                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                  ______________________________________________           FILED
STATE OF TENNESSEE,
                                                                           December 7, 1998
      Appellee,
                                                                           Cecil Crowson, Jr.
                                                                           Appellate C ourt Clerk
                                                   Obion circuit No. 7-838
Vs.                                                C.A. No. 02A01-9811-CC-00307

LORENZO PFEIFER,

      Appellant.
____________________________________________________________________________

                    FROM THE OBION COUNTY CIRCUIT COURT
                  THE HONORABLE WILLIAM B. ACREE, JR., JUDGE




                    John Knox Walkup, Attorney General and Reporter
                      Elizabeth T. Ryan, Assistant Attorney General
                                      For Appellee

                              Clifford K. McGown of Waverly
                    Joseph P. Atnip, District Public Defender of Dresden
                                       For Appellant




                             AFFIRMED AND REMANDED

                                       Opinion filed:




                                                          W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE


      This appeal involves a juvenile delinquency proceeding. Appellant, Lorenzo Carlos

Pfeifer, appeals from the order of the Circuit Court in Obion County which found him a
delinquent child because he was guilty of the offense of aggravated burglary and theft of

property over $1,000.00. Appellant was committed to the Tennessee Department of Children’s

Services for an indeterminate term. The only issue presented for review is whether the evidence

is sufficient to prove beyond a reasonable doubt that Pfeifer committed the offense of aggravated

burglary and theft of property over $1,000.00.

       The prosecution was commenced in Juvenile Court of Obion County by petition that

alleged that Lorenzo Carlos Pfeifer,

               a child within the jurisdiction of this Court and 14 years of age
               (DOB 08/10/83) is a(n) delinquent child . . . in need of treatment
               or rehabilitation, in that:

               On 9-11-97 between 0730 am and 1315 hrs at 1305 High St.
               Union City, Obion County, Tennessee the above juvenile
               burglarized the above residence and stole several guns, jewelry
               and collector coins and one collectible bill. On 9-11-97 between
               1130 hrs and 1500 hrs the above juvenile was seen in possession
               of several of the stolen coins by a witness. Constituting the
               offense of aggravated burglary and theft + 1000.

                               *               *              *

       From an adverse ruling in the Juvenile Court, Pfeifer appealed and was afforded a trial

de novo in Circuit Court. The pertinent testimony in the Circuit Court trial is summarized as

follows:

                                       STATE’S PROOF

       Dora Richardson, the victim, testified that her home at 1305 East High Street, Union

City, Tennessee, was burglarized on September 11, 1997. She stated that she left for work at

about 8:30 that morning to go to her employment and returned to her home about 1:00 or 1:30.

When she returned to her home, she noted that things were not in the condition that she left them

that morning, and she discovered that some rings were missing and a .25 caliber pistol had been

taken out of the chest in the front bedroom. Later in the afternoon, she found that two rifles and

a shotgun had been taken, and then over a period of time that afternoon discovered other things

that were missing from her home. She called the Union City police, and she furnished them a

list of items that she discovered were missing from her home. Included in the missing property

was a silver certificate and old coins. The value of all the property was shown to be over

$1,000.00. She testified that the rifles and the shotgun were subsequently returned to her by the

police. On cross- examination, she testified that she did not see any one in her home and all that

                                                 2
she knew was that her home had been broken into.

       Linda King testified that she resides at 1300 High Street, and on the morning of

September 11, 1997, she was coming from the grocery store between 11:00 and 11:10 and she

saw two young teenaged black men on the corner of Beck Street and High, which is very near

the Richardson home. She described them as one considerably taller than the other, but she

could not positively identify the defendant Pfeifer as being one of the two people.

       James R. Boyd testified that he is a teacher in the alternative program at the Union City

School System. This is a program for students that have been suspended for short or long term

and is an alternative to the regular classroom. On September 11, 1997, Lorenzo Pfeifer and

Steve King were assigned to the class and were due to be in school at 8:00 a.m. each day. On

that particular day, they arrived together at about 11:30 and he described their condition as

perspiring, agitated and quite hyper. He also stated they had straw in their hair. He noted that

Mr. Pfeifer is taller than Mr. King. He further testified that within a 30 minute period after they

arrived, Pfeifer, while sitting beside his desk, asked him what the value of a 1935 silver

certificate would be, and Pfeifer showed him a silver certificate. He stated that he told Pfeifer

that it was probably valuable as a collector’s item. Pfeifer then produced three other coins, and

he asked the witness about those also. One of the coins was a Lady Liberty Half Dollar, the

other was a Susan B. Anthony Dollar and also a mercury-head dime. The witness stated that it

was not unusual for Pfeifer to be tardy, and he did not ask him specifically why he was late. He

further testified that on the next day, Officer Moran came by checking on Steve King, and the

witness told Officer Moran that both King and Pfeifer came in tardy on September 11th, and he

also told Officer Moran about Pfeifer showing him the coins and the silver certificate. On cross-

examination, Mr. Boyd testified that he did not of his own knowledge know where the items

shown to him by Pfeifer came from.

