        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 10, 2015

          STATE OF TENNESSEE v. DARREN ANTONIO SMITH

              Appeal from the Circuit Court for Montgomery County
                    No. 41400486     Michael R. Jones, Judge




              No. M2014-01969-CCA-R3-CD – Filed October 16, 2015
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Defendant, Darren Antonio Smith, was indicted by the Montgomery County Grand Jury
with one count of aggravated burglary, one count of vandalism over $1000, and one
count of theft of property under $500. After a jury trial, Defendant was convicted of the
lesser included offense of criminal trespass and was convicted as charged of vandalism
and theft. On appeal, Defendant challenges the sufficiency of the convicting evidence.
Upon our thorough review of the record, we conclude that the evidence is sufficient to
support Defendant‟s convictions and affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Roger E. Nell, District Public Defender; and Crystal Myers, Assistant District Public
Defender, for the appellant, Darren Antonio Smith.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John W. Carney, District Attorney General; and Robert Nash,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                  Factual Background

     This is Defendant‟s direct appeal from his convictions in the Circuit Court of
Montgomery County for criminal trespass, felony vandalism and misdemeanor theft.
       On May 5, 2014, Defendant was indicted by the Montgomery County Grand Jury
for one count of aggravated burglary, one count of vandalism over $1000, and one count
of theft of property under $500. A jury trial was held on August 19, 2014, at which the
following facts were adduced:

        Felesha Johnson testified that she had been in a relationship with Defendant from
June 2011 until August 2013. A few months after they began seeing each other, Ms.
Johnson discovered she was pregnant; both Ms. Johnson and Defendant believed the
child was his. At the time, Ms. Johnson was renting a house, and Defendant stayed with
her several nights each week. Defendant was not on the lease and did not pay rent or
utilities. Defendant kept clothes and shoes at Ms. Johnson‟s residence, as well as a 55-
inch, flat-screen television in the living room. There was also a 32-inch, flat-screen
television in Ms. Johnson‟s bedroom, which she testified she had purchased for $275
with her tax refund in February 2011, prior to the beginning of her relationship with
Defendant.

        Ms. Johnson testified that her relationship with Defendant ended approximately a
week and a half before the date of the incident in question. Defendant began to suspect
that he was not the father of Ms. Johnson‟s child. Ms. Johnson testified that Defendant
had moved out most of his belongings except for the 55-inch television that would not fit
in his car. Ms. Johnson changed the locks to the house after Defendant left.

       On August 30, 2013, Ms. Johnson was working at her job as a teacher at a daycare
center. Defendant arrived around 11 a.m. to confront Ms. Johnson about the results of a
DNA test that confirmed he was not the biological father of her child. Defendant asked
Ms. Johnson why his key no longer worked. She explained that she had changed the
locks. Defendant told her that he needed to get the rest of his belongings, including the
55-inch television. Ms. Johnson would not give Defendant her key but told him that she
would meet him at the house after she got off of work. Defendant said he would get in by
himself and left.

        When Ms. Johnson returned to her home that evening, she found the front door
damaged. Frightened, she called 911. Once the police arrived, Ms. Johnson entered the
front living room and discovered a pile of her clothes on the floor covered in bleach. The
living room carpet was also damaged by the bleach. Defendant‟s 55-inch television was
missing from the living room, in addition to the 32-inch television from Ms. Johnson‟s
bedroom. Photographs of both the damaged door and the discolored carpet were entered
into evidence.

       As a result of this incident, Ms. Johnson moved out of the home and into a
different rental property. A representative of the rental company testified that the cost of
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replacing the carpet was $631.02 and the cost to repair the front door was $305. Ms.
Johnson was paying the rental company $50 per month to cover the cost of these
damages.

       Detective Ronald Parrish of the Clarksville Police Department investigated the
incident and took photographs of the damaged door and carpet. He testified that the
damage to the front door indicated forced entry. On September 9, 2013, Detective
Parrish spoke with Defendant. Defendant said that he was angry with Ms. Johnson and
admitted that he had poured bleach on her clothing. Defendant denied prying open the
door and told Detective Parrish that he had entered the house with his key.

