            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                            JANUARY 1999 SESSION
                                                             March 24, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,               *   C.C.A. No. 03C01-9711-CR-00495

      Appellee,                   *   SULLIVAN COUNTY

VS.                               *   Honorable Phyllis H. Miller, Judge

ARTHUR IRESON,                    *   (Facilitation of aggravated burglary)

      Appellant.                  *




For Appellant:                        For Appellee:

Thomas R. Bandy, III                  John Knox Walkup
Attorney for Appellant                Attorney General and Reporter
P.O. Box 1127
555 E. Main Street, Suite 102-F       Ellen H. Pollack
Kingsport, TN 37660                   Assistant Attorney General
                                      425 Fifth Avenue, North
                                      Nashville, TN 37243-0493

                                      Edward Wilson
                                      Assistant District Attorney General
                                      P.O. Box 526
                                      Blountville, TN 37617




OPINION FILED:__________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Arthur Ireson, was convicted of facilitation of

aggravated burglary, a Class D felony. The trial court imposed a Range II sentence

of eight years in the Department of Correction to be served concurrently with a prior

unserved sentence. In this appeal of right, the defendant challenges the sufficiency

of the convicting evidence and the sufficiency of the charging instrument.



             We affirm the judgment of the trial court.



             On February 21, 1996, Detective Tim Smith of the Sullivan County

Sheriff's Department investigated a burglary at the residence of the victim, Gerald

Clark. Upon his arrival at the scene, Detective Smith discovered evidence of forced

entry through the rear door of the residence; while inside, he found several guns

wrapped in a blanket behind a couch. The glass of a gun case had been shattered

and the case was empty. Detective Smith found jewelry behind a displaced couch

cushion. The victim identified the defendant and Timothy Henry as suspects. Henry

was arrested on the same date of the burglary.



             On November 1, 1996, the defendant was arrested. In his statement

to Detective Smith, the defendant admitted that he had accompanied Henry to the

victim's residence. He told Detective Smith that he saw Henry walk around the side

of the house. When the defendant followed after Henry, he saw that the door had

been kicked ajar and that Henry was inside. The defendant confirmed that he

entered the residence even though he knew it was wrong. He maintained that he

went no further than the living room. While the two men were inside the residence,

the victim and his son, Jeffery, arrived. The defendant, who said he did not know

either of the victims, claimed that he and Henry left in his Camaro, taking nothing.


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             At trial, the victim recalled that as he and his son returned home the

day of the offense, he noticed a black Camaro parked across the street. While his

son walked over to inspect the vehicle, the victim discovered that the back door of

the house was open. He testified that when he entered his residence, he saw

Henry, whom he had known for at least ten years, standing in the living room; when

he heard noise from another bedroom, he turned to see the defendant. The victim

remembered telling the defendant and Henry to wait while he called the sheriff but

the two men fled in the Camaro. Afterward, the victim located his guns wrapped in a

comforter behind a couch. The gun case had been smashed. The victim testified

that neither the defendant nor Henry had permission to be in his residence.



             Jeffery Clark testified that he and the victim returned to their residence

at approximately 3:00 P.M. He explained that when he saw the door to his Jeep

was open and walked across the street to check on it, he heard the victim yell and

saw the defendant and Henry emerge from the rear door of his house. Jeffery

recognized both the defendant and Henry whom he had known from grade school.

When the victim went inside to call the sheriff, the defendant and Henry fled the

scene.



             At trial, the defendant testified that he worked for Helping Hands as a

Certified Nurse's Aide. He explained that on the day of the offense, a patient he

attended was in the hospital so he decided to visit Henry on his way home. He

admitted that he drove Henry to the victim's residence but claimed that he did not

know his intentions. The defendant contended that he waited while Henry walked

around the house and that he walked into the living room only after Henry called

him. At that point, he heard someone ask, "[W ]hat are you doing in my house?" He

claimed that he turned to the victim and replied that he did not know and that he had


                                          3
only driven Henry there. The defendant then saw Henry emerge from the back

bedroom, remove jewelry from his pocket, and place it under a couch cushion.

