         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 28, 2004

                 STATE OF TENNESSEE v. WORLEY K. HENRY

                      Appeal from the Criminal Court for Sullivan County
                            No. S46,442 Phyllis H. Miller, Judge



                   No. E2003-02630-CCA-R3-CD - Filed September 29, 2004


On May 1, 2003, the defendant, Worley K. Henry, was convicted by a Sullivan County jury of theft
of property valued at less than $500, possession of a Schedule IV controlled substance, and
tampering with evidence. The trial court sentenced him to eleven months and twenty-nine days each
for the theft and possession convictions and six years for the tampering with evidence conviction.
The theft and evidence tampering sentences were to run concurrently to each other, but consecutively
to the possession sentence. The defendant appealed his convictions for theft of property valued at
less than $500 and tampering with evidence. He has alleged that the evidence is insufficient to
support verdicts of guilty for these offenses. We affirm the judgments of the trial court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT , JR., JJ., joined.

Mark A. Skelton, Rogersville, Tennessee, for the appellant, Worley K. Henry.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Greeley Wells, District Attorney General; and J. Lewis Combs, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                              OPINION

                                         Factual Background


        The victim, Tammy Henry, is the defendant’s wife. The defendant and the victim had been
married for about six years when the incident giving rise to these convictions occurred. At trial, the
victim testified as to the events that led up to the defendant’s arrest. She stated that the relationship
between the victim and the defendant had always been bad. She stated that they had many arguments
and were having an argument on April 12, 2002 when the incident in question occurred.


        The defendant and the victim had been separated for some time. According to Mrs. Henry,
the defendant called her repeatedly, threatening her and trying to get her to come back to him. On
April 12, 2002, the defendant continued his phone calls and threatened both the victim and her
mother. The defendant was calling the victim on both her cell phone and the phone at her mother’s
house, where the victim was living at the time. Finally, the victim then agreed to meet the defendant.
The defendant informed the victim of his location so she could meet him.

         The victim met the defendant at the Dogwood Terrace Apartments in Kingsport. The
defendant was standing in front of one of the apartments. The victim’s seventeen-year-old son
dropped her off to meet the defendant. When she got to the apartment, the defendant had an ax
handle, and they began to argue about the defendant’s harassment of her. The defendant asked the
victim to stay and smoke marijuana with him and then take some pills. She refused the defendant’s
offer and told him that she did not want to be with him anymore. At this point, the defendant
became abusive. The defendant began waving the ax handle at the victim. The defendant never hit
the victim with the ax handle. He did, however, knock her down with his hands. Because of this
fall, the victim broke her ankle.

        The defendant ripped the victim’s pocketbook off of her shoulder and jumped the fence
behind the apartment building. The defendant also ripped a necklace from around the victim’s neck.
After he jumped over the fence, the defendant ran up into the woods. The police came and began
to look for the defendant. The police finally found the defendant. They also found the victim’s
purse floating in the creek. The police returned the purse to the victim. The police also found the
victim’s necklace in the defendant’s mouth. This was also returned to her.

         The victim did not seek medical treatment that night. She did go the next day and eventually
was diagnosed with a broken ankle. As a result, the victim wore a hard cast for five weeks and an
air cast afterward.

         On cross-examination, the victim admitted that she has a substance abuse problem. Although
she denied drinking before the incident, she stated that at the time of the incident she was taking
Xanax, and smoking marijuana, as well as taking lithium and blood pressure medication. The victim
testified that she had taken these drugs within the twenty-four hours before going to see the
defendant. She admitted that sometimes these drugs interfered with her memory and her ability to
be rational. She stated that even though her marriage to the defendant had been a troubled one, she
had not gotten a divorce. The victim stated she had not gotten a divorce because she has been
working on paying for a divorce. She also admitted that her ankle had been bothering her before the
night in question due an altercation with the defendant that occurred a few weeks before this night.
However, her ankle hurt much worse after the incident at the center of this case.



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        At the time of the trial, the victim was in jail for third offense DUI. Both the victim and the
defendant worked undercover for the drug task force. The victim’s brother had been sent to prison
on a drug offense. On cross-examination, the victim admitted that she was upset about her brother
being sent to jail and that she blamed the defendant for this happening. However, the victim denied
ever telling the defendant’s mother that the victim was going to have the defendant sent to prison just
like her brother. The victim admitted that she had seen the defendant when he visited her in jail and
that she had sent him many letters and cards. The victim was furloughed from jail for twenty-five
days when her mother died. During that time, the victim stayed with the defendant.

