         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 10, 2007

    STATE OF TENNESSEE v. DARRYEL WEBB a/k/a DARRYL WEBB

                      Appeal from the Criminal Court for Shelby County
                             No. 05-08596   Chris Craft, Judge



                     No. W2006-01804-CCA-R3-CD - Filed July 10, 2007


The defendant was convicted of aggravated burglary, a Class C felony, by a Shelby County Criminal
Court jury. He was sentenced to fifteen years as a Career Offender to be served in the Department
of Correction consecutively to a prior conviction. In this appeal, he claims that the circumstantial
proof of his guilt is insufficient to support his conviction. We disagree and affirm the judgment of
the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN , JJ., joined.

Robert Wilson Jones, District Public Defender, Tony N. Brayton (on appeal) and Robert T. Hall (at
trial), Assistant Public Defenders, for the appellant, Darryel Webb a/k/a Darryl Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alanda Horne Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        At the defendant’s trial, Eloise Worship testified that on March 2, 2005, she lived alone at
her home in Memphis. She said she came home that afternoon and saw the defendant pushing her
trash can down the street. She recognized the trash can as being hers because her can had a broken
hook on the top. She said she asked the defendant what he was doing with her trash can. She said
he responded, “I’ll bring it right back.” She said she told him he could not take the trash can. She
said she turned her car around, jumped out of the car, went up to the defendant, and said, “Give me
my trash can, what are you doing with my stuff?” She said she could see the top of her television
sticking up out of the trash can. She said she had no doubt the television was hers because she
recognized the trim on the top and edges. She said she looked toward her house and saw that her
window was broken and that the blinds were slanted. She said the defendant became “really agitated
and angry” and “swung at” her. She testified he said, “‘B’, I’ll ‘F’ you up.” The witness said the
defendant used profanity, which she did not repeat on the witness stand.

        Ms. Worship said she went to Clara Franklin’s house to call the police. She said the
defendant left the scene while she was waiting for the police. She said that when she went inside
her home, she discovered that it was in disarray and that several items had been taken. She said the
property taken included a television, video cassette recorder, and various pieces of jewelry. She said
there was glass from broken windows in the house and a crow bar outside the front door. She
identified photographs of the interior and exterior of her home which showed the damage and
disarray from the burglary.

        Ms. Worship said she recognized the defendant as being the same individual who used to live
with his son’s grandmother in the house next door to her home. She said she later learned his
whereabouts by calling her former neighbor with whom the defendant had lived. She said that she
notified the police and that she went with them to the location the night following the daytime
burglary of her home. She said that while there, the police brought a person out of the house and that
she identified that person as the one she had seen pushing her trash can down the street. She said
that person was the defendant and that she was positive in her identification.

        Officer Vikki Saine of the Memphis Police Department testified that she responded to a
burglary call at the victim’s home. She described the disarray inside the victim’s home. She said
that she made a report but that she did not call “crime scene” to process the scene for fingerprints.
Officer Saine said that the victim did not know the name of the person she had seen pushing her trash
can but that the victim recognized him from the neighborhood. Officer Saine said her partner,
Officer Stines, also responded to the call.

         Clara Franklin testified that she lived diagonally across the street from the victim. She said
the victim came to her house to use the telephone on the date in question. Ms. Franklin said that the
victim reported to her that “the guy next door was pushing her garbage can down the street with her
belongings.” She said the victim had to call the police a second time when they did not arrive after
the first call.

        Officer Daniel Wallace of the Memphis Police Department testified that on March 2, 2005,
he was dispatched in response to a call that the victim knew the whereabouts of the person who had
burglarized her home earlier that day. He said he and his partner, Officer Coleman, went to the
address with the victim. He said he obtained the homeowner’s permission to go inside the house.
He said he observed crack pipes and drug paraphernalia and several individuals inside the house.
He said the defendant was hiding behind a bathroom door. He said he brought everyone into the
living room and inquired which of them was Darryel Webb. He said that no one responded until he
threatened to have the Organized Crime Unit search the house for drugs and that the homeowner then
identified the defendant. He identified the house where the defendant was apprehended as a “crack
house.”



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        After receiving this proof, the jury found the defendant guilty of the charged offense of
aggravated burglary. Following sentencing and an unsuccessful motion for new trial, the defendant
filed this appeal.

         The sole issue before us is the sufficiency of the convicting evidence. Our standard of review
when the sufficiency of the evidence is questioned on appeal is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the 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.2d 832, 835 (Tenn. 1978). For an accused to be convicted of a criminal offense based solely
upon circumstantial evidence, the facts and the circumstances “must be so strong and cogent as to
exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond a
reasonable doubt.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State v. Crawford,
225 Tenn. 478, 470 S.W.2d 610, 612 (1971)).

         “Aggravated burglary is burglary of a habitation . . . .” T.C.A. § 39-14-403(a). As relevant
to this appeal, burglary is committed when a person enters a building without the owner’s consent
and with the intent to commit a theft. Id. § 39-14-402(a).

        The defendant argues that the proof does not exclude the possibility that the defendant came
into possession of the victim’s property after the burglary. In the light most favorable to the state,
the evidence establishes that the defendant was in possession of the victim’s trash can filled with her
belongings and that the victim’s home had been burglarized within a few-hour period that the victim
had been gone. The defendant was in the immediate area of the victim’s home when she saw him
pushing her trash can containing her property down the street. The victim attempted to stop the
defendant, and he attempted to hit her, cursed her, and threatened to hurt her. There is no evidence
that anyone other than the defendant was involved in the crime. The defendant’s presence in the
immediate area, his possession of the victim’s property, and his attempt to extricate himself forcibly
from the situation when challenged by the victim all point the finger of guilt unerringly at him as the
perpetrator of the aggravated burglary of the victim’s home.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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