State v. Richmond

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1999 SESSION
FILED
April 13, 1999

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9806-CR-00198
)
) Shelby County
v. )
) Honorable Joseph B. Dailey, Judge
)
JAMELL RICHMOND, ) (Aggravated Burglary)
)
Appellant. )

For the Appellant: For the Appellee:

James V. Ball Paul G. Summers
217 Exchange Avenue Attorney General of Tennessee
Memphis, TN 38103 and
(AT TRIAL) Patricia C. Kussmann
Assistant Attorney General of Tennessee
A. C. Warton, Jr. 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
and
Walker Gwinn William L. Gibbons
Assistant Public Defender District Attorney General
201 Poplar Avenue and
Memphis, TN 38103 David Henry
(ON APPEAL) Assistant District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
OPINION

The defendant, Jamell Richmond, appeals as of right from his conviction

by a jury in the Shelby County Criminal Court for aggravated burglary, a Class C felony.

He was sentenced as a Range II, multiple offender to ten years in the custody of the

Department of Correction. The defendant contends that there was insufficient evidence

to convict. We affirm the trial court.

The evidence showed that the victim, Henry Earl James, arrived at his

apartment at 4:50 p.m. on December 6, 1995, and found his front door open. He left,

called the authorities, and returned with two Shelby County Sheriff’s officers. Upon

entering his apartment, the victim found his stereo system, two television sets and

some other items piled by the front door.

One officer observed marks reflecting that the front door had been pried

open. A detective arrived and tested the various items in the pile for fingerprints. The

only latent fingerprint came from a glass candy jar that was on one of the television

sets.

A fingerprint expert testified that the latent print came from the

defendant’s left middle finger. He testified that he requires eight matching points of

comparison in order to form an opinion and that he had fifteen matching points with the

latent fingerprint and the defendant’s known fingerprint. The victim testified that he

neither knew the defendant nor gave him permission to be in the apartment. Based

upon this evidence, the jury convicted the defendant of aggravated burglary.

The defendant contends that the fingerprint evidence was insufficient to

prove circumstantially beyond a reasonable doubt that he committed the burglary. It is

2
well established that circumstantial evidence alone may be sufficient to support a

conviction. State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). However,

the circumstantial evidence “‘must be not only consistent with the guilt of the accused

but it must also be inconsistent with his [or her] innocence and must exclude every

other reasonable theory or hypothesis except that of guilt.’” State v. Tharpe, 726

S.W.2d 896, 900 (Tenn. 1987) (quoting Pruitt v. State, 3 Tenn. Crim. App. 256, 267,

460 S.W.2d 385, 390 (1970)). In this way, “‘it must establish such a certainty of guilt of

the accused as to convince the mind beyond a reasonable doubt that [the defendant] is

the one who committed the crime.’” Id. at 896 (quoting Pruitt, 3 Tenn. Crim. App. at

267, 460 S.W.2d at 390). While following these guidelines, we must note that the jury

decides the weight to be given to circumstantial evidence and that “[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, 203 Tenn. 440, 452, 313 S.W .2d 451, 457 (1958).

The defendant does not contest the fact that the evidence proved that an

aggravated burglary occurred. Rather, he indicates that the fingerprint could have been

placed upon the candy jar innocently. In support, he advances Borum v. United States,

380 F.2d 595 (D.C. Cir. 1967)1, in which the court, in a split opinion, concluded that

matching fingerprints were insufficient evidence in a burglary case when no evidence

existed that the objects in question were generally inaccessible to the defendant.

First, we question whether the evidence disclosed in the Borum case was

insufficient to prove that the defendant broke into the home. In any event, we believe

that the evidence in the present case shows sufficient inaccessibility. Unquestionably,

a burglary occurred. The victim did not know the defendant and had never given him

access to the apartment. Aside from idle speculation, nothing indicates an innocent

1
The citation provided by the defendant for Borum was incorrect as to both volume and
date. We assume that the Borum case found by us is the one upon which the defendant relies.

3
reason for the defendant’s fingerprint to be on the candy jar. In State v. Evans, this

court was faced with similar circumstantial evidence and stated the following:

The locked filing cabinet was broken into and property was
stolen from a microfilm box that prior to the burglary was in the
filing cabinet. The defendant’s fingerprint was found on the
microfilm box. Fingerprint evidence alone may support a
conviction and the weight to be given to such evidence is for
the jury’s determination. Further, we point out that the record
contains no evidence that could reasonably be said to show
that the defendant’s fingerprint could have gotten on the
microfilm box in some innocent manner.

669 S.W.2d 708, 710 (Tenn. Crim. App. 1984) (citations omitted). We hold that the

evidence was sufficient to convict the defendant for the aggravated burglary.

In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.

_________________________
Joseph M. Tipton, Judge

CONCUR:

__________________________
David G. Hayes, Judge

__________________________
L. Terry Lafferty, Special Judge