            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            AUGUST 1996 SESSION
                                                                 FILED
                                                                  Feb. 27, 1997
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9510-CR-00305
                                                             Cecil Crowson, Jr.
             Appellee,          *      SHELBY COUNTY          Appellate Court Clerk


VS.                             *      Hon. Joseph B. Dailey, Judge

JOE A. HENSON,                  *      (Aggravated Burglary)

             Appellant.         *




For Appellant:                         For Appellee:

On appeal:                             Charles W. Burson
Walker Gwinn                           Attorney General & Reporter
Assistant Public Defender
                                       Cyril V. Fraser
At trial:                              Counsel for the State
William Moore                          450 James Robertson Parkway
Assistant Public Defender              Nashville, TN 37243-0493
201 Poplar Avenue
Suite 2-01                             David C. Henry
Memphis, TN 38103                      Assistant District Attorney General
                                       201 Poplar Avenue
Of counsel:                            Third Floor
A.C. Wharton, Jr.                      Memphis, TN 38103
Shelby County Public Defender




OPINION FILED:_____________________



AFFIRMED



GARY R. WADE, JUDGE
                                      OPINION

              The defendant, Joe A. Henson, was convicted of aggravated burglary.

The trial court imposed a Range III sentence of fourteen years.



              In this appeal of right, the defendant contends that the evidence was

insufficient. We disagree and affirm the judgment of the trial court.



              About 9:00 P.M. on May 20, 1994, the victim, Kwame Williams,

returned to his residence to find his front door open. A man the victim identified as

the defendant "was coming out." The victim grabbed the defendant, demanding to

know what he was doing inside. The defendant answered that he was looking for

Vicky Jones, a cousin to the victim, who had moved out of the Williams residence

about a month before. The defendant was able to break free from the victim's grasp

and fled; his shirt was ripped in the process. The victim instructed a neighbor to call

police and then chased the defendant about a block. He described the defendant

as "a black male, [with a] low haircut, [and] ... a green shirt." When the victim

inspected the interior of the residence, he found that nothing had been taken but

that his television, which he always left on, had been unplugged. The front door

appeared to have been "kicked in"; there was a "footprint [on the door] and the

hinges were off." About twenty-five minutes later, the victim identified the defendant

who was by then in the custody of police.



              A few minutes after the report of the burglary, Police Officer Thomas

Tynes responded to a call from a residence in the same neighborhood. The

defendant, who was not known by the occupant, was on the roof of the house; the

defendant explained to officers arriving at the scene that he had sought refuge from

several people who had been "fighting and chasing" him. When Officer Tynes


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learned that the altercation had begun at the residence of the victim, he suspected

the defendant had committed the burglary.



              The defendant claims that the state was unable to prove that he had

entered the residence without the effective consent of the owner or that the

defendant intended to commit a theft therein. Both elements are essential to the

offense. The state, of course, insists that the proof was sufficient. It argues that

there was circumstantial evidence that the defendant entered the residence with the

intent to commit a theft.



              A "person commits burglary who, without the effective consent of the

property owner ... [e]nters a building ... with intent to commit a felony or theft...."

Tenn. Code Ann. § 39-14-402(a)(1). A burglary committed under Tenn. Code Ann.

§ 39-14-402(a)(1) is a Class D felony. When a habitation, "any structure ...

designed or adapted for the overnight accommodation of persons," is involved, the

burglary is aggravated and a Class C felony. Tenn. Code Ann. §§ 39-14-401, -403.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence, and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832 (Tenn. 1978). The credibility of the witnesses, the

weight given their testimony, and the reconciliation of conflicts in the evidence are

matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575

S.W.2d 292 (Tenn. Crim. App. 1978). A criminal conviction can be set aside only

when this court finds that the "evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).



              The proof by the state was that there had been a forced entry of the


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residence and that the television, which had been left in operation by the victim

during the time of his absence, had been unplugged. By all appearances, the

victim's return to his residence interrupted the defendant's plans. In our view, the

jury was entitled to infer from this evidence that the defendant intended to commit a

theft or other felony inside the residence. Certainly, there is no requirement that a

burglar be successful in consummating the theft in order to be guilty of the burglary.

See e.g., Duchac v. State, 505 S.W.2d 237 (Tenn. 1973). Clearly, a rational trier of

fact could have found the essential elements of the crime of aggravated burglary

beyond a reasonable doubt. The evidence of the defendant's guilt satisfies the

standard prescribed. See Jackson v. Virginia, 443 U.S. 307 (1979).



              Accordingly, the judgment is affirmed.



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:



______________________________
William M. Barker, Judge



_______________________________
Jerry L. Smith, Judge




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