        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                         MARCH SESSION , 1999         April 21, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9807-CC-00293
                            )
      Appellee,             )
                            )
                            )    MARSHALL COUNTY
VS.                         )
                            )    HON. CHARLES LEE,
ROBERT P. THURMAN,          )    JUDGE
                            )
      Appe llant.           )    (Burglar y, Theft)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF MARSHALL COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

N. ANDY MYRICK, JR.              JOHN KNOX WALKUP
116 West Market Street           Attorney General and Reporter
Fayetteville, TN 37334
                                 KIM R. HELPER
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 MIKE McCOWEN
                                 District Attorney General

                                 WEAKLEY E. BARNARD
                                 Assistant District Attorney General
                                 P.O. Box 45
                                 Fayetteville, TN 37334



OPINION FILED ________________________

AFFIRMED AND REMANDED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Defendant, Robert P. Thu rman , appe als as o f right his convictions and

sentences for burglar y and the ft of prop erty valu ed les s than $500 . On A pril 17,

1998, a jury convicted Defendant of burglary and misdemeanor theft. Following

a sentencing hearing, the trial judge sentenced Defendant to eleven months,

twenty-nine days for theft and twe lve years for burglary, to be served conc urren tly

as a care er offend er.



      In this appeal, Defendant contests (1) the suffic iency of the evidenc e to

support his convictions, (2) the admissibility of his pretrial statement to police, (3)

the admissibility of testimony impeaching his pretrial statement to police, and (4)

his status as a care er offender for the felony burglary. We find no error by the

trial court, and we affirm both Defendant’s convictions and his sentences.



                      I. SUFFICIENCY OF THE EVIDENCE

       Tennessee Rule of Appellate Procedure 13(e) prescribes that “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 reaso nable doubt.” T enn. R . App. P. 1 3(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 196 3);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,



                                         -2-
331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of th e eviden ce, an ap pellate court must afford the State “the

strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate

inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-eva luate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particu lar con flicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       In this case, the proof was sufficient to permit the jury to find Defendant

guilty of theft and burglary. According to testimony at trial, Deputy Sheriff Steve

Holton of the Mars hall County Sheriff’s Department was patrolling his designated

area at app roxim ately 7:00 a.m. on January 1, 199 8, whe n he o bserv ed a s ingle

car in the parking lot of the Bethlehem Baptist Church. Deputy Holton noticed

that the vehicle was backed up to the church building, that the driver’s-side door

was open, tha t the trunk w as ope n, and tha t a perso n was s itting in the

passenger seat. Holton also noted that no church services were scheduled

because it was not Sunday. His suspicions raised, he entered the parking lo t to

investigate further.



       Depu ty Holton questioned the passenger of the veh icle an d iden tified him

as Paul Pra tt. Pratt stated that he was waiting on his friend, Robert Thurman,

who was relieving hims elf in the wood ed are a imm ediate ly behind the park ing lot.

                                          -3-
Holton observe d a micr owave oven in the open tru nk of the vehicle; and the

deputy then requested back-up law enforcement and waited with Pratt to ensure

his continued pre sence. Me anwhile, Pratt gave Holton the veh icle paperwork

from the glove comp artmen t. These documents, including a bill of sale/sec urity

agreem ent, odometer disclosure statement, buyer’s guide/warranty, and

autom obile insurance receipt, all indicated that Robert Th urman o wned the c ar.



      In addition, D eputy H olton testified that Pratt did not possess the ignition

key for the car, and deputies failed to locate an ignition key in th e car, on the

ground, or inside the premises of the church. Holton stated that upon inspection

of the church, he discovered several broken windows, at least one of which was

large enough for a person and a microwave to slide through. However, Holton

opine d that th e hole was n ot situa ted so that a p erson could carry a microwave

through the window alone or place a microwave outside the window without

causing dama ge to it.



      Marsha ll Coun ty Dep uty Ph il Klarer testified that, up on arriv ing at the

scene, he observed tennis-shoe prints underneath the deadbolt lock on a door

to the church. In Klarer’s opinion, the door had been kicked several times,

creating multip le over lappin g prints of the same shoe pattern. He testified that

he inspecte d Paul P ratt’s shoe to determ ine if Pratt’s sh oe ma tched the print.

Klarer concluded that Pratt’s shoe did not make the particular marks on the door.

Klarer also verified that deputies conducted a fruitless search for the ignition key

to Defendant’s vehicle.




