        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 18, 2012 Session

           STATE OF TENNESSEE v. JEFFREY WADE OSBORNE

                  Appeal from the Criminal Court for Williamson County
                       No. II-CR124589 Timothy Easter, Judge



                    No. M2010-02580-CCA-R3-CD - Filed July 12, 2012


Appellant, Jeffrey Osborne, was convicted by a Williamson County jury of burglary and theft
of property valued up to $500. Appellant’s sole argument on appeal is that the evidence
presented at trial was insufficient to support his conviction of burglary because it failed to
establish that Appellant lacked effective consent to enter the building that was the basis of
the burglary charge. After a thorough review of the record on appeal, we find that a rational
trier of fact could conclude that Appellant lacked effective consent. Therefore, we affirm the
judgments of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

William P. Holloway, Franklin, Tennessee, for the appellant, Jeffrey Wade Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Kate Yeager, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       In June 2009, Appellant was living with his girlfriend, Crystal Luna. The couple lived
within walking distance of Herschel Osborne, Appellant’s uncle. On June 22, 2009,
Appellant woke Ms. Luna and told her they were going to go to the pawn shops in Columbia
that day. In order to avoid an argument, Ms. Luna did not question Appellant. As they
entered Appellant’s truck, Ms. Luna noticed there were two saws in the back of the truck,
one Stihl saw and one Husqvarna saw.

        They drove to Columbia and began stopping at pawn shops. They stopped first at Plus
Pawn Shop. Appellant pawned the Stihl saw for $30. Appellant and Ms. Luna then drove
to Carmack Pawn and Sales to pawn the Husqvarna saw. The owner of the pawn shop
offered to purchase the saw for $100. However, Appellant did not find this amount to be
satisfactory. Another man, Aldredge Mayberry, was also in the store. Mr. Mayberry offered
to buy the saw from Appellant for $150, and Appellant agreed. Mr. Mayberry gave Appellant
$150 cash in exchange for the saw in the parking lot of Carmack Pawn and Sales. Appellant
and Ms. Luna then returned home.

       When they arrived home, Ms. Luna changed into her bathing suit. She had arranged
to go swimming at Mr. Osborne’s house. When Ms. Luna left Appellant’s house, Appellant
followed asking what she was doing. Ms. Luna told Appellant she was going swimming at
Mr. Osborne’s house. Appellant became angry and insisted that Ms. Luna could not go
swimming. Ms. Luna ignored Appellant and continued walking. Appellant followed, yelling
at Ms. Luna, “You know it’s hot up there.” Ms. Luna began arguing with Appellant. Finally,
Appellant told Ms. Luna, “You know that’s where I got them damn saws from.” Shocked,
Ms. Luna continued to Mr. Osborne’s house. Appellant did not follow.

        When Ms. Luna arrived, Mr. Osborne’s daughter and son-in-law were there
swimming. She waited with them at Mr. Osborne’s house until she heard Appellant’s truck
start and drive away. Ms. Luna returned home, packed two suitcases, and went back to Mr.
Osborne’s house. When Mr. Osborne arrived home, Ms. Luna told him that Appellant had
pawned two of his saws. Mr. Osborne went to his shed where he kept his saws and did not
find them there. He looked in various other locations, and confirmed that they were gone.

       Mr. Osborne called Captain Fred Bennett of the Williamson County Sheriff’s Office.
The two arranged to meet the next day to make a police report. Captain Bennett wrote the
report and assigned the case to Detective Tony Phillips. Detective Phillips was able to
recover the Stihl saw from Plus Pawn and the Husqvarna saw from Mr. Mayberry.

       On December 7, 2009, Appellant was indicted for one count of burglary and one count
of theft of property valued up to $500. Following a jury trial in Williamson County,
Appellant was convicted on both counts. On October 5, 2010, Appellant was sentenced as
a Range III, Persistent Offender to ten years on the burglary conviction, and eleven months
and twenty-nine days on the theft conviction. The trial court ran the sentences concurrently.




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                                         ANALYSIS

                                 Sufficiency of the Evidence

       Appellant argues that the evidence was insufficient to support his conviction for
burglary. The State argues that the evidence was sufficient. Appellant asserts that, because
of the relationship between himself and Mr. Osborne, it was reasonable for Appellant to
believe he was allowed to enter Mr. Osborne’s shed. Therefore, Appellant avers that the
evidence is insufficient to prove each and every element of burglary beyond a reasonable
doubt. The State counters Appellant’s assertion by arguing that Appellant did not have
effective consent to enter the shed and take the saws.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805
S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight
and value to be given to the evidence, as well as all factual issues raised by such evidence,
are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

      Under Tennessee Code Annotated section 39-14-402, as applicable in this case, “[a]
person commits burglary who, without the effective consent of the property owner: . . .



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[e]nters a building and commits or attempts to commit a felony, theft, or assault.” T.C.A.. §
39-14-402(a)(3).

       We must determine whether a rational trier of fact could have found that Mr. Osborne
did not give his effective consent to Appellant to enter the shed. Under Tennessee Code
Annotated section 39-11-106(a)(9), effective consent is defined as follows:

      “Effective consent” means assent in fact, whether express or apparent, including
      assent by one legally authorized to act for another. Consent is not effective when:
             (A) Induced by deception or coercion;
             (B) Given by a person the defendant knows is not authorized to act as an agent;
             (C) Given by a person who, by reason of youth, mental disease, or defect or
             intoxication, is known by the defendant to be unable to make reasonable
             decisions regarding the subject matter; or
             (D) Given solely to detect the commission of an offense
T.C.A. § 39-11-106(a)(9).

        In this case, the property in question was a shed located on Mr. Osborne’s private
property. Mr. Osborne testified that Appellant knew that no one was at Mr. Osborne’s house
during the day. Mr. Osborne further testified that when Appellant had entered his shed in the
past, Appellant had always asked for permission prior to doing so. Finally, Mr. Osborne
testified that Appellant did not have his consent to enter his shed without his permission; that
Appellant did not have his permission to enter the shed on the date of the offense; and that
he would have a problem with Appellant’s going into the shed without permission, even if
he returned what he might have borrowed or taken.

        When taken in a light most favorable to the State, we conclude that any rational trier
of fact could reasonably have concluded from the evidence presented that Appellant lacked
effective consent to enter Mr. Osborne’s shed. Therefore, the evidence was sufficient to
support a conviction of burglary.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE



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