        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE             FILED
                       JANUARY SESSION, 1998        October 19, 1998

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9704-CR-00156
                           )
      Appellee,            )
                           )
                           )    OVERTON COUNTY
VS.                        )
                           )    HON. LEON BURNS, JR.
SHIRLEY DOUBLE,            )    JUDGE
                           )
      Appe llant.          )    (Direct Ap peal)




FOR THE APPELLANT:              FOR THE APPELLEE:

JOHN C. HEATH                   JOHN KNOX WALKUP
P. O. Box 737                   Attorney General and Reporter
Livingston, TN 38570
                                CLINTON J. MORGAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                BILL GIBSON
                                District Attorney General

                                OWEN G. BURNETT
                                Assistant District Attorney
                                P. O. Box 706
                                Livingston, TN 38570



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


      Appellant Shirley Double was convicted by a jury on June 19, 1996 in the

Overton County Criminal Court of aggravated burglary, theft over $1,000.00,

conspiracy to com mit agg ravated b urglary, an d cons piracy to commit theft over

$1,000.00. The four judgments were entered on October 1, 1996. As a Range

I standard offender, Appellant received the following concurrent sentences and

fines. (1) For the aggravated burglary conviction, Appellant was s enten ced to six

years incarceration with the Tennessee Department of Correction, received a

$1,500.00 fine, and w as orde red to pa y $2,000 .00 restitution to Mr. G erald

Windle, the victim. (2) On the co nviction for theft over $1,00 0.00, the trial court

sentenced Appellant to four ye ars imprisonment and assessed a $250.00 fine.

(3) For conspiracy to commit aggravated burglary, Appellant was sente nced to

four years incarceration and fined $500.00. (4) On the conviction for conspiracy

to commit theft over $1,000.00, the trial court sentenced Appellant to two ye ars

incarceration and im pose d a $2 50.00 fine. Ap pellant presents the following

issues for our consideration on this dire ct app eal: (1) whether the trial court erred

in denying Appellant's motion for judgment of acquittal as to conspiracy to com mit

aggravated burglary and conspiracy to commit theft over $1,000.00 ; and (2)

whether the evid ence was in sufficie nt to su stain A ppella nt's co nviction for

aggravated burglary.

      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                          I. FACTUAL BACKGROUND




                                          -2 -
          Mr. Gerald W indle, th e victim , testified that he arrived at his ho me in

Overton County at 9:00 P.M. on the night o f April 28 , 1995 . As he entere d his

driveway, Mr. Windle saw two people runn ing out of his home through French

doors which led onto a patio. These people were later identified as Appellant and

her co-defendant, Terry Hawn.1 Mr. W indle s tated th at one of the in dividua ls

carried three rifles. Both App ellant and Mr. H awn ran around the side of Mr.

W indle's hom e. After retrievin g a pis tol from his truc k, W indle pursued the pair

on foot. Mr. Windle's daughter called 911 to report the incident. Terry Hawn

evaded Mr. W indle, b ut App ellant d id not. W indle d irected Appe llant to w alk up

an embankment and to lie down on the ground. Mr. W indle testified that a white

truck backe d into his driveway, and he prevented it from leaving. He directed the

female driver2 to exit the vehicle with he r hand s on h er hea d and to lie down on

the grou nd bes ide App ellant.

          Mr. Windle stated that his French doors had been broken. Three rifles

were taken from his gun cabinet. He estimated the rifles to have a total value of

$2,200.00. Additionally, two calculators, with a total value of approximately

$120.00, were taken from the Windle residence. Officers found the rifles and

calculators lying in a ditch behind the ho use and w rapped in a T -shirt. Finally,

Mr. Win dle sta ted tha t neithe r App ellant n or her c o-defe ndan t had p ermis sion to

be on his pro perty.

          Depu ty Frank D ial with the O verton C ounty Sheriff's Department testified

that he and Deputy Michael Hamilton responded to the b urglar y call. Ca ptain

Greg Phillips, also with the Overton County Sheriff's Department, radioed Dial



   1
       App ellant 's an d Mr . Haw n's c ase s we re join ed fo r trial.

   2
    Ms. Patricia Cromer drove the truck. She was not tried for any offenses which sh e may have
committed.

                                                            -3 -
and Hamilton to look for a shirtless white male. After driving approximately one

mile, Deputies Dial and Hamilton spotted a male fitting Mr. Hawn's description.

The deputies pursued Hawn on foot and then apprehended him.

         Cap tain Greg Phillips testified that upon arriving at the Windle residence,

he observed Appellant lying on the gr ound. Additionally, Captain Phillips noted

that the patio doors had been broken open and that the interior of the home

looked like a burglary scene. He stated that a T-shirt was recovered in a ditch

outside the hou se and that the sh irt was wrapped around two calculators and

three rifles.

