             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JUNE 1996 SESSION           August 16, 1996

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 01C01-9507-CC-00236
             Appellee,           )
                                 )    MONTGOMERY COUNTY
VS.                              )
                                 )    HON. JOHN H. GASAWAY,
RAY ANTHONY FARMER,              )    JUDGE
                                 )
             Appellant.          )    (Burglary)




FOR THE APPELLANT:                    FOR THE APPELLEE:


MICHAEL JONES                         CHARLES W. BURSON
District Public Defender              Attorney General & Reporter

COLLIER W. GOODLETT                   CYRIL V. FRASER
Asst. Public Defender                 Asst. Attorney General
109 South Second St.                  450 James Robertson Pkwy.
Clarksville, TN 37041                 Nashville, TN 37243-0493

                                      JOHN W. CARNEY
                                      District Attorney General

                                      WILLIAM CLOUD
                                      Asst. District Attorney General
                                      204 Franklin St., Suite 200
                                      Clarksville, TN 37041




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                              OPINION
              The defendant was charged in the indictment with burglary. He was found

guilty at a jury trial and was sentenced to twelve years in the Department of Correction

as a career offender. In this appeal as of right, the defendant challenges the State’s

alleged failure to comply with Tenn. R. Crim. P. 16(a)(1)(C) regarding discovery of

tangible objects. We find that the defendant’s issue lacks merit, and his conviction is

therefore affirmed.



              In the early morning hours of June 28, 1994, Clarksville Police Officer Ricky

Cumberland was patrolling the College Street area in Clarksville, Tennessee, in a marked

police car. As he passed the East College Street Amoco station he noticed that the

dome light was on inside a car parked outside the building in front of its large garage

door. He proceeded up the street, turned around, shut off his lights and approached the

Amoco building again. When he reached the Amoco station he witnessed the defendant

run from between the building and the car parked outside. The defendant was carrying

a red and black nylon bag, and his pockets were bulging as if full of something. Officer

Cumberland pursued the defendant and instructed him to halt.              The defendant

disregarded Cumberland’s instructions and discarded the nylon bag as he ran. After a

moderate chase, Cumberland eventually caught the defendant and arrested him.



              Cumberland then retrieved the nylon bag, which contained bolt cutters, a

small pry bar, two screwdrivers, a small flashlight, a cigarette pack and brown gloves with

a dot texture grip on the palm and fingers. The defendant’s pockets contained dollar bills,

loose and rolled change, and approximately sixteen packs of cigarettes. Included in the

cash which the defendant possessed were two stacks of twenty-five one dollar ($1) bills

with a rubber band around each stack. Included in the change which the defendant

possessed were two rolls of coins, one of nickels and one of pennies which contained


                                            2
more than the allotted number of pennies for the roll. Upon his arrest, the defendant

gave his name as James McQuary to Clarksville Police Detective John Crabbe.



              At trial, Donald Gibbs, the owner/operator of the East College Street Amoco

station, testified that he had closed the station at approximately 6:00 p.m. on June 27,

1994. He was called to the scene in the early morning hours of June 28, 1994. Gibbs

noticed that the large garage door had been pulled up approximately two and a half feet

and the office had been ransacked. In addition, the front of the cigarette machine located

in the building had been removed and was standing next to the machine. With regard

to monetary losses, Gibbs testified that two stacks of twenty-five one dollar ($1) bills with

a rubber band around each stack had been taken from his cash drawer. Gibbs was also

missing one roll of nickels and one roll of pennies with too many coins in the roll. He

testified further that the defendant did not have permission to enter the East College

Street Amoco station after business hours.



              Doyle Moss, an employee of Vaughn’s Vendors, testified that the cigarette

machine located at the East College Street Amoco station was owned by Vaughn’s

Vendors. Moss had serviced the machine on the Tuesday before the incident. Moss left

twenty-eight assorted cigarette packs in the machine on that date. When Moss checked

the machine after the alleged burglary, the machine contained fourteen cigarette packs.

In addition, all of the change from the machine was missing.



              Detective Marty Watson of the Clarksville Police Department testified

regarding photographs which he took of the crime scene. One photograph in particular

showed fingerprinting powder bringing up small dot type impressions on a surface.

Watson testified that the impressions resembled the dot texture grip of the gloves found

in the nylon bag which the defendant had discarded during his flight from Officer


                                             3
Cumberland. On cross-examination, Watson stated that no fingerprints had been lifted

from the crime scene.



                 Watson photographed the items in the red and black nylon bag. He also

photographed the loose and rolled coins, the paper currency, and the cigarettes which

Officer Cumberland recovered from the defendant’s pockets. The two rolls of coins and

the dollar bills were then returned to Donald Gibbs, the owner/operator of the Amoco

station. The loose change and the cigarettes were returned to Doyle Moss as the

representative of Vaughn’s Vendors. As a result, the photographs of these items were

introduced as evidence at the defendant’s trial, not the items themselves.



