             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE               FILED
                              NOVEMBER 1998 SESSION
                                                               December 11, 1998

                                                               Cecil W. Crowson
                                                              Appellate Court Clerk

STATE OF TENNESSEE,              )
                                 )      C.C.A. No. 01C01-9712-CC-00572
      Appellee,                  )
                                 )      Bedford County
v.                               )
                                 )      Honorable Charles Lee, Judge
JOHN WILLIE STONE,               )
                                 )      (Aggravated Burglary; Theft over $1,000)
      Appellant.                 )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Andrew Jackson Dearing, III             John Knox Walkup
P. O. Box 761                           Attorney General & Reporter
Shelbyville, TN 37162                   425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        Daryl J. Brand
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        William M. McCown
                                        District Attorney General
                                        215 East College
                                        Fayetteville, TN 37334-0878

                                        Robert G. Crigler
                                        Assistant District Attorney General
                                        215 East College
                                        Fayetteville, TN 37334-0878




OPINION FILED: _________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE


                                      OPINION
       The appellant, John Willie Stone, referred herein as the defendant, appeals as of

right from a judgment entered by the Bedford County Criminal Court as a result of a jury

finding him guilty of aggravated burglary and theft of property over $1,000. Following a

sentencing hearing, the trial court imposed Range II sentences of ten years for the

aggravated burglary and eight years for the theft conviction to be served concurrently in the

Department of Correction. These sentences were ordered to run consecutively to Bedford

County Circuit Cause No. 12810. The defendant raises three issues for appellate review:



              1. Whether the evidence adduced at trial was sufficient as
                 a matter of law to sustain the verdict of guilty beyond a
                 reasonable doubt for the conviction of aggravated
                 burglary and theft of property over $1,000.

              2. Whether the trial court erred in denying the defendant’s
                 motion for judgment of acquittal at the close of the
                 state’s proof.

              3. Whether the trial court erred in allowing the defendant’s
                 statement to be introduced in trial numbers 2 and 3.


       After a review of the entire record, briefs of all parties, and the applicable law, we

affirm the trial court’s judgment.



                                     BACKGROUND



       In Cause No. 13992, the Bedford County grand jury indicted the defendant and

Alexander Guy Lester for the aggravated burglary of the residence of Keith White on July

19, 1996 and for the theft of a Quasar color TV, Quasar VCR, and assorted jewelry over

the value $1,000. The defendant, alone, went to trial on December 13, 1996, which

resulted in a hung jury. In a second trial on June 24, 1997, the jury could not reach an

agreement on the accusations against the defendant. After a third jury trial on August 12,

1997, the defendant was found guilty of aggravated burglary and theft of property. Since

the defendant alleges an insufficiency of evidence error, we set forth the salient facts

considered by the jury.




                                             2
      Donald Keith White and wife, Angela White, lived at 998 Old Nashville Dirt Road in

Bedford County. Both Mr. and Mrs. White worked afternoon shifts. On July 19, 1996 at

1:15 a.m., Mr. White arrived home from work and discovered his home had been

burglarized. A TV, VCR, satellite receiver, and several pieces of jewelry were missing. Mr.

White found a rear window broken out and called the sheriff’s department. The victim

estimated the value of the TV, VCR, receiver, and assorted jewelry to be well over $1,000.

The burglary occurred between 2:30 p.m. on July 18, 1996 and 1:00 a.m. on July 19, 1996.



      Mrs. Angela White arrived home from work at approximately 1:00 a.m. on July 19,

1996 and noticed all the lights were on in the house. Mrs. White found a rear window had

been broken. The house had been ransacked, and a TV, VCR, satellite receiver, jewelry,

and a bedsheet were missing. Mrs. White gave Deputy Sheriff George C. Marsh a list of

the stolen property. Later that day, the sheriff’s department returned the TV, a remote

control, the receiver, and one bedsheet to the W hites.



       The deposition of James Ewing Rhodes was read to the jury. In his deposition, Mr.

Rhodes testified he was the owner of Blanton Wrecker Service, and he received a phone

call in the early morning hours of July 19, 1996 from Alex Lester. Lester informed Rhodes

that he had had an accident at a bridge at the L. Bethel and Old Nashville Dirt Road

intersection. As Rhodes was driving to the accident site, he observed a man walking,

alone approximately one mile from the site. The man did not have on a shirt. Rhodes

could not identify the man. Rhodes towed Lester’s car to his storage lot. About 4:00 a.m.,

law enforcement officers arrived with a search warrant to search the car. Rhodes did not

see a TV or any jewelry in the car.