          Officer Phillips further testified that Appellant gave a statement at the

sheriff's depa rtmen t after C aptain Phillips ad ministered Miranda rights. In her

statem ent, Appellant said that Patricia Crom er was driving the truck when

Cromer, Appellant, and Terry Haw n pulled up to the house.                          Acc ording to

Appe llant's statement, Patricia Cromer informed her that Jerry Hyder lived in the

house. Appellant got out of the truck and knocked on the door. She heard a

crash and fell and injured her leg.3

         Appellant testified on her own beha lf at trial. She explained that in 1992,

she suffered a seve re leg injury in a motorcycle accident. As a result, she

underwent approximately thirty operations to repair the broken bones an d torn

ligame nts in her leg. During this time, she became addicted to prescription pain

medication. On April 28, 1995--the night of the burglary--she continued to use

drugs. According to Appellant's testimon y, she b elieved that T erry Ha wn, P atricia

Crome r, and herself were going to Jerry Hyder's house to buy drugs. When the

three arrived, Appellant got out of the truck and knocked on the door. Appellant

saw that Cromer had driven away in the truck, and she could no t find Hawn. Mr.

  3
      Terry Hawn gave a statement in which he confessed to stealing three rifles.

                                                  -4 -
W indle arrived and began firing his pisto l. To avoid being sh ot, Appe llant fell to

the ground . Appellant averred that she d id not e nter the Win dle res idenc e, did

not go there intending to commit a burglary, did not know that there was to be a

burglary, and did not steal anything from the home.



                II. MOTIO N FOR JUDG MEN T OF AC QUITT AL

      Appellant first complains that the trial court erred in denying her motion for

judgment of acquittal as to the ch arges for conspiracy to commit aggravated

burglary and conspiracy to commit theft over $1,000.00. At the close of the

State 's proof, Appellant's attorney moved for judgments of acquittal as to the two

conspiracy charges. The trial court denied the motion on the ground that the

evidence created an issue for the jury's determination. We agree.

      T ENN. R. C RIM. P. 29(a) provides in pertinent part, "The court on motion of

a defend ant. . . shall ord er the en try of judgm ent of acquittal of one or m ore

offenses charged in the indictment or information. . . if the evidence is insufficient

to sustain a conviction of such offe nse or o ffenses." Id. When presented with a

motion for judgm ent of acq uittal, the trial court's only consideration is the legal

sufficiency of the evidence. State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App.

1996). Sufficiency of the evidence is the appropriate standard by which both trial

and appellate courts evaluate the ade quacy o f the eviden ce. State v. Cabbage,

571 S.W .2d 832, 836 (Tenn. 197 8).

      Tenn . Code Ann. § 3 9-12-10 3 provide s in pertine nt part:

            (a) The offens e of co nspira cy is committed if two (2) or more
            people, each having the culpable mental state required for the
            offense which is the object of the conspiracy and each acting
            for the purpose of promoting or facilitating commission of an
            offense, agree that on e (1) or more of them will eng age in
            conduct which constitutes such offense.
Tenn. C ode Ann . § 39-12-103 (a).

                                         -5 -
       "A conspiracy requires knowing involvement." State v. Shrops hire, 874

S.W.2d 634, 641 (Tenn. Crim. App. 1993).               The conspiracy need not be

manifested by formal words or an express agreem ent. Shropsh ire, 874 S.W.2d

634, 641; State v. Cook, 749 S.W.2d 42, 44 (Tenn. Crim. App. 1987). The

existence of the conspiracy may be established by circumstantial evidence and

by the conduct of the parties in executin g the ob ject of their ag reeme nt.

Shropsh ire, 874 S.W .2d 634 , 641; Cook, 749 S.W.2d 42, 44.

       Appellant testified that on the evening in question, she was addicted to and

under the influence of various narcotics. On April 28, 1995, Appellant had taken

Valium, Soma, and Lorcet. According to Appellant's testimony, on the day of the

incident, Terry Hawn picked up Appellant at her home in Crossville, Tennessee.

Later that afternoon, the tw o met Pa tricia Cromer. Appella nt, Hawn, and Cromer

drove to the W indle residence in Overton C ounty. Upon arriving, Appellant and

Hawn got ou t of the tru ck, an d Cro mer d rove a way. A s Mr. W indle p ulled in to his

driveway, he saw Hawn and Appellant running from his home. One of them

carried guns. Subsequently, Appellant and Hawn were apprehended; Mr. Win dle

appreh ended Ms. Cro mer wh en she drove into his drivewa y.

       The trial court properly concluded that there was adequate evidence for the

jury to determine whether or not the three individuals agreed among themselves

to comm it both a burglary and a theft in Overton C ounty at a residence with no

one at home and tha t they drove into Mr. W indle's drivew ay in furt heran ce of th eir

criminal plan.



