          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                FILED
                           DECEMB ER SESSION, 1998          March 24, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                 )   C.C.A. NO. 02C01-9802-CC-00039
                                    )
            Appellee,               )
                                    )   HENRY COUNTY
V.                                  )
                                    )
                                    )   HON. JULIAN P. GUINN, JUDGE
JERRY WAYNE PATTERSON,              )
                                    )
            Appe llant.             )   (BURG LARY)



FOR THE APPELLANT:                      FOR THE APPELLEE:

GUY T. WILKINSON                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

W. JEF FREY FAGAN                       CLINTON J. MORGAN
Assistant Public Defender               Assistant Attorney General
117 North Forrest Avenue                2nd Floor, Cordell Hull Building
Camden, TN 38320-0663                   425 Fifth Avenu e North
                                        Nashville, TN 37243

                                        G. ROBERT RADFORD
                                        District Attorn ey Ge neral

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




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       Jerry Wayne Patterson, the Defendant, appeals as of right from his

convictions in the He nry Cou nty Circuit C ourt. Following a jury trial, Defendant was

found guilty of the offenses of burglary, criminal attempt to commit burglary, and theft

of property less than five hundred dollars ($500.00). Defendant’s only issue on

appeal is whether the evide nce wa s sufficient to justify a rational trier of fact finding

guilt of these offenses beyond a reaso nable d oubt. We affirm the judgment of the

trial court.



       When an accused challenges the sufficiency of the convicting evidence, the

standard is wh ether, after reviewing the evidence in the light most favorable to the

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

crime b eyond a reason able do ubt. Jackson v. V irginia, 443 U.S. 307, 319 (1979).

Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence, are resolved

by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn.

Crim. App.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court reweigh

or reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 1978 ).



       A jury verdict ap proved b y the trial judg e accre dits the State’s witnesses and

resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). O n appe al, the State is entitled to the strongest legitimate view of the

evidence and all inference s therefro m. Cabbage, 571 S.W.2d at 835. Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the

                                            -2-
evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W .2d at 476 .



       George Edwin Wofford testified that he is the owner and proprietor of

W offord’s Nursery in Paris , Ten ness ee. W offord’s Nursery is located at 1414 East

W ood, approxima tely two (2) bloc ks from the Av alon M otel. O rdinar ily, W offord’s

employees arrived at work between the hours of 7:00 and 7:30 a.m., although

Wo fford did receive deliveries of stone during the early morning hours from overnight

trucks from Ar kansa s. On Ju ne 9, 19 97, stone was delivered by the Stevens

Company to the nursery. Wofford was called to the nursery between the hours of

4:00 and 5:00 a.m . becau se the ala rm had gone o ff. The truck driver from Stevens

Comp any was the re when W offord arrived at the nu rsery.



       Upon his arrival, Wofford discovered that the back door to his office, a metal

clad door, was completely torn open . A filing c abine t was k ept ne xt to his d esk in

that office, and the filing cabinet typically had money in it. Wofford recalled that the

Defendant had worked as his em ployee appro ximate ly nine (9 ) mon ths prio r to this

incident, and that Defendant would have had knowledge that mon ey was kept in that

filing cabinet. On this p articular nig ht, Wofford thought that there was a money bag

of change from the Coke mac hine in the filing cabin et, but c ould n ot reca ll for sure.

Wo fford could not tell that anything was missing from the nurs ery, but the entire door

and door frame to his office had to be replaced.



       Rayford Anthon y Caldw ell, the cod efenda nt, testified that he had been friends

with the Defendant for the past two (2) years.          On June 9, 1997, he and the

Defendant rented a room with a woman at the Avalon Motel. The woman had earlier

                                            -3-
passed out after they had all been drinking. Caldwell and Defendant then discussed

taking a truck during the early morning hours of June 9, 1997. In order to b reak into

the truck, Caldwell and the Defendant contemplated on how to get a screwdriver

which they could insert in the steering colum n and tu rn into the k ey hole. T hey left

on foot from the Avalon Motel looking for a service station. While en route, they

passed by Wofford’s Nursery where the Defendant had been an employee. They

decided to walk around the back of the nursery, but they ran into a truck driver and

had to speak to him alth ough C aldwell co uld not recall the en tire exte nt of the ir

conversation. Caldwell admitted that they represented themselves to the truck driver

as employees of the nursery. They left the truck driver and continued to go around

the back of the building where they stopped at the back door a nd bo th kicke d it once

or twice. C aldwe ll stated that nothing happened and they left. The alarm was not

set off at that time.