       The co-defendant and accomplice, Alexander Guy Lester, testified for the state.

Lester testified he met the defendant at Grable Van Lines where they both worked. Lester

and the defendant became friends and usually had beer together after work. On the day

in question, both men got off work at 3:00 p.m. and began drinking beer. Between 3:00

p.m. on July 18 and 4:00 a.m. on July 19, Lester and the defendant each drank a twelve-



                                            3
pack. After going to Murfreesboro, Lester and the defendant returned to Bedford County

and turned onto Old Nashville Dirt Road. Because they had run out of money, the

defendant suggested they rob a house. Lester dropped the defendant off at a house and

then proceeded to drive up and down the road. Upon Lester’s return, he did not see the

defendant so he pulled into the driveway adjacent to the house. Lester went to the back

door and knocked. The defendant let Lester inside.



       Lester testified he took the TV and VCR and placed them on the back steps. The

defendant got the satellite receiver and put it beside the back door. While the defendant

was in the bedroom, Lester put the TV and VCR in the trunk of his car. The defendant

came out with the satellite receiver and they both left. Because Lester was driving too fast,

without headlights, he missed a corner and slid down into a creek. Both men struck their

foreheads on the windshield. The defendant left on foot, and Lester walked to a nearby

house and called for a wrecker. However, the police arrived first and arrested him for DUI.

After being questioned by the sheriff’s department, Lester admitted he and the defendant

“robbed the house.” Lester denied entering into any type of deal with the police when he

was questioned. Lester testified he pled guilty to DUI and aggravated burglary and

received a 120-day jail sentence and four years probation. While Lester and the defendant

were riding around drinking, Lester stole some fishing rods and reels in Coffee County

while the defendant was asleep. These theft charges were dismissed as part of Lester’s

plea agreement. After the accident, Lester threw the “stuff” from his car into the creek.



       Dale Elliott, chief deputy sheriff for Bedford County, testified a man found a satellite

receiver at the site of an accident and brought it to the sheriff’s department. Chief Deputy

Elliott went to the accident site where he found a 19-inch Quasar TV in the water. Deputy

Elliott returned to search the site the following morning, but did not find any jewelry.

Deputy Elliott determined the recovered property came from the burglary of the W hites’

residence.



       Robert Filer, detective sergeant with the sheriff’s department, testified he assisted



                                              4
Deputy Elliott in recovering a Quasar TV at the wreck site. Sergeant Filer obtained a

search warrant for the vehicle of Alex Lester. During the search, Sergeant Filer recovered

a Quasar remote control and a unique patterned bedsheet from the car’s floorboard. No

jewelry was found.



       After a search of Lester’s car, Detective David Adams, accompanied by other

officers, went to Lester’s home. Detective Adams advised Lester of his rights and Lester

confessed his part in the burglary. Lester implicated the defendant in the burglary.

Detective Adams told Lester if he cooperated with the officers, they would inform the

district attorney’s office of his cooperation.



       Steve Elliott, captain detective with the sheriff’s department, testified he interviewed

the defendant. The defendant admitted being with Alex Lester on July 18 and 19. They

had been riding around drinking, including going to Murfreesboro and back. The defendant

admitted they had been in an accident and he left walking, not wanting to get into trouble.

The defendant denied any knowledge of a burglary.



       The defendant elected not to testify or offer any proof.



                                     LEGAL ANALYSIS



       Since the defendant complains the evidence is insufficient to sustain a verdict of

guilty of aggravated burglary and theft of property and that the trial court erred in denying

his motion for a judgment of acquittal at the conclusion of the state’s proof, we will address

both issues.



       When reviewing a trial court’s judgment, the appellate court will not disturb a verdict

of guilty unless the facts in the record and inferences which may be drawn from it are

sufficient 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 (Tenn.



                                                 5
1982); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Initially, a defendant

is cloaked with the presumption of innocence. Tuggle, 639 S.W.2d at 914. However, a

jury conviction removes the presumption of innocence and replaces it with one of guilt, so

that on appeal a convicted defendant has the burden of demonstrating that the evidence

is insufficient. Id. In determining the sufficiency of evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On

appeal, the State is entitled to the strongest legitimate view of the evidence and all

legitimate or reasonable inferences which may be drawn therefrom. State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the conviction if the

evidence viewed under these standards was sufficient for any rational trier of fact to have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes,

875 S.W.2d 253, 259 (Tenn. 1994). This rule is applicable to findings of guilt predicated

upon the direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990).



