             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON

                                APRIL 1999 SESSION
                                                              FILED
                                                                August 5, 1999

                                                              Cecil Crowson, Jr.
                                                             Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )     C.C.A. No. 02C01-9806-CC-00184
      Appellee,                      )
                                     )     Henry County
v.                                   )
                                     )     Honorable Julian P. Guinn, Judge
GREGORY JOE WINSTON,                 )
                                     )     (Arson, Aggravated Burglary,
      Appellant.                     )      Theft of Property)




FOR THE APPELLANT:                         FOR THE APPELLEE:

GUY T. WILKINSON                           PAUL G. SUMMERS
District Public Defender                   Attorney General & Reporter

W. JEFFERY FAGAN                           PATRICIA C. KUSSMANN
Assistant District Public Defender         Assistant Attorney General
117 North Forrest Avenue                   425 Fifth Avenue North
Camden, TN 38320                           Nashville, TN 37243-0493

                                           G. ROBERT RADFORD
                                           District Attorney General
                                           111 Church Street
                                           P. O. Box 686
                                           Huntingdon, TN 38344-0686

                                           STEVEN L. GARRETT
                                           Assistant District Attorney General
                                           P. O. Box 94
                                           Paris, TN 38242




OPINION FILED: __________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE


                                         OPINION
       The defendant, Gregory Joe Winston, appeals as of right from his convictions by a

Henry County jury of arson, aggravated burglary, and theft of property over $10,000. As

a result of these jury verdicts, the trial court imposed sentences of eight years for arson,

eight years for aggravated burglary, and five years for theft of property, as a Range II,

Multiple Offender, to run concurrently in the Department of Correction. The defendant

presents two appellate issues:


              1.     Whether or not the evidence was sufficient as a
                     matter of law to sustain the conviction in this
                     case.

              2.     Whether or not the trial court erred in not
                     granting the defendant’s motion for judgment of
                     acquittal at the end of the state’s case in chief.



       After a thorough review of the trial record, briefs of the parties, and the appropriate

law, we affirm the judgments.



                                FACTUAL BACKGROUND



       On August 4, 1997, Detective Eddie Crosser, Henry County Sheriff’s Department,

testified he was notified of a fire involving a mobile home at 920 Cherry Island Road. At

the scene of the fire, Detective Crosser met Mr. Rick Jones, the owner of the residence.

Detective Crosser observed that a late model mobile home had been completely burned

inside and out, and an attached wooden deck had partially burned. Missing from the deck

was a gas grill, wrought iron chairs, and table. Also missing from the mobile home were

a couch, golf clubs, and other household items. Detective Crosser contacted Jessica

Shannon, state fire marshall, for assistance in a possible arson.



       Detective Crosser testified that Jimmy Jordan, Investigator for the Jackson Police

Department, contacted him indicating that he might possibly have some information

regarding an arson and burglary that had occurred. Detectives Crosser and Jordan

proceeded to the defendant’s home on 414 Forrest Street in Jackson, Tennessee.

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Detective Crosser observed the defendant sitting on a rear patio in a wrought iron chair,

next to a wrought iron table. Detective Crosser had photographs of the missing items from

the Jones’s mobile home, and the wrought iron chair and table matched the description of

the Jones’s missing table and chairs. Next to the side of the table was a gas barbeque

grill, matching the one missing from the Jones’s. Detective Crosser obtained a written

statement from the defendant. In his statement, the defendant related:


              On Saturday, August the 2nd, 1997, I left my house in Jackson
              at 6:30 p.m. with a girl named Amy. She dropped me off in
              Paris at the Foxy Lady, and she went on to Paris to see
              friends. Dan Kaufman came in later, then left for about thirty
              minutes and came back with some dope. Dan left about 10:00
              p.m. and Amy picked me up at 11:00 p.m. and took me to the
              Huddle House, and we ate breakfast. Then she took me
              home. I then took the company truck and went to Platinum
              Plus in Jackson, Tennessee. I got there about 2:00 [a.m.] and
              left about 5:30 [a.m.] -- or a.m. And I got home around 7:30
              a.m.


              On Sunday, August 3rd, 1997, Dan Kaufman came by my
              house at about 9:30 a.m. and told me to come outside, that
              him and his girlfriend had broke up and he wanted to sell all his
              stuff. I bought a gas grill and a lawn iron table and two chairs
              for fifty dollars for all of it. He had a lot of other furniture on the
              trailer. Clay bought the couch and Raymond Holland bought
              the trailer. Dan unloaded the trailer and sat a washer and
              dryer beside the house and some other stuff. Someone came
              back later and got the washer and dryer and the other stuff. A
              man named Lee bought the golf clubs for one hundred dollars.



