            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998


                                                             FILED
STATE OF TENNESSEE,         )
                            )    No. 02C01-9702-CR-00080March 10, 1998
      Appellee              )
                            )    SHELBY COUNTY               Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
vs.                         )
                            )    Hon. JAMES C. BEASLEY, JR., Judge
WILLIE TAYLOR,              )
                            )    (Aggravated Burglary)
      Appellant             )



For the Appellant:               For the Appellee:

Brett B. Stein                   John Knox Walkup
Attorney at Law                  Attorney General and Reporter
100 N. Main #3102
Memphis, TN 38103                Sarah M. Branch
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William L. Gibbons
                                 District Attorney General

                                 Perry Hayes
                                 Asst. District Attorney General
                                 Criminal Justice Complex, Suite 301
                                 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Willie Taylor, was convicted by a Shelby County jury of

aggravated burglary and received a sentence of five years.1 In this appeal, as of

right, he presents the following issues for our review:



            (1)   Whether the evidence is sufficient to support the
                  conviction; and

        (2)       Whether the reasonable doubt jury instruction, which
                  included the language "absolute certainty of guilt is not
                  demanded by the law to convict," created a lesser
                  standard of proof for conviction than is constitutionally
                  permissible.

        After review, we affirm.



                                        BACKGROUND



        On March 10, 1995, at around 1:15 a.m., Kimberly Pointer returned to her

Memphis apartment and found it being burglarized. Ms. Pointer immediately

recognized one of the two burglars, Lafrancine Wright, because they had grown up

in the same neighborhood and were life-long acquaintances. The second burglar

was later identified as the appellant. Ms. Pointer watched as the appellant and

Wright carried her VCR from her apartment and drove away. The police were

notified and arrived at the scene approximately fifteen minutes later. Ms. Pointer

related to the police that she recognized one of the burglars and that this person

lived “right up the street.” Ms. Pointer was requested to accompany the police to

Wright’s residence, where she identified Wright as one of the intruders. Ms. Pointer

identified the second burglar as the appellant, who, at the time, was next door to

Wright’s residence. At this time, the appellant and Wright were taken into custody.



        1
         The appellant received a split confinement sentence of five years in the “local
workhouse” of which one year was to be served in the Shelby County Correction Facility followed
by four years in Community Corrections.

                                               2
The police and Ms. Pointer returned to Ms. Pointer’s apartment approximately thirty

minutes later, or around 2:00 a.m., and discovered that her stolen VCR had been

returned and placed on her back porch steps. It was determined that entry into the

victim’s apartment had been gained by breaking a rear window. Again, at trial, Ms.

Pointer identified the appellant and Wright as the two individuals who she saw in her

apartment and the two who left with her VCR and drove away. The defense offered

no proof. Based upon these facts, the jury convicted the appellant of aggravated

burglary.




                                       ANALYSIS



       In the appellant’s first issue, he contends that the evidence is insufficient as a

matter of law to support his conviction for aggravated burglary. When reviewing a

trial court’s judgment, the appellate court will not disturb a verdict of guilt, unless the

facts of the record and inferences which may be drawn from it are insufficient as a

matter of law for a rational trier of fact to find the defendant guilty beyond a

reasonable doubt. Tenn. R. App. P. 13(e); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). In other words, this court will not reevaluate or reweigh the evidence

brought out at trial. It is presumed that the judge or jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the

State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Cabbage, 571 S.W. 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).



       Specifically, the appellant argues that, due to the time frame presented in this

case, i.e. the time from the arrival of the police at the victim’s apartment until his

arrest, it would have been impossible for the appellant to have returned the VCR.

This argument is flawed for two reasons. First, the time frame of approximately


                                           3
thirty minutes (from 1:30 a.m. until approximately 2:00 a.m.) does not exclude the

appellant as the person who returned the VCR. Second, it was unnecessary for the

jury to conclude that the person who returned the VCR was the thief. In order to

prove aggravated burglary, as charged in the indictment in this case, the State was

required to prove that the appellant entered Ms. Pointer’s apartment, without her

consent and with the intent to commit a theft. Tenn. Code Ann. § 39-14-403. The

proof overwhelmingly established that the appellant entered the victim’s residence

without her permission and unlawfully removed her VCR. This issue is without

merit.



         Next, the appellant argues that the reasonable doubt instruction provided by

the trial court is constitutionally invalid. In support of this argument, he relies upon

the U.S. Supreme Court’s decision in Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct.

328 (1990). Specifically, the appellant argues that the language “absolute certainty

of guilt” suggests “a higher degree of doubt than is required for aquittal under the

reasonable doubt standard.” Virtually identical language regarding “absolute

certainty” in a reasonable doubt instruction was recently approved as passing

constitutional muster by a panel of this court. See State v. Henning, No. 02C01-

9703-CC-00126 (Tenn. Crim. App. at Jackson, Oct. 24, 1997) (citations omitted);

see T.P.I. Crim. 2.03(a) (4th ed.). We find no reasonable likelihood that the jury

understood the instruction to permit conviction after anything but a process of

careful deliberation or upon less than proof beyond a reasonable doubt. This issue

is without merit.



         For the foregoing reasons, the judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge


CONCUR:




____________________________________
JOE B. JONES, Presiding Judge



____________________________________
JOE G. RILEY, Judge




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