                                                                                         05/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs April 3, 2018 at Jackson

          STATE OF TENNESSEE v. DANIEL LEE MOONEYHAN

                 Appeal from the Circuit Court for Bedford County
                      No. 18027 Franklin L. Russell, Judge
                     ___________________________________

                           No. M2016-00476-CCA-R3-CD
                       ___________________________________


The Defendant, Daniel Lee Mooneyhan, appeals his Bedford County convictions for
Count 1: aggravated burglary, and Counts 2 and 4: theft of property between the value of
$1,000 and $10,000, for which he received an effective sentence of five years with a 30%
release eligibility, to serve in the Department of Correction. The Defendant contends that
the evidence presented at trial was insufficient to support his convictions in Counts 1, 2,
and 4 because the State offered no independent evidence to corroborate an accomplice’s
testimony about the Defendant’s involvement in the offenses. The Defendant does not
appeal his conviction in Count 3, felon in possession of a handgun. Upon review, we
affirm the judgments of the convictions, but remand for merger of Counts 2 and 4.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

Jeremy W. Parham, Manchester, Tennessee, for the appellant, Daniel Lee Mooneyhan.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                        I. Factual and Procedural Background

       In March 2015, the Bedford County Grand Jury indicted the Defendant on charges
of aggravated burglary, two counts of theft of property between the value of $1,000 and
$10,000, felon in possession of a handgun, simple possession of a Schedule VI drug, and
possession of drug paraphernalia. The Defendant filed a motion to sever the charges of
simple possession of a Schedule VI drug and possession of drug paraphernalia from the
remaining offenses, which the trial court granted before trial.

                                     A. Jury Trial

       At trial, Jamie Blankenship testified that, prior to March 2013, he lived on Temple
Ford Road in Bedford County with Kisha McGowan and their two children. However, he
and Ms. McGowan ended their relationship in March 2012, and she no longer lived with
him in March 2013. Mr. Blankenship testified that he had known the Defendant for over
twenty years. He stated that the Defendant had been to his home on numerous occasions.
Mr. Blankenship explained that he and Ms. McGowan dated for over eighteen years. He
explained that, after their relationship ended, Ms. McGowan continued to visit his
residence to see their children. Mr. Blankenship stated that Ms. McGowan was dating
the Defendant at the time of the offense.

        Mr. Blankenship worked at Nissan in Smyrna. He explained that the first few
days of March 2013, he had car trouble, which caused him to have to stay in Smyrna at a
friend’s residence for three or four days. When he returned home on March 10, he saw
that his front door was “wide open.” He stated that the door had been closed and locked
when he last left the residence. Mr. Blankenship did not notice any new damage to the
door. When he entered the residence, Mr. Blankenship noticed that his 50-inch Toshiba
LED television was gone, and he began looking to see if anything else had been stolen.
He testified that the television was worth about $650. Mr. Blankenship recalled that two
gas-powered remote-controlled trucks worth “[a]lmost $700 a piece” were also missing.
Additionally, he found that his handgun had been taken, along with his PlayStation 3 and
four to five PlayStation video games. He testified that the PlayStation 3 was worth $399
and that the videogames were worth about “$49, $59 a piece.” Regarding his missing
handgun, Mr. Blankenship stated that the gun was a “high-point 9 millimeter pistol[,]”
which was worth “$179 plus tax.” He further stated that a 50-round box of ammunition
had been stolen and that it was worth about $40. Mr. Blankenship testified that, during
the time period of March 6 to March 10, he had not given permission to anyone to enter
his home and take his property.

      After discovering that the items had been taken from the residence, Mr.
Blankenship called the Bedford County Sherriff’s Office (“BCSO”) to report the crime.
About a month later, the BCSO asked him to identify some items that had been
recovered. Mr. Blankenship was able to identify his television, PlayStation 3 and video
games, and two gas-powered remote control vehicles. Mr. Blankenship testified,
however, that the recovered items were not in as good of a condition as they had been
                                          -2-
before they were stolen. The sheriff’s department did not recover Mr. Blankenship’s
handgun.

