         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

                  STATE OF TENNESSEE v. WILLIE JOHNSON

                  Direct Appeal from the Circuit Court for Madison County
                           No. 00-128    Donald H. Allen, Judge



                   No. W2001-02929-CCA-R3-CD - Filed January 14, 2003


The defendant appeals his convictions of burglary and theft of property over five hundred dollars
($500.00). The defendant argues that the State did not present sufficient evidence at trial to support
his burglary conviction and contends that he did not receive a speedy trial. We affirm the judgments
from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

Joseph Patterson, Jackson, Tennessee, for the appellant, Willie Johnson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On February 7, 2000, the defendant, Willie Johnson, was indicted for the burglary of the
Pesce Architecture Firm, in violation of Tennessee Code Annotated section 39-14-402, and theft
of property over five hundred dollars ($500.00), in violation of Tennessee Code Annotated section
39-14-103. Following a jury trial, the defendant was convicted of both offenses and sentenced to
eight years for burglary and four years for theft, to be served concurrently. The defendant filed a
Motion for Judgment of Acquittal or Motion for New Trial. The trial court heard and denied the
motion. The defendant filed a timely notice of appeal, contending that the State did not present
sufficient evidence at trial to support his burglary conviction and that he did not receive a speedy
trial.
                                                      I. Facts

       The defendant’s jury trial was held on June 26, 2001. The State called John Mann, Tony
Concialdi, Jim Murdaugh, Officer James Randall Price, Officer David Knolton, Sergeant Ron
Jackson, and Officer Randy Lampley to testify to the events surrounding the November 9, 1999
burglary of the Pesce Architecture Firm. At the conclusion of the State’s case, the defense counsel
moved for a Motion for Judgment of Acquittal. The trial court denied the defendant’s Motion for
Judgment of Acquittal, finding that sufficient proof existed placing the defendant in the area of the
burglary and based upon eyewitness testimony. The defense called Wade Powell and recalled Tony
Concialdi, Jim Murdaugh, and Officer James Randall Price.

         John Mann, an architect with the Pesce Architecture Firm,1 testified to the circumstances of
the November 9, 1999, burglary of his office building in downtown Jackson. He had locked the
doors prior to leaving for lunch that day. After returning from lunch, he discovered that the outer
and inner doors of his office building were ajar and wood chips were broken from the door trim.
Once inside his office, he saw that approximately thirty computer discs, compact discs, and software
were missing from his workspace. Mann stated that some pens from his desk were missing, as well
as the cord from Jerry Pesce’s Norelco shaver. During this time, he received a telephone call from
someone at Ironworks,2 a business associated with his firm, inquiring about whether the Pesce Firm
was missing a computer. He found that the laptop belonging to his employer, Jerry Pesce, was
missing. Mann stated that he went to Ironworks and recovered the missing property. Mann stated
that the Pesce Firm offices were accessible by doors located inside the building, as well as doors on
the outside of the building. He stated that employees of an insurance company, located in the same
building as the Pesce Firm, were the only people having access to the inner offices. Mr. Mann
testified he did not know who could have committed the crime and stated that he did not know the
defendant.

        On cross-examination, Mann testified to what he discovered on the day of the burglary. He
stated that the value of the music compact discs ranged from fifteen dollars to twenty dollars each.
At the time of the theft, the laptop was worth approximately four thousand dollars, and each of the
software computer discs were worth one hundred to two hundred dollars each. He stated that the
stolen items belonged to the Pesce Firm and were purchased for business purposes. He stated that
no damage was done to any of the items taken from his office. He also stated that it appeared as if
someone used an object to chip the wood from the door frame. He stated that the police
photographed the crime scene, but he did not remember telling them about the damage to the doors.
He stated that he has worked for the Pesce Firm for six years.
        On redirect, Mann stated that the outer door of the office sustained damage from the apparent
forcible entry. He also stated that the Pesce Firm doors are located on the west and east side of the


       1
           Pesce Architecture Firm is also referred to as the Pesce Firm.

       2
           Ironworks is also known as Ornamental Iron, Ornamental Iron and Construction, and Ornam ental Ironworks.



                                                         -2-
building and his office is located on the east side of the building. He stated that the west side of the
building houses the insurance company that he previously mentioned. He stated that if the west or
east door is unlocked, one can make entry into the building and that he has access to his office from
the east door or the west door.

