        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  January 7, 2014 Session

             STATE OF TENNESSEE v. JOSEPH SAMUEL KYLE

                    Appeal from the Circuit Court for Benton County
                      No. 12CR81      C. Creed McGinley, Judge


                 No. W2013-01013-CCA-R3-CD - Filed April 17, 2014


The defendant, Joseph Samuel Kyle, was convicted by a Benton County Circuit Court jury
of aggravated criminal trespass, a Class A misdemeanor, and was sentenced to eleven months
and twenty-nine days, suspended to probation after serving thirty days in jail. On appeal, he
argues: (1) interrelated issues that the trial court erred in overruling his motions for judgment
of acquittal and new trial and that the evidence is insufficient to sustain his conviction; and
(2) the trial court erred in allowing hearsay testimony into evidence over his objection. After
review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R. and
R OGER A. P AGE, JJ., joined.

J. Neil Thompson, Huntingdon, Tennessee, for the appellant, Joseph Samuel Kyle.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Hansel J. McCadams, District Attorney General; and James E. Williams, III, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

        The defendant was indicted for aggravated criminal trespass and resisting arrest. At
trial, Catherine Shelton, the victim, testified that on March 6, 2012, she was at her home in
Big Sandy, Tennessee, getting ready for an appointment. She let her dogs out “to do their
business” and went to her bedroom to dress. Soon after, the dogs ran into her bedroom,
which concerned her because she did not know how they could have gotten into the house.
She walked up the hallway and saw the defendant “standing inside of . . . both of [her]
doors.” She explained that she had a glass storm door, which opened out onto the front
porch, and a wooden door, which opened into the house. She said that the defendant “was
across the threshold far enough inside of [her] house where [she] could not shut the door.”
The defendant was holding the storm door with his hand, and the victim was “positive both
[of the defendant’s] feet were inside . . . over the threshold.” The victim could not close
either door because the defendant “was standing there.”

       The victim testified that she was not expecting the defendant and was shocked and
very scared to see him standing there, although she tried to hide her alarm. She could tell that
the defendant was very intoxicated. The defendant said to her, “Do you know who I am?”
and she responded, “Yes, sir. You’re Joe. And you have to leave right now because I got
an appointment.” The defendant initially protested, but she told him again that he had to
leave and “walked closer to him to get him to back away so [she] could shut [the] door.” The
victim said, “[F]inally he did step out across the threshold and was outside,” and she shut and
locked the doors. She was “scared to death then” and “so shook up [she] didn’t know what
to do at that point.” She could not find the phone number for the police, so she called her
neighbors, the Lamberts, for help. In the meantime, the victim’s daughter called her and,
upon learning what happened, called 911.

       The victim testified that she recognized the defendant because he had repaired
computers for her late husband. In addition, the defendant and his wife owned a restaurant,
where the victim and her late husband dined “once or twice a month.” The victim’s husband
passed away in 2010, and the defendant was an honorary pallbearer at his funeral. A few
days after the funeral, the defendant called the victim around midnight. She “couldn’t
understand a word he was saying” and thought that he was intoxicated. She told the
defendant not to call back again or at least to be sober if he needed to speak to her. She did
not hear from the defendant again until he showed up at her house, which was almost two
years later.

        Janet Lambert, the victim’s neighbor, testified that the victim called her for help. The
victim was “totally hysterical” as she described finding the defendant standing in her foyer
area, “inside the two doors . . . right in the threshold, over the threshold area.” Mrs. Lambert
also talked to the victim’s daughter and assured her that Mr. Lambert was going to the
victim’s house to check on her. Ricky Alan Lambert testified that he went to the victim’s
house “to protect her or help her, whatever [he] could do.” When he arrived, the victim was
“[h]ysterical” and “scared to death” as she described finding an intruder inside her home.
The victim settled down some after the police arrived and took their statements.




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        Mrs. Lambert testified that, while she was on the phone with the victim, she looked
out the window and saw a “light-colored, tannish, grayish” small pickup truck coming from
the direction of the victim’s house. The truck turned around in the Lamberts’ driveway and
went back toward the victim’s house. Mr. Lambert also saw the truck turn around in the
driveway.

       Sergeant Alan Bolan with the Benton County Sheriff’s Department testified that he
responded to a call about an intruder in the victim’s home. He talked to the victim, and she
was “very nervous, scared, upset.” Once the victim settled down, she told Sergeant Bolan
what had happened. She told him that she had been in a bedroom in the back of the house
getting dressed when one of her dogs came into the room, which concerned her because she
did not know how the dog had gotten into the house. She went to the front of the house to
investigate and saw the defendant “standing inside her house” in the area of the front door.
She asked the defendant to leave and eventually “almost pushed him out of the house.”
Based on the victim’s statement, Sergeant Bolan “pressed charges” against the defendant.

