            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE            FILED
                          FEBRUARY SESSION, 2000          March 9, 2000

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,                   *            Appellate Court Clerk
                                      *     No. M1999-00302-CCA-R3-CD
      Appellee,                       *
                                      *     RUTHERFORD COUNTY
vs.                                   *
                                      *     Hon. James K. Clayton, Judge
LA SOUTHAPHANH,                       *
                                      *     (Aggravated burglary and theft
      Appellant.                      *     over $1000)


For the Appellant:                    For the Appellee:

Gerald L. Melton                      Paul G. Summers
Public Defender                       Attorney General and Reporter

Russell N. (Rusty) Perkins            Marvin E. Clements, Jr.
Asst. Public Defender                 Assistant Attorney General
201 West Main Street, Suite 101       Criminal Justice Division
Murfreesboro, TN 37130                425 Fifth Avenue North
                                      2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493


                                      William Whitesell
                                      District Attorney General


                                      John W. Price
                                      Assistant District Attorney General
                                      Rutherford County Judicial Building
                                      Murfreesboro, TN 37130




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                       OPINION



       The appellant, La Southaphanh, appeals his jury convictions for aggravated

burglary and theft over $1,000. The trial court imposed, as a Range II offender, a

nine year sentence for aggravated burglary and a concurrent seven year sentence

for theft. On appeal, the appellant’s sole challenge is the sufficiency of the

convicting evidence.



       Following review, we affirm.



                                   BACKGROUND



       Around 4:30 p.m. on March 28, 1996, Richard Dimmock, a neighbor of

James and Lois Hale, observed two young males running from the Hales’ residence

on Shelley Street in Murfreesboro. Simultaneously, a “dark car” pulled into the

driveway driven by another male and picked up the two males. At 5:30 p.m., the

Hales returned to their home and found that it had been burglarized. Upon

searching their residence, the Hales discovered numerous items missing including a

VCR; a telephone/answering machine; two jewelry boxes, including a one carat

emerald cut tanzanite stone and numerous items of other jewelry; a .32 Harington

Richardson revolver; and various knives. The estimated value of all the items taken

was over $4,000.



       On that same afternoon around 4:50 p.m., Jonathan Lundquist, manager and

part-owner of Toliver’s Jewelry and Loan, made a loan on several items of jewelry to

three Asian males. Mr. Lundquist only loaned money on a few items but he

observed that the individuals were in possession of numerous other items of jewelry.


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The items listed on the “pawn ticket” included a men’s onyx ring, seven broken

chains, miscellaneous earrings, a diamond and white gold cross pendant, white gold

diamond earrings, and six charms. The identification and signature provided on the

“pawn ticket” was that of the appellant’s co-defendant Vilaisack Xayaphoumy.

Lundquist particularly noticed the tanzanite stone in the possession of the three

men; however, this item was not included in the loan.



         A few days later, two of the Asian males returned to the pawn shop. Mr.

Lundquist again noticed the tanzanite stone. He recognized the stone because, by

coincidence, the Hales had previously brought the stone into the store for setting

into a necklace. On this occasion, Mr. Lundquist recorded a description of the

vehicle, a white Honda Accord, and took down the license plate number. He then

relayed this information to the police.



         Through their investigation, the police developed the appellant as a suspect.

When the police found the appellant on April 4, he was with a group of people in a

white Honda Accord. Officer Tommy Alford of the Murfreesboro Police Department

read the appellant his rights and informed him that he was a suspect in the burglary.

The appellant waived his Miranda rights and confessed to the burglary.



         At trial, James and Lois Hale identified the numerous items of jewelry and

other items taken from their home which were recovered by the police. Mr.

Lundquist identified the appellant as one of the males who entered the pawn shop;

he also identified the appellant’s co-defendant Xayaphoumy as the individual who

provided identification for the loan and signed the receipt. Mr. Lundquist further

identified the tanzanite stone as the one seen in the appellant’s possession while in

the pawn shop. He provided that the stone was readily identifiable from its case,

based upon the rarity of tanzanite and the unusual emerald cut and style of the

stone.