                     III. SUFFICIENCY OF THE EVIDENCE

       Appe llant's final contention is that the ev idence was insu fficient to susta in

her conviction for aggravated burglary. We disagree.

                                           -6 -
       This Court is obliged to review challenges to the sufficiency of the

convicting evidence according to certain w ell-settled pr inciples. A verdict o f guilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof rests with Appellant to demonstrate the insufficiency of the

convic ting evidence. Id. On appeal, "the [S]tate is entitled to the strongest

legitimate view of the e vidence as well as all reason able an d legitima te

inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571

S.W.2d 832, 8 35 (T enn. 1 978)) .      Wh ere the sufficie ncy of th e evidence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a re asona ble dou bt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circu mstan tial evidenc e." Matthews, 805 S.W.2d

776, 779. Finally, T ENN. R. A PP. P. 13( e) prov ides, "F inding s of gu ilt in criminal

actions whethe r by the trial co urt or jury sha ll be set asid e if the evidenc e is

insufficient to support the findings by the trier of fact o f guilt be yond a reaso nable

doubt." See also Matthews, 805 S.W.2d 776, 780.

                                           -7 -
      Tenn. Code Ann. § 39-14-401(1) provides that, "(1) `Habitation' (A) Means

any structure, including buildin gs, module units, mobile homes, trailers, and tents,

which is design ed or ad apted fo r the overn ight acco mm odation of perso ns."

Tenn. C ode Ann . § 39-14-401 (1)(A).

Tenn. Code Ann. § 39-14-402(a) provides in part:            "(a) A person commits

burglary who with out the effe ctive cons ent of the property owner: (3) Enters a

building a nd com mits or atte mpts to comm it a felony, the ft or assau lt.

Tenn. C ode Ann . § 39-14-402 (a)(3).

Tenn. Code A nn. § 39-14-4 03 states in part, "(a) Ag gravated bu rglary is burglary

of a habitation as defined in §§ 39-1 4-401 a nd 39-1 4-402." Tenn . Code Ann. §

39-14-403 (a). The State was required to prove each and every element of the

charge d offense beyond a reaso nable d oubt.

      Burglary may be establish ed by circu mstan tial evidenc e. State v. Holland,

860 S.W.2d 53, 59 (Tenn. Crim. A pp. 199 3); State v. Bohanan, 745 S.W.2d 892,

895 (Tenn . Crim. A pp. 198 7). Moreover, the jury may infer an accused's criminal

intent from the circums tances . Holland, 860 S.W.2d 53, 59. However, before an

accused may be convicted of a crime based solely upon circumstantial evidence,

the facts and circumstances "`must be so strong and cogent as to e xclude every

other reason able hyp othesis s ave the g uilt of the defe ndant.'" Bohanan, 745

S.W.2d 892, 895 (quoting State v. Crawfo rd, 470 S.W .2d 610, 612 (Tenn. 197 1)).

Once the breaking and entering have been established, the jury may infer the

accu sed's intent to com mit a theft there in. State v. Avery, 818 S.W.2d 365, 367-

68 (Tenn. Crim. App. 1991). Finally, a defendant's flight, coupled with other facts

and circumstances, is evidenc e of guilt. State v. Zagorski, 701 S.W.2d 808, 813

(Tenn. 19 85).




                                          -8 -
       Appellant and her co-defendant entered a habitation. Additionally, neither

Appellant nor Te rry Hawn had be en given permis sion from Gerald Win dle to

enter his hom e. Finally, Ap pellant an d her co -defend ant intend ed to com mit a

theft inside the residence.

       Appellant admits being at Mr. Windle's residence on the day of the

incident.   However, she denies entering the home and participating in the

burglary. Appellant contends that some of Mr. W indle's testim ony is n ot cred ible

and that the burglary could not have occurred as Gerald Windle claims in his

testimony. Specifica lly, Appellan t points to Windle's statement that Appellant ran

from his home and around the house. Further, W indle testified that Appellant

and Hawn jumped over a bank. Appellant urges this Court to conclude that the

burglary did no t occu r as Mr . W indle described beca use s he wa s serio usly

injured in a severe motorcycle accident in 1992 which severely damaged the

bones of her leg, rendering her incapable of running. However, it is not the

function o f this Cou rt to evaluate the credibility of witn esses. State v. Williams,

784 S.W .2d 66 0, 663 (Ten n. Crim . App. 1 989). R ather, th at is a matter entrusted

exclusively to the trier of fact.      Id.   The ju ry obvio usly reje cted A ppella nt's

assertion of her inab ility to run and accred ited the tes timony o f the victim. W e

declin e to dis turb its ve rdict on this ap peal.

       The judgment of the trial court is affirmed.



                                     ____________________________________
                                     JERRY L. SMITH, JUDGE




                                             -9 -
CONCUR:


___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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