         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2001

                 STATE OF TENNESSEE v. ANTHONY S. CARIE

               Direct Appeal from the Criminal Court for Williamson County
                         No. I-899-275 Timothy L. Easter, Judge



                    No. M2000-02942-CCA-R3-CD - Filed October 1, 2001




The defendant, Anthony S. Carie, appeals his bench trial convictions for burglary of a building other
than a habitation and theft over $1,000. This case presents three issues for our determination: (1)
whether the evidence was sufficient to support the defendant's convictions; (2) whether the trial court
erred in not examining the defendant in open court regarding his right to testify; and (3) whether the
defendant received effective assistance of counsel at trial. For the reasons set forth below, we
conclude there is no reversible error; therefore, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

John H. Henderson, District Public Defender; C. Diane Crosier, Assistant District Public Defender
(at trial); and C. Edward Fowlkes, Nashville, Tennessee (on appeal), for the appellant, Anthony S.
Carie.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

       On March 21, 1998, the employees of Houdeshell Tire, an auto repair business in Brentwood,
Tennessee, arrived at work to find a break-in had occurred while the business was closed overnight.
Tools belonging to several employees were stolen, some of which were valued at over $1,000. The
apparent point of entry was the bottom left panel of a door to a service bay, which had been
damaged. The police concluded the panel was kicked and then pushed in to allow entry into the
building. The police conducted an investigation and found a shoe print and five fingerprints close
together on the panel. The fingerprints were later identified as belonging to the defendant.

        The proof showed the defendant had been a customer at Houdeshell Tire on at least two
occasions prior to the burglary. He had also stopped by the business to visit friends who worked
there. Employee John Reeves, a close friend of the defendant’s, testified for the defense that the
defendant had, once or twice, performed work on his own car in the garage. However, John Stickler,
who worked at Houdeshell Tire from 1997 until 1999, testified that only technicians were allowed
to work on vehicles and so, to the best of his knowledge, the defendant was not allowed to work on
his vehicle there. Former service manager Christopher Hockin, who worked at the business from
1997 until 1999, testified that, to his knowledge, the defendant did not work on vehicles at the garage
prior to the burglary. David Jason Kasinger, another former employee, testified that he worked at
the shop during the time of the burglary and did not recall the defendant working on vehicles there.
After the burglary, the defendant went to work at Houdeshell Tire for two brief periods of time.

          John Stickler testified that the garage door opened from the inside. Stickler also stated that
if it was necessary to open the door from the outside, one would push up on the center of the door
and then reach underneath the door to push it open. He opined that there would never be a need to
open the door by pushing on the damaged panel because the panels, which were not "sturdy," would
pull out if used for lifting the door. Stickler further testified on cross-examination that a person
would not need to touch the door from the outside when closing it because there is nothing to “grab
on to” on the outside of the door. Stickler also testified that the doors to the service bays were
cleaned twice each month. Hockin testified that no one would ever need to touch the damaged panel
in order to open the door from the outside. John Reeves testified for the defendant that, prior to the
burglary, he had observed the defendant assisting with the opening and closing of the bay door.

        At trial, the defendant’s statements to the police were read into evidence. In an interview
with Detective Thomas Campsey, the defendant denied that he was involved in the crime. He stated
that the only knowledge he had of the burglary came from his friend John Reeves, who in April
1998, after defendant had accepted a job at the business, advised him to lock up his tools at night
because there had been a burglary. The defendant told the detective that prior to his employment at
Houdeshell Tire, he had been a customer in the shop on two or three occasions. The defendant also
said that during 1998 he had changed his own oil and checked his brakes at the business.

       Detective Campsey testified that during the interview, he could not get the defendant to
specify by date, month, or season the times he was present in Houdeshell Tire before his
employment. The detective said the defendant would change the subject by mentioning another
occasion when he could have been present in the business each time the detective would try to pin
down the times when the defendant was present in the business.

       Elizabeth Reid, a forensic scientist for the TBI, testified the latent fingerprints collected from
the panel matched the defendant’s. She further testified that while a fingerprint can last indefinitely,
environmental factors such as heat and humidity can make it dissipate. She stated that if a


                                                  -2-
fingerprint were outside where it was exposed to the elements, it would be less likely to remain than
if it were inside.