       As part of his investigation, Detective Crosser said that a truck was seen in Paris

backing up to a trailer which was stolen. An unknown person had obtained the license

number on the truck. Detective Crosser learned the defendant was driving a company

truck owned by his employer, Thomas R. Mitchell Construction Company, and this was the

truck seen in Paris. Detective Crosser testified that he had no physical proof, fingerprints,

or eyewitnesses placing the defendant at the scene of the fire. Also, Detective Crosser

had no proof that the company truck and trailer were at the mobile home.



       Patricia Diane Huffman, wife of Rick Jones, testified they owned a weekend

residence at 920 Cherry Island Road. At 5:50 a.m. on August 3, 1997, Rick’s aunt called

stating their trailer had burned. When she and her husband arrived at the property, she


                                                3
noticed the gas grill, a wrought iron table, and two chairs were missing. Huffman testified

the only thing left standing was about half of the deck. Several other household items were

missing from the home, such as a specially made couch, a microwave, her husband’s golf

clubs, and the kitchen wicker table and chairs. Some of these items were returned to them

when they were recovered by law enforcement officers. Huffman estimated their total

damage loss at fifty thousand dollars. She did not know the defendant or Dan Kaufman.



       Rick Jones testified that he observed his burned trailer and verified his golf clubs,

patio chairs, and table were gone. Jones did not know the defendant or Dan Kaufman.



       Jessica Ann Shannon, a state fire marshall, testified that, on August 5, 1997, she

observed the totally destroyed trailer belonging to Rick Jones. Ms. Shannon estimated the

fire began at approximately 1:30 a.m. on August 3, 1997, since the Paris Landing

Volunteer Fire Department received the call at 1:59 a.m. Ms. Shannon determined the

origin of the fire was arson. In her investigation, Ms. Shannon found the electrical circuit

box in good condition with no electrical problems. Ms. Shannon testified she found that

an accelerant had been poured across the threshold of the floor leading to a glass sliding

door, in the west wall, and out onto a large deck. Ms. Shannon did not obtain a sample of

the accelerant, since it was obvious that one had been used. The fire was so hot that it

melted the aluminum door frame. Ms. Shannon testified it takes 1,100 degrees to burn

through aluminum. Ms. Shannon was not able to determine who set the fire through

physical evidence. She estimated the driving time between the fire scene and Jackson,

Tennessee, to be about an hour. Ms. Shannon testified she took sworn statements from

several witnesses, including Mary Amanda Holland.



       Thomas R. Mitchell, owner of Thomas R. Mitchell Construction, testified the

defendant was his employee on August 1, 1997, and had been so for approximately three

to four months. On August 1, Mr. Mitchell permitted the defendant to use a company truck,

a maroon Ford 150 pick up, over the weekend since the person who normally drove it was

away on National Guard duty. The defendant’s vehicle had broken down. On Monday, Mr.



                                             4
Mitchell saw the defendant on the job, and the first thing the defendant said concerned a

trailer sold in his front yard on Sunday for two hundred dollars. Mitchell thought it was odd

that this was the first thing the defendant said to him, and the defendant appeared nervous

about the situation.



       The company truck contained a cellular phone with the number 935-9323, and

employees were permitted reasonable use of the phone. Using the phone records, Mr.

Mitchell testified about calls made from this cellular phone over the weekend of August 1,

1997. Beginning on August 1 at 11:30 p.m. and into the early morning hours of August 2,

five calls were made from this phone. On August 2, 1997, a roaming call was made at

11:30 p.m. to the Platinum Plus night club in Jackson, Tennessee. On August 3, 1997, two

roaming calls at 1:03 and 1:19 a.m. were made to the Platinum Plus nightclub dressing

room. Mitchell understood the defendant’s girlfriend worked at Platinum Plus. When the

truck was returned to Mr. Mitchell, the license plate was dented and had fresh paint on it.

The left rear taillight was also broken. Mr. Mitchell testified that Dan Kaufman was a sub-

contractor for his company, and Kaufman was the person who sold the trailer on August

3, 1997, according to the defendant. Mitchell identified from the phone records a phone

call made to Dan Kaufman at 2:23 a.m. on August 3, 1997.



       Officer Andy Bass, Paris Police Department, testified that at 11:45 p.m. on August

2, 1997, he received a call to go to the Four Seasons, a construction company in Paris,

regarding a red pickup backing down into the company with its lights off and then leaving

with a trailer. Officer Bass was also given a license plate number for the truck. The tag

number was 136 RKT and was registered to the Thomas R. Mitchell Construction

Company of Atlanta, Georgia.