       Defen dant an d Caldw ell left and continued to walk towards Melton’s service

station. They “messed with” a window at the side of the building trying to enter the

building. Wh en they w ere uns uccess ful, they walk ed to the front of the building and

Defendant broke out a w indow with a p iece o f meta l. They b oth entered the building,

where they saw tool boxes, cars and a Harley Davidson motorcycle. Caldwell

remembered “how pretty it [the motorcycle] was and how much [he] wanted it.”

Cald well raised the back door and pushed it out, but he did not know where the

Defendant was at that time. C aldwell did not take a ny mone y from Melton’s. He

pushed the mo torcycle to th e road, d ropped it, then pu shed it ba ck to the park ing lot,

sat down o n it, cranke d it and the n drove it aw ay. Before driving it away, h e heard

an alarm s ound fro m the d irection of W offord’s N ursery. C aldwell thought the

Defen dant ha d been gone fo r approxim ately fifteen (1 5) minu tes.

                                            -4-
       After the alarm sounded, he drove back toward the Av alon, p assin g W offord’s

Nursery where he spotted a city police car. He pulled around back of the motel and

shut the motorcycle off. As he was trying to hide the motorcycle, it fell on top of h im

and the Defendant arrived in time to help him. The police officer had followed

Caldwe ll to the motel. Caldwell was taken into police custody by the Paris Police

Depa rtment. On the way to the police department, Caldwell saw the truck driver they

had earlier seen at Wofford’s Nursery.           Caldwell pled guilty to the offenses of

attempted burglary, theft of property, and burglary and was serving his sentence at

the tim e of the Defe ndan t’s trial.



       On cross-examination, C aldwell adm itted that he had g iven a contradictory

statement to the Paris police o fficers the m orning followin g his arrest. He read it to

the jury as follows:

       I never went into Wofford’s Nursery. I crawled through a broken
       window in the front of the store at Melton’s Service Center. The window
       was alread y broke n. I did not brea k it. I walked around for a minute or
       two, and then I saw the motorc ycle. I flipped a chrome switch, it started
       and I drove it to the motel. I was ve ry drunk. I need help. I walked
       from the m otel to Melton’s Se rvice Center.



       Robert F. Sha nkle, m anag er of M elton’s Service Cen ter, was ca lled down to

his station during the early morning hours of June 9, 1997. Melton’s Service Center

is in the general vicinity of Wofford’s Nursery, on the same side of the street with an

optom etrist’s office in betwe en the two. W hen S hank le arrive d, a m otorcy cle they

were storing there was gone and the drawers in the office had been ransacked.

Some money was missing from the cash drawe r which was lyin g in the middle of the

floor. The va lue of the m otorcycle was approxim ately $12,000.0 0. A set of tire

tracks with a set of footsteps on each side were found inside, with additional



                                           -5-
footprints from one side of the shop into the other. The file cabinet drawers had

been pulled open, with the desk drawers opened and rifled through. Shankle kept

a zippered bank bag with his bank deposit for the next day in the drawers, and the

zippered bag had been opened and an envelope with checks and some cash had

been taken ou t. Approximately $100.00 was taken from Melton’s. Entry was made

into the business through a broken out window on the front bay door of the west end

of the build ing.



       Robert Doug las Futre ll, shift sergea nt with the Paris Police D epartm ent, saw

the Defendant and Caldwell together just after midnight on June 9, 1997. They were

standing at Patrio t’s Corn er, app roxim ately fou r (4) blo cks w est of th e Ava lon Mo tel.

