          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE          FILED
                            APRIL 1997 SESSION
                                                      January 26, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                  )    C.C.A. No. 03C01-9607-CR-00275
                                     )
            Appellee,                )    HAWKINS COUNTY
                                     )
VS.                                  )    HON. JAMES E. BECKNER, JUDGE
                                     )
JAMES DARRELL HORNE,                 )    (Aggravated Burglary, four counts,
                                     )     Theft, four counts)
            Appellant.               )



FOR THE APPELLANT:                        FOR THE APPELLEE:

RUSSELL MATTOCKS                          JOHN KNOX WALKUP
1609 College Park Dr., Box 11             Attorney General and Reporter
Morristown, TN 37813-1618
                                          CLINTON J. MORGAN
                                          Assistant Attorney General
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          C. BERKELEY BELL
                                          District Attorney General

                                          DOUG GODBEE
                                          Assistant District Attorney General
                                          Main Street, Courthouse
                                          Rogersville, TN 37857




OPINION FILED:


AFFIRMED



CHRIS CRAFT,
SPECIAL JUDGE




                                 OPINION
       Appellant, James Darrel Horne, was charged in an eight count presentment with

four aggravated burglaries and four resultant thefts. After a hearing on Defendant’s

Motion to Suppress, which was denied by the trial judge, appellant entered a guilty

plea to each count, all sentences to be served concurrently, for an effective sentence

of three years in the Department of Correction, reserving as certified questions of law

two findings by the trial judge during the motion to suppress.

       The two questions presented for our review are stated as follows in a written

order entered by the trial judge:

              Could the prosecution witness Linda McClain consent to a search of the
       defendant’s residence and was the consent to search signed by Linda McClain
       valid?

              Was the defendant adequately advised of his rights under Miranda prior
       to the alledged[sic] oral statement made to detectives during custodial
       interrogation?


       The proof presented at the hearing on the suppression motion is summarized

as follows:

       Detective Rocky Croy of the Carter County Sheriff’s Department testified that

he was told by his superiors to go to a residence on Anderson Road in Carter County,

Tennessee, with the SWAT team, to apprehend appellant on a fugitive from justice

warrant. While waiting for appellant to appear, Linda McClain drove up. She gave his

superior, Chief Potter, permission to search inside for appellant, and while inside he

saw property in plain view that had been reported stolen just a few days before

(appellant had burglary cases pending in several counties besides Hawkins County.)

       Linda McClain then testified that she and her children were living with appellant,

known to her as David Morgan, at the Anderson Road address, along with his half

brother and his half brother’s boyfriend. She had her clothes and her children’s clothes

there, and paid the utilities, which were in her name. She admitted consenting to the

search, and identified the written consent to search that she gave the officers on the

scene. She also testified that she was the driver when the appellant committed

the Hawkins County burglaries and that when she had driven to the Anderson Road

location that day, it was for the purpose of packing her things and leaving the

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jurisdiction. She had just dropped appellant off to do another burglary, and was going

to get her kids and “make a run for it” (at the time of her testimony, Ms. McClain was

serving a 42 year sentence for multiple other crimes.) She stated that she had made

no deals with the State to testify, but that Detective Kidd had agreed to write a letter

for her to the parole board after she had served 12 years of her sentence.

       Detective Alan Kidd testified that he showed some of the property seized from

the residence on Anderson Road in Carter County to three victims, who identified it as

property taken in three aggravated burglaries in Hawkins County (the subject of counts

one through six of the presentment.) He also confirmed that the utility records of the

Anderson Road location were in the name of Linda McClain.

       Detective Randy Simpson, with the Sullivan County Sheriff’s Department,

testified that when he learned of appellant’s arrest he went to Carter County to borrow

appellant, to try and solve some Sullivan County burglaries. A Detective Hodges from

the Carter County Sheriff’s Department advised appellant of his rights in Simpson’s

presence in Carter County, and he agreed to ride with Simpson to Sullivan County and

show him places he had broken into. During the ride, they crossed into Hawkins

County briefly and appellant pointed to a trailer park behind a store, and admitted to

breaking into a couple of trailers in the park. (This Court must presume from a silent

record that this statement was made in reference to the fourth residence referred to

in counts seven and eight of the presentment, although the victim’s name is never

mentioned, as the question of suppression of the statement has been certified as

dispositive of the case, and no other evidence has been presented connecting the

appellant with these two remaining counts.) Although appellant executed two written

waivers, they were both dated after the ride with Simpson.

       The appellant testified that Linda McClain lived at three different addresses,

only occasionally staying at the Anderson Road address with him, his brother and his

brother’s boyfriend. Her kids stayed there when she did, but she had no key. He

asked her to put the utilities in her name because of his outstanding fugitive warrant

from Kentucky, and that although she paid the utility bills, she used his money. He

also testified that he had broken up with her two weeks before the search because of



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a desire to reconcile with his wife, and that therefore she had no right to consent to the

search.

       The trial judge found from the proof that Linda McClain had an equal right with

appellant to use the premises and gave a valid consent to search. He likewise found

that appellant was properly “Mirandized” prior to giving his oral statement to Detective

Simpson and that he voluntarily, knowingly and intelligently waived his right against

self-incrimination.

       On appeal, a trial court's findings of fact on a motion to suppress are conclusive

unless the evidence preponderates against those findings. State v. Woods, 806

S.W.2d 205, 208 (Tenn. Crim. App. 1990), cert. denied, 502 U.S. 1079, 112 S. Ct. 986

(1992); State v. Johnson, 717 S.W.2d 298, 304-05 (Tenn. Crim. App. 1986). Findings

of fact by trial judges are afforded the weight of jury verdicts and are conclusive “if

there is any evidence to support” them. State v. O’Guinn, 709 S.W.2d 561, 566 (Tenn.

1986). We cannot substitute our judgment for that of the trial court or declare error

absent a finding that the trial judge abused his discretion. State v. Melson, 638

S.W.2d 342 (Tenn.1982). The trial judge was in the best position to evaluate the

credibility of the witnesses, and there is ample proof in the record to support his

findings.

       The judgment of the trial court is therefore AFFIRMED.




                                           CHRIS CRAFT, SPECIAL JUDGE


CONCUR:


JERRY L. SMITH, JUDGE



JOE RILEY, JUDGE




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