        On cross-examination, Mr. Blankenship testified that his children stayed with
Jeremy and Jennifer Jones while Mr. Blankenship was in Smyrna. Mr. Blankenship
called Ms. McGowan and explained that he was having car trouble and would not be
home. Mr. Blankenship asked Ms. McGowan if he could borrow some money to “get a
starter for [his] car.” He agreed that he saw no signs of a forced entry into the residence.
Mr. Blankenship testified that Ms. McGowan had a key to his residence. He explained
that Ms. McGowan came to his residence two or three times a month to visit with their
children.

        Kisha McGowan testified that, after she and Mr. Blankenship ended their
relationship in 2012, she dated the Defendant. Ms. McGowan and the Defendant lived
together with a friend, Frank Veal, during this time period. Ms. McGowan and the
Defendant have one child together, who was born in February 2013. She had previously
dated Mr. Blankenship for about eighteen years, and they had two children. After her
relationship with Mr. Blankenship ended, she continued to visit Mr. Blankenship’s
residence to see her children, wash clothes, and clean the house. She testified that she
had not been promised anything in exchange for her testimony against the Defendant.
Prior to March 6, 2013, the Defendant asked her to “write a list of things” that he wanted
Ms. McGowan to steal from Mr. Blankenship’s residence, such as the gas-powered
trucks, PlayStation 3, 50-inch television, and a handgun. One night in March 2013, the
Defendant instructed Ms. McGowan to go to Mr. Blankenship’s residence, and she took
the list that the Defendant had dictated to her. The Defendant told Ms. McGowan that, if
she wore her shoes when she committed the burglary, she should throw them away
because “it had been raining[,]” and Mr. Blankenship could “look[] for shoe prints.” Ms.
McGowan said that she was not throwing her shoes away, so the Defendant gave her his
shoes to wear during the crime. The first night the Defendant sent her out to Mr.
Blankenship’s residence, she instead went to the river and sat for a while. She returned to
the Defendant, explaining that she “couldn’t go in.” When she returned to their residence
without Mr. Blankenship’s property, the Defendant was angry and “[p]ut[] his hands on
[her].” The Defendant “raised his voice and told [Ms. McGowan] that [she] needed to go
back the next night, and [she] didn’t need to come back empty handed.”

      The following night, the Defendant accompanied Ms. McGowan to Mr.
Blankenship’s residence, and they entered the residence with Ms. McGowan’s key. The
Defendant helped her carry the 50-inch television out to her car, and he carried out one of




                                           -3-
the gas-powered trucks.1 Ms. McGowan saw the Defendant take Mr. Blankenship’s
handgun. After leaving Mr. Blankenship’s residence, the Defendant and Ms. McGowan
returned to their residence. The Defendant put the 50-inch television in a detached
garage in front of his truck; he put the remaining items in a “pink tote” and placed it in
the attic. Ms. McGowan stated that the “pink tote” belonged to the Defendant rather than
to her. She recalled that, a few days after the burglary, the Defendant bragged to a friend,
Jason Bryan, about “all the stuff he had and show[ed] [Mr. Bryan] the stuff in the tote
and the gun was also there.” Subsequently, the Defendant told Ms. McGowan of an
encounter he had with Mr. Bryan. The Defendant said he had taken the gun to Mr. Bryan
to trade for some marijuana, but Mr. Bryan did not have any. Therefore, the Defendant
kept the gun. Sometime later, Ms. McGowan overheard the Defendant on the telephone
saying that he had sold the gun to one of his uncles.

       In March 2013, prior to the offenses, Ms. McGowan leased an apartment at
Bedford Manor. In early April 2013, Ms. McGowan took her son to the hospital to be
treated for RSV. Ms. McGowan testified that while she was at the hospital with their
son, the Defendant moved the stolen items from their former residence to her new
apartment. The apartment had been empty for approximately a month since she first
leased it and received the keys. The Defendant and their son lived with her, and stayed at
her apartment as much as she did. Ms. McGowan confirmed that the 50-inch television
in her apartment, as well as the PlayStation 3, games, and remote controlled cars, were
the same ones taken from Mr. Blankenship’s home during the burglary.