                                        -4-
       Paul Pratt, th e acc omp lice in this case, tes tified for the S tate followin g his

plea of guilty to cha rges arisin g from th ese facts . Pratt stated that he and

Defendant attended a party on New Year’s Eve, left the party, and drove to the

Bethlehem Baptist Church. According to Pratt, Defendant drove into the parking

lot, exited the c ar, and w alked aro und to the rear of the church . Defendant then

called out to Pratt through a broken window to “com e and g ive him a hand.”

Defendant hande d the m icrowave to Pratt throu gh the w indow, a nd Pra tt placed

it in the trunk of the car. Pratt then sat down in the passenger seat of the car

while Defen dant we nt to the wo ods to re lieve hims elf. At that time, Depu ty

Horton arrived on the scene.



       Detective Sam uel Brag g of the M arshall C ounty Sheriff’s Department

testified that he conducted a taped interview with Defendant after reading

Defendant his Miranda rights. In this interview, Defendant stated that he arrived

home on January 1, 1998 by 3:00 a .m. and went to sle ep. He told Bragg that the

next morning he and his mother had breakfast at Shoney’s at approximately 8:00

and that they then visited his grandmother at a nursing home in Nashville. He

explained in this interview that he ha d loane d his car to Pratt after Pratt d rove h im

home from the New Y ear’s Eve party.



       Detective Bragg testified that at the con clusion o f his interview with

Defen dant, he immediately telephoned Defenda nt’s m other to verify the alibi.

The S tate entered into evidence a tape recording of this conversation, in which

Defe ndan t’s mothe r told the detective that she had not eaten breakfast at

Shoney’s and that she had worked all day on January 1. Bragg testified at trial




                                           -5-
that when he confronted Defendant with this information from Defendant’s mother

and asked him why he lied to police, Defendant responded that he did not know.



      Tennessee Code Annotated § 39-14 -103 sta tes, “A pe rson co mm its theft

of property if, with intent to deprive the owner of property, the person know ingly

obtains or exercises con trol over the property w ithout the owne r’s effective

conse nt.” Furthermore, “[a] person commits burglary who, without the effective

consent of the property o wner . . . [e]nters a b uilding an d com mits or atte mpts to

com mit a felony, theft or assault.” Tenn. Code Ann. § 3 9-14-40 2(a)(3). W e find

the evidence sufficient to support co nvictions for theft and bu rglary.



      Defendant contends that his convictions were impermissibly supported by

the uncorroborated testimony of an accomplice.             A defendant cannot be

convicted on the unco rroborated testim ony of an acc omplice . Sherill v. Sta te,

321 S.W.2d 811, 814 (Tenn. 1959). This Court instructed in State v. Cald well,

977 S.W .2d 110 (Te nn. Crim. Ap p. 1997),

      To corroborate the testimony of an accomplice, “there should be
      some fact tes tified to, e ntirely ind epen dent o f the ac com plice’s
      evidence, which, tak en by itself, leads to the inference, not only that
      a crime has been committed, but also that the defendant is
      implicated in it.” . . . This corroboration must consist of some fact or
      circumstance which affects the identity of the defen dant.
            Such corroborative evidence “may be dire ct or en tirely
      circum stantia l, and it n eed n ot be a dequ ate, in a nd of itself, to
      support a conviction” so lon g as it “fairly and legitimate ly tends to
      conne ct the defe ndant w ith the com mission of the crim e charg ed.”

Id. at 115-16 (quoting Clapp v . State, 30 S.W. 214, 216 (Tenn. 1895), and State

v. Gaylor, 862 S.W .2d 546, 552 (Tenn. Crim . App. 1992 ), respectively).




                                          -6-
       In this case, we find that the accom plice testimony by P aul Pratt was m ore

than sufficiently corroborated by law enforcement testimony that upon

investigating the scene o f the burglary, depu ties discovered a car reg istered to

Defen dant, with the driver’s-side door open and P ratt in the pass enger s eat, with

a microwave oven in the open trunk. Moreover, officers searched in vain the

person of Pratt, the vehicle, the grounds of the church, and the interior of the

church for ignition keys to Defendant’s car, leading to the inference that

Defendant poss esse d the k eys. Fin ally, officers excluded Pratt’s shoes as the

shoes which m arked p rints on the church door. Th is issue lac ks me rit.