       Tony Dwayne Britton, testified he is an employee of Thomas R. Mitchell

Construction Company. Britton had been on National Guard duty in Colorado for two

weeks and returned to Jackson on August 2, 1997. On August 3, 1997, Britton and some

friends were passing the Platinum Plus nightclub between 2:30 and 3:00 a.m., when he



                                             5
saw his company truck in the lot with something in the back covered with plastic. Britton

assumed the defendant had the truck.



       Jimmy Ray Jordan, a detective with the Jackson Police Department, testified that

he went to see Thomas R. Mitchell about his truck. After learning that the defendant had

the truck over the weekend, Detective Jordan talked to the defendant and learned the

trailer was at his home on Forrest Avenue. Jordan learned a Ray Holland had attempted

to buy the trailer.



       Clay Parker, an employee of Thomas R. Mitchell Construction, testified that he

received a phone call on August 3, 1997, between 12:30 and 1:30 p.m. Parker went to the

defendant’s home. Upon arrival, Parker saw a car trailer loaded with a sofa, washer and

dryer, and several other items. Parker believes he saw the golf clubs in the house. Parker

testified he bought the sofa from Dan Kaufman for one hundred dollars. Kaufman then

turned to the defendant and gave the defendant part of the money. Parker saw a trailer

hitched to the company truck, which he unhooked so the person who bought it could leave.

The defendant told Mr. Parker that he was making a deal to trade a transmission, battery,

and some cash for the trailer.



       Raymond Lynn Holland, testified he was at his sister’s home, located next door to

the defendant, on August 3. The defendant came over to Holland and inquired if Holland

wanted some furniture. The defendant had a couch, a patio set, Nintendo games, and

other items in the house. Holland testified he bought a trailer and agreed to put a

transmission in the defendant’s car as part of the deal. Holland testified that, on one

occasion, he and some friends were at the Waffle House, when the defendant came over

to them and said, “I was a dead man if I testified against him.” Holland testified Dan

Kaufman was at the house, and he was pretty sure it was the defendant who gave him a

bill of sale for the trailer. Holland sold the trailer to a friend.



       Mary Amanda Holland, testified she had known the defendant for about two years.



                                                6
Ms. Holland, called “Amy,” denied she had taken the defendant to the Foxy Lady in Paris

on August 2, 1997, at 6:30 p.m. Ms. Holland also denied she picked up the defendant at

11:30 p.m. on August 2 and took him to the Huddle House for breakfast. However, during

cross-examination, Ms. Holland testified that she had previously told defense counsel that

she did take the defendant to Paris and later picked him up at 11:30 p.m. Ms. Holland

testified that some law enforcement officers told her, “I was going to perjure myself, [and]

do five years in prison.” Ms. Holland admitted she had given a sworn statement to Jessica

Shannon and that she told Shannon that she was not with the defendant on August 2.

Holland also admitted telling Shannon the defendant came to her at some point after the

fire and asked her to tell anyone who asked that she was with him that night. Ms. Holland

is a good friend of Melanie Black, the defendant’s girlfriend.



       Bobbie Michelle Kee testified that her friend, Crystal French, brought the defendant

to her home. Ms. French testified that the defendant said that he would give her eight

hundred dollars if she went to court and testified on his behalf. The defendant wanted her

to say that she worked at the Platinum Plus nightclub and went with a “Richard,” who had

a red pickup. The fabrication concerning “Richard” was to allow the defendant to get out

of a situation relating to a trailer burning, and some stolen furniture.



       Monica Sue Gant, testifying for the defendant, stated she had known the defendant

for two and a half years. Ms. Gant saw the defendant at the Foxy Lady nightclub on

August 2, 1997, between 7:45 and 8:30 p.m. The defendant came in alone and talked to

a person called Dan. The defendant left the Foxy Lady about 11:20 to 11:40 p.m.



       The defendant elected not to testify.



                                    LEGAL ANALYSIS



       The defendant contends the inconsistencies in the state’s case are such that there

was not a showing of sufficient evidence to convict the defendant of arson, aggravated



                                               7
burglary, and theft of property. The state counters that the evidence in the record supports

the defendant’s convictions.



       When there is a challenge to the sufficiency of the evidence, the state is entitled to

the strongest legitimate view of the proof at trial and all reasonable inferences which might

have been drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). A jury

verdict, approved by the trial court, accredits the testimony of the witnesses for the state

and resolves any conflicts in the evidence in favor of the state’s theory. State v. Williams,

656 S.W.2d 405, 410 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429, 79 L. Ed.

2d 753 (1984). This Court may neither reweigh nor reevaluate the proof offered at trial and

must not substitute its inferences for those drawn by the trier of fact. See Liakas v. State,

199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956), cert. denied, 352 U. S. 845, 77 S. Ct.