       Ms. McGowan testified that BCSO Detective-Sergeant Scott Jones called her
while her son was in the hospital and asked her to come in to the BCSO as soon as she
was able. Later that same day, she received a call from the Defendant. He told Ms.
McGowan that he was in custody at the BCSO and instructed her to “say he didn’t have
nothing [sic] to do with” breaking into Mr. Blankenship’s home. He also instructed her
not to say anything about the gun. The BCSO charged Ms. McGowan with aggravated
burglary and theft of property between the value of $1,000 and $10,000.

       On cross-examination, Ms. McGowan stated that she would spend the night at Mr.
Blankenship’s home whenever the Defendant “kicked [her] out” and she had nowhere
else to go. She also testified that, although she had a key to her new apartment a few
days before the burglary, they had not taken the stolen items to her apartment but instead
stored the items at their former residence. She explained that she did not give the
Defendant a key to her new apartment until their son was hospitalized, at which point the
Defendant began moving the stolen items from their former residence to her new

       1
        Ms. McGowan’s testimony was that the Defendant personally carried out three items, valued at
approximately $1,529, from Mr. Blankenship’s residence.
                                               -4-
apartment. Ms. McGowan stated that Mr. Blankenship purchased the television,
PlayStation 3, and games after they ended their relationship; they had not purchased them
together. She testified that, even though the Defendant had not been inside Mr.
Blankenship’s house since Mr. Blankenship had purchased the items, the Defendant told
her to write out a note of the things he wanted her to steal. Ms. McGowan explained that
the Defendant must have heard about those items through mutual friends of Mr.
Blankenship. Ms. McGowan had no explanation for why she did not go to her new
apartment with her son when the Defendant was violent with her and demanded she steal
from Mr. Blankenship. She testified that the night she and the Defendant burglarized Mr.
Blankenship’s home, they brought their two-month-old son along with them and left him
in the back seat of the car in his infant carrier. Ms. McGowan said they slid the 50-inch
television into the floor of the back seat with him. They placed all the other stolen items
in the trunk of the car. She testified that, in May 2013, while she was at the home of
Jeremy Jones on Shaw Road, the Defendant “was swapping licks to get me to say what
he wanted,” coercing her to exculpate him in front of her friend Felisha Elliott. She also
testified that she recanted earlier sworn allegations of domestic assault against the
Defendant because she was afraid of him.

        Detective Jones testified that, on April 5, 2013, he received information which led
him to a unit at Bedford Manor Apartments to investigate the burglary which occurred at
Mr. Blankenship’s residence. The Defendant opened the door of the apartment, and
Detective Jones asked for his permission to enter to look for the stolen property. When
the Defendant invited Detective Jones in, the detective immediately saw a large, flat-
screen television sitting in the living room. One serial number was scratched off, but
Detective Jones matched the serial number on the television’s sticker to the serial number
of the television stolen from Mr. Blankenship. Additionally, Detective Jones found
several games and a PlayStation 3 with its serial number scratched off, which had also
been reported stolen. Finally, Detective Jones located the two stolen remote-controlled
cars in a back bedroom.

       Initially, the Defendant told Detective Jones that he bought the PlayStation 3 “off
the street” but had no explanation for the other property. He stated that the apartment
belonged to Ms. McGowan but that he was “staying there” with her. Detective Jones
confirmed that Ms. McGowan was the only person on the lease agreement. Additionally,
Detective Jones found no specific property that belonged to the Defendant in the
apartment. Ms. McGowan was at the hospital with the Defendant’s son on the day of the
search. Detective Jones called Ms. McGowan and asked her to come to the Sheriff’s




                                           -5-
Office when she was back in town from the hospital.2 Detective Jones arrested the
Defendant at Ms. McGowan’s apartment and took him to the BCSO.

