                                                                                           02/19/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2020

            STATE OF TENNESSEE V. TIMOTHY T. MILLICAN

                    Appeal from the Circuit Court for Giles County
                      No. CR-14086       Robert L. Jones, Judge
                      ___________________________________

                           No. M2019-00121-CCA-R3-CD
                       ___________________________________


A Giles County jury convicted Timothy T. Millican, Defendant, of one count of theft of
property with a value of at least $10,000 but less than $60,000. The trial court sentenced
Defendant as a Range I standard offender to four years at thirty percent release eligibility,
which the trial court suspended to five years’ supervised probation following the service
of a year in jail. On appeal, Defendant asserts that the evidence was insufficient to
sustain his conviction. After a thorough review of the record and applicable case law, we
affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Mattea L. Rolin, Elkton, Tennessee, for the appellant, Timothy T. Millican.

Herbert H. Slatery III, Attorney General and Reporter; Scott M. Corley, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Victoria Haywood,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                              Facts and Procedural History

       Josh Bass, an investigator with the Giles County Sheriff’s Department, testified
that he was involved with an investigation involving Defendant. Investigator Bass
received a “Be on the Lookout” notification regarding a stolen 2006 Jeep from Lawrence
County. His initial investigation revealed a Facebook post of a person resembling
Defendant standing next to the stolen Jeep and loading it with groceries. Based on his
prior dealings with Defendant, Investigator Bass recognized him in the photograph. A
few days later, on September 26, 2017, he received additional information from a
criminal informant and went to Defendant’s home in Giles County.

        When Investigator Bass and his lieutenant arrived at Defendant’s home, Defendant
was exiting the driver’s side of the Jeep. After being permitted to look at the vehicle
identification number, Investigator Bass determined it matched the stolen Jeep from
Lawrence County. The Jeep’s Hardin County license plate did not match the vehicle
registration of the Jeep. Investigator Bass asked Defendant how the vehicle came into his
possession. Defendant told Investigator Bass that “a black gentleman from Elkton had
dropped it off” to “be worked on” but that he did not know this man’s name, where he
lived, or any way to get in contact with him. Defendant told Investigator Bass that the
man who dropped off the Jeep did not specify any mechanical issues and that the man
would “come back at an undisclosed time and pick it up.” Investigator Bass confiscated
the Jeep, removed a cooler and a shirt from it, and returned the personal items to
Defendant. As Investigator Bass drove it away, he noted that the vehicle “started fine”
and “was operable.” He said the Jeep was not making any noises, “jerking,” or doing
anything unusual.

       On several later occasions, Investigator Bass contacted Defendant to ask who
dropped off the Jeep at his home. Each time, Defendant would state that he did not know
yet. Eventually, Defendant refused to speak further to Investigator Bass, so Investigator
Bass issued a warrant for his arrest for theft. Defendant never provided a name for the
gentleman he claimed dropped the Jeep at his home.

       On cross-examination, Investigator Bass stated that the person loading groceries
into the Jeep in the photograph from the Facebook post was facing away from the
camera.

       Noah Clint Roberson testified that, in 2017, he purchased a 2006 Jeep for $11,000.
Mr. Roberson said that, on September 21, 2017, he went inside a gas station to purchase a
drink. When he returned, his Jeep was missing, and he reported it stolen to the Lawrence
County Sheriff’s Department. Mr. Roberson stated there was nothing wrong with the
Jeep when it was stolen. Mr. Roberson said that he did not give Defendant consent to
take and use his vehicle and that he did not even know Defendant.

       Ralph Millican testified that he was Defendant’s father and that he saw Defendant
driving the 2006 Jeep. Mr. Millican told Defendant to take the Jeep “back where [he] got
it” and asked Defendant what he was doing with the Jeep. Defendant responded that he
was “going to work on it” and that he needed to get a part for it. Mr. Millican stated that
                                           -2-
he went to Defendant’s home “up on the hill, [a]nd this dude was up there” with “a little
girl.” Mr. Millican “tried to run him off,” but the man said he was waiting for a ride. Mr.
Millican said that he waited at Defendant’s home for about thirty to forty-five minutes
until Defendant returned in the Jeep, and then Mr. Millican left.