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      Vilaisack Xayaphoumy, the co-defendant, testified for the State and admitted

his involvement in the burglary of the Hale’s residence. He stated that he drove the

getaway car, a black, four-door Oldsmobile Cutlass Ciera. He explained that on the

day of the burglary, he went to the appellant’s apartment with plans to go to

Nashville. The appellant, Xayaphoumy, and another individual referred to as Junior,

drove into the Hale’s neighborhood. The appellant told them that he wanted to see

a friend who lived there. However, Xayaphoumy realized that the appellant was

planning a burglary. Xayaphoumy dropped the appellant and Junior off at the

residence and returned several minutes later to pick them up. He testified that they

decided to pawn the items they had stolen and identified some of those items at

trial. He further provided that they separated the items from the burglary and

divided the proceeds.    He admitted to signing the pawn ticket and receiving $150

for the pawned items. Xayaphoumy explained that he used his identification to

pawn the items because the appellant did not have a driver’s license.



      At trial, the appellant denied any involvement in the burglary of the Hales’

residence or entering the pawn shop. However, he admitted to receiving money and

some of the items brought to him by other individuals. The appellant conceded that

he got into the car with Junior and Xayaphoumy; however, he testified they dropped

him off in Nashville. Although he admitted confessing to the crime, the appellant

testified that he was under the impression that if he admitted the crime, he would be

free to leave; otherwise, he felt the officer would “lock him up.” The appellant

admitted that he owned a white Honda Accord; however, he testified that he has not

had it since February of 1996. He also admitted that he had lost his driver’s license

in May of 1996. At the conclusion of the evidence, the jury returned guilty verdicts

for aggravated burglary and theft over $1,000.




                         SUFFICIENCY OF THE EVIDENCE


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       The appellant argues that the evidence is insufficient to support his

convictions for aggravated burglary and theft over $1,000. Specifically, the

appellant argues that the convictions cannot be sustained because of the: (1)

uncorroborated testimony of an accomplice; (2) lack of physical evidence connecting

the appellant to the crime; (3) lack of direct testimony connecting the appellant with

Xayaphoumy; (4) testimony of Mr. Lundquist was insufficient because the appellant

did not pawn any of the items; and (5) lack of proof that the appellant knew the

items were stolen.



       The relevant question upon a sufficiency review of a criminal conviction, be it

in the trial court or an appellate court, 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, 99 S.Ct. 2781, 2789 (1979). See also Tenn. R. App. P. 13(e);

Tenn. R. Crim. P. 29(a). A jury conviction removes the presumption of innocence

with which a defendant is initially cloaked and replaces it with one of guilt, so that on

appeal, a convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the

sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This rule is applicable to

findings of guilt based predicated upon direct evidence, circumstantial evidence, or a

combination of both direct and circumstantial evidence. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990)



       It is well established in this State that a felony conviction may not be based

solely upon the uncorroborated testimony of an accomplice. State v. Maddox, 957

S.W.2d 547, 554 (Tenn. Crim. App.1997) (citations omitted). To be sufficient the

corroborative evidence must itself be inculpatory in nature, i.e, the corroborative

evidence must be inconsistent with the innocence of the accused and do more than


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raise a mere suspicion of guilt. However, the corroboration need not be conclusive.

State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995) (citations omitted).

The corroboration is sufficient "if this evidence, of itself, tends to connect the

defendant with the commission of the offense, although the evidence be slight and

entitled, when standing alone, to little consideration." Id. (citations omitted). It is

clear from the proof in this case that the appellant’s convictions did not rest solely

upon the testimony of the accomplice: The pawn shop owner placed the appellant

in possession of several items of jewelry and identified him as one of the individuals

in the pawn shop around thirty minutes after the burglary and, more importantly, the

appellant confessed to the crimes. We find this corroborating evidence substantial.

Our focus in a sufficiency review is not upon the facts suggesting innocence or upon

the weight of the evidence, but rather whether there is a substantive probative

evidence to support the verdict. We conclude that the record contains evidence

from which a jury could have found the essential elements of the crimes beyond a

reasonable doubt.



       For the foregoing reasons, the appellant’s judgments of conviction for

aggravated burglary and Class D theft are affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




_______________________________________
JERRY L. SMITH, Judge



_______________________________________
NORMA MCGEE OGLE, Judge




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