        Tony Concialdi, owner of Ornamental Iron and Construction, testified, as follows, regarding
the incident at issue. Ornamental Iron and Construction, also known as Ironworks, is located in the
downtown area of Jackson near the Pesce Firm. He stated that at approximately 12:30 to 1:00 p.m.
on the day of the burglary, the defendant walked into Concialdi’s office with a laptop computer and
other items. Concialdi stated the defendant approached Concialdi and Jim Murdaugh, who was also
present. He stated he remembered the defendant allowed him and Murdaugh to open and operate
the laptop. He noticed that the tried to plug a shaver cord into the computer. He stated that after
the laptop was turned on, the screen flashed the words, “Pesce Firm,” and required a password for
further operation. He stated that he told the defendant that “you can’t just turn it on and get in there.”
The defendant then told him to use the computer discs to gain access. He stated that he told the
defendant that the computer was not accessible by only using the discs. He stated that he told the
defendant that he did not think the laptop belonged to the defendant. After the defendant told him
that he bought the laptop, Concialdi remembered responding to the defendant by saying, “Well, I
don’t know about that.” The defendant then gathered the laptop and computer discs and left. He
stated that Murdaugh then called the police. Concialdi identified the defendant as the person who
attempted to sell him the laptop and discs.

         On cross-examination, Concialdi reiterated his previous testimony. He stated that the
defendant was the man who attempted to sell him the stolen items. He stated that, by the time the
police arrived at his office, the defendant was gone. He described the perpetrator as a black male,
approximately six feet tall, with a goatee. He stated that he told one of the officers that the
perpetrator was a black male with a stubby beard and mustache. He described his office as the “old
Goodyear building.” He stated that he uses half of the old Goodyear showroom as his office and he
uses the rest of the building for his shop. He stated that the lighting conditions in his office were
sufficient to see the defendant from three feet away. He stated that the defendant stood directly
across from him on the opposite side of his desk for approximately ten minutes. He positively
identified the defendant as the same person who appeared in his office. On redirect, Concialdi
testified that he has no doubt that he correctly identified the defendant as the perpetrator.

        Jim Murdaugh testified that the defendant attempted to sell him the stolen goods on the day
of the burglary. At the time of trial, he stated that he was employed as a certified real estate appraiser
at an office on Main Street in Jackson. He stated that he was in Concialdi’s office when he noticed
the defendant walk up from the street and then enter Ironworks, carrying a black laptop. He stated
that the defendant asked the two men if they would be interested in buying his laptop for five
hundred dollars ($500.00). He remembered telling the defendant to go into Concialdi’s office so the
men could ascertain whether the computer was in good condition. He stated that he observed the
defendant demonstrate how to operate the computer. He stated that Concialdi and his son were in
the office with him and the defendant. He remembered seeing the address of Jerry Pesce, Pesce


                                                   -3-
Architects, printed on the front cover of the laptop case. He stated that the defendant attempted to
plug in the computer with a Norelco shaver cord. He then asked the defendant to turn the computer
on to see if the computer worked. He stated that the computer screen flashed a Windows screen,
then flashed the words, “Pesce Architect Firm,” before asking for a password. He stated he told the
defendant to give them a password to demonstrate how the laptop operated, but the defendant did
not have the password. Murdaugh stepped outside and called his wife, who is employed with the
police department, to request police assistance and to report what was happening in Concialdi’s
office. He stated that he assumed that the defendant heard him make the call, because the defendant
ran out the front door with the stolen goods. While gathering the laptop and discs, the defendant
picked up a compact disc belonging to Concialdi. After making the call to his wife, Murdaugh called
the Pesce Firm to see if they were missing a laptop computer. He stated that during the time that the
police were apprehending the defendant, Mann came from the Pesce Firm to reclaim the laptop and
other items. The police asked the men for a description of the perpetrator and, in less than thirty
minutes, returned to Concialdi’s shop with the defendant in their squad car. He reported to the
police that the defendant was thin, with a goatee, and described what the defendant was wearing.
He stated that all of the events happened during the lunch hour. He identified the defendant as the
man who attempted to sell the stolen merchandise.

        On cross-examination, Murdaugh testified to reporting the incident to the police. He gave
the description of the perpetrator as thin, with a goatee. He remembered seeing three police officers
on the scene. He stated that the defendant entered Ironworks from the direction of the grocery
parking lot and walked through the first garage door positioned on the west side of the building. He
stated that it alarmed him when he saw the defendant carrying a laptop as he passed alongside his
truck because Murdaugh’s laptop was inside his unlocked truck, parked between the garage door and
the street, just outside Ironworks. He realized that the defendant did not look like a computer
salesperson, but chose not to turn the defendant away because he wanted to determine whether the
laptop was taken from his truck. He stated that when the defendant showed the men the Gateway
computer with its screen flashing, “Pesce Architect Firm,” he knew that it was not his laptop. He
stated the defendant did not know how to turn the computer on, so Concialdi had to do this for him.
He stated the defendant also tried to use a Norelco shaver cord on the computer. Because Murdaugh
stepped around the corner of the office to discreetly use his cell phone to call the police department
and the Pesce Architect Firm, he did not see the defendant leave the building. He stated that he had
an opportunity to see the defendant again in the back of the squad car. He remembered that the
defendant was in the backseat, and the defendant was yelling obscenities at him. He recognized the
person in the squad car as the same person who attempted to sell the men the laptop and other stolen
items.

