        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 7, 2014

                STATE OF TENNESSEE v. LORENZO SPENCER

                  Appeal from the Criminal Court for Shelby County
                     No. 10-06096     W. Otis Higgs, Jr., Judge



                 No. W2013-00657-CCA-R3-CD - Filed April 29, 2014



Following a jury trial, the Defendant, Lorenzo Spencer, was convicted of aggravated
burglary. See Tenn. Code. Ann. § 34-14-403. The trial court sentenced the Defendant as a
Range III, persistent offender to a ten-year sentence. On appeal, the Defendant contends that
the evidence presented at trial was insufficient to support his conviction. Following our
review, we affirm the judgment of the Shelby County Criminal Court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LLAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Stephen C. Bush, District Public Defender; Phyllis L. Aluko (on appeal) and William Otis
Yonkowski (at trial), Assistant Public Defenders, for the appellant, Lorenzo Spencer.

Robert E. Cooper, Jr, Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Christopher
Judson Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

       On April 10, 2010, Judy Westpy noticed a man she had never seen before walking in
her neighborhood. Ms. Westpy described the man as a black male, about 5'7" or 5'8" in
height, and wearing a light colored baseball cap. When she saw the man walk in between
two houses, she called her neighbor, Daniel Bass, and then the police. Mr. Bass drove to the
area, but he did not see the man. Mr. Bass then pulled into his driveway to wait for the man
to reappear. When he heard glass breaking from the house next door, Mr. Bass exited his
truck and walked up the driveway. At that time, Mr. Bass heard a car on the street and turned
from the house towards the street where he saw a police cruiser approaching. As Mr. Bass
began to walk toward the street to meet the police officer, he saw the Defendant come out
of the front door and also walk toward the police officer. Later, Mr. Bass told the police that
the house in question was a rental property but that he did not know whether the property was
currently being rented. Nevertheless, Mr. Bass stated to police that “this guy doesn’t belong
here.”

        Officer Adam Lewis of the Memphis Police Department testified that he responded
to a burglary call on the morning of April 10, 2010. He arrived at the scene while Ms.
Westpy was still on the phone with the dispatcher. Officer Lewis saw the Defendant come
out of the front door of the house Mr. Bass was standing in front of and throw two gloves on
the ground. Officer Lewis detained the Defendant and conducted a pat down, finding a
“newer house key” as well as a piece of aluminum that resembled part of a golf club. When
Officer Lewis’s partner arrived, Officer Lewis walked around the house where he saw a rear
window with its glass broken out. Officer Lewis then entered the house and saw a piece of
concrete on the floor near the window, as well as a broken golf club that was missing its
middle shaft. Officer Lewis confirmed that the house key found on the Defendant fit the lock
on the front door of the house.

         Eddie Albonetti testified that he was the owner of the house and that he arrived at the
property to talk with police officers after receiving telephone calls from his neighbors about
a break-in. Mr. Albonetti testified that he used the house as a rental property and that at the
time of the burglary he did not have the house rented. Because the house was not occupied
at the time, it was mostly empty with only a few items stored in the enclosed front porch area
of the house. He stated that he kept a spare key to the house on a shelf in the kitchen. Mr.
Albonetti further testified that he believed the Defendant had thrown a brick through the back
window in order to gain entry to the house. Mr. Albonetti did not know the Defendant, nor
did he give the Defendant permission to enter the house.



                                         ANALYSIS

        The Defendant contends that the evidence presented at trial was insufficient to support
his conviction for aggravated burglary. In particular, the Defendant argues that the
indictment charged him with an aggravated burglary that occurred on April 20, 2010, but that
all the evidence presented at trial referred to an incident that took place on April 10, 2010.
The Defendant also argues that the State failed to present sufficient evidence of his identity
as the perpetrator and that the State failed to prove his intent to commit theft. The State

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responds that any variance between the indictment and the proof at trial was neither material
nor prejudicial because the Defendant was sufficiently advised of the crime for which he was
charged. The State further responds that the evidence supports the jury’s finding that the
Defendant was guilty of aggravated burglary.

                                        I. Indictment

        At the outset, we note that the majority of the Defendant’s sufficiency argument
addresses his belief that there was a fatal variance between the indictment and the evidence
presented at trial. “A variance between an indictment . . . and the evidence presented at trial
is not fatal unless it is both material and prejudicial.” State v. Shropshire, 45 S.W.3d 64, 71
(Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984); State v.
Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997)). Any variance between an indictment
and the proof presented at trial “is not material where the allegations and proof substantially
correspond, the variance is not of a character which could have misled the defendant at trial”
and that does not “deprive the accused of his right to be protected against another prosecution
for the same offense.” Moss, 662 S.W.2d at 592.

        “Unless a defendant can show that he has suffered a substantial deprivation of his
rights, he is not prejudiced. If the indictment sufficiently informs him of the charges against
him and will protect him from future prosecutions for the same offense, any variances are
harmless.” State v. West, 737 S.W.2d 790, 793 (Tenn. Crim. App. 1987) (citing State v.
Hardin, 691 S.W.2d 578 (Tenn. Crim. App. 1985)). Furthermore, “[t]he time at which the
offense was committed need not be stated in the indictment . . . unless the time is a material
ingredient in the offense.” Tenn. Code Ann. § 40-13-207; see also State v. Byrd, 820 S.W.2d
739, 740 (Tenn. 1991).

