State of Tennessee v. La Southaphanh

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY SESSION, 2000 March 9, 2000
Cecil Crowson, Jr.
STATE OF TENNESSEE, * Appellate Court Clerk
* No. M1999-00302-CCA-R3-CD
Appellee, *
* RUTHERFORD COUNTY
vs. *
* Hon. James K. Clayton, Judge
LA SOUTHAPHANH, *
* (Aggravated burglary and theft
Appellant. * over $1000)
For the Appellant: For the Appellee:
Gerald L. Melton Paul G. Summers
Public Defender Attorney General and Reporter
Russell N. (Rusty) Perkins Marvin E. Clements, Jr.
Asst. Public Defender Assistant Attorney General
201 West Main Street, Suite 101 Criminal Justice Division
Murfreesboro, TN 37130 425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William Whitesell
District Attorney General
John W. Price
Assistant District Attorney General
Rutherford County Judicial Building
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, La Southaphanh, appeals his jury convictions for aggravated
burglary and theft over $1,000. The trial court imposed, as a Range II offender, a
nine year sentence for aggravated burglary and a concurrent seven year sentence
for theft. On appeal, the appellant’s sole challenge is the sufficiency of the
convicting evidence.
Following review, we affirm.
BACKGROUND
Around 4:30 p.m. on March 28, 1996, Richard Dimmock, a neighbor of
James and Lois Hale, observed two young males running from the Hales’ residence
on Shelley Street in Murfreesboro. Simultaneously, a “dark car” pulled into the
driveway driven by another male and picked up the two males. At 5:30 p.m., the
Hales returned to their home and found that it had been burglarized. Upon
searching their residence, the Hales discovered numerous items missing including a
VCR; a telephone/answering machine; two jewelry boxes, including a one carat
emerald cut tanzanite stone and numerous items of other jewelry; a .32 Harington
Richardson revolver; and various knives. The estimated value of all the items taken
was over $4,000.
On that same afternoon around 4:50 p.m., Jonathan Lundquist, manager and
part-owner of Toliver’s Jewelry and Loan, made a loan on several items of jewelry to
three Asian males. Mr. Lundquist only loaned money on a few items but he
observed that the individuals were in possession of numerous other items of jewelry.
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The items listed on the “pawn ticket” included a men’s onyx ring, seven broken
chains, miscellaneous earrings, a diamond and white gold cross pendant, white gold
diamond earrings, and six charms. The identification and signature provided on the
“pawn ticket” was that of the appellant’s co-defendant Vilaisack Xayaphoumy.
Lundquist particularly noticed the tanzanite stone in the possession of the three
men; however, this item was not included in the loan.
A few days later, two of the Asian males returned to the pawn shop. Mr.
Lundquist again noticed the tanzanite stone. He recognized the stone because, by
coincidence, the Hales had previously brought the stone into the store for setting
into a necklace. On this occasion, Mr. Lundquist recorded a description of the
vehicle, a white Honda Accord, and took down the license plate number. He then
relayed this information to the police.
Through their investigation, the police developed the appellant as a suspect.
When the police found the appellant on April 4, he was with a group of people in a
white Honda Accord. Officer Tommy Alford of the Murfreesboro Police Department
read the appellant his rights and informed him that he was a suspect in the burglary.
The appellant waived his Miranda rights and confessed to the burglary.
At trial, James and Lois Hale identified the numerous items of jewelry and
other items taken from their home which were recovered by the police. Mr.
Lundquist identified the appellant as one of the males who entered the pawn shop;
he also identified the appellant’s co-defendant Xayaphoumy as the individual who
provided identification for the loan and signed the receipt. Mr. Lundquist further
identified the tanzanite stone as the one seen in the appellant’s possession while in
the pawn shop. He provided that the stone was readily identifiable from its case,
based upon the rarity of tanzanite and the unusual emerald cut and style of the
stone.
