             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                   APRIL 1998                  FILED
                                                             April 22, 1999
STATE OF TENNESSEE,                   )    No. 02C01-9706-CR-00225
                                      )                    Cecil Crowson, Jr.
      Appellee,                       )    SHELBY COUNTY Appellate C ourt Clerk
                                      )
v.                                    )    HON. JOSEPH B. DAILEY,
                                      )    JUDGE
SIDNEY AND DONALD                     )
MCGLOWAN,                             )    (Burglary and Theft of
                                      )     Property)
      Appellants.                     )


For the Appellants:                        For the Appellee:

Walker Gwinn                               John Knox Walkup
Assistant Public Defender                  Attorney General and Reporter
Memphis, Tennessee
(Defendant Sidney McGlowan)

Thomas C. Fila                             Marvin E. Clements, Jr.
Memphis, Tennessee                         Assistant Attorney General
(Defendant Donald McGlowan)                Nashville, Tennessee

                                           John W. Pierotti
                                           District Attorney General
                                           Memphis, Tennessee

                                           Terrell Harris
                                           Assistant District Attorney General
                                           Memphis, Tennessee




OPINION FILED: ___________


AFFIRMED


William M. Barker, Special Judge




                                    OPINION
        The appellants, Sidney McGlowan and Donald McGlowan, appeal as of right

from their convictions in Shelby County Criminal Court.1 Both appellants were

convicted of burglary of a building and theft of property with a value greater than

$1,000 but less than $10,000. See Tenn. Code Ann. §§39-14-402 (1997) & 39-14-

103 (1997). Appellant Sidney McGlowan was sentenced to serve two concurrent

sentences of twelve years, as a career offender. The court sentenced appellant

Donald McGlowan to serve two concurrent sentences of six years.

        On appeal, appellants each raise the following two issues: (1) whether the trial

court properly denied Sidney McGlowan’s motion for a severance; and (2) whether the

trial court properly denied their motion to suppress evidence. In addition, appellant

Sidney McGlowan argues that the evidence is insufficient to sustain his conviction.

Our review of the record reveals that no reversible error was committed in the trial

court. Accordingly, we affirm the appellants’ convictions and sentences.

                                           BACKGROUND

        During the early morning hours of July 25, 1995, Officers Joseph Boerner and

James McCluskey, of the Memphis Police Department, were driving westbound on

Deerskin Road. Officer McCluskey was following Officer Boerner in a separate patrol

car. Between approximately 2:30 a.m. and 2:50 a.m., the officers saw an approaching

car turn off its headlights. The car continued moving for twenty yards, without

headlights, until it turned into the driveway at 615 Deerskin Road. This behavior

caused the officers to become suspicious. The officers turned on their patrol car’s

blue lights and pulled up to the house.

        After stopping their car, both appellants exited the vehicle and walked quickly

toward the residence. The officers stopped the appellants before they entered the

house. Officer Boerner questioned Donald while Officer McCluskey questioned

Sidney. Officer Boerner asked Donald to show him his driver’s license. In reply,


        1
         Sidney and Donald McGlowan are brothers. For clarity, we will refer to them either by their first
names or their full names.

                                                    2
Donald admitted that he did not have a license in his possession. Officer Boerner

subsequently arrested Donald for driving without a license and placed him in the back

of his patrol car.

       While Officer McCluskey was speaking with Sidney, he noticed a clear plastic

bag sitting on the passenger seat of the vehicle. The bag contained seven miniature

televisions with price tags attached to them. Sidney initially told Officer McCluskey

that he had gotten the televisions from a friend who lived down the street. However,

he later stated that he acquired the televisions by trading cocaine for them.

       Officer McCluskey then called the dispatcher, who reported that seven

televisions had been stolen from McDuff Electronics earlier that evening. A search of

the trunk revealed four camcorders with McDuff Electronics price tags hanging on

them. Based on the foregoing, the officers also arrested Sidney McGlowan.