He later res pond ed to a burgla ry call at a pprox imate ly 4:13 a .m. at W offord’s

Nursery. Wh en he a rrived, Futr ell saw a semi truck in the rear of the building and

he interviewed the driver. Futrell was advised by the drive r to search for employees

of the nursery a nd was given a description of the two (2) subjects. Futrell also

learned that a deputy spotted two (2) subjects in front of Wofford’s Nursery

approxim ately ten (10 ) minute s prior to the alarm g oing off.



       After ten (10) minu tes, Futrell observed Caldwell driving down the street on

a motorcycle. As soon as he saw Caldwell, Futrell went to his patrol car and

followed him to the Avalon Motel. When he pulled into the parkin g lot, he turned his

lights out because he knew Defendant and Caldwell were staying there. As Futrell

rounded the buildin g, he o bserv ed Ca ldwell and the Defendant attempting to push

the motorcycle around the building into an alcove. They were standing no more than

thirty (30) to fifty (50) feet from the entra nce to their motel room. The Defendant was

fully clothed.

                                              -6-
       Futre ll jumped out of the car and both Caldwell and Defendant dropped the

motorcycle and ran for their room, Number 48. Futrell was able to grab hold of

Caldwell, so he handcuffed him and took Caldwell into custody. By that time,

Defendant had gone into Room Number 48.                Officer Cagle arrived and they

approached the door to Room Number 48, then knocked. Defendant came to the

door nake d, ask ing “wh at the h ell we wanted, he hadn’t done anything and he had

just been in his room having sex with the lady that was laying o n the bed.” Futrell

observed the woman lying on the bed, and she appeared to have passed out due

to intoxication. They could not rouse her, so they had to call an ambulance. They

then too k Defen dant into c ustody.



       On their way to the police station, they transported Caldwell and Defendant

back d own to W offord’s for th e truck drive r to identify.



       Gary Thom as Cag le, corpora l with the Pa ris Police D epartm ent, was on patrol

during the early morning h ours of June 9, 1997. He identified a clear plastic bag

which he took possession of from the room occupied by Caldwell and the Defendant

that night. He found it on a night stand near the head of the bed, with a total of

$119.5 0 inside.



       Earlier that evening, Cagle observed the Defendant and Caldwell together at

Patriot’s Corner just after midnight. Thereafter, between 3:30 to 4:30 a.m. he saw

the damage at W offord’s N ursery. H e then w ent to Ava lon Mote l in an attempt to

apprehend Caldwell. When he arrived, Futrell advised him that Defendant had run

in to the motel room. Caldwell was already in custody at that time. They then went




                                            -7-
together and knocked on the motel door, and Defendant answered the door nude.



      Defendant argue s that th e only perso n who can p lace h im at eithe r W offord’s

Nursery or Me lton’s Service Center is the co-defendant, Rayford Caldwell. He

further alleges that Caldwell’s testimony fails to place the De fendant at the n ursery

at the time o f the alarm . A defen dant, of c ourse, cannot be convicted upon the

uncorroborated testimon y of an ac comp lice. Sher rill v. State, 204 Tenn. 427, 321

S.W.2d 811, 814-15 (Tenn. 1959). The general rule is that there must be some fact

testified to entirely independent of accomplice testimony which, taken by itself, leads

to an inference not only that a crime has been committed but that the defen dant is

implicated in that crim e. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460, 463

(Tenn. 1963).    Only s light circumstances, however, are required to furnish the

necessa ry corrobora tion. Garton v. State, 206 Tenn. 79, 332 S.W.2d 169, 175

(Tenn. 19 60) (citations om itted).



      Defendant was convicted of criminal attempt based upon Defe ndan t’s attempt

to com mit bu rglary a t W offord’s Nurs ery. Th is offense is committed when a person

acts with the kind of culpa bility otherwise required for the offense to com mit burglary

and acts with the intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step tow ard

the commission of the offense. Tenn. Code Ann. § 39-12-101(a)(3). Caldw ell

testified that he and the Defendant approached Wofford’s Nursery and ran into a

truck driver as the y attemp ted to go to the b ack o f the bu ilding. F rom C aldwe ll’s

testimony, the two w ere in sea rch of som e tools so that they could steal a truck.

