The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1996 SESSION August 16, 1996
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9507-CC-00236
Appellee, )
) MONTGOMERY COUNTY
VS. )
) HON. JOHN H. GASAWAY,
RAY ANTHONY FARMER, ) JUDGE
)
Appellant. ) (Burglary)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL JONES CHARLES W. BURSON
District Public Defender Attorney General & Reporter
COLLIER W. GOODLETT CYRIL V. FRASER
Asst. Public Defender Asst. Attorney General
109 South Second St. 450 James Robertson Pkwy.
Clarksville, TN 37041 Nashville, TN 37243-0493
JOHN W. CARNEY
District Attorney General
WILLIAM CLOUD
Asst. District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37041
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged in the indictment with burglary. He was found
guilty at a jury trial and was sentenced to twelve years in the Department of Correction
as a career offender. In this appeal as of right, the defendant challenges the State’s
alleged failure to comply with Tenn. R. Crim. P. 16(a)(1)(C) regarding discovery of
tangible objects. We find that the defendant’s issue lacks merit, and his conviction is
therefore affirmed.
In the early morning hours of June 28, 1994, Clarksville Police Officer Ricky
Cumberland was patrolling the College Street area in Clarksville, Tennessee, in a marked
police car. As he passed the East College Street Amoco station he noticed that the
dome light was on inside a car parked outside the building in front of its large garage
door. He proceeded up the street, turned around, shut off his lights and approached the
Amoco building again. When he reached the Amoco station he witnessed the defendant
run from between the building and the car parked outside. The defendant was carrying
a red and black nylon bag, and his pockets were bulging as if full of something. Officer
Cumberland pursued the defendant and instructed him to halt. The defendant
disregarded Cumberland’s instructions and discarded the nylon bag as he ran. After a
moderate chase, Cumberland eventually caught the defendant and arrested him.
Cumberland then retrieved the nylon bag, which contained bolt cutters, a
small pry bar, two screwdrivers, a small flashlight, a cigarette pack and brown gloves with
a dot texture grip on the palm and fingers. The defendant’s pockets contained dollar bills,
loose and rolled change, and approximately sixteen packs of cigarettes. Included in the
cash which the defendant possessed were two stacks of twenty-five one dollar ($1) bills
with a rubber band around each stack. Included in the change which the defendant
possessed were two rolls of coins, one of nickels and one of pennies which contained
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more than the allotted number of pennies for the roll. Upon his arrest, the defendant
gave his name as James McQuary to Clarksville Police Detective John Crabbe.
At trial, Donald Gibbs, the owner/operator of the East College Street Amoco
station, testified that he had closed the station at approximately 6:00 p.m. on June 27,
1994. He was called to the scene in the early morning hours of June 28, 1994. Gibbs
noticed that the large garage door had been pulled up approximately two and a half feet
and the office had been ransacked. In addition, the front of the cigarette machine located
in the building had been removed and was standing next to the machine. With regard
to monetary losses, Gibbs testified that two stacks of twenty-five one dollar ($1) bills with
a rubber band around each stack had been taken from his cash drawer. Gibbs was also
missing one roll of nickels and one roll of pennies with too many coins in the roll. He
testified further that the defendant did not have permission to enter the East College
Street Amoco station after business hours.
Doyle Moss, an employee of Vaughn’s Vendors, testified that the cigarette
machine located at the East College Street Amoco station was owned by Vaughn’s
Vendors. Moss had serviced the machine on the Tuesday before the incident. Moss left
twenty-eight assorted cigarette packs in the machine on that date. When Moss checked
the machine after the alleged burglary, the machine contained fourteen cigarette packs.
In addition, all of the change from the machine was missing.
Detective Marty Watson of the Clarksville Police Department testified
regarding photographs which he took of the crime scene. One photograph in particular
showed fingerprinting powder bringing up small dot type impressions on a surface.
Watson testified that the impressions resembled the dot texture grip of the gloves found
in the nylon bag which the defendant had discarded during his flight from Officer
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Cumberland. On cross-examination, Watson stated that no fingerprints had been lifted
from the crime scene.
Watson photographed the items in the red and black nylon bag. He also
photographed the loose and rolled coins, the paper currency, and the cigarettes which
Officer Cumberland recovered from the defendant’s pockets. The two rolls of coins and
the dollar bills were then returned to Donald Gibbs, the owner/operator of the Amoco
station. The loose change and the cigarettes were returned to Doyle Moss as the
representative of Vaughn’s Vendors. As a result, the photographs of these items were
introduced as evidence at the defendant’s trial, not the items themselves.
