            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                MAY 1997 SESSION



STATE OF TENNESSEE,               *      C.C.A. # 02C01-9612-CC-00444

      Appellee,                   *      HENDERSON COUNTY

VS.                               *      Hon. Whit Lafon, Judge

DAVID DAVENPORT,                  *      (Theft Over $10,000)

      Appellant.                  *                               FILED
For Appellant:                           For Appellee:

Gregory D. Smith, Attorney               John Knox Walkup
One Public Square, Ste. 321                                     August 14, 1997
                                         Attorney General & Reporter
Clarksville, TN 37040
(on appeal)                              Kenneth W. Rucker
                                         Assistant Attorney General
Jeff Mueller                                                    Cecil Crowson, Jr.
                                         450 James Robertson Parkway
Assistant Public Defender                Nashville, TN 37243-0493
                                                                  Appellate C ourt Clerk
227 West Baltimore
Jackson, TN 38301                        James W. Thompson
(at trial and co-counsel on appeal)      Asst. District Attorney General
                                         Lowell Thomas State Office Building
                                         Jackson, TN 38301




OPINION FILED:_____________________




AFFIRMED AND REMANDED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, David Davenport, was convicted of automobile

burglary and theft of property valued over $10,000. See Tenn. Code Ann. §§ 39-14-

402(a)(4) (Class E felony), 39-14-101 and -105(4) (Class C felony). The trial court

merged the convictions into a single count of theft over $10,000 and imposed a

Range I sentence of three years.



              In this appeal of right, the defendant challenges the sufficiency of the

evidence and complains that the sentence was improper. We affirm the sentence

and conviction but remand for the trial court to modify the judgment form to provide

the correct statutory reference.



              Sometime between 11:30 P.M. on December 8, 1994, and 10:00 A.M.

on the following morning, a Chevrolet Silverado pickup truck owned by Gregory

McComick was stolen from the parking lot of his place of employment. Four months

earlier, the victim had acquired the vehicle for $26,000.00. McComick, who had

driven the vehicle only 600 miles before the theft, estimated the value of the truck to

be $23,000.00.



              At about midnight, James Alexander, a co-worker of the victim at the

Columbus-McKinnon factory in Lexington, observed a stolen vehicle being driven

out of the parking lot. Tonya Atkinson had seen the defendant and his girlfriend,

Lisa Colson, and Braxton Hicks in a silver Monte Carlo on the evening before the

theft. Alexander had seen a silver Monte Carlo parked on a street near the

Columbus-McKinnon parking lot when the victim's truck was stolen. The Monte

Carlo was driven away once the stolen vehicle passed by. About three hours later,

Ms. Colson asked Ms. Atkinson and her fiancé "to take her to Parker's Crossroads


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to see if David had got away okay." Three days later, Linda Allen, the mother of Ms.

Colson, received a telephone call from the defendant. The defendant asked her if

she had heard anything and then admitted stealing a truck from a factory parking lot

in Lexington.



                A jury verdict, approved by the trial judge, accredits the testimony of

the witnesses for the state and resolves all conflicts in favor of the theory of the

state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is

entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which might be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be

given their testimony, and the reconciliation of conflicts in the evidence are matters

entrusted exclusively to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292,

295 (Tenn. Crim. App. 1978). This court may not re-evaluate the evidence or

substitute its inferences for those drawn by the trier of fact from the evidence.

Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). A conviction may only be set aside when the

reviewing court finds that the "evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13 (e).



                A person commits a theft of property if, with intent to deprive the owner

thereof, he knowingly obtains or exercises control over the property without the

owner's consent. Tenn. Code Ann. § 39-14-103. If the value is in excess of

$10,000 but less than $60,000, the theft is a Class C felony. Tenn. Code Ann. § 39-

14-105(4).



                Here, the circumstances clearly linked the defendant to the crime. His


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girlfriend, Ms. Colson, asked Ms. Atkinson to "see if David had got away." Later, the

defendant admitted to Ms. Colson's mother that he "stole a truck off a parking lot at

a factory there in Lexington." The value of the stolen vehicle was established by the

victim. In our view, this evidence demonstrates that a rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.



              Next, the defendant concedes that a Range I, three-year sentence for

the Class C felony is the minimum possible. He points out that if the trial court had

not merged the convictions, a three-year sentence would exceed the statutory

maximum for vehicular burglary, a Class E felony. Tenn. Code Ann. § 39-14-

402(a)(4). Counsel for the defendant notes that the judgment form mistakenly refers

to Tenn. Code Ann. § 39-14-402, the vehicular burglary statute, for the conviction of

theft over $10,000.00.



              The record demonstrates that the defendant was not sentenced at all

on the vehicular burglary conviction; thus, the point raised by the defendant is moot.

See State v. Baby John Doe, 813 S.W.2d 150, 152 (Tenn. Crim. App. 1991). The

state concedes that the judgment form requires correction. Thus, the conviction and

sentence are affirmed and the case is remanded for the trial court to correct the

judgment form to provide for theft of property over $10,000, Tenn. Code Ann. § 39-

14-103. See Tenn. R. Crim. P. 36 (providing for correction of clerical mistakes on

judgment forms).



                                   __________________________________
                                   Gary R. Wade, Judge




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CONCUR:



______________________________
John H. Peay, Judge



_______________________________
Thomas T. Woodall, Judge




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