        Officer Justin Quillen of the Kingsport Police also testified at the trial. Officer Quillen stated
that on the evening of April, 12, 2002, he responded to a domestic call. He had heard of the
defendant and the victim before but had never dealt with them. When he arrived at the Dogwood
Terrace Apartments, he heard yelling and was directed to the rear of the apartments. When he
arrived at the back of the building, he saw the victim standing inside the fence around the complex
and the defendant standing outside the fence around the complex. The victim yelled, “Help, he’s got
my purse.” Office Quillen saw the defendant stand up on the other side of the fence with a dark-
colored bag that looked like a purse. The defendant began to run down a hill. Officer Quillen told
the defendant to stop, but when he would not stop Officer Quillen jumped the fence and began to
chase the defendant. When Officer Quillen reached the bottom of the hill he found the defendant
lying face down on his stomach with his hands above his head. The officer straddled him and told
him to put his hands behind his back. Officer Quillen had to physically force the defendant’s hands
behind his back because the defendant was not being coopertive. Another officer arrived and the
officers patted down the defendant to check for weapons. The defendant was then placed in a police
cruiser. Officer Quillen and another officer, Officer Lane, found the victim’s purse in a stream about
fifteen yards from where Officer Quillen caught the defendant. Officer Quillen went back to the
apartment, and the victim told the officer that the defendant threatened her with an ax handle.
Officer Quillen found the ax handle by retracing the defendant’s path down the hill. After retrieving
the purse and the ax handle, Officer Quillen began taking the victim’s statement. While taking this
statement, another officer showed Officer Quillen a necklace retrieved from the defendant’s mouth.
The victim identified the necklace as hers. The other officer handed Officer Quillen a blue pill and
an orange pill retrieved from the floorboard of the police cruiser where the defendant was sitting.
Officer Quillen returned the purse and the necklace to the victim. Officer Quillen stated that he did
not see the three other men that had been mentioned earlier in the trial. The only people he saw were
Shandra Wolfe, the victim and the defendant.

        On cross-examination, Officer Quillen stated that the first time he saw the defendant was on
the other side of the fence. Office Quillen never saw the defendant in possession of the ax handle
but found it about twenty to forty yards from where the defendant began to run. The officer drew
his gun when he got to the bottom of the hill, but the defendant was already down on the ground.

       Agent Phillip Freeze is a forensic scientist with the Tennessee Bureau of Investigation
(“TBI”). He specifically works with drug identification and analysis on a daily basis. Agent Freeze
received two tablets, an orange tablet and a blue tablet from the officers involved in the defendant’s


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arrest. After analyzing the tablets, Agent Freeze concluded that the tablets contained Alprazolam,
a Schedule IV controlled substance. Agent Freeze made a written report and sent it back to the
Kingsport Police.

         Officer David Johnson is an officer with the Kingsport Police Department. He heard a call
on April 12, 2002 from Officers Quillen and Lane that they were in a foot pursuit. Officer Quillen
radioed that he had the suspect in custody. Officer Johnson arrived on the scene. The officers patted
down the defendant for weapons. Officer Johnson put the defendant in his police cruiser and drove
the defendant back up to the apartments. While Officers Quillen and Lane searched for evidence,
Officer Johnson stayed with the defendant in the police cruiser. Officer Johnson noticed the
defendant bobbing his head like he was trying to reach something with his mouth. Officer Johnson
asked the defendant what he was doing. The defendant told the officer he was trying to “reach that
pill.” Officer Johnson got out his flashlight and found a pill sitting on the defendant’s shirt. Officer
Johnson did not know how the pill had gotten there. The defendant would not tell Officer Johnson
where he had originally obtained the pill but said he dropped them. The officer later found another
pill on the floorboard. Officer Johnson also noticed that the defendant was attempting to talk while
keeping something concealed under his tongue. Officer Johnson found a necklace in the defendant’s
mouth partly under his tongue and partly in his cheek. Officer Johnson gave both of the pills and
the necklace to Officer Quillen.

         The defendant also presented proof at trial. The first witness was his mother, Betty May
Frieden. Ms. Frieden testified that the victim told her that she wished she had not pressed charges
against the defendant. According to Ms. Frieden, the victim told her that she had messed up and was
trying to get back at the defendant for an incident that happened a while ago. The defendant’s
mother said that the victim and the defendant have had several domestic problems because of the
victim’s mother and brother. The victim also told the defendant’s mother that she went to see the
defendant with “some boys” who had brought bats or sticks with them. However, they left when
they saw the defendant because one of them knew the defendant. According to the story told to the
defendant’s mother, after the boys left, the victim began to beat the defendant with her purse, and
the defendant grabbed the purse and threw it. On cross-examination, Ms. Frieden stated that the
boys had been hiding in the bushes and she did not know if the defendant had seen the boys. Ms.
Frieden stated that the victim told her this shortly after the incident. However, Ms. Frieden had not
told anyone, including the police or the district attorney, this information prior to trial. Ms. Friend
testified that the earlier incident which caused the victim to press the charges against the defendant
involved the victim’s brother. Apparently, the defendant took a package sent to the victim by her
brother to the drug task force. In effect, the defendant turned in the victim’s brother for drugs while
the defendant was working as an informant. The defendant’s mother also stated that the defendant
and the victim both fight. The victim takes out orders of protection but always comes back to the
defendant. In fact, when the victim was out on furlough she stayed with the defendant, who was
living with Ms. Frieden at the time.