       While Detective Jones prepared paperwork for the Defendant’s arrest, he turned
on the audio and video feeds to the room holding the Defendant. Detective Jones
overheard the Defendant’s side of a telephone conversation where the Defendant said he
had “lied to police” and told the person on the phone to “stick with the same story.”
Detective Jones returned to the holding room, and the Defendant explained that he had
been speaking to Ms. McGowan on the phone. At this point, the Defendant admitted to
Detective Jones that he knew Ms. McGowan had been planning to break into Mr.
Blankenship’s home and take the property. The Defendant stated that he “was okay”
with her taking Mr. Blankenship’s property because he believed she had rights to it.
Detective Jones testified that the Defendant “claimed he went to another location so he
would create an alibi for himself” on the night of the burglary. Detective Jones did not
record this interview, and the Defendant did not sign a written statement.

       During a second interview on April 24, 2013, the Defendant confessed to
Detective Jones that he had possession of the stolen handgun and had given it to Jason
Bryan to sell. Because the Defendant was a convicted felon, Detective Jones then
charged him with felon in possession of a handgun pursuant to Tennessee Code
Annotated section 39-17-1307. Detective Jones did not record this interview, and the
Defendant did not sign a written statement.

        Mr. Blankenship went to the BCSO and identified the seized items from Ms.
McGowan’s apartment as his personal property. The BCSO returned the property to Mr.
Blankenship, but he needed assistance from Detective Jones to carry the large television
to his car. Detective Jones testified that he may have been able to carry the television by
himself, but that it would have been “very difficult.”

       Marissa Ann Brown testified that her parents were best friends with the parents of
the Defendant, and Ms. Brown and the Defendant had known each other their whole
lives. She stated that she and the Defendant had been dating approximately two to three
months before trial. Ms. Brown explained that she met Ms. McGowan in 2013 when she
dated Ms. McGowan’s cousin Casey Ward. Ms. Brown stated that on two separate
occasions, Ms. McGowan told her that the Defendant “had nothing to do with”
burglarizing Mr. Blankenship’s home and stealing his property. On the second occasion,
Ms. McGowan’s brother was also present and told Ms. McGowan that she was “going to
       2
         Based on the presentence report, entered as Sentencing Exhibit 1, when Detective Jones spoke
to Ms. McGowan on the phone, she “admitted that she went by herself to [Mr. Blankenship’s residence]
and took the items found in her apartment.” Neither Ms. McGowan nor Detective Jones testified to this
statement at trial.
                                                -6-
get in trouble” if she said the Defendant was not involved because she “already said that
he had something to do with it.”

       The Defendant’s mother, Donna Mooneyhan, testified that on the day the
Defendant was arrested, Ms. McGowan told her that the Defendant was not involved with
the offenses. Ms. McGowan informed Ms. Mooneyhan that she did not believe she was
stealing because Mr. Blankenship’s property “was just as much hers as it was his.” Ms.
McGowan told Ms. Mooneyhan that she burglarized Mr. Blankenship’s house by herself.

      Jeremy Jones testified that he had been a friend of both the Defendant and Ms.
McGowan for several years. Mr. Jones heard Ms. McGowan say that the Defendant
“wasn’t with her at the time when she went and got” the items from Mr. Blankenship’s
house. Additionally, Mr. Jones testified that when the Defendant and Ms. McGowan
were at his house, he was unaware of any incident where the Defendant was violent with
Ms. McGowan in order to coerce her to exculpate him.

        Felisha Elliott testified as to an altercation she witnessed between the Defendant
and Ms. McGowan. At one point after the burglary, Ms. McGowan took Ms. Elliott with
her to a residence on Shaw Road to meet with the Defendant. Ms. Elliott did not know
who lived at the residence. She stated that the Defendant “kept asking [Ms. McGowan]
the same questions and was hitting … her chest.” Ms. Elliott did not remember much of
what the Defendant was saying to Ms. McGowan or what they were arguing about during
this altercation.3 She only recalled the Defendant referring to his felony convictions.4

       Ms. Elliott testified that she had known Ms. McGowan since they were children,
and she also knew the Defendant. Ms. Elliott stated that on August 30, 2015, two days
before trial, she received a text message from the Defendant requesting that they meet.
She would not agree to meet but asked the Defendant what he wanted to talk about. In a
telephone conversation, the Defendant asked Ms. Elliott to “go to court with him instead
of Kisha [McGowan] and he would give [Ms. Elliott] some money.” She declined his
offer but told the Defendant she would speak with his attorney. The Defendant told her
she needed to go to court to explain that she did not know anything about the situation.
Ms. Elliott agreed that she did not know anything about the offenses.