        Following a bench trial, the defendant was convicted of burglary and theft over $1,000.1



                               I. SUFFICIENCY OF THE EVIDENCE

        The defendant attacks the sufficiency of the state’s proof, claiming that the evidence against
him consisted solely of circumstantial evidence; namely, the fingerprints linking him to the scene
of the crime. The defendant also argues that the trial court applied an incorrect standard of proof in
considering the circumstantial evidence because the trial judge, acting as the finder of fact at the
bench trial, articulated he had a doubt but questioned whether the doubt was reasonable. He further
claims the trial court incorrectly made an inference from an inference when it found, based on the
fact that the defendant’s fingerprints were on the panel, that he had committed the burglary and
theft. Since all these issues raised by the defendant in his brief relate to whether the state’s proof was
legally sufficient to support his convictions, we will address them together.

                                          A. Standard of Review

         Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order
for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused
but it must also be inconsistent with innocence and must exclude every other reasonable theory or
hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a
certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the
defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390
(Tenn. Crim. App. 1970)).

       While following the above guidelines, this court must remember that the finder of fact
decides the weight to be given to circumstantial evidence and 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 finder of fact. Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958); see also Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn.
Crim. App. 1985); Pruitt, 460 S.W.2d at 391.

        In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as a jury
verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).


        1
          The defendant was also convicted on three counts of misdemeanor theft; however, these convictions were
subseque ntly set aside by the trial court as be ing barred by the statute of limita tions.

                                                      -3-
                                              B. Analysis

        Viewing the evidence in a light most favorable to the state, the defendant’s fingerprints at
the point of entry of the burglary are consistent with the defendant’s guilt, inconsistent with his
innocence, and exclude every other reasonable theory or hypothesis except guilt. The state’s proof
established that it was unlikely a person would have touched the outside of the bottom left panel of
the door to the service bay while opening or shutting the door. One witness also testified that the
doors to the service bays were cleaned routinely. TBI forensic scientist Elizabeth Reid stated that
while fingerprints can remain indefinitely, they are less likely to remain if they are outside where
they are exposed to the elements. Viewing the evidence in a light most favorable to the state, the
evidence was sufficient to support the finding of guilty.

        The defendant contends the trial judge failed to apply the proper “beyond a reasonable doubt
standard” to the circumstantial evidence presented by the state. The basis for this contention is found
in the following remarks made by the trial judge just prior to issuing the verdict:

        It’s interesting every time I’m put in this position of trying a bench trial, its usually
        on a close call like this. . . . What it normally requires me to do in my own mind is
        to revisit the whole theory of proof beyond a reasonable doubt . . . and what that
        really means. . . . Occasionally, in cases like this, I might have a doubt, but again I
        go back to the theory of, well, is it based on a reason, a reasonable doubt?”

We disagree with the defendant’s contentions and find nothing in the trial court’s comments that
indicate the misapplication of the proper standard of proof.

         The defendant argues the trial court inferred the defendant’s fingerprints were left on the door
at the time of the burglary and then, based on that inference, improperly inferred that he entered the
building through the panel and stole the tools. A fact may be inferred from circumstantial evidence
and from the fact thus inferred, another fact may be inferred. Benton v. Snyder, 825 S.W.2d 409,
415 (Tenn. 1992). The finder of fact may arrive at “a fact” by indirect or circumstantial evidence
which is “of such a character and so strong that it justifies a conclusion or a finding of fact which
becomes a proper basis for another inference.” Id. Then, this fact may serve as a basis for an
inference. Id.

        In this case, the trial court properly arrived at a fact, that the defendant entered the business,
through circumstantial evidence, the defendant’s fingerprints found on the damaged panel of the
door. We conclude the trial court’s finding that the defendant committed the burglary was also
sufficient to properly support the inference that the defendant committed the theft as well.

         For the foregoing reasons, we conclude that the evidence was legally sufficient to support
the trial court’s judgments of conviction. This issue is without merit.