        Officer David Knolton, who had been employed as a patrolman for the Jackson Police
Department for eleven years, testified to the events of November 9, 1999. He stated that he heard
the dispatch that requested an officer in the area around Ironworks. Once he finished with his




                                                 -4-
business, he drove in the direction of Ironworks. He stated that another officer dispatched a BOLO3
for a black male, slim, with a goatee, wearing blue jeans. He began to look for the suspect. He
stated he saw a man, meeting the description, in the alley behind the “old Vet’s Club” on 425 North
Royal Street and then informed dispatch. He stated he stopped the defendant and asked for his
identification. Officer Colon arrived as Knolton spoke to the defendant. At this time, the defendant
had no property in his possession. He stated that the area in which the defendant was stopped was
approximately a block or a block and a half from Ironworks. He stated that after leaving Officer
Colon with the defendant, he went to Ironworks to speak to Concialdi and Murdaugh. While
speaking to Concialdi and Murdaugh, Officer Colon arrived at Ironworks with the defendant in the
back of his squad car. He stated that Officer Colon brought the defendant to Ironworks to allow
Concialdi and Murdaugh the opportunity to determine if the suspect in custody was the same person
who attempted to sell the men the laptop computer. He stated that he was advised by dispatch that
the subject he had stopped had been identified as the suspect by the men at Ironworks. He stated that
after leaving Ironworks, he started an immediate search of the area where he stopped the suspect. He
stated that Sergeant Ron Jackson met him on the scene and helped in the search, and Sergeant
Jackson found the laptop and other items in a dumpster. He stated that he noticed that the dumpster
and the suspect were a block and a half from Ironworks, and upon completion of the search, he went
to Ironworks. He stated that he positively identified the suspect that he stopped on November 9,
1999, by pointing at the defendant in the courtroom.

        On cross-examination, Officer Knolton testified to the description and information given by
the police dispatch. He stated that he had been looking for a slim, black male, with a goatee, and
wearing blue jeans. He stated that the suspect was reported as leaving Ironworks in a northern
direction, which would have placed him in the area of the Vet’s Club. He stated he saw the
defendant walking north, up the alley, near North Royal and College Street. He stated he saw the
defendant beside an automobile repair shop located on 425 North Royal Street around two o’clock
in the afternoon. The suspect was identified as Willie Johnson. He stated that after Officer Colon
arrived, he went to Ironworks to speak to Concialdi and Murdaugh. He stated that Officer Colon
kept the defendant in the area where he was stopped and that Officer Colon placed the defendant in
his squad car and went to Ironworks. He stated that he and Sergeant Jackson searched the area where
the defendant was first spotted. Sergeant Jackson found the laptop and other items in the dumpster
behind 425 North Royal Street. He stated that he took these items to Officer Price’s location on Hurt
Street and College Street, and the items were returned to the owners. He stated that he also
questioned employees of the auto shop located at 425 North Royal Street. He testified to typing a
supplement to his report reiterating the events leading to the arrest of the defendant. He stated in this
supplement that the suspect had a stubby beard because he received this information from the
dispatch of the BOLO.

        On redirect, Officer Knolton acknowledged that he filed a handwritten report to the police
pepartment. Officer Knolton said that the handwritten report was later reduced to a typewritten
report, introduced by the defense counsel. On recross, Officer Knolton was asked how his name


       3
           BOLO refers to a dispatch to police officers to “be on the look out.”

                                                         -5-
appeared on a report written by Officer Price. He stated that Officer Price wrote his name in his
report.

        At this point in the trial, the defense counsel asked the jury to be excused, and the trial judge
excused the jury. The defense counsel told the judge that the defendant was demanding that he ask
witnesses questions that counsel felt were inappropriate. The trial judge addressed the defendant and
asked the defendant what his contentions were in respect to witness questioning. The defendant
stated that he wanted reports by witnesses read in full, not read in portions, so the jury could hear
that the reports differed as to the description of the suspect. The trial judge asked the defendant to
allow the defense counsel to ask questions on redirect, to recall witnesses, and to have the
opportunity to make his argument before the jury. The trial judge also admonished the defendant
for speaking so loudly. The defendant then announced to the trial judge and his counsel that, “I’ve
got ya’ll now. Ya’ll want me out of here.” The bailiff then told the defendant, “No. We just want
you to sit down.” The defendant replied that he “got the message,” and he knew exactly what was
“going on.” The defense counsel asked the defendant if he wanted to be the lead attorney and
question the witnesses. The defendant responded to his counsel by stating that he wanted to ask
questions that counsel may not want to ask. The defense counsel again asked the defendant if he
would like to take over the cross-examination and told him he could not “do it piecemeal.” The trial
judge responded to the exchange between the defense counsel and defendant by stating that the
defense counsel would continue to represent the defendant and that the defendant may confer with
his attorney. However, the defense counsel should only ask those questions which he felt were
appropriate. The trial judge dismissed the court for a five-minute break.