In this appeal as of right, the defendant challenges the State’s alleged
failure to comply with Tenn. R. Crim. P. 16(a)(1)(C) regarding discovery of tangible
objects.1 More specifically, the defendant complains that the State did not allow the
defendant to inspect the money or the cigarettes obtained from the defendant after his
flight from Officer Cumberland, even though he had filed a standard discovery request
prior to trial. He contends that if the tax stamps on the cigarettes were not from
Tennessee, it would indicate that the cigarettes found on the defendant were not taken
from the machine at the East College Street Amoco station. Since the photographs of
the cigarettes introduced at trial do not clearly show the tax stamps, the defendant argues
that he was prevented from inspecting possibly exculpatory evidence.
Our analysis of this issue begins, of course, with the text of Tenn. R. Crim.
P. 16(a)(1)(C). Tenn. R. Crim. P. 16(a)(1)(C) reads in pertinent part as follows:
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Although the defendant fram es his argum ent as a challenge to the sufficiency of the
convicting evidence, it is clear that his com plaint on appeal stem s from the State’s alleged failure to
provide discovery in accordance with Tenn. R. Crim . P. 16(a)(1)(C). As a result, we will discuss
prim arily the issue of discovery rather than focus solely on the sufficiency of the evidence.
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Upon request of the defendant, the state shall permit
the defendant to inspect and copy or photograph ... tangible
objects, ... which are within the possession, custody or
control of the state, and which are material to the preparation
of his defense or are intended for use by the state as
evidence in chief at the trial, or were obtained from or belong
to the defendant.
From the plain language of the rule, it is clear that the tangible objects which are being
sought by the defendant must be “within the possession, custody or control of the state.”
Tenn. R. Crim. P. 16(a)(1)(C). See also, Raybin, Tennessee Criminal Practice and
Procedure, §13.33. In the present case, the loose change and the cigarettes were
returned to Vaughn’s Vendors, and the rolls of coins and the dollar bills were returned to
Donald Gibbs, the owner/operator of the Amoco station. The State photographed all of
this evidence for presentation at trial, but the items themselves were returned to their
rightful owners. As a result, none of the items were in the possession, custody or control
of the State at or after the time of the defendant’s discovery request. Accordingly, we can
only conclude that the defendant’s argument lacks merit because the currency and the
cigarettes were not subject to discovery under Tenn. R. Crim. P. 16(a)(1)(C).
Furthermore, even if we were to conclude that it was error for the State to
fail to maintain possession of the items and to allow the defendant to inspect them
pursuant to his discovery request, the defendant has failed to demonstrate prejudice, and
thus, any such error in the case at bar is harmless beyond a reasonable doubt. See
Tenn. R. Crim. P. 52(a). In fact, from the record before us, the evidence supporting the
defendant’s conviction is overwhelming. The record reveals that the East College Street
Amoco building was forcibly entered after business hours without the permission of the
owner. Among the items missing after the break-in were one roll of nickels, one overfilled
roll of pennies, two stacks of twenty-five one dollar ($1) bills with a rubber band around
each stack, and approximately fourteen packs of cigarettes.
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Officer Ricky Cumberland witnessed the defendant on the property of the
East College Street Amoco station after business hours, and upon Cumberland’s
approach, the defendant fled, ignoring Cumberland’s commands to halt. During his flight,
the defendant discarded a nylon bag which contained burglary tools. When he was
finally arrested, the defendant had in his possession, among other items, one roll of
nickels, one overfilled roll of pennies, two stacks of twenty-five one dollar ($1) bills with
a rubber band around each stack, and approximately sixteen packs of cigarettes.
Although the evidence of the defendant's guilt is circumstantial in nature,
it is a well established principle of law in this state that circumstantial evidence alone may
be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim.
App. 1988). However, in order for this to occur, the circumstantial evidence "must be not
only consistent with the guilt of the accused but it must also be inconsistent with his [or
her] innocence and must exclude every other reasonable theory or hypothesis except that
of guilt." State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In addition, "it must
establish such a certainty of guilt of the accused as to convince the mind beyond a rea-
sonable doubt that [the defendant] is the one who committed the crime." Tharpe, 726
S.W.2d at 896. Moral certainty as to each element of the offense is required, but
absolute certainty is not. Tharpe, 726 S.W.2d at 896.
From a review of the entire record before us, we find that the proof fully
supports the jury’s verdict of guilt. Furthermore, the defendant does not contend that he
was unfairly surprised by any of the evidence presented by the State at trial. Accordingly,
we conclude that the defendant has failed to demonstrate any prejudice stemming from
the State’s alleged failure to provide discovery in accordance with Tenn. R. Crim. P.
16(a)(1)(C).
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For the reasons set forth in the foregoing discussion, we find that the
defendant’s issue on appeal lacks merit. The judgment of the trial court is hereby
affirmed.
JOHN H. PEAY, Judge
CONCUR:
DAVID G. HAYES, Judge
WILLIAM M. BARKER, Judge
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