         As part of his argument, the defendant contends the record is devoid of any

evidence establishing his complicity in the burglary and the proof fails to meet the

corroboration of the accomplice, Alex Lester. First, we address the sufficiency of the

corroborating evidence of the accomplice. A conviction may not be based solely upon the

uncorroborated testimony of an accomplice. State v. Maddox, 957 S.W.2d 547, 554

(Tenn. Crim. App. 1997). In State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), our

supreme court reiterated the rule relating to corroboration of accomplice testimony:


               There must be some fact testified to, entirely independent of
               the accomplice’s testimony, which, taken by itself, leads to the
               inference, not only that a crime has been committed, but also
               that the defendant is implicated in it; and this independent
               corroborative testimony must also include some fact
               establishing the defendant’s identity. This corroborative
               evidence may be direct or entirely circumstantial, and it need
               not be adequate, in and of itself, to support a conviction; it is
               sufficient to meet the requirements of the rule if it fairly and
               legitimately tends to connect the defendant with the
               commission of the crime charged.

                                              6
Id. at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992).



       The corroboration is sufficient “if this evidence, of itself, tends to connect the

defendant with the commission of the offense, although the evidence be slight and entitled,

when standing alone, to little consideration.” State v. Green, 915 S.W.2d 827, 831 (Tenn.

Crim. App. 1995). Furthermore, the jury is to determine the degree of evidence necessary

to corroborate the testimony of an accomplice. State v. Chris Billingsley, No. 01C01-9506-

CC-00166, 1996 LEXIS 304 (Tenn. Crim. App., Nashville, May 16, 1996).



       From the facts in this record, there is sufficient evidence to corroborate the

testimony of Alex Lester. The proof amply reflects an aggravated burglary and theft

occurred at the Whites’ home. A TV, VCR, satellite receiver, jewelry, and a bedsheet were

taken. The sheriff’s office corroborated the accomplice’s statements by finding the TV in

the creek water. James Rhodes, the tow truck driver, corroborated the defendant’s

statement he was walking from the scene of the accomplice’s accident. The sheriff found

the Quasar remote control and a bedsheet taken from the victim’s bedroom in the

accomplice’s car. The defendant, through his statement, admitted being with the

accomplice at or about the time of the burglary, but denied any involvement. There is

sufficient corroborating evidence of the accomplice’s testimony to support the defendant’s

convictions.



       We further find the trial court did not err in denying the defendant’s motion for a

judgment of acquittal. At the close of the state’s proof, the defendant requested a motion

for judgment of acquittal. The trial court denied the motion on the basis the proof was an

obvious jury question and the state met the slight corroboration burden. At the point the

motion is made, the trial court must favor the state with the strongest legitimate view of the

evidence, including all reasonable inferences, and discard any countervailing evidence.

State v. Anderson, 880 S.W.2d 720 (Tenn. Crim. App.) per. app. denied (Tenn. 1994).

There is no merit to this issue.




                                              7
       The defendant complains the trial court was in error for permitting the state to

introduce his written statement in the third trial. Apparently, in the first trial, the state failed

to disclose a statement made by the defendant to Captain Steve Elliott and the state

elected not to introduce this statement. In the third trial, Captain Steve Elliott testified

regarding what the defendant stated about being with the accomplice on the night of July

18 and the early morning hours of July 19. However, after a thorough review of the record,

the defendant made no objection to Captain Elliott’s testimony regarding the substance of

the defendant’s statement in this trial. Since the defendant raised this issue in his motion

for a new trial, we will address this issue.



       We believe the defendant’s reliance on State v. West, 825 S.W.2d 695, 696 (Tenn.

Crim. App. 1992) is misplaced. In West, the state failed to disclose a factual witness to a

homicide upon a demand for discovery of all state witnesses. Since discovery rules were

not followed, the conviction was reversed. However, in this case, the defendant was on

notice, through the two remaining trials, that the state would seek to introduce the

defendant’s statement. The defendant has failed to cite any case law restricting the use

of such evidence in a retrial where the defendant is on notice the state has such evidence.

We believe the unobjected admission of this statement at the defendant’s third trial was

proper. There is no merit to this issue.



                                      ________________________________________
                                      L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




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