       The appellants were thereafter indicted for one count of burglary of a building

and two counts of theft of property with a value more than $1,000 but less than

$10,000. Before trial, both appellants filed a motion to suppress evidence. The trial

court denied the motions to suppress. It also denied Sidney McGlowan’s motion for

severance of the appellants.

       At the suppression hearing, the appellants testified that they were drinking beer

in their yard at Deerskin Road when the officers approached them. Both appellants

testified that Sidney had not been in the car that night. Donald said that he purchased

the televisions from a man down the street.

                                       ANALYSIS

         Appellants first contend that the trial court improperly denied the motion to

sever the proceedings. Appellant Sidney McGLowan contends that he was found

guilty by association because both appellants have the same last name and live in the

same house. However, he does not identify any prejudicial use of evidence during the

joint trial. Appellant Donald McGlowan argues that he was prejudiced by antagonistic



                                            3
defenses and was forced to defend himself against his co-defendant as well as the

State. The record does not reflect any such antagonistic defense or “finger pointing”

from his co-defendant. Donald further argues that during opening and closing

arguments, Sidney’s counsel stated that Donald was solely responsible for the crime.

However, these arguments do not appear in the record before us, which precludes our

review. Tenn. R. App. P. 24(g); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993)

(citations omitted).

       Tennessee Rules of Criminal Procedure 14(c)(2)(i) and (ii) provide that a trial

court shall grant a motion to sever if deemed appropriate to promote or achieve a fair

determination of the guilt or innocence of one or more of the defendants. The trial

court possesses substantial discretion to grant or deny a motion for severance and its

decision will not be reversed absent a showing of prejudice. State v. Hutchinson, 898

S.W.2d 161, 166 (Tenn. 1994). Moreover, “mere hostility between defendants,

attempts to cast the blame for the offense on each other, or other ‘finger pointing and

tattling will not, standing alone, justify the granting of [a] severance on the ground the

defendants’ respective defenses are antagonistic.’” State v. Mabry, 1992 Tenn. Crim.

App. LEXIS 535, C.C.A. No. 01C01-9112-CC-00369, Davidson County (Tenn. Crim.

App., Nashville, June 19, 1992), perm. to appeal denied (Tenn. 1992) (quoting United

States v. Arruda, 715 F.2d 671, 679 (1st Cir. 1983)). The record must show that the

appellants were clearly prejudiced to the point that the granting of severance became

a judicial duty. State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988).

Appellants have failed to demonstrate any prejudice resulting from the denial of the

motion for severance.

       We are of the opinion the trial court did not abuse its discretion in denying the

motion for a severance. This issue is without merit.

       In their second issue, appellants argue that the trial court erred in denying their

motions to suppress all evidence obtained as a result of an investigatory stop and



                                             4
search of the vehicle.2 Following a review of the record and applicable law, we

conclude that the trial court did not err in denying the motions to suppress.

         Initially, we note that appellant Sidney McGlowan does not have standing to

challenge the search and seizure of appellant Donald’s car. One who challenges the

reasonableness of a search or seizure has the burden of establishing a legitimate

expectation of privacy in the place or property searched. Rawlings v. Kentucky, 448

U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); State v. Roberge, 642 S.W.2d 716,

718 (Tenn. 1982). Appellant Sidney has failed to establish that he had a legitimate

expectation of privacy in appellant Donald’s car. Therefore, we conclude that

appellant Sidney has no standing to object to the search and seizure. His motion to

suppress was properly overruled.

         Appellant Donald first contends that the investigatory stop of his vehicle was an

unconstitutional seizure within the meaning of the Fourth Amendment. To make an

investigatory stop, an officer must, at minimum, have a reasonable suspicion, based

upon specific articulable facts, that a criminal offense has been or is about to be

committed. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889

(1968); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). To determine the

specific and articulable facts, the Court must consider the “totality of the

circumstances.” Watkins, 827 S.W.2d at 294 (citation omitted). This includes, but is

not limited to, objective observations, information obtained from other police officers,

and the rational inferences and deductions that a trained police officer may draw from

the facts and circumstances. Id.