        3
           Defense counsel objected to this portion of Ms. Elliott’s testimony on relevance and lack of
foundation and requested a sidebar. After a conference with both counsel, the trial court permitted the
State to continue to attempt to lay the foundation for Ms. Elliott’s testimony.
         4
           Once Ms. Elliott testified that the Defendant mentioned his prior felony convictions, defense
counsel objected again on relevance and lack of foundation. The trial court instructed the State to
discontinue this line of questioning, and then issued a limiting instruction to the jury to disregard all of
Ms. Elliott’s testimony to this point.
                                                   -7-
       Following deliberations, the jury found the Defendant guilty of aggravated
burglary, two counts of theft of property between the value of $1,000 and $10,000, and
felon in possession of a handgun. The trial court sentenced the Defendant, as a Range I
standard offender, to concurrent sentences of five years for aggravated burglary, three
years on each count of theft of property between the value of $1,000 and $10,000, and
one year and six months for felon in possession of a handgun, for a total effective
sentence of five years in the Department of Correction, with a 30% release eligibility.
The Defendant filed a timely motion for new trial, which the trial court denied in a
written order after a hearing.5 This timely appeal follows.

                                             II. Analysis

       On appeal, the Defendant contends that the evidence presented at trial was
insufficient to support his convictions of Count 1, aggravated burglary, and Counts 2 and
4, theft of property between the value of $1,000 and $10,000. He asserts that the State
offered no independent evidence to corroborate Ms. McGowan’s testimony as an
accomplice to the Defendant’s involvement in the burglary and theft in Counts 1 and 2.
He further contends that the State offered insufficient evidence to convict the Defendant
in Count 4 on the charge of theft of property with a value between $1,000 and $10,000.
We will review these claims in turn.

        Our standard of review for a sufficiency of the evidence challenge 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 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

        5
          On the same day that the trial court denied the Defendant’s motion for new trial, the Defendant
entered a guilty plea to the charges of simple possession of a Schedule VI drug and possession of drug
paraphernalia. Pursuant to a plea agreement, the Defendant received sentences of eleven months and
twenty-nine days, which the trial court ordered to run concurrently with the Defendant’s effective five-
year sentence.
                                                  -8-
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       Aggravated burglary is defined as the burglary of a habitation. Tenn. Code Ann. §
39-14-403 (2013). Burglary is defined as entering, without the owner’s effective consent,
a building “not open to the public, with intent to commit a felony, theft, or assault[.]”
Tenn. Code Ann. § 39-14-402(a)(1) (2013). A habitation is “any structure . . . designed
or adapted for the overnight accommodation of persons[.]” Tenn. Code Ann. § 39-14-
401(1)(A) (2013).

       “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a) (2013). Theft of property
is a Class D felony if the value of the property obtained is $1,000 or more but less than
$10,000. Tenn. Code Ann. § 39-14-105(a)(3) (2013). “A person commits an offense
who possesses a handgun and has been convicted of a felony.” Tenn. Code Ann. § 39-
17-1307(c)(1) (2013).

                   A. Criminal Responsibility: Counts One and Two

        The evidence was sufficient for a rational juror to convict the Defendant under the
theory of criminal responsibility for burglary and theft beyond a reasonable doubt. “A
person is criminally responsible as a party to an offense, if the offense is committed by
the person’s own conduct, by the conduct of another for which the person is criminally
responsible, or by both.” Tenn. Code Ann. § 39-11-401(a). As pertinent here, a person is
criminally responsible for the conduct of another when, “[a]cting with intent to promote
or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense[.]” Tenn. Code Ann. § 39-11-402(2). Criminal responsibility is not a separate
crime but instead a theory by which the State may prove the defendant’s guilt based upon
another person’s conduct. State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007)
(citing State v. Mickens, 123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)).