        In State v. Moutry, No. E2011-02531-CCA-R3-CD, 2013 WL 3105616, at *1 (Tenn.
Crim. App. June 17, 2013), this court held that a variance between the date of the offense and
the date listed in the indictment was not material. In Moutry, the indictment charged the
defendant with committing an offense “[o]n or about the 13th day of March.” Id. However,
the offense was actually committed on March 4. Id. At trial, the defendant did not raise an
alibi defense, and all the evidence presented referred to an incident that took place on March
4. Id. at *2. On appeal, this court held that the variance was not material because the
indictment sufficiently informed the defendant of the charges against him so that he could
adequately prepare his defense, and the variance did not “present a danger that the defendant
[would] be prosecuted a second time for the same offense.” Id. at *8. We find Moutry to be
analogous to Defendant’s case.

       The Defendant first contends that the variance is material because multiple burglaries

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could have occurred at the same residence at various times. However, there was no proof
presented at trial that the residence was burglarized on more than one occasion or by anyone
other than the Defendant. Therefore, there is no risk that the Defendant might later be
charged a second time for the same offense. See id. There is also nothing in the record to
suggest that the Defendant was foreclosed from using an alibi defense, or any other relevant
defense, because of the inconsistency between the indictment and the proof presented at trial.
The Defendant knew the date of his arrest, April 10, 2010, and knew he was accused of
burglarizing the house on that same date. The Defendant has therefore failed to prove that
his defense was prejudiced at trial. See id. Finally, there is nothing in the record to suggest
that the jury was confused about the date of the offense. Although the indictment did list the
incorrect date, the testimony offered at trial consistently referred to an aggravated burglary
that took place on April 10, 2010. The information contained in the indictment was
otherwise sufficient to provide the Defendant with notice of the charges against him. We
therefore conclude that this issue is without merit.

                               II. Sufficiency of the Evidence

       With respect to the Defendant’s remaining arguments, an appellate court’s standard
of review when the defendant questions the sufficiency of the evidence on appeal is
“whether, after viewing 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). This court does not reweigh the
evidence; rather, it presumes that the jury has resolved all conflicts in the testimony and
drawn all reasonable inferences form the evidence in favor of the state. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Questions regarding witness credibility, conflicts in testimony, and the weight and
value to be given to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict. Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely upon
conjecture, guess, speculation, or a mere possibility. State v. Cooper, 736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s proof be
uncontroverted or perfect. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put
another way, the State is not burdened with “an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” State v. Dorantes, 331 S.W.3d 370, 380
(Tenn. 2011) (quoting Jackson, 443 U.S. at 326).



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       Furthermore, “[t]he credible testimony of one identification witness is sufficient to
support a conviction if the witness viewed the accused under such circumstances as would
permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn.
Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App.
1993)). “It is well-established that the identification of a defendant as the person who
committed the offense for which he is on trial is a question of fact for the determination of
the jury upon consideration of all competent proof.” Strickland, 885 S.W.2d at 87 (citing
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).

       The record belies the Defendant’s contention that the State failed to prove his identity
as the perpetrator. Three eyewitnesses positively identified the Defendant at trial. Ms.
Westpy testified that the Defendant was the man she saw walking around her neighborhood
on April 10, 2010. Officer Lewis testified that he actually saw the Defendant walk out of the
front door of the house upon arrival at the scene. Similarly, Mr. Bass testified that he saw
the Defendant as he emerged from the residence. These accounts provide ample evidence
from which the jury could conclude that the Defendant was the perpetrator. The argument
is without merit.

        The Defendant next argues that the State presented insufficient evidence of his intent
to commit theft. In the context of reviewing an aggravated burglary conviction, “[o]ne’s
actions are circumstantial evidence of his intent.” State v. Barker, 642 S.W.2d 735, 737
(Tenn. Crim. App. 1982). “The circumstances surrounding the entry must also be viewed in
determining intent.” State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). “When
one enters, without authorization, an occupied dwelling which contains valuable property,
a jury is entitled to infer that the entry was made with the intent to commit a felony.” State
v. Burkley, 804 S.W.2d 458, 460 (Tenn. Crim. App. 1990) (citing Hall v. State, 490 S.W.2d
495, 496 (Tenn. 1973)).

        The Defendant argues that if he had intended to commit theft, he would have broken
into one of the many occupied houses on the street rather than the one house that was
unoccupied. However, Mr. Albonetti testified that the curtains were drawn on the windows
in the house. Therefore, the Defendant likely did not know that the house was unoccupied
and that there was no substantial property inside the house when he broke into it. The
Defendant walked to the rear of the house where he gained entry by throwing a brick through
a window. Furthermore, the Defendant actually removed property from the house. The
Defendant was found with the key to the front door of the house as well as part of a golf club.
Mr. Albonetti testified that the Defendant did not have permission to enter the house or take
those items. Taken together, these circumstances could lead a reasonable jury to conclude
that the Defendant entered the residence with the intent to commit theft.



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                                      CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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