy H olton testified that Pratt did not possess the ignition
key for the car, and deputies failed to locate an ignition key in th e car, on the
ground, or inside the premises of the church. Holton stated that upon inspection
of the church, he discovered several broken windows, at least one of which was
large enough for a person and a microwave to slide through. However, Holton
opine d that th e hole was n ot situa ted so that a p erson could carry a microwave
through the window alone or place a microwave outside the window without
causing dama ge to it.
Marsha ll Coun ty Dep uty Ph il Klarer testified that, up on arriv ing at the
scene, he observed tennis-shoe prints underneath the deadbolt lock on a door
to the church. In Klarer’s opinion, the door had been kicked several times,
creating multip le over lappin g prints of the same shoe pattern. He testified that
he inspecte d Paul P ratt’s shoe to determ ine if Pratt’s sh oe ma tched the print.
Klarer concluded that Pratt’s shoe did not make the particular marks on the door.
Klarer also verified that deputies conducted a fruitless search for the ignition key
to Defendant’s vehicle.
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Paul Pratt, th e acc omp lice in this case, tes tified for the S tate followin g his
plea of guilty to cha rges arisin g from th ese facts . Pratt stated that he and
Defendant attended a party on New Year’s Eve, left the party, and drove to the
Bethlehem Baptist Church. According to Pratt, Defendant drove into the parking
lot, exited the c ar, and w alked aro und to the rear of the church . Defendant then
called out to Pratt through a broken window to “com e and g ive him a hand.”
Defendant hande d the m icrowave to Pratt throu gh the w indow, a nd Pra tt placed
it in the trunk of the car. Pratt then sat down in the passenger seat of the car
while Defen dant we nt to the wo ods to re lieve hims elf. At that time, Depu ty
Horton arrived on the scene.
Detective Sam uel Brag g of the M arshall C ounty Sheriff’s Department
testified that he conducted a taped interview with Defendant after reading
Defendant his Miranda rights. In this interview, Defendant stated that he arrived
home on January 1, 1998 by 3:00 a .m. and went to sle ep. He told Bragg that the
next morning he and his mother had breakfast at Shoney’s at approximately 8:00
and that they then visited his grandmother at a nursing home in Nashville. He
explained in this interview that he ha d loane d his car to Pratt after Pratt d rove h im
home from the New Y ear’s Eve party.
Detective Bragg testified that at the con clusion o f his interview with
Defen dant, he immediately telephoned Defenda nt’s m other to verify the alibi.
The S tate entered into evidence a tape recording of this conversation, in which
Defe ndan t’s mothe r told the detective that she had not eaten breakfast at
Shoney’s and that she had worked all day on January 1. Bragg testified at trial
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that when he confronted Defendant with this information from Defendant’s mother
and asked him why he lied to police, Defendant responded that he did not know.
Tennessee Code Annotated § 39-14 -103 sta tes, “A pe rson co mm its theft
of property if, with intent to deprive the owner of property, the person know ingly
obtains or exercises con trol over the property w ithout the owne r’s effective
conse nt.” Furthermore, “[a] person commits burglary who, without the effective
consent of the property o wner . . . [e]nters a b uilding an d com mits or atte mpts to
com mit a felony, theft or assault.” Tenn. Code Ann. § 3 9-14-40 2(a)(3). W e find
the evidence sufficient to support co nvictions for theft and bu rglary.
Defendant contends that his convictions were impermissibly supported by
the uncorroborated testimony of an accomplice. A defendant cannot be
convicted on the unco rroborated testim ony of an acc omplice . Sherill v. Sta te,
321 S.W.2d 811, 814 (Tenn. 1959). This Court instructed in State v. Cald well,
977 S.W .2d 110 (Te nn. Crim. Ap p. 1997),
To corroborate the testimony of an accomplice, “there should be
some fact tes tified to, e ntirely ind epen dent o f the ac com plice’s
evidence, which, tak en by itself, leads to the inference, not only that
a crime has been committed, but also that the defendant is
implicated in it.” . . . This corroboration must consist of some fact or
circumstance which affects the identity of the defen dant.
Such corroborative evidence “may be dire ct or en tirely
circum stantia l, and it n eed n ot be a dequ ate, in a nd of itself, to
support a conviction” so lon g as it “fairly and legitimate ly tends to
conne ct the defe ndant w ith the com mission of the crim e charg ed.”
Id. at 115-16 (quoting Clapp v . State, 30 S.W. 214, 216 (Tenn. 1895), and State
v. Gaylor, 862 S.W .2d 546, 552 (Tenn. Crim . App. 1992 ), respectively).
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In this case, we find that the accom plice testimony by P aul Pratt was m ore
than sufficiently corroborated by law enforcement testimony that upon
investigating the scene o f the burglary, depu ties discovered a car reg istered to
Defen dant, with the driver’s-side door open and P ratt in the pass enger s eat, with
a microwave oven in the open trunk. Moreover, officers searched in vain the
person of Pratt, the vehicle, the grounds of the church, and the interior of the
church for ignition keys to Defendant’s car, leading to the inference that
Defendant poss esse d the k eys. Fin ally, officers excluded Pratt’s shoes as the
shoes which m arked p rints on the church door. Th is issue lac ks me rit.