         At approximately 2:30 a.m. to 2:50 a.m., Officers Boerner and McCluskey saw

the appellant’s car driving toward them on Deerskin Road. As the car approached the

officers, the driver turned the automobile’s head lights off and continued driving for an



         2
            Neith er pa rty has elect ed to argu e tha t the c ontra ban d in the fron t sea t of the car c am e with in
the “p lain vie w” do ctrine . W e also have elect ed to not a ddre ss th at do ctrine since the s earc h wa s clea rly
justified as being a s earch inc ident to a law ful arrest.

                                                           5
additional twenty yards before turning into a driveway of a house. Both appellants

exited the vehicle and walked toward the house at a quick pace. Because of the

suspicious nature of the appellants’ behavior, the officers pulled up to the house to

question the appellants. Considering the “totality of the circumstances,” we agree with

the trial court that the officers had a reasonable suspicion, supported by specific and

articulable facts, that the appellants were committing or about to commit a criminal

offense. Therefore, we find no merit in the appellant’s contention that he was

subjected to an unconstitutional stop.

       Appellant Donald next contends that the search of his automobile was an

unconstitutional search which violated his Fourth Amendment protection against

unreasonable searches and seizures and, as a result, the trial court should have

granted his motion to suppress the evidence obtained in the search. The analysis of

any warrantless search must begin with the proposition that such searches are

presumed unreasonable under the Fourth Amendment of the United States

Constitution and Article I, Section 7 of the Tennessee Constitution. This presumption

against the lawfulness of warrantless searches is subject only to a few specifically

established exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,

514, 19 L.Ed.2d 576 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App.

1980). Before the fruits of a warrantless search are admissible as evidence, the State

must establish by a preponderance of the evidence that the search falls into one of

those limited exceptions to the warrant requirement. State v. Shaw, 603 S.W.2d 741,

742 (Tenn. Crim. App. 1980).

       One such exception is a search incident to a lawful arrest. When an officer

makes a custodial arrest of a motor vehicle operator, the officer has full authority to

search the passenger compartment of the motor vehicle contemporaneously to the

arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768,

775 (1990); Watkins, 827 S.W.2d at 295-96. The “contemporaneous” requirement of

the search is not destroyed when a defendant is placed in a patrol car. United States

                                            6
v. White, 871 F.2d 41, 44 (6th Cir. 1989); Watkins, 827 S.W.2d at 296.

       A driver is required to have a valid operator’s license in his immediate

possession at all times. Tenn. Code Ann. §55-50-351 (1998). Failure to have

possession of a driver’s license is a Class C misdemeanor, and any law enforcement

officer is empowered to arrest any person found violating the statute. Id. Appellant

Donald does not dispute the fact that he did not have a driver’s license in his

possession when Officer Boerner requested him to produce it. Immediately after

Officer Boerner discovered that Donald had been driving without a license, he arrested

him, handcuffed him and placed him in the back of his patrol car. Thus, Donald had

been lawfully arrested prior to the search of the vehicle. After Officer Boerner made a

valid custodial arrest of the appellant, he had a right to search the passenger

compartment of the appellant’s vehicle. The stolen property discovered as a result of

this search was admissible.

       This court must next determine whether the search of the trunk of the vehicle

was valid. An automobile may be searched without a warrant if the officer has

probable cause to believe that the vehicle contains contraband and if exigent

circumstances require an immediate search. Carroll v. United States, 267 U.S. 132,

149, 155-56, 69 L.Ed.2d 543, 45 S.Ct. 280 (1925); State v. Leveye, 796 S.W.2d 948

(Tenn. 1990). If probable cause justifies the search of a lawfully stopped vehicle, it

justifies the search of every part of the vehicle, including the trunk area. United States

v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982). The discovery of the

televisions coupled with the dispatcher’s report regarding the recent burglary at

McDuff’s Electronics provided the officers with probable cause to believe that the

vehicle contained additional stolen property.