                                                   -4-
                           II. DEFENDANT’S RIGHT TO TESTIFY

        The defendant also claims the trial court erred by failing to examine him in open court
regarding his decision not to testify. In a decision issued shortly before the defendant’s trial, the
Tennessee Supreme Court announced requirements to be implemented prospectively in order to
protect the accused’s right to testify. Our supreme court stated:

                At any time before conclusion of the proof, defense counsel shall request a
        hearing . . . to inquire of the defendant whether the defendant has made a knowing,
        voluntary, and intelligent waiver of the right to testify. This hearing shall be placed
        on the record and shall be in the presence of the trial judge. Defense counsel is not
        required to engage in any particular litany, but counsel must show at a minimum that
        the defendant knows and understands that:

                (1) the defendant has the right not to testify, and if the defendant does
                not testify, then the jury (or court) may not draw any inferences from
                the defendant’s failure to testify;

                (2) the defendant has the right to testify and that if the defendant
                wishes to exercise that right, no one can prevent the defendant from
                testifying;

                (3) the defendant has consulted with his or her counsel in making the
                decision whether or not to testify; that the defendant has been advised
                of the advantages and disadvantages of testifying; and that the
                defendant has voluntarily and personally waived the right to testify.

Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999). Our supreme court went on to state that the
mere failure to follow these guidelines will not, in and of itself, support a claim for the deprivation
of the right to testify where there is evidence in the record to establish the defendant otherwise
personally waived the right. Id. at 163.

        In the case before this court, the testimony of the defendant at the motion for new trial
hearing established he personally waived his right to testify. He testified that his attorney advised
him of his right to testify, and, after a discussion with her, he decided that he would not testify based
upon her advice. This is unlike the situation in Momon where defense counsel unilaterally decided
the defendant would not testify. Id. Therefore, we conclude the defendant was not deprived of his
right to testify.




                                                  -5-
                        III. EFFECTIVE ASSISTANCE OF COUNSEL

         The defendant also argues that he did not receive effective assistance of counsel at trial
because his trial counsel (1) failed to object to the introduction of evidence referencing the
defendant’s prior conviction, (2) failed to properly advise the defendant regarding his decision not
to testify, and (3) failed to argue the law regarding the standard of proof required in circumstantial
evidence cases. We respectfully disagree.

                                       A. Standard of Review

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990). In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

                                              B. Analysis

         At trial, the state read into evidence a transcript of the defendant’s statement to police. A
portion of the statement made reference to a prior criminal conviction. Trial counsel objected to this
portion of the statement, and the trial court sustained the objection. When the state moved to enter
the transcript of the statement as an exhibit, trial counsel requested that the portion of the transcript
relating to the prior conviction be redacted. The state conceded that portion of the transcript should
not be considered by the trial court, and the trial court specifically stated that it would not consider
it. Therefore, trial counsel was not ineffective for failing to object to the entry of the transcript into
evidence.

       According to the testimony of the defendant at the motion for new trial hearing, trial counsel
advised him during trial that if he testified, his prior criminal history could be “brought up.”
Therefore, it was her recommendation that he not testify. The defendant said that, based upon her
advice, he decided he would not testify. Following this discussion, the state presented the
defendant’s statement into evidence. The defendant claims that since the trial court was aware that
he had a prior criminal history, his trial counsel should have suggested that defendant testify.
However, as previously set forth, the trial court specifically said it would not consider the
information contained in the transcript regarding the defendant’s criminal history. Had the defendant
chosen to testify, his prior convictions for burglary of an automobile and theft could have been used




                                                   -6-
to impeach his credibility. See Tenn.R. Evid. 609. Therefore, we are unable to conclude that trial
counsel was deficient. Her actions in this regard do not constitute ineffective assistance of counsel.

       The defendant finally contends the trial court applied the incorrect standard of proof
regarding circumstantial evidence, and trial counsel was ineffective for failing to argue the
appropriate standard. As previously stated in this opinion, we do not find that the trial court applied
an incorrect standard of proof to the evidence. Accordingly, trial counsel was not deficient.

       Defendant has failed to establish his claim of ineffective assistance of counsel.


                                          CONCLUSION

        Accordingly, we affirm the judgment of the trial court.



                                                        _____________________________
                                                        JOE G. RILEY, JUDGE




                                                  -7-
