State v. Epps

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER SESSION, 1998

FILED
STATE OF TENNESSEE, ) October 20, 1998
) No. 02C01-9712-CC-00487
Appellee ) Cecil Crowson, Jr.
) FAYETTE COUNTY Appellate C ourt Clerk
vs. )
) Hon. Jon Kerry Blackwood, Judge
PAUL EDWARD EPPS, )
) (Aggravated Burglary; Theft of Property
Appellant ) over $1000; Attempted Theft of Property
over $1000)

For the Appellant: For the Appellee:

Shana C. McCoy-Johnson John Knox Walkup
Senior Asst. Public Defender Attorney General and Reporter
Post Office Box 700
Somerville, TN 38068-0700 Elizabeth T. Ryan
Assistant Attorney General
Gary F. Antrican Criminal Justice Division
District Public Defender 425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

Elizabeth T. Rice
District Attorney General
302 Market Street
Somerville, TN 38068

OPINION FILED:

AFFIRMED IN PART; REVERSED AND VACATED IN PART

David G. Hayes
Judge
 OPINION

The appellant, Paul Edward Epps, appeals the verdict of a Fayette County

jury finding him guilty of one count of aggravated burglary, one count of theft of

property over $1000, and attempted theft of property over $1000.1 For these

crimes, the appellant was sentenced, as a range II offender, to seven years for

aggravated burglary, four years for theft over $1000, and three years for attempted

theft. These sentences were ordered to be served concurrently with each other but

consecutive to a prior outstanding sentence. The appellant’s sole issue on appeal is

whether the evidence presented at trial is sufficient to support his convictions on

these charges.

After a review of the record, the judgment for attempted theft is vacated and

dismissed. The judgments of conviction for aggravated burglary and theft of

property over $1000 are affirmed.

Background

On February 20, 1997, shortly before 1:00 p.m., Elizabeth Franklin,

accompanied by her son, left her residence located at 1530 Franklin Road in

Moscow. The two, after grocery shopping, returned to the house at 3:00 p.m. Upon

entering the kitchen, Mrs. Franklin noticed that there was a chair sitting by the

refrigerator, there were three pistol cartridges lying on the floor, and several empty

drink cans were scattered over the floor. Fearing that she had been burglarized,

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The indictment charged the appellant and his co-defendant with three counts of
aggravated burglary, one count of theft of property over $1000, one count of theft of property over
$500 a nd one count of attem pted thef t of prope rty over $10 00. The appellant’s co-defe ndant,
Micha el E. Craig , pled guilty to all of the indicted off enses prior to the a ppellant’s trial.

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Mrs. Franklin proceeded to her bedroom where she discovered that her .38 pistol

was missing from her dresser drawer. Further investigation revealed that the

perpetrator(s) had also taken a .20 gauge shotgun, a .38 long barrel pistol, and a

Winchester rifle. There was evidence that the burglars had also attempted to steal

Mrs. Franklin’s 1972 Ford automobile, which “was in good running condition.” The

automobile was parked “under the shed” on the Franklin premises. Mrs. Franklin

and her son discovered that the perpetrators had entered the residence by breaking

a window and pulling the screen up. The burglars apparently pushed the screen

back down when they left to conceal their entry.

That same day, between 2:30 and 3:00 p.m., Percy Henderson, a neighbor,

saw two men walking up the road “a little piece from [Mrs. Franklin’s] house.” He

identified the two men as the appellant and his co-defendant, Michael Craig. The

two men asked Mr. Henderson for a ride to Will Smith’s home. En route, the men

asked Mr. Henderson if he was interested in a “new .38.” Mr. Henderson declined

their offer. At trial, he testified that he did not see any weapons on either the

appellant or Craig.

As a result of their investigation, the Fayette County Sheriff’s Department

discovered an abandoned house where the appellant and Craig were living.

