                                                    FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 July 12, 1999
                             AT KNOXVILLE
                                                               Cecil Crowson, Jr.
                                                              Appellate C ourt
                          MAY 1999 SESSION                        Clerk




STATE OF TENNESSEE,                  )
                                     )
            Appellee,                )      C.C.A. No. 03C01-9807-CR-00270
                                     )
vs.                                  )      Knox County
                                     )
CHRISTOPHER D. SMITH,                )      Hon.   Ray    L. Jenkins, Judge
                                     )
            Appellant.               )      (Burglary, Attempted Theft)



FOR THE APPELLANT:                          FOR THE APPELLEE:

LAURIE S. ANDRIJESKI (at trial)             PAUL G. SUMMERS
Attorney at Law                             Attorney General & Reporter
800 S. Gay Street, Suite 800
Knoxville, TN 37909                         TODD R. KELLEY
                                            Assistant Attorney General
ALBERT J. NEWMAN, JR. (on appeal)           425 Fifth Ave. N., 2d Floor
Attorney at Law                             Nashville, TN 37243-0493
602 S. Gay Street, Suite 500
Knoxville, TN 37902                         RANDALL E. NICHOLS
                                            District Attorney General

                                            ZANE SCARLETT
                                            Assistant District Attorney General
                                            400 Main, P.O. Box 1468
                                            Knoxville, TN 37901-1468




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                                  OPINION
              The defendant, Christopher D. Smith, appeals from his jury

convictions for burglary and attempted theft in the Knox County Criminal Court.

See Tenn. Code Ann. §§ 39-12-101(a), -14-103, -14-402(a)(1) (1997). The trial

court imposed a twelve year sentence in the Tennessee Department of Correction

for the burglary conviction and a concurrent six month sentence in the county jail for

the attempted theft conviction. In this direct appeal, the defendant challenges the

sufficiency of the convicting evidence. After a review of the record, the briefs of the

parties, and the applicable law, we affirm.



              On November 29, 1995, between 9:30 and 10:00 a.m., Angie Russell

drove to Thorngrove Baptist Church to perform her duties as custodian. As she

entered the parking lot, she saw a car parked near the lower entrance to the church.

She called her husband, who suggested that she write the license number of the

car. As she was writing the license number, she noticed the window next to the

church door was missing the upper pane. Russell called 911 and drove to a nearby

store, Pop-N-Go.     On her way to the store, she encountered the pastor of

Thorngrove Baptist Church, Ted Padgett. Russell and Padgett returned to the

church’s main entrance at the side of the church.



              Padgett retrieved a pistol from the trunk of his car. He crouched near

the door at the main entrance and pulled the door open. Padgett was surprised by

the alarm when he opened the door. The defendant ran out of a church office, and

Padgett pointed the pistol at him. Padgett detained the defendant until the police

arrived on the scene.



              Padgett testified that the office door frames had been broken with

some kind of tool to obtain entrance to the locked offices. Both church offices were

in disaray with papers strewn over the desks and on the floor. Someone had

                                          2
rummaged through the file cabinets. Padgett’s electric typewriter was not in his

office, but was found downstairs near the window by the lower entrance door, where

it had been thrown on the floor and destroyed. Tape recorders and a radio, which

belonged in classrooms downstairs, were stacked by the window. All these items

were worth less than five hundred dollars.



              Officer T. Michael Cheaves testified that he arrived at the scene to

start the initial investigation. There were no fingerprints found at the scene of the

crime. He checked the license number on the Mercury Capri parked in the church

lot, and the license number belonged to the defendant.



              Several witnesses testified for the defense. Angie Underwood testified

that the defendant had spent the night at her residence with her four children. He

helped her children get ready for school the morning of November 29, 1995. The

defendant left her residence around 8:30 a.m. Allen Houser, a brick mason,

testified that the defendant arrived at their job site around 9 a.m. They waited for

materials to arrive, but the materials did not arrive that day. Everyone at the job

site, including the defendant, left around 9:30 a.m. Carol Griffin, an employee at the

Pop-N-Go, saw the defendant using the pay phone outside the store a few minutes

after 10:00 a.m.