       Lieutenant Bryant Allen with the Benton County Sheriff’s Department testified that
he heard the radio dispatch call about the intruder at the victim’s house and a description of
the truck the Lamberts saw in the area. Shortly thereafter, he saw a truck matching the
description coming from the opposite direction that he was traveling on Highway 69A.
Lieutenant Allen radioed Lieutenant Jason Lowery, who was also in the area, and turned
around to follow the truck. Lieutenant Lowery saw the tan Ford Ranger truck, with Bob Pace
driving and the defendant in the passenger seat. By the time Lieutenant Allen turned around
and caught up to the truck, Lieutenant Lowery had “initiated blue lights” to stop the vehicle.
Lieutenant Allen “pulled right in behind the vehicle,” and Lieutenant Lowery pulled in
behind both vehicles.

       Lieutenant Allen testified that he recognized the driver of the truck as Bob Pace and
the passenger as the defendant. The defendant was very loud and belligerent, yelling over
and over at Lieutenant Allen to “excuse” himself. Lieutenant Lowery smelled alcohol on the
defendant, and Lieutenant Allen smelled alcohol on both the defendant and Pace. After
learning that the victim wanted to press charges against the defendant, the officers took the
defendant into custody with some difficultly.

      The defendant presented the testimony of three witnesses at trial. Chad Edward
Kennedy, a funeral director at Ridgeway Funeral Home, testified that the defendant was an
honorary pallbearer and gave a eulogy at the funeral for the victim’s late husband. Kennedy
“[v]aguely” remembered the defendant bringing a flag for the service.




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        Robert Edwin Pace testified that the defendant helped him install a security system
at his house on March 6, 2012. Later that afternoon, he drove the defendant to the victim’s
house. Pace parked in the driveway and went to the edge of the garage to urinate, while the
defendant went to the front of the house. Pace heard no yelling or “door slams” during the
time the defendant was away. The defendant returned to the truck after only a short time, and
they left. Pace headed the wrong way and had to turn around in a neighbor’s driveway.

        Pace testified that he pulled over when he saw Lieutenant Allen’s blue lights. Pace
stated that the defendant was standing calmly beside the car when someone yelled, “You’re
resisting arrest, you’re resisting arrest.” Pace said that the officers “attacked” the defendant
and “threw” him into the patrol car.

       Debbie Dyer Kyle, the defendant’s wife, testified that the defendant and the victim’s
late husband had a relationship akin to that of a father and son. They talked on the phone and
emailed each other three or four times a day. Mrs. Kyle said that she and defendant went to
the victim’s and her husband’s home on at least twenty occasions. The victim and her
husband ate in the Kyles’ restaurant “on several occasions” and were never charged for their
food because “they were like friends.” Mrs. Kyle testified that she had not seen the victim
since the victim’s husband died.

      Following the conclusion of the proof, the jury convicted the defendant of aggravated
criminal trespass but found him not guilty of resisting arrest.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The defendant argues that the trial court erred in overruling his motions for judgment
of acquittal and new trial and that the evidence is insufficient to sustain his conviction.
Although worded differently, each of these issues is essentially a challenge to the sufficiency
of the convicting evidence.

       In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after
viewing 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, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,

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604 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       As relevant here, a person commits aggravated criminal trespass by entering or
remaining on property when “(1) [t]he person knows the person does not have the property
owner’s effective consent to do so; and (2) [t]he person intends, knows, or is reckless about
whether such person’s presence will cause fear for the safety of another[.]” Tenn. Code Ann.
§ 39-14-406(a)(1), (2). The term “enter” means intrusion of the entire body. Id. § 39-14-
406(b). Aggravated criminal trespass is a Class A misdemeanor when it is committed in a
habitation. Id. § 39-14-406(c).

       In the light most favorable to the State, the evidence shows that the defendant entered
the victim’s house without permission, causing the victim to fear for her safety. The
defendant stepped over the threshold of the victim’s front door entrance with both feet, while
holding the glass storm door open with his hand. The defendant was “across the threshold
far enough inside of [the victim’s] house” that the victim could not close either door because
the defendant was blocking the entry way.