They spoke to a truck driver who was there and represented themselves to be

                                           -8-
employees of Wofford’s Nursery, then continued towards the back of the building.

Cald well stated that each of them attem pted to kick in the ba ck door of the n ursery,

but that they w ere una ble to com plete the a ct. However, George Wofford, the owner

of the nursery, testified that the back door a nd its fra me w ere co mple tely torn open.

Other circumstantial evidence corroborating the testimony of Caldwell was the truck

driver’s identification of the Defendant to the police as one of the two (2) subjects he

had seen at W offord’s nursery rep resenting him self as an em ployee of that nurs ery.



       Defe ndan t’s second co nviction, burglary, was based upon the acts committed

at Melton’s Service Center. A pe rson com mits burglary wh o, without the effective

consent of the property ow ner, enters a building other tha n a hab itation not o pen to

the public , with the intent to com mit a felony, the ft or assau lt. Tenn. C ode An n. § 39-

14-402(a)(1 ). Caldwe ll testified that he and the Defendant looked for an open

window to enter the station, and when they could not find one that Defendant broke

the window. Both entered the station. Caldwell became obsessed with a Harley

Davidson motorcycle and left by himself with it. Testimony from Robert Shankle

demonstrated that drawers and files had been ransacked, with an amount of

appro ximate ly $100.00 taken from the station. Officer Cagle testified that he found

a bag in D efenda nt’s mote l room containing $1 19.50. Two sets of footprints were

found inside the station, verifying the presence of two intruders, Caldwell and the

Defen dant. Both Cagle and Shankle’s testimony corroborate Caldwell’s testimony

of Defenda nt’s involvemen t in the burglary.



       Defendant was convicted of the offense of theft of prop erty less than $500.00.

Theft of property is committed when a person, with the intent to deprive the owner

of property, know ingly obtains or exerc ises control over the property without the

                                             -9-
owne r’s effective co nsent. Tenn . Code Ann. § 3 9-14-10 3. He wa s indicted for theft

over $10,00 0.00 alleg ing theft of b oth money and a 1976 Harley Davidson

motorcycle. The only proof of Defendant’s involvement in the actual theft of the

moto rcycle was testimony that two (2) sets of footprints were seen where the

moto rcycle was rolled out of the station, and that the Defendant was discovered by

the police at the Avalon Motel assisting Caldwell in attempting to hide the m otorcy cle

behind the motel. However, the theft the jury found Defen dant gu ilty of was the ft of

an amoun t of property less than $500.00. R obert Shankle testified that an amount

of approximately $100.00 was missing from the station. Defendant was found in the

motel room with a bag containing $119.50 lying on a night stand near the bed.

There was no proof that co-defendant Caldwell was in the motel room following the

com miss ion of the crime prior to his arrest. The strongest legitimate view of the

evidence and the reasonable inference therefrom is that the Defendant took the

money from M elton’s and th en too k it inside his motel room where it was later found

by the po lice. Th e State is entitle d to this inference, and we will not reevaluate the

evidence. See Cabbage, 571 S .W .2d at 8 35. In a ddition , the circ ums tance s in

which the money was found in the motel room corroborates Defendant’s participation

in the burglary of Me lton’s Service Ce nter.



      The requirements of the corroboration ru le are met “if there is some other

evidence fairly tending to connect the defendant to the commission of the crime, so

that his con viction w ill not rest entirely upon the evidence o f the accom plice.” Dykes

v. State, 589 S.W .2d 384, 389 (Tenn. Crim . App. 1979 ) (citing Stanley v. S tate, 189

Tenn. 110, 222 S .W.2d 384, 386 (19 49)).             There w as sufficient evidence

corroborating the three (3) offenses for which Defendant was convicted by which a

rational trier of fact could have found Defendant guilty beyond a reason able do ubt.

                                           -10-
    We affirm the ju dgme nt of the trial co urt.



                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




                                        -11-