       Defendant testified on his own behalf. He claimed that Ms. Johnson‟s house had
been his residence for two years and that he stayed there every night. He denied that he
had moved out of the home ten days prior to the incident and insisted that he had slept
there the night before. Defendant explained that after he confronted Ms. Johnson at her
job, he used his key to enter the house and retrieve his belongings. He denied that he
caused the damage to the front door. He admitted that he poured bleach on Ms.
Johnson‟s clothes. He explained that he had spent hundreds of dollars on clothes for Ms.
Johnson and that he did not want her to have them after their relationship ended.
Defendant accepted responsibility for the bleach-damaged carpet. He also admitted that
he took the 32-inch television from Ms. Johnson‟s bedroom. Defendant claimed that he
had given Ms. Johnson the money to buy that television so that she could spend her tax
refund money on her children.

       The jury found Defendant guilty of the lesser included offense of criminal trespass
and guilty as charged of vandalism over $1000 and theft of property valued under $500.
At a separate sentencing hearing, the trial court sentenced Defendant to concurrent
sentences of 30 days for the criminal trespass, 11 months and 29 days for the theft, and 4
years for the vandalism. The trial court ordered split confinement, with the Defendant to
serve one year in incarceration and the rest to be served on supervised probation.
Defendant filed a timely notice of appeal.

                                         Analysis

       On appeal, Defendant challenges the sufficiency of the evidence supporting his
three convictions. When a defendant challenges the sufficiency of the evidence, this
Court is obliged to review that claim according to certain well-settled principles. The
relevant question 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);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces the
presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
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verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). The standard of review
is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

       A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). “Circumstantial evidence is intrinsically
no different from testimonial evidence.” Dorantes, 331 S.W.3d at 380 (quoting Holland
v. United States, 348 U.S. 121, 139-40 (1954)). It is for the jury to determine the weight
to be given the circumstantial evidence, the inferences to be drawn from the evidence,
and the extent to which the circumstances are consistent with the guilt of the defendant
and inconsistent with his innocence. State v. James, 315 S.W.3d 440, 456 (Tenn. 2010).
In addition, the State does not have the duty to exclude every other reasonable hypothesis
except that of the defendant‟s guilt in order to obtain a conviction based solely on
circumstantial evidence. See Dorantes, 331 S.W.3d at 380-81 (adopting the federal
standard of review for cases in which the evidence is entirely circumstantial).

       Furthermore, questions concerning the “credibility of the witnesses, the weight to
be given their testimony, and the reconciliation of conflicts in the proof are matters
entrusted to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn.
2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). This is because
the jury has “the benefit of hearing witness testimony and observing witness demeanor.”
State v. Robinson, 400 S.W.3d 529, 533 (Tenn. 2013). As the Tennessee Supreme Court
explained almost half a century ago:

       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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). Therefore, “„[a] guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution‟s theory.‟” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997)). It is not the role of this Court to reweigh or reevaluate the

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evidence, nor to substitute our own inferences for those drawn from the evidence by the
trier of fact. Id.; Dorantes, 331 S.W.3d at 379.

                                  A. Criminal Trespass

        Defendant was convicted of criminal trespass as a lesser included offense of
aggravated burglary. Under Tennessee Code Annotated section 39-14-405(a), “[a]
person commits criminal trespass if the person enters or remains on property, or any
portion of property, without the consent of the owner.” It is a defense to criminal trespass
if the person reasonably believed that the owner‟s consent to enter the property had been
granted, if the person‟s conduct did not substantially interfere with the owner‟s use of the
property, and if the person left immediately upon request. Id. at (b). Criminal trespass is
a Class C misdemeanor. Id. at (g).