       “[U]nder the theory of criminal responsibility, presence and companionship with
the perpetrator of a felony before and after the commission of the crime are
circumstances from which an individual’s participation may be inferred.” State v.
Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). In order to be convicted of the crime,
the evidence must establish that the defendant in some way knowingly and voluntarily
shared in the criminal intent of the crime and promoted its commission. State v. Maxey,

                                           -9-
898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846, 848
(Tenn. Crim. App. 1988).

        It is well-established in Tennessee case law that “a conviction may not be based
upon the uncorroborated testimony of an accomplice.” State v. Bigbee, 885 S.W.2d 797,
803 (Tenn. 1994) (citing Monts v. State, 379 S.W.2d 34, 43 (1964); Stanley v. State, 222
S.W.2d 384 (1949)), superseded on other grounds by statute. An accomplice is “one
who knowingly, voluntarily, and with common intent with the principal unites in the
commission of a crime.” State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing State
v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004); Clapp v. State, 30 S.W. 214, 216 (1895)).
A witness is an accomplice of the defendant if “the alleged accomplice could be indicted
for the same offense charged against the defendant.” Id. (quoting Monts, 379 S.W.2d at
43). “Whether a witness’ testimony has been sufficiently corroborated is a matter
entrusted to the jury as the trier of fact.” Bigbee, 885 S.W.2d at 803. Our supreme court
has described the amount of evidence needed to corroborate an accomplice’s testimony as
the following:

             [T]here 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. It is not necessary
      that the corroboration extend to every part of the accomplice’s evidence.
      The corroboration need not be conclusive, but it is sufficient if this
      evidence, of itself, tends to connect the defendant with the commission of
      the offense, although the evidence is slight and entitled, when standing
      alone, to but little consideration.

Id. (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992)). “[O]nly
slight circumstances are required to corroborate an accomplice’s testimony.” State v.
Griffis, 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997) (internal citations omitted).
However, “[e]vidence which merely casts a suspicion on the [defendant] or establishes
[that the defendant] had an opportunity to commit the crime in question” and “evidence
that the accused was present at the [location] of the crime” is insufficient to corroborate
an accomplice’s testimony. Id. (citing Bolton v. State, 377 S.W.2d 936, 939 (Tenn.
1964); Mathis v. State, 590 S.W.2d 449, 455 (Tenn. 1979)). “Where there are multiple
accomplices there must be additional corroboration, since accomplices cannot
                                           - 10 -
corroborate each other.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995)
(citing Bethany v. State, 565 S.W.2d 900 (Tenn. Crim. App. 1978)); see also State v.
Bane, 57 S.W.3d 411, 419 (Tenn. 2001).

                           1. Corroboration by Confession

       The Defendant’s confession to Detective Jones that he possessed the stolen
handgun at some point after the burglary corroborates Ms. McGowan’s testimony. A
confession to police can serve as corroborating evidence for accomplice testimony. In
State v. Stanley Lawson, the trial court convicted the Defendant of incest based on the
testimony of his step-daughter as his consenting victim/accomplice. No. 01C01-9607-
CR-00320, 1997 WL 661483, at *1-3 (Tenn. Crim. App. Oct. 24, 1997), perm. app.
denied (Tenn. Apr. 13, 1998). To corroborate the victim/accomplice’s testimony, officers
submitted a taped conversation between the Defendant and his step-daughter, where the
Defendant confessed to watching X-rated videos with the victim/accomplice and to
acting out what they watched. Id. at *5.

