         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 3, 2002

             STATE OF TENNESSEE v. JOSHUA ALAN STEAKLEY

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 8028    C. Creed McGinley, Judge



                     No. W2001-02996-CCA-R3-CD - Filed April 25, 2003


The defendant was convicted of burglary, a Class D felony, after a jury trial and was sentenced to
two years, six months, with all but fifteen days suspended, and the balance to be served on
supervised probation. The defendant was also ordered to pay $353.95 in restitution to North
Elementary School. On appeal, he argues that the evidence was insufficient to support his conviction
and that the trial court erred in denying full probation and ordering that he serve fifteen days in
confinement. Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Joshua Alan Steakley.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                                FACTS

        The defendant, Joshua Alan Steakley, and two codefendants, Timothy Lard and Stephen
Copeland, burglarized the North Elementary School in Savannah, Tennessee, during the late evening
hours of September 23, 2000, taking two cases of toilet paper from a janitorial room and a stop light
hanging on a wall in the cafeteria. Prior to the defendant’s August 8, 2001, trial, Lard and Copeland,
a juvenile, pled guilty to burglary. At the defendant’s trial, Lard testified that his sentencing hearing
was set for September 11, 2001, and Copeland testified that he was placed on probation and ordered
to pay fines.
         Bobby Neill, a custodian at North Elementary School, testified that when he arrived at the
school on the morning of Sunday, September 24, 2000, he went upstairs to check the boiler system
and found footprints coming into the school from a window in the hallway. He immediately went
downstairs and called the police and the school principal. When the police arrived, Neill and the
officers began checking the building and discovered that two cases of toilet paper1 and a stop light2
were missing. When Neill went up to the roof of the school three or four days later to check the
drains, he found a ten-foot aluminum ladder that should not have been there and subsequently turned
it over to the police.

          Seventeen-year-old Stephen Copeland testified that on the evening of the burglary, he picked
up Timothy Lard in his red Nissan pickup truck and then drove to the defendant’s house, arriving
“somewhere around eight thirty or nine o’clock” p.m. About thirty minutes later, he, the defendant,
and Lard “took off walking down the road,” leaving his truck at the defendant’s house. The trio
wound up at North Elementary School and decided to break in by climbing a ladder to the top of the
roof. Because the ladder did not reach all the way to the top, they had to climb up in two stages,
pulling the ladder up behind them and propping it on another part of the building to climb up higher.
They then entered the school through a “lift-up” window on the second floor. The defendant went
in first, followed by Lard and Copeland. They went downstairs to a janitorial room and then to the
cafeteria where the defendant and Lard ate some food. As they exited the cafeteria, the defendant
grabbed the stop light off the wall. Next, they found another janitorial room and took two or three
“pretty good-sized” boxes and one or two smaller boxes of toilet paper. They then left the school
the same way they had come in, dropping the boxes of toilet paper and the stop light off the lower
section of the roof to the ground. After walking back to the defendant’s house and getting
Copeland’s truck, the trio returned to the school to get the toilet paper and stop light they had left
behind. They hid the toilet paper in “some kind of high grass area” close to the defendant’s house
before returning to the defendant’s house. Copeland and Lard then went to Lard’s house where they
spent the night.

        Using some of the stolen toilet paper, the defendant, Lard, and Copeland, along with Robert
Michaels, “rolled” Ethan Regan’s yard the next night and hid the rest under a porch at a house behind
an Amoco station. Copeland acknowledged that they saw Officer Chris Franks at the Amoco station
the night they rolled Regan’s yard and that there was toilet paper in the bed of his truck when Franks
saw them. During direct examination, Copeland testified that the last time he saw the stop light was
the night of the burglary when the defendant had it in his hand at the school. However, during cross-
examination, the defense asked him why he did not recall telling the police in his second statement
that he had seen the stop light at the defendant’s house and had seen the defendant put it in his
bedroom. Copeland maintained that he did not recall seeing the stop light after that night at the
school.


         1
             Neill testified that each case contained forty-eight rolls of toilet paper.

         2
           Neill testified that the stop light, by changing colors from green, orange, and then to red, was used in the
cafeteria to quieten the children when they were too loud.

                                                               -2-
        On cross-examination, Copeland acknowledged that he was untruthful when he told the
police that he did not know anything about the burglary when he was questioned on October 2, 2000,
at 9:40 a.m. However, when he was questioned again that day at 2:30 p.m., he told the truth because
he knew they were “going to get caught one way or another.” Copeland admitted that he had a prior
conflict with the defendant over a girlfriend but denied that the conflict affected his testimony.