II. ADMISSIBILITY OF PRETRIAL STATEMENT
In his sec ond is sue, D efend ant co ntests the ad miss ibility of his statement
to law enforcement following his arrest. He does not allege a constitutional
violation, but on ly an evidentiary violation—that the statement was not relevant
to any fact of c onseq uence in the trial. In sup port, Defe ndant argues that the
statem ent, in which he told Detective Bragg that he had been with his mother at
Shon ey’s and a nursin g hom e in Nashville on the day of the theft and bu rglary,
was not relevant to any issue at trial because he had decided not to present an
alibi defen se.
Defendant asserts that State v. Taylor, No. 02C01-9501-CR-00029, 1996
W L 580997 (Tenn. Crim. App., Jackson, Oct. 10, 1996), supports the exclusion
of this evidence. Specifically, he quotes Taylor for the proposition that “nothing
in [Tennessee Rule of Criminal Procedure 12.1(d)] requires the defendant to rely
on an alibi, nor is there any provision preventing him from abandoning an alibi
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defense. There fore the d ecision o f whethe r to provide an alibi is left en tirely to
the discretion of the d efendant.” Id. at *9.
Howeve r, Taylor does n ot preven t or caution against the introduction of
Defe ndan t’s statement in the case at bar. In Taylor, this Court rejected the
defen dant’s claim that the rule requiring disclosure of an alibi defense caused the
defen dant’s silence to be interpre ted as an affirma tive statement that no alibi
existed, in violation of his right against se lf-incrimination. The C ourt’s words in
Taylo r cannot be co nstrued to mea n that De fendan t’s affirmative statem ent to
police regarding his whereabouts at the time of the crime is irrelevant to a
determination of his gu ilt. Defen dant’s explanation of his whereabouts at the time
of the crime, althou gh certainly prejudicial to the defense, constitutes
circumstantial evidence quite relevant to the jury’s determination. This issue
lacks m erit.
III. IMPEACHMENT TESTIMONY
Defendant next argues that the trial court improperly admitted
impeachment testimon y offered b y Detec tive Bragg to show that Defe ndant’ s
mother had n ot sup ported Defe ndan t’s alibi, and Defendant’s own statement that
he did not know why he lied to police. Defendant challenges the testimony as
evidenc e of a prior b ad act un der Te nness ee Ru le of Evide nce 40 4.
The State responds that while evidence of other crimes, wrongs, or acts
is not admissible to prov e the c harac ter of a p erson in orde r to sho w actio n in
conform ity with the character trait, such evidence may admissible for other
purposes. Tenn. R. Evid. 404(b). In this case, the State argues that the
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evidence was not used to show that be cause D efendant wa s a liar, he wa s likely
also a thief and burglar. Rather, the evidence was used to show that at the time
of the crime under investigation, Defendant was not at th e plac e that h e origin ally
claimed to be. We agree with the State’s position, and we affirm the admission
both of Def enda nt’s orig inal sta teme nts co ncern ing his whereabouts and of
evidence tending to show that those statements were untrue.
IV. CAREER OFFENDER STATUS
Defendant challenges the trial court’s finding that he is a career offender
for sentencing purposes. He argues that the trial court e rred by failing to find his
nine prior felony convictions a “single course of conduct” within the meaning of
Tennessee Code An notated § 40-35-108(b)(4). Section 40-35-108 reads:
Convictions for multiple felo nies co mm itted as part of a single
course of conduct within twenty-four (24) hours constitute one (1)
conviction for the pur pose o f determ ining prior c onvictions . . . .
Tenn . Code Ann. § 4 0-35-10 8(b)(4).
Defe ndan t’s nine felony convictions a rose fro m his failure to disclos e his
employment while receiving unemployment compensation benefits. Although
Defendant claims that procuring employment without reporting the same to the
Department of Emp loymen t Security c onstituted a single co urse of a ction, the
record reflects that Defendant’s convictions arose under Tennessee Code
Annotated § 50-7-713, when he cashed unemployment benefit checks from the
Department of Employment Security on nine separate occasions without
reporting his emp loymen t. Exhibit 1 to Def enda nt’s senten cing hea ring cons ists
of the nine indicted counts for which Defendant was convicted. T he exh ibit
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reflects that these offenses did not occur within twenty-four hours, but rather
spann ed three month s. This iss ue lacks merit.
The judgment of the trial court is affirmed.1
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
JOHN EVERETT WILLIAMS, JUDGE
1
The judgment entered for the theft conviction contains an apparent error. The
judgment reflects a conviction for a Class D felony with a sentence of eleven months and
twenty-nine days in the county jail. The record reflects that the conviction was for Class A
misdemeanor theft.
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