      A confession must be considered in connection with all the other evidence
      to establish the defendant’s guilt or innocence. The victim/accomplice’s
      testimony was corroborated by the appellant’s confession, and the
      appellant’s confession was corroborated by the victim/accomplice’s
      testimony. Thus while neither her testimony standing alone nor the
      confession standing alone would be sufficient to establish that the appellant
      had committed a crime, these bits of evidence taken together can establish
      the crime.

Id. The court in Lawson affirmed the judgments against the Defendant based on the
mutual corroboration of the Defendant’s confession with the victim/accomplice’s
testimony. Id. at *6, 14.

       Here, the Defendant’s confession to Detective Jones corroborates Ms. McGowan’s
account. The Defendant confessed to Detective Jones that at some point after the
burglary, the Defendant had possession of the stolen handgun. Ms. McGowan’s
accomplice testimony established that the Defendant knowingly obtained or exercised
control over the stolen items when the Defendant assisted her in entering Mr.
Blankenship’s residence and taking several items, including the handgun, together valued
at greater than $1,000. Because the Defendant admitted to controlling the very stolen
property Ms. McGowan testified to, his confession testimony, “independent[] of the
accomplice’s testimony, tend[s] to connect the [D]efendant with the commission of the
crime.” State v. Sherrill, 321 S.W.2d 811, 815 (Tenn. 1959). Further, while neither the
Defendant’s confession nor Ms. McGowan’s accomplice testimony is sufficient standing
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alone, “these bits of evidence taken together can establish the crime.” Lawson, 1997 WL
661483, at *5.

                     2. Corroboration by Constructive Possession

       The Defendant’s constructive possession of the stolen goods corroborates Ms.
McGowan’s testimony. “Constructive possession requires that a person knowingly have
the power and the intention at a given time to exercise dominion and control over an
object, either directly or through others. In essence, constructive possession is the ability
to reduce an object to actual possession.” State v. Copeland, 677 S.W.2d 471, 476 (Tenn.
Crim. App. 1984). The mere presence of a person in an area where stolen property is
discovered is not, alone, sufficient to support a finding that the person possessed the
stolen property. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987).
“[A]lthough a defendant’s mere presence at a place where [contraband is] found will not
support an inference of possession, a person in possession of the premises where
[contraband is] found may also be presumed to possess the [contraband] themselves.”
State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (internal citation omitted). Possession of
recently stolen goods, whether actual or constructive, “gives rise to an inference that the
[Defendant] has stolen them” and “may also be sufficient evidence to sustain a conviction
for burglary.” State v. Tuttle, 94 S.W.2d 926, 932 (Tenn. Crim. App. 1995). The “fact of
possession by the defendant of stolen goods with the resulting inference is sufficient
evidence to corroborate the accomplice’s testimony and is sufficient for the jury to find
guilt beyond a reasonable doubt.” State v. Hamilton, 628 S.W.2d 742, 746 (Tenn. Crim.
App. 1981).

        Here, Ms. McGowan was the sole lessee of the apartment where the stolen items
were found, and none of the Defendant’s belongings were found in her apartment. He
received a key to the apartment approximately one month after the commission of the
offenses. However, the Defendant told Detective Jones that he “was staying” at Ms.
McGowan’s apartment, and he was the one who answered the door and gave consent for
a search. Therefore, a rational juror could infer that the Defendant was a “person in
possession of the premises” and thus constructively possessed the stolen property therein.
His constructive possession of recently stolen goods “gives rise to an inference that the
[Defendant had] stolen them[,]” see Tuttle, 914 S.W.2d at 932, and in this case, “is
sufficient evidence to corroborate the accomplice’s testimony and is sufficient for the
jury to find guilt beyond a reasonable doubt.” Cf. Hamilton, 628 S.W.2d at 746.
Therefore, there was sufficient evidence for the jury to convict the Defendant of Counts 1
and 2, and we affirm these judgments.