              The defendant testified that, after making phone calls at the pay

phone outside the Pop-N-Go, he drove to the church parking lot to “kill time.” He

exited his car to smoke a cigarette, and he noticed the window pane was missing.

He heard a noise coming from inside the church, and he entered the church through

the window to investigate. As he entered the church, he saw blinds on the floor

near the window and a radio. The defendant walked up the stairs noticing a

typewriter sitting on the floor. He testified that he never entered an office. Padgett

                                          3
opened the door and pointed a gun at him.



              After hearing this evidence, the jury found the defendant guilty of

burglary and attempted theft.



              The defendant contends the evidence is insufficient to support his

convictions. When an accused challenges the sufficiency of the evidence, an

appellate court’s standard of review is whether, after considering the evidence in the

light most favorable to the prosecution, 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d

63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.

1990).



              Moreover, a criminal offense may be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.

Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d

608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a

criminal offense based upon circumstantial evidence alone, the facts and

circumstances "must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470

S.W.2d 610 (1971); Jones, 901 S.W.2d at 396.          In other words, "[a] web of guilt

must be woven around the defendant from which he cannot escape and from which

facts and circumstances the jury could draw no other reasonable inference save the

guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;

State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

                                           4
               In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.



               The defendant contends there was no evidence that he entered the

church for an unlawful purpose. Burglary occurs when “[a] person . . . without the

effective consent of the property owner . . . [e]nters a building other than a

habitation . . . not open to the public, with intent to commit a felony, theft or assault.”

Tenn. Code Ann. § 39-14-402(a)(1) (1997). The defendant testified that he entered

the church because he was investigating a noise. The defendant entered the

church without permission. Padgett testified that he saw the defendant running out

of an office when he opened the door, and that items were stacked beside the

window with the missing pane. No one else was found inside the church. The jury

chose to disregard the defendant’s testimony regarding why he was inside the

church. Instead, from these circumstances, the jury found the defendant was inside

the church to commit a theft. A jury may infer criminal intent from the circumstances

of the case. See State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993).

The jury was presented with sufficient evidence from which they could infer the

defendant’s guilt beyond a reasonable doubt. See State v. Shirley Double, No.

                                            5
01C01-9704-CR-00156, slip op. at 9 (Tenn. Crim. App., Nashville, Oct. 19, 1998)

(defendant found guilty of aggravated burglary when she admitted being at the

victim’s home, but denied entering it and participating in the burglary). We find

sufficient evidence to support the defendant’s conviction for burglary.



              The defendant was convicted of attempted theft also. Theft occurs

when “[a] person . . . with intent to deprive the owner of property, . . . knowingly

obtains or exercises control over the property without the owner’s effective consent.”

Tenn. Code Ann. § 39-14-103 (1997). Under these circumstances, attempt occurs

when “[a] person . . . acting with the kind of culpability otherwise required for the

offense . . . [a]cts with 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

toward the commission of the offense.” Tenn. Code Ann. § 39-12-101(a)(3) (1997).



              The evidence showed that a radio and tape recorders were stacked

beside the window. Padgett’s typewriter had been moved from his office and

thrown on the floor downstairs. Nothing was actually removed or found missing

from the church. However, items had been moved and seemed to be in a position

where someone was planning to remove them from the church. A substantial step

toward the commission of theft occurred in this case. The jury could infer that the

defendant moved these items and intended to deprive the owner of them. See

State v. Daniel S. Barnes, No. 01C01-9702-CR-00070, slip op. at 5 (Tenn. Crim.

App., Nashville, Jan. 27, 1998) (evidence sufficient where several items had been

moved from their normal locations). We find sufficient evidence existed for the jury

to find the defendant guilty of attempted theft.



              The judgment of the trial court is affirmed.

                                          6
                                  ________________________________
                                  JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
JOHN EVERETT WILLIAMS, JUDGE



_______________________________
ALAN E. GLENN, JUDGE




                                  7