       Chucky Moran, of the Union City Police Department, testified that he investigated the

burglary of the Richardson home on September 11, 1997, and he corroborated Mr. Boyd’s

testimony concerning the coins and silver certificate. He testified that at the time he talked to

Boyd, Ms. Richardson had not mentioned to him that those items might be missing from her

home. He then contacted Ms. Richardson to check and see if there was anything like that

missing from her home. After looking through her things, she described to Moran the missing

                                                3
coins that coincided with the description he had obtained from Mr. Boyd. He also identified the

guns that were taken from the Richardson home. There were no questions on cross-examination.



       Andre Everett testified that he is seventeen years old and is the nephew of Lawrence

Everett, Ms. Richardson’s next-door neighbor. He identified the three guns that he stated he

delivered to the Union City Police Department. He testified that he got the guns from Steve

King in a place behind Eastgate in Union City. He stated that this was a day or two after the

burglary that he had heard about. When he first got the guns, he hid them at Eastgate and went

back and got them later and took them to his house for a day or two. Later, when his uncle came

over to the house, he learned about the burglary, and he became suspicious that the guns might

be stolen. He then went with his uncle and aunt to the police department to turn in the guns. On

cross-examination, he testified that when he got the guns he really didn’t know why he was

given the guns by King. We quote from the transcript:

               Q. Here’s a fifteen or sixteen-year-old boy who comes up to you
               with a bunch of guns like this and says, “Hey, you want these
               guns?” Is that what he did?

               A. He didn’t really say nothing.

               Q. He didn’t say nothing? He just brought ‘em up and said,
               “Give me some money for these guns?”

               A. No, he didn’t ask for no money.

               Q. Oh, he’s just a kind-hearted soul. He just likes to give things
               away?

               A. No, he like --- I don’t know, I guess he wanted me to hide ‘em
               for him or something. I don’t know. I don’t know what he
               wanted.

               Q. So, you were receiving and concealing stolen property then
               that you knew was stolen, and you just took it?

               A. Well, I didn’t know it was stolen at the time.

               Q. Well, you knew a fourteen, fifteen or sixteen-year-old boy
               doesn’t own a bunch of guns like that. You were gonna hide ‘em
               out for him, weren’t you?

               A. I don’t know what you’re talking about.

       Steve King testified that he is fifteen years old and is currently residing in Magnolia

Academy, Columbia, Tennessee. He stated that he is a nephew of Phyllis Everett who lived next



                                               4
door to the victim, Dora Richardson. He testified that he was tried for the September 11, 1997

burglary of the Richardson home in Juvenile Court and at that time confessed to his involvement

in the burglary. He was found guilty by the Juvenile judge. In describing the burglary, he stated

that he and Pfeifer entered the house through a window and took some guns. While they were

in the house they were together, and Pfeifer participated in stealing things from the house. He

testified that he took the guns and hid them behind a shed and later that night retrieved them and

took them to Eastgate where he gave them to Andre Everett. He stated that after he and Pfeifer

left the home at the time of the burglary, they both went to the school and arrived there around

11:00. They both were in Mr. Boyd’s class, and he was present when Pfeifer was showing the

coins to the class and Mr. Boyd. He stated that no one participated in the burglary other than

him and Lorenzo Pfeifer. On cross-examination, he testified that he is a cousin of Andre Everett

and conceded that Andre is taller than he is. He testified that he gave the guns to Andre and that

Andre took them to his house and put them in his closet. He reaffirmed that he had put the guns

behind the shed at Ms. Richardson’s house immediately after the burglary and came back and

got them later that night. He stated that they were under some leaves behind the shed.

                                   DEFENDANT’S PROOF

       Lorenzo Carlos Pfeifer testified that he is fourteen years of age and denied that he went

into the Richardson house and took anything out of her house. He states that on that morning

he was at home and that he met up with Steve King in front of the church by High Street. He

admits that he had the coins that he showed to the teacher, but states that he got those coins from

Steve King. On cross-examination, he testified that he didn’t feel like going that morning and

that he decided to go to school at about 11:15 because his mother came home and made him do

so. He reiterated that he met Steve King at the Church on the corner of High Street and Taylor

Street. He stated that he saw no other young black teenagers in the neighborhood other than

Steve King. He was asked why King gave him the coins, and we quote from the transcript:

               Q. Why did Mr. King give you the coins?

               A. I guess he seen they weren’t no value. He told me that he’d
               just got some coins, and I told him, “Let me see ‘em,” -- and a
               silver certificate. I told him, “Let me see ‘em.” He showed me.
               And he knew it wasn’t no value, but I knew it was. So, then he
               asked me did I wanna go to the store, and I said, “For what,” and
               he said, “We’ll spend ‘em.” I said, “No,” I said, “Let me have
               em. I’ll give you two dollars for ‘em.” So, I gave him the two


                                                5
               dollars and he gave me the coins.