        Sergeant Ron Jackson testified to the events of November 9, 1999. He was working the day
shift from 7:00 a.m. until 3:00 p.m., in the location of Lane Street from the Forked Deer River
Bridge and east of Highland, when he received a call that a subject was trying to sell items that were
probably stolen. He stated that he went to Ornamental Iron on East College and was given a
description of the suspect. He remembered that one of the officers remained at the shop while he
and another officer left to find the suspect. After Officer Knolton found the subject, he returned to
Ornamental Iron. He stated that Officer Colon transported the subject back to Ornamental Iron for
Concialdi and Murdaugh to identify the suspect in custody. He stated that Concialdi and Murdaugh
positively identified the suspect as the man attempting to sell them the laptop and other items. He
stated that he found the laptop computer inside a carrying case and a black plastic bag with software
items inside the bag. He stated that Concialdi and Murdaugh identified the laptop computer as the
same one the suspect attempted to sell to them. He said thatOfficer Knolton was given the items to
return to the owner, and the defendant was transported to the jail. He identified the defendant in the
courtroom as the same man who was taken into custody on November 9, 1999. He stated that the
items were found in an area located two blocks from Ornamental Iron and that he was not familiar
with the location of the Pesce Architectural Firm. He stated that, on the day of the burglary, he
searched for a tall, slender black male with a scraggly beard and black hair. He stated that at the
time he received a description of the suspect, the owner of Ornamental Iron described the suspect
as having a small goatee around his chin. As the District Sergeant, he made the decision not to have
fingerprints taken from the items found in the dumpster. He testified that the BOLO from Officer


                                                  -6-
Price described the suspect as a black male with a stubby beard, but Concialdi described the suspect
as having a goatee and did not think the goatee description went out on a BOLO.

         Officer James Randall Price, a police officer with the Jackson Police Department for twenty-
two years, was called as a witness to present testimony as to the events of November 9, 1999. He
testified that he went to Ornamental Ironworks in response to a call regarding items believed to be
stolen. He stated that he spoke with Concialdi, the owner of Ornamental Iron, and Murdaugh and
then made a report based upon the information given. He also stated that he dispatched the
description of the suspect as a black male with a scruffy-looking beard and mustache. He said he
remained at Ornamental Iron while other officers looked for the suspect. Approximately fifteen
minutes passed before the suspect was brought back to Ornamental Iron for identification. He
testified that he did not know the defendant prior to his arrest and positively identified the defendant
in the courtroom as the same person the officers brought back to Ornamental Iron for identification
purposes. He stated that he photographed the laptop and other items before the items were returned
to the owner.

        On cross-examination, Officer Price testified to the contents of his supplemental report. He
stated that he wrote the original report. Concialdi told him that the suspect, a black male with a
scrubby beard and mustache, came into his store and attempted to sell him a computer. After getting
the description of the suspect, Price stated that he sent out a BOLO for a black male with a scrubby
beard. He testified that the Jackson Police Department chose not to dust for fingerprints on the
items retrieved from the dumpster. He stated that when an officer returned to Ornamental Iron with
the defendant in the squad car, Murdaugh positively identified him as the man who attempted to sell
him the laptop and other items.

       After the trial judge released the jury for lunch, the defense counsel addressed problems that
he was having with the defendant. The defense counsel told the judge that the defendant was asking
him to do things that were impermissible. The trial judge dismissed the parties for lunch.

        The State called Officer Randy Lampley, of the Jackson Police Department, as a witness.
At the time of the trial, he stated that he was in charge of the Financial Crimes Unit of the Jackson
Police Department. During November of 1999, he was in charge of the Property Crimes Section.
Lampley positively identified the defendant in the courtroom as the same person he saw on
November 10, 1999. He testified that on the day after the burglary, he went to the Pesce Firm to take
pictures of the damage to the door facings and to speak to John Mann. He said that all of the
property that was stolen on November 9, 1999, had been returned to Mann on the same day. He
stated that the Pesce Architectural Firm is located halfway down Sycamore Street, Jackson,
Tennessee, in an old railroad building that has been converted into downtown office buildings.

