     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                    DECEMBER 1997 SESSION
                                                     January 27, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
                              )
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 01C01-9702-CR-00070
     Appellee,                )
                              ) Davidson County
V.                            )
                              ) Honorable Thomas H. Shriver, Judge
                              )
DANIEL S. BARNES,             ) (Burglary and Attempted Theft)
                              )
     Appellant.               )




FOR THE APPELLANT:               FOR THE APPELLEE:

Paula Blair                      John Knox Walkup
Attorney at Law                  Attorney General & Reporter
176 Second Avenue, North
Nashville, TN 37201              Sarah M. Branch
                                 Counsel for the State
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Victor S. Johnson III
                                 District Attorney General

                                 Nicholas Bailey
                                 Assistant District Attorney General
                                 Washington Square Building
                                 222 Second Avenue, North
                                 Nashville, TN 37201




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION


       The appellant, Daniel S. Barnes, was convicted in a bench trial in

Davidson County of burglary and attempted theft of property valued under $500.

He was sentenced to four years for burglary and six months for attempted theft

and placed on probation, which was later revoked. The appellant’s sole issue on

appeal is whether the evidence was sufficient to support his convictions for

burglary and attempted theft. We affirm.



       On January 20, 1996, Robert Haught, a Metro Nashville police officer,

was dispatched to investigate a burglary at the Shelby Avenue Baptist Church.

When he arrived, he discovered that the window frame and all the glass had

been knocked out of a window at the rear of the church. He called for backup.

An officer with the canine unit arrived, and he and his dog entered the church.

Shortly thereafter, James McIntosh, the appellant’s companion, was arrested.



       Officer Robert Brown with the canine division testified that he entered the

church with his dog after McIntosh was removed. Once inside, the officer twice

shouted a warning, and when he did not receive any response, he released the

dog into the building. The dog located the appellant hiding under a desk in an

office. The officer stated that the appellant did not appear to have been asleep.

The appellant, who had been bitten on the leg, was brought out of the church,

arrested, and taken to the hospital for treatment of his injuries.



       Reverend Carl Martin, the minister at Shelby Avenue Baptist Church,

testified that the church was locked and that the appellant did not have

permission to enter the church. He also testified that a microwave had been

moved from the nursery to the hallway outside the door to the church office;

several children’s comforters had been moved to the door of the church office;

tables in the Sunday School office had been turned over; and the glass tabletop

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of one table had been broken. In addition, a small refrigerator had been moved

from its normal location.



       First, the appellant challenges the sufficiency of the evidence regarding

his burglary conviction. In his brief, the appellant, who did not offer any proof at

trial, argues that he did not enter to commit a theft, just to sleep and get warm.

He contends that there was no evidence that he was in possession of any items

and that his fingerprints were not found on any of the items. The state, however,

argues that the evidence clearly indicates that the appellant was guilty of

burglary. It notes that the appellant did not have permission to enter the church,

and that when the appellant was apprehended, he was hiding under a desk and

did not appear to be asleep. It also asserts that several items of church

property, including a microwave, a small refrigerator, and comforters had been

moved toward the window that had been broken by the appellant and his

companion.



       Second, the appellant argues that the evidence is insufficient to sustain

his conviction for attempted theft.   He maintains that the entered the church

only to sleep and stay warm and that James McIntosh, his companion, alone

committed the attempted theft. The state, however, argues that both men were

seen breaking into the church together and that when apprehended, the

appellant did not appear to be sleeping under the desk and did not mention to

police officers that he had entered the church to stay warm.




       Tennessee Code Annotated § 39-14-402(a)(1) (Supp. 1996) provides that

“[a] person commits burglary who, without the effective consent of the property

owner . . . [e]nters a building other than a habitation (or any portion thereof) not

open to the public, with intent to commit a felony, theft or assault.” Tennessee


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Code Annotated § 39-12-101(a)(3) (1991) provides that a person commits

criminal attempt who “[a]cts with [the] intent to complete a course of action or

cause a result that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the conduct

constitutes a substantial step toward the commission of the offense.” Theft of

property is committed “if, with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s

effective consent.” Tenn. Code Ann. § 39-14-103 (1991).



       On appeal, the verdict in a bench trial is entitled to the same weight as a

jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

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

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985).



       Based upon the record before us, the evidence is sufficient to sustain the

appellant’s convictions for burglary and attempted theft. The appellant entered


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the church without permission. Several items of church property had been

moved from their normal locations. In addition, tables were overturned and

papers were scattered around the church offices. The appellant, when

apprehended by police officers, did not mention anything about entering the

church to stay warm or to sleep, and in fact, when apprehended, he appeared to

be hiding under an office desk. Thus, the evidence is clearly sufficient to sustain

the appellant’s convictions for burglary and attempted theft. Finding no error in

the judgment of the trial court, we affirm.




                                        ______________________________
                                        PAUL G. SUMMERS, Judge




CONCUR:


______________________________
JOSEPH B. JONES, Presiding Judge



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______________________________
WILLIAM M. BARKER, Judge




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