Although the two suspects attempted to elude the police, authorities eventually

apprehended both men. On February 24, 1997, Investigator Don Pugh questioned

co-defendant Craig about various burglaries in the area. After waiving his rights,

Michael Craig provided a statement accepting responsibility for the burglary and

theft committed at Mrs. Franklin’s residence. In so doing, Craig implicated the

appellant as his accomplice in the crimes. 2 At trial, however, Craig could not recall

involving the appellant in the crimes in his statement to authorities. Rather, he

2
The trial court instructed the jury that Craig’s prior inconsistent statement could not be
conside red as s ubstan tive evidenc e. See State v. Reece, 637 S.W .2d 858, 8 61 (Te nn. 1982 );
See also Tenn. R. Evid. 613.

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stated that he alone committed the crimes. Indeed, although Craig stated that he

and the appellant were lifelong friends and cousins, he testified that “me and Paul

never did nothing together.” He explained the inconsistency between his trial

testimony and his statement to Investigator Pugh by stating that he was under the

influence of drugs at the time of the statement and he would have said anything to

get out of jail.

Investigator Pugh rebutted the testimony of Michael Craig by stating that, at

the time of Craig’s statement, Craig did not appear under the influence of any drug

or other intoxicant. He further stated that two distinctive sets of footprints had been

found at the Franklin residence. One set of tracks was identified as belonging to

Michael Craig.

Based upon this evidence, the jury returned guilty verdicts as to one count of

aggravated burglary, one count of theft of property over $1000, and one count of

attempted theft of property over $1000.3

Analysis

Although the appellant does not dispute the fact that the State’s proof

established the elements of aggravated burglary, theft, and attempted theft, he

argues that the proof fails to establish his involvement as the perpetrator of these

crimes. See Tenn. Code Ann. 39-14-401, -402, -403 (1997); Tenn. Code Ann. §

39-14-103, -105(3) (1997); Tenn. Code Ann. § 39-12-101 (1997). Specifically, he

argues that no evidence was presented, other than his presence in the area of the

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Evide nce was also in trodu ced at trial e stab lishing that c o-de fend ant C raig p articip ated in
two other related burglaries of the homes of Ben Wilson and Larry Carpenter. However, the trial
court granted the appellant’s motion for judgment of acquittal, finding that there was no
corrob oration of C raig’s later rec anted s tatem ent imp licating the ap pellant in thes e offens es.
Accordingly, the trial court dismissed two c ounts of aggravated burglary and one co unt of theft
over $500.

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crimes, to show that he entered the home of Mrs. Franklin or stole or attempted to

take items belonging to her.

Initially, a defendant is cloaked with the presumption of innocence. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). However, a jury conviction removes

this presumption of innocence and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. Id. 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). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn therefrom.

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to

affirm the conviction if the evidence viewed under these standards was sufficient for

any rational trier of fact to have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt 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). Before an

accused may be convicted of a criminal offense based only upon circumstantial

evidence, the facts and circumstances "must be so strong and cogent as to exclude

every other reasonable hypothesis save the guilt of the defendant." State v.

Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (Tenn.1971).

In sum, the proof before the jury implicating the appellant consisted of:

(1) The offenses occurred between 1:00 p.m. and 3:00 p.m;
(2) Although Michael Craig stated at trial that he acted alone,
Investigator Pugh discovered two distinctive sets of footprints at the
Franklin residence, revealing that more than one person participated in
the commission of the offenses;
(3) Between 2:30 and 3:00 p.m., Percy Henderson picked up both the
appellant and Michael Craig a short distance from Mrs. Franklin’s
home; and

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 (4) Henderson stated that the two men asked him if he was interested
in a “new .38,” the same type weapon stolen from the Franklin
residence.

Based upon this proof, we find the evidence sufficient from which a rational trier of

fact could have found the appellant’s guilt beyond a reasonable doubt as to the

offenses of theft of property and aggravated burglary. Tenn. R. App. P. 13. This

issue is without merit.