When the victim picked up the telephone to call "the law," the defendant overheard

Henry threaten to kill the victim if he placed a call to the sheriff. The defendant

admitted that he left the scene with Henry and acknowledged, because he feared

the consequences of the incident, he and his wife left the state that very night. The

defendant admitted that he had four prior felony convictions, three for aggravated

burglary and one for aggravated robbery.



              Tim Henry, an inmate with the Tennessee Department of Correction,

admitted prior convictions for two attempted murders, aggravated burglary of the

victim's residence, auto burglary, and theft under five hundred dollars. He testified

that he asked the defendant to accompany him to the victim's residence to look at a

Jeep. Henry maintained that the defendant knew nothing of his intentions. He

claimed that the defendant waited in the car while Henry kicked in the back door,

entered the house, and removed guns from the gun cabinet. He explained that he

called for the defendant only when he realized he could not carry the guns by

himself. He admitted that the defendant entered the residence, followed shortly

thereafter by the victim and his son. Henry testified that the defendant never

touched anything in the house and was unaware that a theft was in process.



                                            I

              The defendant has challenged the sufficiency of the evidence. On

appeal, of course, 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, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are


                                            4
matters entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the

relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983); Tenn. R. App. P. 13(e).



              The defendant was convicted of facilitation of aggravated burglary. "A

person commits [aggravated] burglary who, without the effective consent of the

property owner," enters a habitation "with intent to commit a felony or theft." Tenn.

Code Ann. §§ 39-14-401, -402 & -403. A person commits facilitation of a felony

when

              knowing that another intends to commit a specific felony,
              but without the intent required for criminal responsibility
              under [Tenn. Code Ann.] § 39-11-402(2), the person
              knowingly furnishes substantial assistance in the
              commission of the felony.

Tenn. Code Ann. § 39-11-403(a).

              "Knowing" refers to a person who acts knowingly with
              respect to the conduct or to circumstances surrounding
              the conduct when the person is aware of the nature of
              the conduct or that the circumstances exist. A person
              acts knowingly with respect to a result of the person's
              conduct when the person is aware that the conduct is
              reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-302(b).



              It is uncontested that the defendant drove Henry to the victim's

residence and waited. The defendant entered the residence when Henry called

even though he admitted to Detective Smith that he knew it was wrong to enter the

house. By his own testimony, he watched Henry remove jewelry from his pocket

and hide it between the couch cushions. The defendant admits that he drove Henry


                                           5
home and that he fled to South Carolina to hide from the authorities. From these

facts, it was entirely reasonable for the jury to have concluded that the defendant

was aware of circumstances as soon as he entered the house and that he knowingly

furnished substantial assistance to Henry. That is sufficient to support every

element of the offense.



                                           II

              Next, the defendant claims that the presentment was fatally deficient

because it failed to fully state the crime. The state responds that the presentment

fully satisfies the statutory and constitutional requirements of notice and form.



              The presentment charged as follows:

              [T]hat [the defendant] on or about February 21, 1996 ...
              did unlawfully and feloniously enter the habitation of
              Gerald Clark without the effective consent of the owner
              ... and with the intent to commit a theft therein, contrary
              to T.C.A. Section 39-14-403 ....

The presentment includes the essential elements of aggravated burglary and makes

reference to the relevant statutory section. See State v. Carter, ___ S.W.2d ___,

No. 02S01-9705-CR-00045 (Tenn., at Jackson, Feb. 1, 1999). Moreover, the

presentment is sufficient to put the defendant on notice of all lesser offenses,

including facilitation of aggravated burglary. See State v. Parker, 932 S.W.2d 945

(Tenn. Crim. App. 1996). Facilitation of aggravated burglary was fairly raised by the

evidence. In consequence, we conclude that the presentment was sufficient.



              Accordingly, the judgment of the trial court is affirmed.



                                          _________________________________
                                          Gary R. Wade, Presiding Judge



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CONCUR:



________________________________
James Curwood W itt, Jr., Judge



________________________________
John K. Byers, Senior Judge




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