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                                     B. Count Four

       The evidence was sufficient for a rational juror to convict the Defendant beyond a
reasonable doubt of knowingly exercising dominion or control over the personal property
of Mr. Blankenship between the value of $1,000 and $10,000, without Mr. Blankenship’s
effective consent, and with the intent to deprive Mr. Blankenship of the property. The
Defendant argues that the only stolen property he ever possessed was the high-point
handgun worth $179, which is considerably less than the statutory amount of $1,000 to
$10,000. Because Ms. McGowan was the sole lessee of the apartment where the other
stolen goods were found, and because none of the Defendant’s personal belongings were
found in the house, the Defendant argues the evidence is insufficient to support his
conviction of theft of anything other than the handgun. On appeal, the Defendant
concedes that the jury had sufficient evidence “to find that he exercised control over the
[h]igh-point handgun belonging to Mr. Blankenship.”

       Without citing authority, the State argues that the Defendant’s concession on
appeal that the jury had sufficient evidence that he possessed the handgun may be treated
as a concession that he possessed the other stolen items as well. We disagree. At trial,
the jury was free to draw the inference that his confession of possession of the handgun
corroborated Ms. McGowan’s testimony that he helped burglarize Mr. Blankenship’s
residence and, therefore, had taken possession of all the stolen items. However, the
Defendant’s limited concession on appeal does not create that inference.

        Nevertheless, under the doctrine of constructive possession, the State sufficiently
established the Defendant’s culpability at trial. As we previously concluded, the
Defendant constructively possessed the stolen items at Ms. McGowan’s apartment. His
constructive possession of recently stolen goods “gives rise to an inference that the
[Defendant had] stolen them.” See Tuttle, 914 S.W.2d at 932. Moreover, the Defendant
initially lied to Detective Jones about how he obtained the PlayStation 3 and later
indicated that he knew it was stolen. A rational juror could conclude that this
inconsistency, in combination with the sum of evidence presented, established the
Defendant’s control, knowledge, and intent. Therefore, we affirm the judgment of the
trial court for Count 4.

                          C. Merger of Counts Two and Four

       The State charged the theft of property between the value of $1,000 and $10,000,
pursuant to Tennessee Annotated Code section 39-14-103, under two alternative theories
in Counts 2 and 4. The trial court should have merged these offenses upon conviction
and sentencing. The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution, made applicable to the states through the Fourteenth Amendment,
                                          - 13 -
states, “No person shall . . . be subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees
“[t]hat no person shall, for the same offense, be twice put in jeopardy of life or limb.”
Tenn. Cost. art. I, § 10. Both clauses provide three distinct protections: “(1) protection
against a second prosecution for the same offense after acquittal; (2) protection against a
second prosecution for the same offense after conviction; and (3) protection against
multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541
(Tenn. 2012).

        Our supreme court announced our current double jeopardy analysis in State v.
Watkins, 362 S.W.3d 530 (Tenn. 2012). In Watkins, the court abandoned the analysis
provided previously in State v. Denton, 938 S.W.2d 373 (Tenn. 1996), and adopted the
“same elements” analysis delineated by the United States Supreme Court in Blockburger
v. United States, 284 U.S. 299, 304 (1932). Therefore, whether dual convictions violate
double jeopardy principles requires a determination of “whether the convictions arise
from the same act or transaction.” Watkins, 32 S.W.3d at 557. If the convictions arise
from the same act or transaction, the second inquiry is whether the elements of the
offenses are the same or whether one offense is a lesser included offense of the other. Id.
If the elements are the same or one offense is a lesser included offense of the other, dual
convictions violate double jeopardy principles. Id. Appellate courts “will presume that
multiple convictions are not intended by the General Assembly” when the elements of the
offenses are the same or when one offense is a lesser included offense of the other. Id.

       The charged offenses in Counts 2 and 4, theft of property between the value of
$1,000 and $10,000, were the same offense with the same elements. Because the jury
convicted the Defendant of the same offense for the same transaction on two alternate
theories, the trial court violated double jeopardy by not merging the convictions at
sentencing. Therefore, we remand for merger of Counts 2 and 4.

                                      III. Conclusion

      For the aforementioned reasons, we affirm the judgments of the trial court. We
remand for entry of amended judgment forms that reflect the merger of Counts 2 and 4.



                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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