         On cross-examination, Lampley testified that he did not ask Mann to identify the defendant
from either a photo lineup or a live lineup. He stated that it was not unusual to return stolen items
to the owner or to show the owner photos of stolen items for identification purposes. He tsetified
that it was possible for fingerprints to have been lifted from the stolen items, but they did not dust


                                                  -7-
for prints. On re-direct, Lampley stated that he was not directly involved with the stolen property
on November 9, 1999.

        The defense then called Wade Powell, owner and operator of Powell’s Auto Shop on 425
North Royal Street in Jackson, to testify concerning his knowledge of the incident occurring on
November 9, 1999. Powell stated that the defendant had been in his shop prior to his arrest and that
the stolen items were found in a dumpster located approximately fifteen to twenty feet outside the
back door of his shop. He told the police that the defendant would sometimes come in his shop, and
he did not see the defendant with any of the stolen items on the day of his arrest.

        On cross-examination, Powell testified that, although he was not sure of the time of day the
defendant was in his shop, he thought it was sometime after nine o’clock in the morning. He stated
that the defendant was in the auto shop for about ten to fifteen minutes. He said that when the
defendant left the shop, he did not have anything in his possession, and he did not return until he was
in police custody. He testified that when the stolen items were found, he was inside of his shop and
was unaware that the police had found them in his dumpster. On redirect, Powell testified that he did
not see the defendant until after the police arrested him that afternoon. He stated that his cousin was
outside the shop on the day of the defendant’s arrest.

         The defense recalled Tony Concialdi. Concialdi stated that he did not give a signed written
statement, but told Officer Price that a black male with a stubby beard and mustache attempted to
sell him a laptop computer and several CDs. Concialdi stated that he was in his office when the
defendant left the store. He also stated that he did not hold the defendant in the shop while Murdaugh
used his cell phone or until Murdaugh returned. He stated that the defendant appeared to get nervous
and left the shop when Murdaugh went outside to use his phone. He said he noticed the defendant
left, he also picked up some of Concialdi’s CDs. On cross-examination, he stated that the CDs that
the defendant picked up from his desk were returned when the police brought the other property to
his shop.

         Jim Murdaugh was recalled by the defense and testified that the defendant tried to sell the
laptop computer to him for five hundred dollars ($500.00). The defense counsel read into the record
the statement prepared by Officer Price and asked Murdaugh if the report was correct. He responded
by stating that Officer Price’s statement was correct. He stated that he talked with the defendant
prior to his entering Concialdi’s shop, but Officer Price did not include this in his report. He also
stated that the defendant offered to sell him the laptop while he and the defendant were outside
Concialdi’s shop.

       Officer Price was recalled by the defense counsel. He stated that he failed to include
Murdaugh’s statement regarding the defendant’s offer to sell him the laptop for five hundred dollars
($500.00). He also stated that he did not have any reason to explain differences in Officer Knolton’s
description of the defendant and Concialdi’s description. He stated that Concialdi told him that he
had been in the office, walked out, and then returned to see the defendant head north on Hurt Street.



                                                 -8-
He testified that his report was not written “word for word” to record the witnesses’ statements, but
was written from memory and from notes he made as witnesses reported to him.

       On redirect, Officer Price testified that Concialdi originally gave a description of a suspect
with a mustache and a stubby beard. He remembered that other officers came to the scene and
dispatched the description over the radio. He said that Sergeant Jackson may have talked to
Concialdi and received information from him as well. The defense counsel rested and renewed its
Motion for Judgment of Acquittal. The trial court dismissed the motion and instructed the jury.

                                             II. Analysis

A.     Sufficiency of the Evidence

        The defendant argues that the evidence is insufficient to support his conviction of burglary,
in violation of Tennessee Code Annotated section 39-14-402. The defendant contends his burglary
conviction was based upon circumstantial evidence and that another hypothesis existed to explain
how he came into possession of the stolen items.

         When a defendant challenges the sufficiency of the evidence, the standard of review is
whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable doubt.
State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999), see also Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (Tenn. 1979); Tenn. R. App. P. 13(e). This rule applies to
findings of guilt based on direct, as well as circumstantial, evidence. State v. Brown, 551 S.W.2d
329, 331 (Tenn. 1977). In determining the sufficiency of evidence, this Court should not re-weigh
or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). All
questions involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). Furthermore, the jury must determine the weight to be given to
circumstantial evidence, the inferences to be drawn from such evidence and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence. State v. Land, 34 S.W.3d
516, 533 (Tenn. Crim. App. 2000). We must review the evidence in the light most favorable to the
State to determine if “‘ant rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” State v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000) (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A guilty verdict
in criminal actions shall be set aside on appeal only if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e).