       The mobility of the vehicle itself supplied the requisite exigent circumstances to

conduct a warrantless search. Shaw, 603 S.W.2d at 744. There was a substantial

risk that the vehicle or the contraband would have been removed if the officers had left

the scene to procure a search warrant. Though it would have been impossible for

                                            7
Donald to move the vehicle or the contents of its trunk since he had been arrested, his

brother, Sidney, was in a position to remove the vehicle and its contents. Given these

facts, we conclude that the police officers acted reasonably under the circumstances

and the search of the trunk area of the car was supported by probable cause and

exigent circumstances. For the reasons given, the evidence does not preponderate

against the trial court’s denial of the appellant’s motion to suppress.

       In appellant Sidney McGlowan’s final issue, he contends that the evidence was

insufficient to support his conviction.3 Specifically, he argues that the fact he was a

passenger in a vehicle carrying recently stolen goods is not sufficient evidence to

support a conviction for burglary and theft of property.

       An appellant challenging the sufficiency of the evidence has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned

by the trier of fact. This Court will not disturb a verdict of guilt for lack of sufficient

evidence unless the facts contained in the record and any inferences which may be

drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to

find the appellant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). In our review, we must consider the evidence in the light most

favorable to the prosecution in determining whether “any rational trier of fact could

have found the essential elements beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-

evaluate the evidence and are required to afford the State the strongest legitimate

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

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978).

       Criminal conduct may be established exclusively by circumstantial evidence.

State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, the circumstantial



       3
           Appellant Donald McGlowan does not challenge the sufficiency of the evidence.

                                                   8
evidence “must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.”

State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). The trier of fact decides the

weight to be given to circumstantial evidence and to the inferences drawn from such

evidence, and the extent to which such circumstances are consistent with guilt and

inconsistent with innocence. See Marable v. State, 313 S.W.2d 451,457 (Tenn.

1958); State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985).

       One may be convicted for theft of property if the State proves that with the

intent to deprive the owner, the defendant knowingly obtained or exercised control

over property without the owner’s consent. See Tenn. Code Ann. §39-14-103 (1997).

To sustain a conviction for burglary, the State must prove beyond a reasonable doubt

that the accused entered a building with an intent to commit a felony, theft or assault

and committed or attempted to commit a felony, theft or assault. See Tenn. Code

Ann. §39-14-402 (1997). The State is not required to produce a witness who saw the

defendants break and enter the premises in order to convict them of burglary.

Ramsey v. State, 571 S.W.2d 822, 824 (Tenn. 1978). Unexplained possession of

recently stolen property is sufficient evidence to sustain a burglary conviction. Smart

v. State, 544 S.W.2d 109, 110-111 (Tenn. Crim. App. 1976).

       At trial, the evidence showed that at approximately 2:10 a.m., a burglary was

reported at McDuff Electronics. Seven mini-televisions and four camcorders were

stolen from the store. Sometime between 2:30 a.m. and 2:50 a.m., Officers Boerner

and McCluskey observed the appellants driving suspiciously down Deerskin Road.

When Officer McCluskey approached appellant Sidney McGlowan, he saw a plastic

bag containing seven televisions in the passenger seat of the vehicle. A later search

of the trunk produced four camcorders, all of which had McDuff Electronics price tags

attached to them. The appellants were in possession of the items stolen from McDuff

Electronics only twenty to forty minutes earlier.

       Although the appellants claim that they did not steal the goods, the jury was

                                            9
entitled to reject their theory in favor of the State’s theory. Questions concerning the

credibility of the witnesses, the weight and value to be given to the evidence, as well

as factual issues raised by the evidence are resolved by the trier of fact. Cabbage,

571 S.W.2d at 835. A guilty verdict rendered by the jury and approved by the trial

court accredits the testimony of the witnesses for the State, and a presumption of guilt

replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Accordingly, we conclude that sufficient evidence existed to sustain the

convictions.

       Having considered the entire record before us, we conclude that the trial court

committed no reversible error. Hence, we affirm the appellants’ convictions and

respective sentences.



                                          _________________________________
                                          WILLIAM M. BARKER, SPECIAL JUDGE

CONCUR:


_______________________
DAVID G. HAYES, JUDGE



_______________________
JOE G. RILEY, JUDGE




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