      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                        JUNE 1998 SESSION
                                                   FILED
                                                      July 8, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 02C01-9711-CR-00451
      Appellee,                 )
                                ) Shelby County
V.                              )
                                ) Honorable Joseph P. Dailey, Judge
                                )
JOHNNY AKINS,                   ) (Aggravated Burglary)
                                )
      Appellant.                )




FOR THE APPELLANT:                 FOR THE APPELLEE:

A C Wharton, Jr.                   John Knox Walkup
Shelby County Public Defender      Attorney General & Reporter

Walker Gwinn                       Janis L. Turner
Assistant Public Defender          Counsel for the State
201 Poplar Avenue, Suite 201       Criminal Justice Division
Memphis, TN 38103                  Cordell Hull Bldg., Second Floor
(On Appeal)                        Nashville, TN 37243-0493

Dianne Thackery                    William L. Gibbons
Assistant Public Defender          District Attorney General
201 Poplar Avenue, Suite 201
Memphis, TN 38103                  Jerry Harris
(At Trial)                         James M. Lammey
                                   Assistant District Attorneys General
                                   201 Poplar Avenue, Suite 301
                                   Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                                OPINION
       Johnny Akins was found guilty by a jury of aggravated burglary. He was

sentenced to fifteen years in Tennessee Department of Correction. The trial

court denied his motion for a new trial. He appeals. The sole issue is whether

the evidence is sufficient to support his conviction. We affirm the judgment of

conviction.



       At approximately 12 noon on June 17, 1996, Malcolm Bruni left his home

to go to lunch. At approximately 12:25, while on his way home, Bruni noticed a

man riding a bicycle and carrying a “boom box.” Bruni testified that the man

appeared too big for the bicycle and that the sight was “weird.” When he arrived

home, Bruni discovered that someone had broken into his house. His bicycle

and boom box were missing. Bruni called 911 and reported the burglary and the

man on the bike. Officer Sharon Kelly of the Memphis Police Department and

two other officers spotted the appellant near Bruni’s home. When they stopped

the appellant, he said that he had bought the bicycle. Bruni identified the

appellant as the man riding the bike. Bruni identified the bike, boom box, credit

cards, and a glove as his property. Bruni testified that between five and ten

minutes elapsed between when he saw the man on the bike and when he was

called to identify the appellant and his property. Bruni was approximately 100

yards from his house when he first saw the appellant on the bike. The appellant

chose not to testify at trial.



       The appellant challenges the sufficiency of the evidence. In a sufficiency

of the evidence challenge, the relevant question on appellate review 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 or

crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

T.R.A.P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985).




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       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the testimony of the state's witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405

(Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence

enjoyed at trial with the presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming the

presumption of guilt. Id. On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).



       A person commits burglary who, without the consent of the property

owner, enters a building, other than a habitation, not open to the public, with the

intent of committing a felony, theft or assault. Tenn. Code Ann. § 39-14-

402(a)(1) (Supp. 1996). Aggravated burglary is the burglary of a habitation.

Tenn. Code Ann. § 39-14-403(a) (1991). A habitation is any structure adapted

for the overnight accommodation of persons. Tenn. Code Ann. § 39-14-

401(1)(A) (1991).



       The appellant argues that the circumstantial evidence is insufficient to

allow a jury to exclude every reasonable theory other than the appellant’s guilt to

explain the aggravated burglary. He contends that no one saw him break into

the victim’s house, no one saw him in the victim’s house, and that no one saw

him leave the house.



       The State may prove a criminal offense by circumstantial evidence. State

v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before a jury may convict a

defendant of a criminal offense based upon circumstantial evidence alone, the

facts and 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. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). As in



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the case of direct evidence, the weight to be given circumstantial evidence and

“[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are

questions primarily for the jury." Marable v. State, 313 S.W.2d 451, 457 (Tenn.

1958) (citation omitted).



       The state contends that the evidence is sufficient to support the

conviction. We agree. Most burglaries are not witnessed. The appellant was

caught “red handed” with property that had been stolen from Bruni’s home.

Bruni testified that his window was broken so as to allow entry into his home.

Bruni saw the appellant approximately 100 yards from his house minutes after

the burglary occurred. Bruni identified the appellant and his property within an

hour of when the burglary could have occurred. Although the appellant told the

police that he had bought the bike, he offered no details to support this theory.

Finally, in addition to the bike and boom box, the appellant was in possession of

Bruni’s credit cards.



       The judgment of the trial court is affirmed.




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                                     _____________________________
                                     PAUL G. SUMMERS, Judge


CONCUR:




____________________________
DAVID H. WELLES, Judge




____________________________
JOE G. RILEY, Judge




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