                                                  -9-
        The defendant was indicted and convicted of burglary in violation of Tennessee Annotated
section 39-14-402. Burglary is defined as:
        (A) A person commits burglary who, without the effective consent of the property
           owner:
           (1) Enters a building other than a habitation (or any portion thereof) not open to
               the public, with intent to commit a felony, theft,or assault;
           (2) Remains concealed, with the intent to commit a felony, theft,or assault, in a
               building;
           (3) Enters a building and commits or attempts to commit a felony, theft, or
               assault; or
           (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane,
               or other motor vehicle with intent to commit a felony, theft, or assault or
               commits or attempts to commit a felony, theft, or assault.
Tenn. Code Ann. § 39-14-402(a) (1997).

        When viewed in the light most favorable to the State, the evidence was sufficient to prove
the defendant was guilty of burglary. Mann reported to the Jackson Police Department that, during
the lunch hours on November 9, 1999, the door to his office had sustained damage as the result of
forcible entry. Upon entering the Pesce Architecture Firm, Mann noticed that a laptop computer and
several other items were missing. Within the same time frame, Concialdi and Murdaugh
encountered the defendant in Concialdi’s office with a laptop computer and other items they believed
to be stolen. Within minutes after Murdaugh’s call to police, the defendant was apprehended near
Concialdi’s office. The police found the laptop computer and other stolen items in a dumpster in
the alley where the defendant was apprehended. The “unexplained possession of property recently
stolen in a burglary will support a conviction for that burglary.” Smart v. State, 544 S.W.2d 109,
110-11 (Tenn. Crim. App. 1976). However, the jury must have determined whether the State carried
its burden of proof as to the defendant’s identity. See State v. Vaughn, 29 S.W.3d 33, 40 (Tenn.
Crim. App. 1998). Here, the defendant was identified as recently having been in possession of
stolen property and was stopped and apprehended within feet of the dumpster where the stolen items
were discovered. Based upon the evidence presented at trial, a rational trier of fact could have found
the defendant guilty beyond a reasonable doubt.

            The defendant alleges that Mann’s testimony supports an alternative hypothesis as to how
the defendant came into possession of the stolen items. Mann testified that the defendant said “he
had bought the lap top computer.” The defendant argues that the jury failed to consider an alternate
explanation of how he came into possession of the stolen property. The evidence in this case clearly
established that the defendant was seen by Tony Concialdi and Jim Murdaugh in Concialdi’s office
at Ornamental Iron. All of the witnesses positively identified the defendant as the same person
attempting to sell stolen goods and in possession of the stolen goods. A conviction may be based
entirely on circumstantial evidence where the facts are “‘so clearly interwoven and connected that
the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.’” State v. Smith,
868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)). In
the instant case, the finger of guilt is pointed at this defendant and this defendant alone. The


                                                -10-
defendant’s alternate hypothesis that he bought the laptop computer is simply implausible. Given
that we must view the evidence in the light most favorable to the State, we conclude the evidence
was sufficient to convict the defendant.

B. Dismissal of Indictment - Right to a Speedy Trial

           Next, the defendant argues that the trial court erred by failing to dismiss the indictment
against him, thereby violating his right to a speedy trial and due process.

        The defendant was arrested on November 9, 1999. On November 18, 1999, the defendant
waived his right to a preliminary hearing, and the case was bound over to the Madison County Grand
Jury. The defendant filed a pro se Motion to Dismiss, alleging an unnecessary delay in bringing his
case to trial, and requested the trial court dismiss the indictments relating to his November 9, 1999,
arrest pursuant to Tennessee Criminal Rule of Procedure 48(b). The trial court denied this motion
on May 1, 2001. On February 7, 2000, the Madison County Grand Jury returned an indictment for
burglary, in violation of Tennessee Code Annotated section 39-14-402, and for theft over five
hundred dollars ($500.00), in violation of Tennessee Code Annotated section 39-14-103. The
defendant was sentenced to prison for eight years for the burglary conviction and to four years for
the theft conviction, to be served concurrently.

        We use the abuse of discretion standard of review in determining whether the trial court
correctly applied the four-part balancing test to the defendant’s claim that his right to a speedy trial
was violated. See State v. Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996). Specifically, the
standard of review for a trial court’s decision to dismiss an indictment, the remedy for a successful
claim of a speedy trial violation, is abuse of discretion. See State v. Harris, 33 S.W.3d 767, 769
(Tenn. 2000). This standard of review “contemplates that before reversal the record must show that
a judge ‘applied an incorrect legal standard, or reached a decision which is against logic or reasoning
that caused an injustice to the party complaining.’” State v. Coley, 32 S.W.3d 831, 833 (Tenn.
2000), (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Therefore, we turn our attention
to the facts regarding the defendant’s assertion that the trial court erred in not dismissing his
indictment.