        Nineteen-year-old Timothy Lard testified that he and Copeland arrived at the defendant’s
house between 10:00 and 10:30 p.m., and they all went walking for about twenty-five minutes. At
the school, they used a ladder that was lying beside the building to climb on top of the first floor and
then pulled the ladder up and used it to gain access to the second floor where they climbed in through
a window. They first went to a utility room and then to the cafeteria where they ate some ice cream
from the freezer. The defendant took the stop light from the cafeteria, and they took two large boxes
and two or three smaller boxes of toilet paper from the utility room. They exited the school from
the same window they had entered and threw the boxes of toilet paper off the roof to the ground.
Once they reached the ground, they hid the toilet paper in the “shadow of the building” and walked
to the defendant’s house to get Copeland’s truck. They returned to the school in the truck, loaded
the toilet paper, and took it to a field by the defendant’s house where they left it for “a little while”
before hiding it under the porch of a house behind the Amoco station. Lard admitted they rolled
someone’s yard with some of the toilet paper, and he subsequently showed the police the house
where the rest of the toilet paper was hidden. Lard did not know what had happened to the stop light
but last saw it at the defendant’s house.

        On cross-examination, Lard was questioned as to whether a ladder or a gutter had been used
to gain entry into the school because, in Lard’s statement to the police, he had said, “We climbed on
the walkway to the first floor roof and climbed up the gutter to the second floor.” After being shown
his statement, Lard said that a gutter “may have been part of the way of how we got up there, but I
do remember a ladder.” Lard admitted that he had had problems with the defendant in the past.

        Officer Chris Franks of the Savannah Police Department testified that, on a Sunday3 morning
around 2:00 a.m. while off duty and not in uniform, he was visiting his wife at the Amoco station
where she worked. There, he saw the defendant, Timothy Lard, and others standing “in a huddle”
beside Stephen Copeland’s red Nissan pickup truck and, because he was acquainted with them, he
went over to speak to them. Franks saw a large box of toilet paper, which the defendant and Lard
were trying to cover up with a shirt or quilt, in the bed of the pickup truck. Franks did not say
anything to them about the toilet paper because he did not think it was significant at the time. After
learning of the break-in at the school from Officer T.J. Barker, Franks told Barker what he had seen
at the Amoco and gave a statement to Chief Donald Derr.



         3
            Officer Franks’s testimo ny is unclear as to when this occurred in relation to the burglary. On direct
examination, he said that, when he saw the toilet paper in the back of the pickup truck, he “didn’t know at the time when
all this took place. It was two or three days later.” On cross-examination, however, he said he had seen the box of toilet
pap er before Septem ber 2 3 because he gave his “rep ort in Se ptember.”

                                                           -3-
        Chief Donald Derr of the Savannah Police Department testified that during his investigation
of the burglary, he got the names of the defendant, Lard, and Copeland and interviewed each of
them. He first talked to Copeland who initially said he did not know anything about the burglary.
However, when he talked to Copeland again later the same day, Copeland gave a different statement
which was consistent with the statement Lard had given. Lard showed Derr the vacant house where
the toilet paper was hidden, and a large amount of toilet paper in small rolls was recovered and
turned over to the school. Derr testified that the value of the toilet paper and the stop light was
approximately $353. Derr said that he did not have any independent proof implicating the defendant
in the burglary other than Copeland and Lard’s testimony. Derr executed a search warrant at the
home of the defendant on October 3, 2000, but did not find the stop light or the toilet paper.

        Testifying as the first witness for the defense, eighteen-year-old Gary Hutton said that he had
known the defendant for five or six years and had seen him at the Amoco station on September 24,
2000, between 1:15 and 1:30 a.m. The defendant was alone in his red Camaro and talked to Hutton
and Vincent Price for about thirty or forty-five minutes. Lard and Copeland arrived in Copeland’s
truck at the Amoco between 1:30 and 2:00 a.m. and asked Hutton and Price if they wanted to “go
roll yards because they had the toilet paper in the back of the truck.” After Hutton and Price
declined, Lard and Copeland left. Hutton and Price talked to the defendant “a few more minutes”
before going home. Vincent Price testified that he, Hutton, and the defendant were at the Amoco
station between 1:15 and 1:30 a.m. when Copeland and Lard drove up in a red Nissan and asked if
they wanted to “go roll yards.” Shortly thereafter, the defendant, Copeland, and Lard left separately
but headed in the same direction, the defendant in his vehicle and Copeland and Lard in Copeland’s
vehicle.

         Jenny Steakley, the defendant’s mother, testified that the defendant had not been with Lard
or Copeland on September 23, 2000, and he came home alone about 1:45 a.m. the following
morning, took a shower, and went to bed. She denied seeing the defendant with a stop light or boxes
of toilet paper. Ms. Steakley said she was at home when the police executed the search warrant, and
the police did not find the stop light or the toilet paper at her house.

        Sharon Holt testified that the defendant, who was a friend of her daughter’s, came to her
house on September 23, 2000, between 5:00 and 6:00 p.m. to help them assemble a computer desk.
The defendant remained at her house until about 1:30 a.m. but had left for about an hour with her
daughter between 8:00 and 9:00 p.m. Although she did not believe the defendant could have been
involved in the burglary “between the hours he was at [her] house,” she never contacted the police
to inform them that the defendant had been there that night.