        Shandra Wolfe, a witness to the incident, also testified for the defendant. She testified that
she lives at Dogwood Terrace Apartments and saw the victim the night of April 12, 2002. She saw


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three young boys and the victim outside of an apartment in the complex. The boys were yelling for
the defendant to come outside of the apartment. The defendant did come out of the apartment and
started swinging a large stick at the boys. The boys ran to their car and left. The victim continued
to yell at the defendant. Ms. Wolfe then saw the defendant run toward the fence, and the victim
yelled that the defendant hit her and took her purse.

         The defendant was arrested the night of April 12, 2002. He was tried on April 30 and May
1, 2003. At the conclusion of proof, the jury found the defendant guilty of theft of property valued
at less than $500, possession of a Schedule IV controlled substance, and tampering with evidence.
The trial court sentenced the defendant to eleven months and twenty-nine days for both the theft and
possession convictions and sentenced the defendant to six years for the tampering with evidence
conviction. The theft and tampering with evidence convictions were run concurrently with each
other and the possession conviction was to run consecutively to the other convictions. The jury also
levied a fine of $750.00 for the possession conviction. The defendant appealed his convictions.

                                             ANALYSIS

        The defendant’s sole issue on appeal is that there was not sufficient evidence to support his
convictions for tampering with evidence and theft of property valued at less than $500. 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.

         The defendant first argues that there was insufficient evidence to support his conviction for
tampering with evidence. The elements of tampering with evidence is found at Tennessee Code
Annotated section 39-16-503. Tennessee Code Annotated section 39-16-503 states, “(a) It is
unlawful for any person, knowing that an investigation or official proceeding is pending or in
progress, to: (1) Alter, destroy, or conceal any record, document or thing with intent to impair its
verity, legibility, or availability as evidence in the investigation or official proceeding . . . .” The


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defendant argues that he could not be guilty of tampering with evidence because, the defendant
“having possession of the necklace at the time of the arrest cannot fall within the definition of
evidence tampering. The Appellant was still at the scene of the alleged criminal conduct. If the
Appellant had wanted to destroy evidence, he could have simply dropped or thrown the necklace
when pursued by the officer. However, the Appellant still had the necklace on his person, thereby
avoiding the necessity of a search for same.”

        In State v. Katrina A. Callahan, No. E2002-00926-CCA-R3-CD, 2003 WL 1960267 (Tenn.
Crim. App. at Knoxville, April 28, 2003), our Court analyzed Tennessee Code Annotated section
39-16-503. In that analysis, we stated that “an investigation was pending or in progress when the
police officers arrived in their official capacity and began investigating . . . .” Katrina A. Callahan,
No. E2002-00926-CCA-R3-CD, at * 9-10. The presence of the defendant at the scene of the
criminal conduct does not negate the charges of tampering with evidence. In this case, the defendant
was hiding the necklace in his mouth while the police were searching for evidence and investigating
the charges made by the victim.

        When analyzing the facts against the elements of the tampering with evidence statute, and
the facts are taken in a light most-favorable to the State, there is sufficient evidence to convict the
defendant for tampering with evidence. The defendant clearly knew that an investigation was
pending because he had been chased by the police and placed in a police cruiser while handcuffed,
so the officers could continue to search for evidence. The defendant clearly concealed evidence
when he hid the victim’s necklace underneath his tongue.


        The defendant also argues that the victim, Tammy Henry was totally lacking in credibility,
and points out several flaws in her testimony. As we noted above, the conviction of the defendant
accredits the testimony of the State’s witnesses and resolves all conflicts in the testimony in favor
of the State. The credibility of witnesses and weight to be given the evidence rest with the jury.
State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). We, as the appellate court, cannot second-guess
the jury’s decision on the credibility of witnesses. In addition, we point out that the defendant was
originally charged with especially aggravated robbery. The jury was presented with robbery and the
applicable lesser-included offenses. The jury convicted the defendant of the lesser-included offense
of theft of property worth less than $500. It is very apparent that the jury carefully weighed the
evidence with regard to the taking of the purse and the necklace and made a decision after careful
deliberation.

       The defendant also argues that the same fact was used to support more than one conviction.
The defendant appears to argue that the taking and concealing of the necklace was the basis of both
his conviction for tampering with evidence and his conviction for theft of property valued at less than
$500. However, at the beginning of his argument in his brief, the defendant states that he was
convicted for theft of property valued at less than $500 based upon his taking his wife’ purse and
personal belongings and that he was convicted on tampering with evidence based upon his
concealing the necklace. Theft of property, found under Tennessee Code Annotated section 39-14-


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103, requires an individual to “knowingly obtain[ ] or exercise control over the property without the
owner’s effective consent,” with the intent to deprive the owner of the property. When the facts are
viewed in a light most favorable to the State, it is obvious that the evidence supports the defendant’s
conviction. The defendant clearly grabbed the victim’s purse and ran away with it. These actions
clearly meet the elements set out for theft of property.

         As stated above, the facts of this case amply support the defendant’s convictions for theft of
property valued at less than $500 and tampering with evidence. Therefore, we affirm the judgments
of the trial court.



                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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