         The defendant contends that the trial court should have dismissed his indictment due to the
eighteen-month delay in bringing him to trial. Every criminal defendant is statutorily and
constitutionally entitled to a speedy trial. U.S. Const. Amend. VI; Tenn. Code Ann. § 40-14-101.
There are four factors to consider when assessing whether a defendant’s right to a speedy trial has
been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion
of the right to a speedy trial; and (4) the prejudice suffered by the defendant as a result of the delay.
State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). For the court to consider these factors, there must
have been a delay “which is presumptively prejudicial.” Barker v. Wingo, 407 U.S. 514, 530, 92
S.Ct. 2182, 33 L. Ed. 2d 101 (1972). Furthermore, the delay must “approach one year” to trigger an
analysis of the factors, although “the line of demarcation depends on the nature of the case.” Utley,
956 S.W.2d at 494. If the court determines that the defendant was denied his right to a speedy trial,


                                                  -11-
constitutional principles behoove the court to reverse the conviction and dismiss criminal charges.
State v. Bishop, 493 S.W.2d 81, 83 (Tenn. 1973). Before we discuss whether the evidence was
sufficient to uphold the defendant’s convictions, we must consider whether the defendant’s
indictment should have been dismissed.

        (1)     Length of the Delay

        First, this Court must examine the length of the delay to assess whether the defendant’s right
to a speedy trial has been violated. The defendant was held in custody from the time of his arrest
in November of 1999 to the time of his trial in June of 2001. In the instant case, the defendant was
held for eighteen months, triggering this Court’s analysis of the aforementioned factors.

        (2)     Reason for the Delay

        Second, we must look to the reason for the delay in bringing the defendant to trial. Reasons
for the delay of prosecution fall within four categories: (1) intentional delay to gain a tactical
advantage over the defense or delay designed to harass the defendant; (2) bureaucratic indifference
or negligence; (3) delay necessary to the fair and effective prosecution of the case; and (4) delay
caused by, or acquiesced in, the defense. State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996).

        The record does not reflect the State’s intention to delay to delay proceedings in order to gain
a tactical advantage over the defense or to harass the defendant. However, the State and defendant
agree that the reason for the delay is unclear. The State has proposed there was a problem with the
Sheriff’s Department getting the defendant back to court for his arraignment. At the hearing, the
State argued:
        [H]e was indicted, and we leave it up to the Sheriff’s Department to apprehend the
        defendants. When we were contacted in our office in November and December of
        2000 . . . we set up the Court date for him to be brought back in January. There was
        a go get done, and he was brought back. When we were - General Woodall received
        mail from the defendant, we brought him back. But as far as, you know, the actions
        of the Sheriff’s Department or in bringing him here on the indictment, I can’t speak
        for that, Your Honor.
The State’s inability to offer any reason for the delay in bringing the defendant to trial is evidence
of bureaucratic indifference. In Bishop, the prosecuting attorney made a diligent effort to provide
the defendant with a speedy trial, but the court held that the duty to bring the defendant to trial is “a
duty imposed on the State through all agencies and departments affecting the administration of
justice.” Bishop, 493 S.W.2d at 84. The Bishop court went on to quote the U.S. Supreme Court in
Dickey v. Florida by stating that the “public officials responsible for the delay may not even be
associated with law enforcement agencies or the courts,” and a delay that springs from the “refusal
by other branches of government to provide these agencies and the judiciary with the resources
necessary for speedy trials” will be considered against the State. Bishop, 493 S.W.2d at 84 (quoting
Dickey v. Florida, 398 U.S. 30, 51, 90 S. Ct. 1564, 1575, 26 L. Ed. 2d 26 (1970) (Justice Brennan



                                                  -12-
concurring)). The State concedes being uncertain about the eighteen-month delay in bringing the
defendant to trial. We construe this factor against the State.