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Vilaisack Xayaphoumy, the co-defendant, testified for the State and admitted
his involvement in the burglary of the Hale’s residence. He stated that he drove the
getaway car, a black, four-door Oldsmobile Cutlass Ciera. He explained that on the
day of the burglary, he went to the appellant’s apartment with plans to go to
Nashville. The appellant, Xayaphoumy, and another individual referred to as Junior,
drove into the Hale’s neighborhood. The appellant told them that he wanted to see
a friend who lived there. However, Xayaphoumy realized that the appellant was
planning a burglary. Xayaphoumy dropped the appellant and Junior off at the
residence and returned several minutes later to pick them up. He testified that they
decided to pawn the items they had stolen and identified some of those items at
trial. He further provided that they separated the items from the burglary and
divided the proceeds. He admitted to signing the pawn ticket and receiving $150
for the pawned items. Xayaphoumy explained that he used his identification to
pawn the items because the appellant did not have a driver’s license.
At trial, the appellant denied any involvement in the burglary of the Hales’
residence or entering the pawn shop. However, he admitted to receiving money and
some of the items brought to him by other individuals. The appellant conceded that
he got into the car with Junior and Xayaphoumy; however, he testified they dropped
him off in Nashville. Although he admitted confessing to the crime, the appellant
testified that he was under the impression that if he admitted the crime, he would be
free to leave; otherwise, he felt the officer would “lock him up.” The appellant
admitted that he owned a white Honda Accord; however, he testified that he has not
had it since February of 1996. He also admitted that he had lost his driver’s license
in May of 1996. At the conclusion of the evidence, the jury returned guilty verdicts
for aggravated burglary and theft over $1,000.
SUFFICIENCY OF THE EVIDENCE
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The appellant argues that the evidence is insufficient to support his
convictions for aggravated burglary and theft over $1,000. Specifically, the
appellant argues that the convictions cannot be sustained because of the: (1)
uncorroborated testimony of an accomplice; (2) lack of physical evidence connecting
the appellant to the crime; (3) lack of direct testimony connecting the appellant with
Xayaphoumy; (4) testimony of Mr. Lundquist was insufficient because the appellant
did not pawn any of the items; and (5) lack of proof that the appellant knew the
items were stolen.
The relevant question upon a sufficiency review of a criminal conviction, be it
in the trial court or an appellate 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, 99 S. Ct. 2781, 2789 (1979). See also Tenn. R. App. P. 13(e);
Tenn. R. Crim. P. 29(a). 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). In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This rule is applicable to
findings of guilt based predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990)
It is well established in this State that a felony conviction may not be based
solely upon the uncorroborated testimony of an accomplice. State v. Maddox, 957
S.W.2d 547, 554 (Tenn. Crim. App.1997) (citations omitted). To be sufficient the
corroborative evidence must itself be inculpatory in nature, i.e, the corroborative
evidence must be inconsistent with the innocence of the accused and do more than
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raise a mere suspicion of guilt. However, the corroboration need not be conclusive.
State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995) (citations omitted).
The corroboration is sufficient "if this evidence, of itself, tends to connect the
defendant with the commission of the offense, although the evidence be slight and
entitled, when standing alone, to little consideration." Id. (citations omitted). It is
clear from the proof in this case that the appellant’s convictions did not rest solely
upon the testimony of the accomplice: The pawn shop owner placed the appellant
in possession of several items of jewelry and identified him as one of the individuals
in the pawn shop around thirty minutes after the burglary and, more importantly, the
appellant confessed to the crimes. We find this corroborating evidence substantial.
Our focus in a sufficiency review is not upon the facts suggesting innocence or upon
the weight of the evidence, but rather whether there is a substantive probative
evidence to support the verdict. We conclude that the record contains evidence
from which a jury could have found the essential elements of the crimes beyond a
reasonable doubt.
For the foregoing reasons, the appellant’s judgments of conviction for
aggravated burglary and Class D theft are affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________________
JERRY L. SMITH, Judge
_______________________________________
NORMA MCGEE OGLE, Judge
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