       The twenty-one-year-old defendant testified that Lard and Copeland had not been at his house
on September 23, 2000, and the first time he had seen them that day was at the Amoco station. Lard
and Copeland had toilet paper in their truck and asked the defendant, Hutton, and Price if they
wanted “to go roll yards.” The defendant said he went to Ms. Holt’s house around 5:00 p.m. and
stayed until approximately 1:30 a.m. except for an hour when he and Ms. Holt’s daughter “rode
through town . . . [and] got a movie at Movie Gallery.” He denied seeing Lard or Copeland during


                                                 -4-
the hour he was away from Ms. Holt’s. When he arrived back at Ms. Holt’s, he “finished putting
some doors on the desk . . . and then [they] sat down and watched the movie.” After the movie
ended, he went to the Amoco station where he talked to Hutton and Price for about twenty minutes
before Lard and Copeland arrived. He noticed toilet paper in the back of Copeland’s truck. He left
the Amoco station at about the same time as Lard and Copeland but drove “straight home” and did
not go anywhere with Lard and Copeland. He arrived home “[p]robably around one forty-five” a.m.
and did not leave the house again. The defendant denied breaking in the North Elementary School
and said he did not know why Lard and Copeland had implicated him in the burglary, other than they
had “never really got along real well, and I guess they figured if they pointed it at me, they’d get in
less trouble or something.”

        On cross-examination, the defendant testified that he and Lard had problems for “over a year
probably” and that he and Copeland had “got[ten] into it several months back.” He said that he did
not know Chris Franks and that Franks had seen him at the Amoco on “a different night,” “the same
night [they] went to jail . . . several weeks later.” The defendant admitted that Franks had seen him
covering a box of toilet paper that night in the back of Copeland’s truck and admitted that he had
“roll[ed] yards that night.”

                                            ANALYSIS

                                  I. Sufficiency of the Evidence

        The defendant argues that the evidence was insufficient to sustain his conviction for burglary,
asserting that the “State’s witnesses did not prove beyond a reasonable doubt that Appellant had the
requisite Mens Rea for the offense of burglary.” He further argues that there was “no demonstration
that Defendant knowingly or intentionally entered North Elementary School with the intent to
commit theft, other than the testimony of two individuals previously convicted of the charge, both
of whom gave conflicting stories in their initial statements and at trial and both of whom admitted
to a history of conflict with the Appellant.” Additionally, he argues that the testimony of his alibi
witnesses “placed him in locations which would have made it impossible for [him] to commit the
burglary of the school.”

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing 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, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,


                                                 -5-
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

                       This well-settled rule rests on a sound foundation. The trial
               judge and the jury see the witnesses face to face, hear their testimony
               and observe their demeanor on the stand. Thus the trial judge and
               jury are the primary instrumentality of justice to determine the weight
               and credibility to be given to the testimony of witnesses. In the trial
               forum alone is there human atmosphere and the totality of the
               evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). 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. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        The defendant’s arguments that the testimony of codefendants Timothy Lard and Stephen
Copeland could not be believed and that the police investigation of the burglary was not as complete
as it should have been overlook the fact that, as explained by Bolin, it is the trial judge and jury,
rather than this court, who “determine the weight and credibility to be given to the testimony of
witnesses.” 405 S.W.2d at 771. In this matter, the jury, by its verdict, made the determination,
which was its prerogative, that the State’s proof of the defendant’s guilt was believable and that his
alibi proof was not. Thus, we conclude that the testimony of codefendants Timothy Lard and
Stephen Copeland, corroborated by the testimony of Officer Chris Franks, was sufficient evidence
to support the verdict of the jury.

                                           II. Sentencing

        The defendant argues that the trial court erred in denying full probation and ordering that he
serve fifteen days in confinement.

        While the record on appeal includes a copy of the defendant’s presentence report, showing
that he had several misdemeanor traffic convictions prior to his participating in the burglary of the
school, the record does not contain a transcript of the sentencing hearing. It was the duty of the
defendant to provide an adequate record for appellate review. See Tenn. R. App. P. 24(b). “When
a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and
complete account of what transpired with respect to the issues forming the basis of the appeal.”
State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Generally, when the appellate record is
inadequate, the appellate court is precluded from considering the issue, and the trial court's ruling
is presumed correct. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v.
Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Thus, since the record does not include a


                                                  -6-
transcript of the sentencing hearing, at which the trial court would have explained the basis for its
determination that the defendant should serve fifteen days in jail before beginning his period of
probation, we are unable to review the trial court’s reasoning and are left with the presumption that
“the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann.
§ 40-35-401(d). Accordingly, we presume that the trial court was correct in ordering that the
defendant serve fifteen days in jail before beginning his period of probation. See State v. Gibson,
973 S.W.2d 231, 244 (Tenn. Crim. App. 1997).

                                         CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                                -7-
