             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON               FILED
                           APRIL 1997 SESSION
                                                          August 8, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )    No. 02C01-9612-CC-00481
                                 )
      Appellee                   )
                                 )    MCNAIRY COUNTY
V.                               )
                                 )    HON. JON KERRY BLACKWOOD,
JIMMY RAY CORNELIUS,             )    JUDGE
                                 )
      Appellant.                 )    (Burglary)
                                 )
                                 )


For the Appellant:                    For the Appellee:

Gary F. Antrican                      John Knox Walkup
District Public Defender              Attorney General and Reporter
P.O. Box 700
Somerville, TN 38068                  Kenneth W. Rucker
(At trial)                            Assistant Attorney General
                                      450 James Robertson Parkway
C. Michael Robbins                    Nashville, TN 37243-0493
202 S. Maple Street
Suite C
Covington, TN 38019                   Elizabeth T. Rice
(On appeal)                           District Attorney General

                                      Ed Neal McDaniel
                                      Assistant District Attorney
                                      300 Industrial Park Drive
                                      Selmer, TN 38375



OPINION FILED: ___________________



AFFIRMED


William M. Barker, Judge
                                        OPINION



       The appellant, Jimmy Ray Cornelius, appeals as of right his conviction of

burglary in the McNairy County Circuit Court. He was sentenced to two years in the

Department of Correction as a Range I standard offender.

       On appeal, appellant challenges the sufficiency of the convicting evidence.

After a complete review of the record, we find the evidence adequate to sustain the

conviction. Therefore, the judgment of the trial court is affirmed.

       On November 15, 1995, Jerry Kellough was employed by a vending company

which distributed Tom’s snack foods in the McNairy County area. At the end of his

work day, he returned to the warehouse on Highway 22 in Michie, where the

merchandise was stored. Upon arrival, he noticed that a rear door of the warehouse

had been removed. The door appeared to have been kicked down; both the wood

frame and the door were on the floor. As Kellough entered the building, he noticed

the interior in disarray. Soft drink cans, candy, and other items were strewn on the

floor. The contents of an office desk had also been thrown on the floor. In addition, a

Pepsi machine had been pried open and its coin box removed. When Kellough had

departed the warehouse that morning, everything was in order.

       Upon further inspection, he discovered a man, whom he identified as appellant,

hiding behind a box of potato chips. Kellough immediately returned to his truck,

retrieved a weapon and removed appellant from the building. Law enforcement

officials were contacted and dispatched to the scene. When an officer examined the

interior of the building, he discovered a .22 caliber pistol near the box where appellant

was found. The pistol belonged to the owner of the building and was usually kept in a




                                            2
desk drawer. As a result of these events, appellant was indicted and later convicted of

one count of burglary.

       Appellant does not deny that he illegally entered the warehouse. However, he

contends that the evidence is insufficient to prove that he possessed the intent to

commit a theft. See Tenn. Code Ann. §39-14-402(a)(1) (Supp. 1996). His testimony

at trial reflected that he entered the building only to get out of the cold and stay warm.

He said he did not intend to steal anything or commit a crime once inside the building.

       We must consider the evidence in the light most favorable to the prosecution in

determining whether “any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence

and are required to afford the State the strongest legitimate view of the proof

contained in the record, as well as all reasonable and legitimate inferences which may

be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “[S]pecific substantive proof of the intent to steal is not indispensable to a

conviction for burglary charged to have been committed with that intent.” Petree v.

State, 530 S.W.2d 90, 94 (Tenn. Crim. App. 1975). In fact, a jury is warranted in

inferring that a breaking and entering of a building containing valuable property is

made with the intent to commit a larceny therein. Hall v. State, 490 S.W.2d 495, 496

(Tenn. 1973); State v. Avery, 818 S.W.2d 365, 367-68 (Tenn. Crim. App. 1991); State

v. Burkley, 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990).

       The building here obviously contained valuable goods, as it was used to store

merchandise sold by the vending company. The logo of Tom’s snack foods was

prominently painted on the building, very close to the door that appellant removed.

Once inside the building, appellant rummaged through the desk, removing the drawers

and throwing items on the floor. He also pried open a Pepsi machine, threw soft

drinks on the floor, and discarded the coin box. Although appellant claimed no intent

to steal any goods, the jury was entitled to reject his testimony in favor of the State’s

                                             3
theory. A guilty verdict rendered by the jury and approved by the trial court accredits

the testimony of the witnesses for the State, and a presumption of guilt replaces the

presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       Moreover, it was within the jury’s purview to discredit appellant’s explanation of

the events. Questions concerning the credibility of the witnesses, the weight and

value to be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact. Cabbage, 571 S.W.2d at 835. Appellant’s testimony

revealed that he had been driving on Highway 22 and ran off the road into a ditch.

Intoxicated and fearing a citation for DUI, he abandoned his vehicle and fled the

scene. As he ran from the accident, he saw the warehouse. Appellant claimed to

have entered the building only to stay warm. He further explained that he rummaged

through the desk looking for something to start a fire. However, he created total

disarray inside the warehouse, destroying some office items, scattering other items on

the floor and removing the coin box from the drink machine. He also removed the gun

from the desk, fired two rounds inside the building, and kept it with him as he hid. The

jury was certainly justified in concluding that the appellant was not merely seeking

shelter.

       We cannot say that the facts are insufficient, as a matter of law, for a rational

trier of fact to find the appellant guilty beyond a reasonable doubt. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). The judgment is affirmed.



                                                 _______________________________
                                                 William M. Barker, Judge
CONCUR:



____________________________
Joseph M. Tipton, Judge



____________________________
David G. Hayes, Judge

                                            4
