State of Tennessee v. Johnny Akins ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
July 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9711-CR-00451
Appellee, )
) Shelby County
V. )
) Honorable Joseph P. Dailey, Judge
)
JOHNNY AKINS, ) (Aggravated Burglary)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
A C Wharton, Jr. John Knox Walkup
Shelby County Public Defender Attorney General & Reporter
Walker Gwinn Janis L. Turner
Assistant Public Defender Counsel for the State
201 Poplar Avenue, Suite 201 Criminal Justice Division
Memphis, TN 38103 Cordell Hull Bldg., Second Floor
(On Appeal) Nashville, TN 37243-0493
Dianne Thackery William L. Gibbons
Assistant Public Defender District Attorney General
201 Poplar Avenue, Suite 201
Memphis, TN 38103 Jerry Harris
(At Trial) James M. Lammey
Assistant District Attorneys General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Johnny Akins was found guilty by a jury of aggravated burglary. He was
sentenced to fifteen years in Tennessee Department of Correction. The trial
court denied his motion for a new trial. He appeals. The sole issue is whether
the evidence is sufficient to support his conviction. We affirm the judgment of
conviction.
At approximately 12 noon on June 17, 1996, Malcolm Bruni left his home
to go to lunch. At approximately 12:25, while on his way home, Bruni noticed a
man riding a bicycle and carrying a “boom box.” Bruni testified that the man
appeared too big for the bicycle and that the sight was “weird.” When he arrived
home, Bruni discovered that someone had broken into his house. His bicycle
and boom box were missing. Bruni called 911 and reported the burglary and the
man on the bike. Officer Sharon Kelly of the Memphis Police Department and
two other officers spotted the appellant near Bruni’s home. When they stopped
the appellant, he said that he had bought the bicycle. Bruni identified the
appellant as the man riding the bike. Bruni identified the bike, boom box, credit
cards, and a glove as his property. Bruni testified that between five and ten
minutes elapsed between when he saw the man on the bike and when he was
called to identify the appellant and his property. Bruni was approximately 100
yards from his house when he first saw the appellant on the bike. The appellant
chose not to testify at trial.
The appellant challenges the sufficiency of the evidence. In a sufficiency
of the evidence challenge, the relevant question on appellate review 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 or
crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
T.R.A.P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985).
-2-
In Tennessee, great weight is given to the result reached by the jury in a
criminal trial. A jury verdict accredits the testimony of the state's witnesses and
resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405(Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence
enjoyed at trial with the presumption of guilt on appeal. State v. Grace, 493
S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming the
presumption of guilt. Id. On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
A person commits burglary who, without the consent of the property
owner, enters a building, other than a habitation, not open to the public, with the
intent of committing a felony, theft or assault. Tenn. Code Ann. § 39-14-
402(a)(1) (Supp. 1996). Aggravated burglary is the burglary of a habitation.
Tenn. Code Ann. § 39-14-403(a) (1991). A habitation is any structure adapted
for the overnight accommodation of persons. Tenn. Code Ann. § 39-14-
401(1)(A) (1991).
The appellant argues that the circumstantial evidence is insufficient to
allow a jury to exclude every reasonable theory other than the appellant’s guilt to
explain the aggravated burglary. He contends that no one saw him break into
the victim’s house, no one saw him in the victim’s house, and that no one saw
him leave the house.
The State may prove a criminal offense by circumstantial evidence. State
v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before a jury may convict a
defendant 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, and that beyond a
reasonable doubt." State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). As in
-3-
the case of direct evidence, the weight to be given circumstantial evidence and
“[t]he 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 jury." Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958) (citation omitted).
The state contends that the evidence is sufficient to support the
conviction. We agree. Most burglaries are not witnessed. The appellant was
caught “red handed” with property that had been stolen from Bruni’s home.
Bruni testified that his window was broken so as to allow entry into his home.
Bruni saw the appellant approximately 100 yards from his house minutes after
the burglary occurred. Bruni identified the appellant and his property within an
hour of when the burglary could have occurred. Although the appellant told the
police that he had bought the bike, he offered no details to support this theory.
Finally, in addition to the bike and boom box, the appellant was in possession of
Bruni’s credit cards.
The judgment of the trial court is affirmed.
-4-
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
DAVID H. WELLES, Judge
____________________________
JOE G. RILEY, Judge
-5-