       The defendant argues that “the definition of ‘entire body’ should be the exact opposite
of the definition of ‘any part of the body’ as it is used in the elements of Burglary under

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T.C.A. § 39-14-402.” Thus, he asserts that “if a defendant’s entire body intrudes except a
hand, for instance, then the element of ‘entire body’ [for aggravated criminal trespass] is not
satisfied.” He, therefore, argues that because his hand or arm was holding the outer glass
door open, his “entire body” was not inside the victim’s house and that he cannot be guilty
of aggravated criminal trespass.

        Although the defendant’s argument is quite clever, this court has previously
considered the meaning of the term “enter” for purposes of the criminal trespass statute, State
v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996), and we determine that the
reasoning is applicable in this case and consistent with the intent of the aggravated criminal
trespass statute. In Hollingsworth, the four defendants were charged with criminal trespass
after they chained themselves to the gate of an abortion clinic. Id. at 627. They were
convicted, and this court affirmed the convictions, ruling:

               The appellants entered the premises of the clinic. Each appellant had
       his or her torso within the area owned by the clinic. While the appellants’ legs
       extended beyond the property line, their legs were within the driveway leading
       from the street to the clinic’s parking lot. It is an elementary rule of law that
       the owner of property has an easement of access between the property and an
       abutting street. This Court holds that when a person’s body is within the
       owner’s easement, denying the owner ingress and egress, there has been an
       “intrusion of the entire body” within the meaning of the statute. Here, the
       appellants’ entire bodies were blocking the driveway leading into the main
       parking lot. Neither the owners of the property nor the patients seeking
       assistance at the clinic could enter or leave the premises through the main
       entrance to the front parking lot.

Id. at 628.

        In this case, the defendant’s legs and torso were inside the victim’s home. His body
blocked the entry way so that the victim could not close the doors to prevent the defendant’s
further entry or allow her to exit through the front door. The defendant’s body was within
the victim’s easement, denying her ingress and egress. As such, there was an intrusion of the
entire body within the meaning of the statute; therefore, we conclude that the evidence is
sufficient to support the defendant’s conviction for aggravated criminal trespass.

                                        II. Hearsay

      The defendant also argues that the trial court erred in allowing hearsay testimony from
Sergeant Bolan over his objection. The record shows that, during its direct examination of

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Sergeant Bolan, the State asked Sergeant Bolan what the victim told him when he arrived at
the scene. Defense counsel immediately objected based on hearsay, and the court overruled
the objection without hearing arguments from the parties or explaining the basis for its
ruling. Sergeant Bolan then testified about the victim’s statement to him regarding the
defendant’s entry into her home, repeating her description of the sequence of events. The
State concedes that Sergeant Bolan’s testimony about the victim’s statement was hearsay, but
argues that its admission was harmless because the victim and two other witnesses testified
about the events that Sergeant Bolan described.

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible at trial unless it falls
under one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802. “The
determination of whether a statement is hearsay and whether it is admissible through an
exception to the hearsay rule is left to the sound discretion of the trial court.” State v.
Thomas, 158 S.W.3d 361, 400 (Tenn. 2005) (quoting State v. Stout, 46 S.W.3d 689, 697
(Tenn. 2001)). Accordingly, we will not reverse the trial court’s ruling on this issue absent
a clear showing of an abuse of discretion. Id.

       We initially note that the statement possibly could have been admitted as an excited
utterance, and it appears that the State attempted to lay a foundation for this exception by
questioning Sergeant Bolan about the victim’s demeanor when he arrived at the scene. See
Tenn. R. Evid. 803(2). However, the State was precluded from presenting this exception as
a basis for admission of the testimony, and the trial court did not specifically rule that the
victim’s statement to Sergeant Bolan was an excited utterance.

        However, even if admission of the hearsay testimony of Sergeant Bolan was in error,
any error was harmless because other witnesses, whose testimony was properly admitted,
testified about the events that Sergeant Bolan described. See Tenn. R. App. P. 36(b) (“A
final judgment from which relief is available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a substantial right more probably than
not affected the judgment or would result in prejudice to the judicial process.”). The victim
testified and gave repeated descriptions of the defendant’s entry into her home. Janet
Lambert, whose testimony was admitted as an excited utterance, testified about the victim’s
description of the incident to her. Ricky Lambert, whose testimony garnered no objection,
testified that the victim told him that she found an intruder just inside the front door of her
home. In light of this evidence and the entire record, the defendant cannot show that the
erroneous admission of hearsay “more probably than not affected the outcome of the trial.”
See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (stating that when assessing the
impact of a non-constitutional error, the reviewing court may appropriately consider the

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properly admitted evidence of a defendant’s guilt).

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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