                 In this appeal as of right, the defendant challenges the State’s alleged

failure to comply with Tenn. R. Crim. P. 16(a)(1)(C) regarding discovery of tangible

objects.1 More specifically, the defendant complains that the State did not allow the

defendant to inspect the money or the cigarettes obtained from the defendant after his

flight from Officer Cumberland, even though he had filed a standard discovery request

prior to trial. He contends that if the tax stamps on the cigarettes were not from

Tennessee, it would indicate that the cigarettes found on the defendant were not taken

from the machine at the East College Street Amoco station. Since the photographs of

the cigarettes introduced at trial do not clearly show the tax stamps, the defendant argues

that he was prevented from inspecting possibly exculpatory evidence.



                 Our analysis of this issue begins, of course, with the text of Tenn. R. Crim.

P. 16(a)(1)(C). Tenn. R. Crim. P. 16(a)(1)(C) reads in pertinent part as follows:




        1
             Although the defendant fram es his argum ent as a challenge to the sufficiency of the
convicting evidence, it is clear that his com plaint on appeal stem s from the State’s alleged failure to
provide discovery in accordance with Tenn. R. Crim . P. 16(a)(1)(C). As a result, we will discuss
prim arily the issue of discovery rather than focus solely on the sufficiency of the evidence.

                                                      4
                     Upon request of the defendant, the state shall permit
              the defendant to inspect and copy or photograph ... tangible
              objects, ... which are within the possession, custody or
              control of the state, and which are material to the preparation
              of his defense or are intended for use by the state as
              evidence in chief at the trial, or were obtained from or belong
              to the defendant.


From the plain language of the rule, it is clear that the tangible objects which are being

sought by the defendant must be “within the possession, custody or control of the state.”

Tenn. R. Crim. P. 16(a)(1)(C). See also, Raybin, Tennessee Criminal Practice and

Procedure, §13.33. In the present case, the loose change and the cigarettes were

returned to Vaughn’s Vendors, and the rolls of coins and the dollar bills were returned to

Donald Gibbs, the owner/operator of the Amoco station. The State photographed all of

this evidence for presentation at trial, but the items themselves were returned to their

rightful owners. As a result, none of the items were in the possession, custody or control

of the State at or after the time of the defendant’s discovery request. Accordingly, we can

only conclude that the defendant’s argument lacks merit because the currency and the

cigarettes were not subject to discovery under Tenn. R. Crim. P. 16(a)(1)(C).



              Furthermore, even if we were to conclude that it was error for the State to

fail to maintain possession of the items and to allow the defendant to inspect them

pursuant to his discovery request, the defendant has failed to demonstrate prejudice, and

thus, any such error in the case at bar is harmless beyond a reasonable doubt. See

Tenn. R. Crim. P. 52(a). In fact, from the record before us, the evidence supporting the

defendant’s conviction is overwhelming. The record reveals that the East College Street

Amoco building was forcibly entered after business hours without the permission of the

owner. Among the items missing after the break-in were one roll of nickels, one overfilled

roll of pennies, two stacks of twenty-five one dollar ($1) bills with a rubber band around

each stack, and approximately fourteen packs of cigarettes.



                                            5
               Officer Ricky Cumberland witnessed the defendant on the property of the

East College Street Amoco station after business hours, and upon Cumberland’s

approach, the defendant fled, ignoring Cumberland’s commands to halt. During his flight,

the defendant discarded a nylon bag which contained burglary tools. When he was

finally arrested, the defendant had in his possession, among other items, one roll of

nickels, one overfilled roll of pennies, two stacks of twenty-five one dollar ($1) bills with

a rubber band around each stack, and approximately sixteen packs of cigarettes.



               Although the evidence of the defendant's guilt is circumstantial in nature,

it is a well established principle of law in this state that circumstantial evidence alone may

be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim.

App. 1988). However, in order for this to occur, the circumstantial evidence "must be not

only consistent with the guilt of the accused but it must also be inconsistent with his [or

her] innocence and must exclude every other reasonable theory or hypothesis except that

of guilt." State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In addition, "it must

establish such a certainty of guilt of the accused as to convince the mind beyond a rea-

sonable doubt that [the defendant] is the one who committed the crime." Tharpe, 726

S.W.2d at 896. Moral certainty as to each element of the offense is required, but

absolute certainty is not. Tharpe, 726 S.W.2d at 896.



               From a review of the entire record before us, we find that the proof fully

supports the jury’s verdict of guilt. Furthermore, the defendant does not contend that he

was unfairly surprised by any of the evidence presented by the State at trial. Accordingly,

we conclude that the defendant has failed to demonstrate any prejudice stemming from

the State’s alleged failure to provide discovery in accordance with Tenn. R. Crim. P.

16(a)(1)(C).




                                              6
            For the reasons set forth in the foregoing discussion, we find that the

defendant’s issue on appeal lacks merit. The judgment of the trial court is hereby

affirmed.




                                            JOHN H. PEAY, Judge



CONCUR:




DAVID G. HAYES, Judge




WILLIAM M. BARKER, Judge




                                        7