        Defendant argues that he reasonably believed that he was entering property for
which the owner‟s consent had been granted. However, in the light most favorable to the
State, the evidence shows that Defendant did not have Ms. Johnson‟s consent to enter her
rental house. Defendant was not on the lease, and he only stayed at the house a few
nights each week. Even though Ms. Johnson gave Defendant a key to the house during
their relationship, Ms. Johnson testified that she changed the locks when the relationship
ended, ten days prior to the incident in question. Defendant knew that his key no longer
worked because he confronted Ms. Johnson about it at her job. She did not give him a
new key but told Defendant that she would meet him at the house when she got off work.
Therefore, Defendant knew he did not have Ms. Johnson‟s consent to enter the home
before that time. Defendant admitted entering the house after this confrontation. A
photograph was entered into evidence showing damage to the front door that indicated
forced entry. Though the evidence that Defendant caused the damage to the front door
was circumstantial, it is within the province of the jury to determine the weight of such
evidence and the inferences to be drawn from it. See James, 315 S.W.3d at 456. By its
verdict, the jury clearly discredited Defendant‟s testimony that he entered the house with
his key. Defendant is not entitled to relief on this conviction.

                                      B. Vandalism

        Defendant was convicted as charged of vandalism over $1000. A person commits
the offense of vandalism who knowingly “[c]auses damage to or the destruction of any
real or personal property of another . . . knowing that the person does not have the
owner‟s effective consent.” T.C.A. § 39-14-408(b). Vandalism of property valued at
$1000 or more but less than $10,000 is a Class D felony. T.C.A. § 39-14-408(c) (stating
acts of vandalism are to be punished as theft under T.C.A. § 39-14-105).


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      Defendant argues that he did not knowingly cause damage to the carpet. Under
Tennessee Code Annotated section 39-11-302(b):

       [A] person acts knowingly with respect to the conduct or to circumstances
       surrounding the conduct when the person is aware of the nature of the
       conduct or that the circumstances exist. A person acts knowingly with
       respect to a result of the person‟s conduct when the person is aware that the
       conduct is reasonably certain to cause the result.

Defendant admitted that he piled Ms. Johnson‟s clothing on the living room floor and
poured bleach on them with the intention of “messing them up” so that Ms. Johnson
could no longer use them. From this, it was reasonable for the jury to infer that
Defendant knew that pouring bleach on textiles would cause damage. Therefore, it was
also reasonable for the jury to infer that Defendant was aware that his conduct of pouring
bleach onto the clothes was reasonably certain to also cause damage to the surrounding
carpet. That Defendant did not intend to cause damage to the carpet is irrelevant, as the
vandalism statute requires only that he acted knowingly. See T.C.A. § 39-14-408(b).
Additionally, during his testimony, Defendant accepted responsibility for damaging the
carpet.

       Defendant also argues that the State did not establish that the value of the property
damaged was in excess of $1000. The value of damaged property is determined by either
the fair market value of the property at the time and place of the offense or, if the fair
market value of the property cannot be ascertained, the cost of replacing the property
within a reasonable time after the offense. T.C.A. § 39-11-106(a)(36)(A). Various
panels of this Court have also held that the value of the cost of repairs is an appropriate
means of determining the value of the damage sustained to the vandalized property. See
State v. John Lindsey, III, No. E2011-00052-CCA-R3-CD, 2012 WL 5392156, at *5
(Tenn. Crim. App. Nov. 5, 2012), perm. app. denied (Tenn. Mar. 21, 2013).

       In this case, a representative from the rental company testified that the cost of
replacing the bleach-damaged carpet was $631.02 and that the cost of repairing the front
door of the house was $305.1 As discussed above, though Defendant disputes that he
caused the damage to the front door, the jury could rationally infer that he did from the