        (3)    Defendant’s Assertion of the Right to a Speedy Trial

        Third, the Tennessee and United States Supreme Court have both recognized that “an
accused who is unaware that charges are pending against him or her, as is often the case where an
indictment has been sealed and not served, cannot be penalized for his or her failure to assert the
speedy trial right.” State v. Wood, 924 S.W.2d 342, 348, n.13 (Tenn. 1996) (citing Doggett, 505
U.S. at 652-54, 112 S. Ct. at 2691). The defendant filed a pro se Motion to Dismiss, pursuant to
Tennessee Rule of Criminal Procedure 48(b), demanding his right to a speedy trial in December of
2000, after being indicted in November of 1999. The State relies upon the holding in State v.
Daugherty, in that this defendant waited over thirteen months to assert his right to a speedy trial. See
State v. Jimmy Wesley Daugherty, 1989 Tenn. Crim. App. LEXIS 617, CCA No. 89-26-III,
Montgomery County (Tenn. Crim. App. filed September 22, 1989, at Nashville). Daugherty differs
from the instant case in that the defendant in Daugherty did not file his motion to dismiss until he
learned of the State’s intention to re-indict him to pursue a count of habitual criminality. See id. The
defendant in the instant case filed his Motion to Dismiss without the aid of an attorney, and the
record reflects that the defendant wrote letters to the State regarding his incarceration. Because this
defendant asserted his rights to a speedy trial on more than one occasion and in a timely fashion, this
factor weighs heavily against the State.

        (4)    Prejudice Suffered by the Defendant

         Fourth, the defendant must have suffered some prejudice caused by the delay. This fourth
factor, regarding prejudice, is viewed in light of the interests of defendants, which the right to a
speedy trial was designed to protect. In Smith v. Hooey, the United States Supreme Court listed the
following three interests the right of a speedy trial is designed to protect: (1) to prevent undue and
oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public
accusation, and (3) to limit the possibilities that a long delay impairs the ability of the accused to
defend himself. See Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969). The
defendant contends that, due to the passage of time, he was unable to locate critical witnesses that
could provide him with an alibi. The defendant also contends he has suffered continued anxiety
associated with the public accusation of a crime. In the defendant’s own Motion to Dismiss,
pursuant to Tennessee Rule of Criminal Procedure 48(b), he stated that he was not only imprisoned
for the crimes at issue, but was subject to criminal prosecution in another jurisdiction. Therefore,
the defendant was already subjected to anxiety due to the knowledge that he could be prosecuted in
another jurisdiction. Furthermore, the defendant was subject to public scrutiny due to the accusation
of a crime in another jurisdiction. The record does not reflect that the delay impaired the defendant’s
ability to defend himself, as he did not offer proof as to witnesses who could have provided helpful
testimony. The fourth factor does not weigh in the defendant’s favor.




                                                 -13-
       (5)     Guilt

        There exists another element that should be considered in the judgment of whether the
defendant was denied the right to a speedy trial. “[E]ven if not considered a factor bearing on the
final judgment to be made, it is an element that can be used in judging the other factors.” Bishop,
493 S.W.2d at 85. “This element is the strength of the State’s case as to guilt.” Id. To this element,
we do not review in terms of sufficiency of evidence, but will review evidence that supports the
verdict and the strength of the State’s case. In the instant case, the State presented circumstantial
evidence that speaks directly to the defendant’s guilt. The State presented credible eyewitness
testimony and evidence regarding the recovery of stolen items within a short distance of the area in
which the defendant was arrested. Given that the evidence strongly indicates the defendant’s guilt,
we find this factor weighs heavily against the defendant.

C.     Dismissal of Indictment - Due Process

         The Tennessee Supreme Court has stated that “[a] delay that does not implicate the speedy
trial right may still raise due process concerns under the Fifth And Fourteenth Amendments to the
United States Constitution and Article I, § 9 of the Tennessee Constitution.” Utley, 956 S.W.2d at
495. In order for the defendant to obtain relief, based upon the delay between the offense and the
initiation of adversarial proceedings, the accused must prove that (a) there was a delay, (b) the
accused sustained actual prejudice as a direct and proximate result of the delay, and (c) the State
caused the delay in order to gain tactical advantage over or to harass the accused. State v. Utley, 956
S.W.2d 489, 495 (Tenn. 1997) (quoting State v. Dykes, 803 S.W. 250, 255 (Tenn. Crim. App.
1990)). The defendant established that the eighteen-month delay between his indictment and trial
is sufficient to trigger this Court’s analysis of his right to a speedy trial. However, the defendant
failed to produce evidence as to the prejudice he has suffered as a result of the delay. The State and
the defendant have conceded that the delay was not caused to harass or to gain some tactical
advantage, but was due to the negligence of the State in bringing the case to trial in a timely manner.
Under these circumstances, it appears the delay was not so egregious that the defendant’s rights to
due process of law were violated.

        The defendant contends that his right to a speedy trial was violated, and both he and the State
acknowledge there exists no explanation for the delay in bringing the defendant’s case to trial.
However, the defendant did not suffer any prejudice from the delay, and the State’s case strongly
established the defendant’s guilt. Balancing all of the above-mentioned factors, we conclude that
the defendant has not been denied his constitutional right to a speedy trial.




                                                 -14-
                                 III. Conclusion

Accordingly, we affirm the judgment of the trial court.




                                              ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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