39, 1 L. Ed. 2d 49 (1965). The ultimate issue is whether 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Tenn. R. App. P. 13(e).



       It is well established that circumstantial evidence alone may be sufficient to support

a conviction. State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However,

the circumstantial evidence “must be not only consistent with the guilt of the accused but

it must also be inconsistent with his innocence and must exclude every other reasonable

theory or hypothesis except that of guilt....” State v. Tharpe, 726 S.W.2d 896, 900 (Tenn.

1987) (quoting Pruitt v. State, 3 Tenn. Crim. App. 25, 267, 460 S.W.2d 385, 390 (1970)).

In this way, “it must establish such a certainty of guilt of the accused as to convince the

mind beyond a reasonable doubt that he [the defendant] is the one who committed the

crime.” Id. at 900 (quoting Pruitt, 3 Tenn. Crim. App. at 267, 469 S.W.2d at 390). W hile

following these guidelines, we must note that the jury decides the weight to be given to

circumstantial evidence and that “the 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, 203 Tenn. 440, 452, 313 S.W.2d

451, 457 (Tenn. 1958), (quoting 2 Wharton’s Criminal Evidence 1611 (year omitted)).


                                             8
       A clear analysis of the evidence in this record reveals the state’s proof is wholly

circumstantial. Therefore, we must determine if the evidence weaves a web of guilt around

the defendant from which he cannot escape.



       The state had proved beyond a reasonable doubt that the mobile home of Rick

Jones was burned from an incendiary nature. Prior to the burning, the home was

burglarized and certain household items were taken. On the same day of the fire and

burglary, a gas grill, wrought iron chairs and table, golf clubs, a couch, and other items

were seen at the defendant’s home. Also, a trailer stolen from a business in Paris,

Tennessee was seen at the defendant’s residence loaded with the stolen property.

Although in his statement to Detective Crosser, the defendant stated the furniture belonged

to Dan Kaufman, the evidence clearly establishes these items came from the burned home

of Rick Jones. The defendant was seen taking money from Kaufman from the sale of

some of these items.



       The testimonies of Mary Amanda Holland and Bobbie Michelle Kee are strong

indications of the consciousness of the guilt that the defendant possessed for these

offenses. Holland testified that the defendant attempted to elicit her help in establishing

an alibi for the early morning hours of August 3, 1997. However, Holland, reluctantly,

would not support this alibi. Kee testified that the defendant attempted to produce perjured

evidence before the jury. The record establishes the defendant was in Paris, Tennessee

on the night of August 2, 1997, and a trailer was seen at approximately midnight being

stolen from a construction company with the use of the defendant’s company truck. The

fire and burglary occurred at 1:30 a.m. on August 3, 1997. The evidence reveals it takes

approximately an hour to drive from Paris to Jackson, Tennessee. The next morning the

trailer with the stolen items was seen at the defendant’s home, where several items were

sold by the defendant and Dan Kaufman. We find that the evidence was sufficient to

convict the defendant of arson, aggravated burglary, and theft of property.



       The defendant also contends that the trial court erred in failing to grant his motion



                                             9
for a judgment of acquittal at the conclusion of the state’s case in chief. The state

maintains the trial court properly denied the defendant’s motion for an acquittal.



       A defendant may move the trial court for a motion for judgment of acquittal at the

conclusion of the state’s case in chief, pursuant to Rule 29(a), Tenn. R. Crim. P:


              The court on motion of a defendant or of its own motion shall
              order the entry of judgment of acquittal of one or more
              offenses charged in the indictment or information after the
              evidence on either side is closed if the evidence is insufficient
              to sustain a conviction of such offense or offenses.


       The trial court, in this instance, overruled the defendant’s motion for a judgment of

acquittal. At the point the motion is made, the trial court must favor the state with the

strongest legitimate view of the evidence, including all reasonable inferences and discard

any countervailing evidence. State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App.),

per. app. denied (Tenn. 1994) (citing Hill v. State, 4 Tenn. Crim. App. 325, 470 S.W.2d 853

(1971)). We hold that our analysis of the entire record on the issue of sufficiency of the

evidence is applicable to this issue. Taken as whole, the record establishes the trial court

was justified in denying the defendant’s motion for a judgment of acquittal.



       In consideration of the foregoing and the record as a whole, the judgments of

conviction are affirmed.




                                          ________________________________________
                                          L. T. LAFFERTY, SENIOR JUDGE




CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE




                                             10
___________________________________
DAVID G. HAYES, JUDGE




                                 11