       1
           We note that, while the indictment for the vandalism charge specifies damage only to the
clothing and carpet, such a specification of the exact property damaged is surplusage. See State v. Glen
Sewell, No. W2014-00984-CCA-R3-CD, 2015 WL 1932287, at *7 (Tenn. Crim. App. Apr. 29, 2015)
(citing State v. March, 293 S.W.3d 576, 589-90 (Tenn. Crim. App. 2008)) (noting that the identification
of the specific property damaged is not an essential element of the offense of vandalism), perm. app.
denied (Tenn. Aug. 14, 2015). Therefore, inclusion of the cost of repairing the front door damaged by
Defendant is proper in determining the total value of the vandalized property. Id. (holding that “the
evidence of the additional damages was relevant and therefore admissible”).
                                                   -6-
circumstantial evidence. Defendant admitted that he poured bleach on Ms. Johnson‟s
clothes, on which he testified that he spent up to $1000. Even if the value of clothing
depreciates after purchase, the cost of replacing the bleach-damaged clothes, when added
to the other damages, would certainly bring the total value of the damage caused by
Defendant over the $1000 threshold. Additionally, even though Defendant purchased the
clothing, he did so as a gift to Ms. Johnson, making her the owner of that property. See
T.C.A. § 39-11-106(a)(26) (defining “owner” as “any person, other than the defendant,
who has possession of or any interest in the property, except for a mortgage, deed of
trust, or security interest”). The proof is sufficient that Defendant knowingly caused
damage to the property of another and that the value to repair or replace that property was
over $1000. Defendant is not entitled to relief on this conviction.

                                   C. Theft of Property

        Finally, Defendant argues that he cannot be convicted of theft of property because
he was the rightful owner of the 32-inch television he took from Ms. Johnson‟s bedroom.
Theft of property is defined as when a person “with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner‟s effective consent.” T.C.A. § 39-14-103(a). Theft of property valued $500 or
less is a Class A misdemeanor. T.C.A. § 39-14-105(a).

        As noted above, an “owner” is defined as “a person, other than the defendant, who
has possession of or any interest other than a mortgage, deed of trust or security interest
in property.” T.C.A. § 39-11-106(a)(26). A person can be an “owner” even though their
possession of the property in question is unlawful. Id. This Court “has interpreted the
definition of „owner‟ within the meaning of the theft statute to extend to a variety of
interests „broader than its commonly understood meaning.‟” State v. Darren Eugene
Fleshman, No. E2013-00557-CCA-R3-CD, 2014 WL 2804183, at *5 (Tenn. Crim. App.
June 18, 2014) (quoting State v. Joel Christian Parker, No. M2001-00773-CCA-R3-CD,
2002 WL 31852850, at *2 (Tenn. Crim. App. Dec.18, 2002), perm. app. denied (Tenn.
May 5, 2003)), perm. app. denied (Tenn. Nov. 21, 2014). “[A]n owner‟s possession of
the property may be actual or constructive,” March, 293 S.W.3d at 592 (internal
quotation omitted), and “[e]vidence of possession is ordinarily sufficient proof of
ownership.” State v. Carlos Weeks, No. W2004-02235-CCA-R3-CD, 2005 WL 1566490,
at *3 (Tenn. Crim. App. June 23, 2005), perm. app. dismissed (Tenn. Sept. 9, 2005).

       Ms. Johnson clearly had possession of the television, as it was in her bedroom.
Even though she knew Defendant needed to retrieve his 55-inch television from the
living room, Ms. Johnson did not give Defendant consent to take the 32-inch television
from her bedroom. Additionally, Ms. Johnson testified that she purchased the television
with money she received from her tax refund in February 2011, several months before
entering a relationship with Defendant. Even though Ms. Johnson did not have a receipt,
                                           -7-
the State was not required to prove that the victim had legal title to the property in
question. State v. Corey Gilliam, W2007-02401-CCA-R3-CD, 2009 WL 3015122, at *3
(Tenn. Crim. App. Sept. 22, 2009) (citing March, 293 S.W.3d at 591-92), no perm. app.
filed. The jury was free to accredit Ms. Johnson‟s testimony over Defendant‟s testimony
that the television was his because he gave Ms. Johnson the money to buy it. Even if
Defendant‟s version were true, the jury could rationally conclude that the television was a
gift, in which case Ms. Johnson would still be the rightful owner. Defendant is not
entitled to relief on this conviction.

                                       Conclusion

       Based on the foregoing, we hold that there is sufficient evidence to support
Defendant‟s convictions for criminal trespass, vandalism over $1000, and theft of
property under $500. Therefore, we affirm the judgments of the trial court.




                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




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