               Q. So, you’re basically saying you bought the coins from Steven
               King?

               A. Yes, sir.

He further testified that they were not sweaty when they arrived in Mr. Boyd’s class, and that

Mr. Boyd lied when he stated that they were in that condition. He further testified that Steve

King said that he was with him at the burglary because he wanted to keep his cousin, Andre

Everett, from getting into trouble.

       Sheena Pfeifer, Lorenzo Pfeifer’s mother, testified that on September 11, 1997, she got

Lorenzo up to go to school like she normally did. She said she had to take her boyfriend to work

and he had to be there at 8:00, so they all left the house at 7:45. After she took her boyfriend to

work, she had some work done on her car and returned to her home around 10:00 or 10:30 and

Lorenzo was in his room. She said she made him get out to go to school, and he left the house

about 10:30. She didn’t know how far her house at 712 Glendale was from the 1310 High Street

address of Ms. Richardson. On cross-examination, she reiterated that Lorenzo first left the home

around 7:45 that morning and later left the home at 10:30. She did not know where he was other

than those two times. The defense rested.

        Subsequently, the state was allowed to put on a witness from the school to testify that

Andre Everett’s record showed that he was in school all day on September 11, 1997.

                                             ISSUE

       As noted, the only issue concerns the sufficiency of the evidence. Where the sufficiency

of the convicting evidence is challenged, the relevant question for the appellate court is whether,

after viewing the evidence in a light most favorable to the state, any rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. T.R.A.P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253

(Tenn. 1994). In determining the sufficiency of the evidence, the appellate court is not permitted

to reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of 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. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). On appeal, the state is entitled to the strongest



                                                6
legitimate view of the trial evidence and all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

       T.C.A. § 39-14-403 (1997) provides:

               Aggravated burglary. - (a) Aggravated burglary is burglary of
               a habitation as defined in §§ 39-14-401 and 39-14-402.
               (b) Aggravated burglary is a Class C felony.

       A definition of habitation includes a dwelling such as that occupied by the victim in this

case. See T.C.A. § 39-14-401 (1)(A) (1997). A burglary is committed when one “without the

effective consent of the property owner . . . [e]nters . . . with intent to commit a felony.” T.C.A.

§ 39-14-402 (a)(1) (1997).

       T.C.A. § 39-14-103 (1997) provides:

                Theft of property. - A person commits theft of property if, with
                intent to deprive the owner of property, the person knowingly
                obtains or exercises control over the property without the owner’s
                effective consent.

If the value of the property taken is $1,000.00 or more but less than $10,000.00, it is a Class D

felony. T.C.A. § 39-14-105 (3) (1997).

        It is unrefuted that Ms. Richardson had property stolen from her home on September 11,

1997, and that the value of the property stolen exceeded $1,000.00. The witness testified that

she saw two strange youths near the scene matching the description of Pfeifer and the other

participant in the alleged crime, Steve King. At trial, the other participant, King, testified that

Pfeifer entered the home and took property therefrom. Subsequently, Pfeifer arrived at school

along with the co-participant, King, and both of them appeared agitated and perspiring heavily.

Shortly thereafter, Pfeifer displayed to Mr. Boyd some of the property stolen from the

Richardson home. The trial court found Pfeifer’s explanation as to how he obtained this property

somewhat suspect. When a defendant has possession of recently stolen goods and cannot

provide an adequate explanation as to how he obtained the goods, an inference can be made that

the defendant stole the property. Bush v. State, 541 S.W.2d 391, 394 (Tenn. 1976). King’s

testimony as an accomplice must be corroborated, and there must be some fact testified to

entirely independent of the accomplice’s testimony which taken by itself leads to an inference,

not only that a crime has been committed, but that the accused is implicated in the crime.

Mathis v. State, 590 S.W.2d 449, 455 (Tenn. 1979). However, the evidence corroborating the



                                                 7
testimony of an accomplice need not be sufficient to prove the whole case without the testimony

of the accomplice. Sherrill v. State, 204 Tenn. 427, 435, 321 S.W.2d 811, 815 (1959). The

testimony of Mr. Boyd concerning Pfeifer’s possession of the property and Pfeifer’s admission

that he did possess the property is sufficient corroboration of King’s testimony. Moreover,

Pfeifer’s alibi defense lacked any corroboration. His mother’s testimony contradicts his

testimony regarding the critical times. According to her testimony, Pfeifer left their home with

ample time to commit the crime and then arrive at school as proven.            The finding by the

trial court that the crimes have been committed by defendant removes a presumption of

innocence and replaces it with a presumption of guilt requiring that the accused have the burden

in the appellate court of illustrating why the evidence is insufficient to support this finding. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The defendant has failed in this Court to

meet the burden placed upon him.

       Accordingly, the order of the trial court is affirmed, and this case is remanded to the trial

court for such further proceedings as may be necessary. Costs of the

appeal are assessed against the appellant.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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