However, after further review of the facts of this case, we conclude that the

appellant’s conviction and accompanying sentence for attempted theft must be

reversed and vacated. Although not raised in the trial court, we find, as plain error,

that the appellant’s convictions for both theft and attempted theft violate principles of

double jeopardy. See Tenn. R. Crim. P. 52(b); State v. Ogle, 666 S.W.2d 58, 60

(Tenn. 1984). Specifically, the proof established that the offenses of theft and

attempted theft arose from a single criminal episode, involved the property of one

victim, and both occurred at the same location.

The issue of multiple punishments arising from a single criminal episode was

addressed by our supreme court in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996).

To determine whether offenses are multiplicitous, several general principals must be

considered:

1. A single offense may not be divided into separate parts; generally,
a single wrongful act may not furnish the basis for more than one
criminal prosecution;

2. If each offense charged requires proof of a fact not required in
proving the other, the offenses are not multiplicitous; and

3. Where time and location separate and distinguish the commission
of the offenses, the offenses cannot be said to have arisen out of a
single wrongful act.

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Id. at 665. Additional factors such as the nature of the act; the time elapsed

between the alleged conduct; the intent of the accused, i.e., was a new intent

formed; and cumulative punishment may be considered for guidance in determining

whether the multiple convictions violate double jeopardy. Id.

Again, the conduct at issue involves the theft of property and attempted theft

of property from the premises of Elizabeth Franklin. There is no dispute that the

four weapons taken from inside the home and the automobile, parked under the

shed, were the property of Elizabeth Franklin. Where several articles are stolen

from the same owner at the same time and place, only a single crime is committed.

See 52A C.J.S. Larceny § 53 (1968); see also Nelson v. State, 344 S.W.2d 540,

542 (Tenn. 1960);People v. Timmons, 599 N.E.2d 162, 165 (Ill. App. 2 Dist. 1992);

Holt v. State, 383 N.E.2d 467, 472 (Ind. App. 1978). Cf. State v. Byrd, 968 S.W.2d

290 (Tenn. 1998) (holding that theft offenses may be aggregated into one single

charge when the separate larcenous acts are from the same location, and pursuant

to a continuing criminal impulse); State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997)

(holding that act of setting apartment building on fire was single action and double

jeopardy prohibits separate convictions for each apartment destroyed). Whether the

acts of the defendant constitute several thefts or one single crime must be

determined by the facts and circumstances of each case. Id. If each taking is the

result of a separate intent, each is a separate crime; however, where the takings are

all pursuant to a single intent, there is but a single larceny. Id. See also Phillips,

924 S.W.2d at 665. It is of no consequence whether the taking is completed, or,

but, a mere attempt. See Dellenbach v. State, 508 N.E.2d 1309, 1314 (Ind. App. 3

Div. 1987). Cf. AMERICAN LAW INSTITUTE, MODEL PENAL CODE § 223.1(2)(c) &

Comment (1980).

Applying these principles to the case sub judice, we cannot conclude that the

appellant’s actions were independently motivated. Rather, the theft and the

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attempted theft arose from a single intent to steal, were contiguous in time and

place, and involved the same victim. Accordingly, only one offense was committed

and only one conviction may stand. We acknowledge, however, that had the State

charged and the jury convicted the appellant of the burglary of Mrs. Franklin’s

automobile, Tenn. Code Ann. § 39-14-402(a)(4) (1996 Supp.), double jeopardy

would not have barred such a conviction.

The judgment and sentence upon the charge of attempted theft is, therefore,

vacated and dismissed. This cause is remanded to the trial court solely for the

purpose of permitting the court to amend its minutes and accompanying judgments

of conviction to reflect the same. In all other respects, the judgment of the trial

court is affirmed.

____________________________________
DAVID G. HAYES, Judge

CONCUR:

_________________________________
JOHN H. PEAY, Judge

_________________________________
L. T. LAFFERTY, Special Judge

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