                  II. ADMISSIBILITY OF PRETRIAL STATEMENT

       In his sec ond is sue, D efend ant co ntests the ad miss ibility of his statement

to law enforcement following his arrest. He does not allege a constitutional

violation, but on ly an evidentiary violation—that the statement was not relevant

to any fact of c onseq uence in the trial. In sup port, Defe ndant argues that the

statem ent, in which he told Detective Bragg that he had been with his mother at

Shon ey’s and a nursin g hom e in Nashville on the day of the theft and bu rglary,

was not relevant to any issue at trial because he had decided not to present an

alibi defen se.



       Defendant asserts that State v. Taylor, No. 02C01-9501-CR-00029, 1996

W L 580997 (Tenn. Crim. App., Jackson, Oct. 10, 1996), supports the exclusion

of this evidence. Specifically, he quotes Taylor for the proposition that “nothing

in [Tennessee Rule of Criminal Procedure 12.1(d)] requires the defendant to rely

on an alibi, nor is there any provision preventing him from abandoning an alibi




                                          -7-
defense. There fore the d ecision o f whethe r to provide an alibi is left en tirely to

the discretion of the d efendant.” Id. at *9.



       Howeve r, Taylor does n ot preven t or caution against the introduction of

Defe ndan t’s statement in the case at bar. In Taylor, this Court rejected the

defen dant’s claim that the rule requiring disclosure of an alibi defense caused the

defen dant’s silence to be interpre ted as an affirma tive statement that no alibi

existed, in violation of his right against se lf-incrimination. The C ourt’s words in

Taylo r cannot be co nstrued to mea n that De fendan t’s affirmative statem ent to

police regarding his whereabouts at the time of the crime is irrelevant to a

determination of his gu ilt. Defen dant’s explanation of his whereabouts at the time

of the crime, althou gh certainly prejudicial to the defense, constitutes

circumstantial evidence quite relevant to the jury’s determination. This issue

lacks m erit.



                         III. IMPEACHMENT TESTIMONY

       Defendant next argues that the trial            court improperly admitted

impeachment testimon y offered b y Detec tive Bragg to show that Defe ndant’ s

mother had n ot sup ported Defe ndan t’s alibi, and Defendant’s own statement that

he did not know why he lied to police. Defendant challenges the testimony as

evidenc e of a prior b ad act un der Te nness ee Ru le of Evide nce 40 4.



       The State responds that while evidence of other crimes, wrongs, or acts

is not admissible to prov e the c harac ter of a p erson in orde r to sho w actio n in

conform ity with the character trait, such evidence may admissible for other

purposes.       Tenn. R. Evid. 404(b).    In this case, the State argues that the

                                          -8-
evidence was not used to show that be cause D efendant wa s a liar, he wa s likely

also a thief and burglar. Rather, the evidence was used to show that at the time

of the crime under investigation, Defendant was not at th e plac e that h e origin ally

claimed to be. We agree with the State’s position, and we affirm the admission

both of Def enda nt’s orig inal sta teme nts co ncern ing his whereabouts and of

evidence tending to show that those statements were untrue.



                       IV. CAREER OFFENDER STATUS

      Defendant challenges the trial court’s finding that he is a career offender

for sentencing purposes. He argues that the trial court e rred by failing to find his

nine prior felony convictions a “single course of conduct” within the meaning of

Tennessee Code An notated § 40-35-108(b)(4). Section 40-35-108 reads:

       Convictions for multiple felo nies co mm itted as part of a single
       course of conduct within twenty-four (24) hours constitute one (1)
       conviction for the pur pose o f determ ining prior c onvictions . . . .

Tenn . Code Ann. § 4 0-35-10 8(b)(4).



       Defe ndan t’s nine felony convictions a rose fro m his failure to disclos e his

employment while receiving unemployment compensation benefits. Although

Defendant claims that procuring employment without reporting the same to the

Department of Emp loymen t Security c onstituted a single co urse of a ction, the

record reflects that Defendant’s convictions arose under Tennessee Code

Annotated § 50-7-713, when he cashed unemployment benefit checks from the

Department of Employment Security on nine separate occasions without

reporting his emp loymen t. Exhibit 1 to Def enda nt’s senten cing hea ring cons ists

of the nine indicted counts for which Defendant was convicted. T he exh ibit




                                          -9-
reflects that these offenses did not occur within twenty-four hours, but rather

spann ed three month s. This iss ue lacks merit.



       The judgment of the trial court is affirmed.1




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




       1
          The judgment entered for the theft conviction contains an apparent error. The
judgment reflects a conviction for a Class D felony with a sentence of eleven months and
twenty-nine days in the county jail. The record reflects that the conviction was for Class A
misdemeanor theft.

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