      On cross-examination, Mr. Millican testified that Defendant could not work on the
Jeep himself because he had “no knees” and was “crippled.” Mr. Millican stated that
Defendant had the tools to work on the Jeep and knew another man who could do the
work. He described the man that he “tried to run off” as a white man, “black-headed,”
weighing “about 180” and approximately five feet nine inches tall.

       After closing arguments, the trial court instructed the jury with, among other
things, an instruction on recently stolen property:

              If you find, beyond a reasonable doubt, . . . from the evidence that
       the property in question had been recently stolen; and that soon thereafter
       the same property was in the exclusive possession of [D]efendant; this
       possession, unless satisfactorily explained, is ordinarily a circumstance
       from which you may reasonably draw an inference that [D]efendant gained
       possession through theft, or had knowledge that the property had been
       stolen. However, you are never required to make this inference. It is for
       you to determine whether the facts and circumstances shown by the
       evidence in this case warrant an inference, which the law permits you to
       draw from the possession of recently stolen property.

               When the evidence is offered that [D]efendant was in possession of
       recently stolen property, [D]efendant has the right to introduce evidence
       that he came in to possession of the property lawfully, or possession may be
       satisfactorily explained through other circumstances or other evidence
       independent of any evidence offered by [D]efendant.

                In considering whether possession of recently stolen property has
       been satisfactorily explained, you’re reminded that in the exercise of
       constitutional rights, the accused need not take the witness stand and
       testify.

              The term, [“]recently,[”] is a relative term and has no fixed
       meaning[;] whether property may be considered as recently stolen depends
       upon the nature of the property, and all the facts and circumstances shown
       by the evidence in the case. The longer the period of time since the theft,
       the more doubtful becomes the inference, which may be drawn from
                                           -3-
       unexplained possession. The correctness of the inference, and the weight to
       be given to any explanation that may be shown by the evidence, are matters
       that must be determined by you, and you are not bound to accept either.
       You must weigh all the evidence presented as to [D]efendant’s alleged
       possession of the property in question, and decide, in light of all the facts
       and circumstances, whether any inference is warranted.

        The jury found Defendant guilty of theft of property with a value at least $10,000
but less than $60,000. The trial court sentenced Defendant as a Range I standard
offender to four years at thirty percent release eligibility, which the trial court suspended
to five years’ supervised probation following the service of a year in jail. Defendant filed
a timely motion for a new trial, and the trial court denied the motion following a hearing.
This timely appeal follows.

                                         Analysis

        Defendant argues that the evidence was insufficient to sustain his conviction for
theft of property. Specifically, Defendant argues that the evidence did not show that he
intended to deprive the owner of the property or that he knowingly obtained or exercised
control over the property without the owner’s consent. The State responds that, viewed
in the light most favorable to the State, there was sufficient evidence for a rational juror
to convict Defendant.

        Our standard of review for a sufficiency of the evidence challenge 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 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
                                            -4-
       “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a) (2017). Moreover, “it is
the law in Tennessee that possession of recently stolen property, unless it is satisfactorily
explained, creates a permissible inference that the person who possessed the stolen
property gained possession through theft.” State v. David Roger Petty, No. M2016-
01036-CCA-R3-CD, 2017 WL 4457592, at *4 (Tenn. Crim. App. Oct. 5, 2017) (citing
State v. James, 315 S.W.3d 440, 450 (Tenn. 2010)), no perm. app. filed.

       Here, there was sufficient evidence for a rational juror to find the essential
elements of the crime beyond a reasonable doubt. Defendant was in possession of the
Jeep just five days after it was stolen. Moreover, Defendant’s personal possessions,
including a cooler and a shirt, were found within the Jeep. A photograph of Defendant
loading groceries into the Jeep was posted to Facebook after Mr. Roberson reported the
Jeep as stolen. Mr. Roberson said that he did not give Defendant consent to take and use
his vehicle and that he did not even know Defendant

       While Defendant explained his possession of the Jeep by claiming that a black
man “dropped off” the Jeep to be “worked on,” a rational juror could easily reject this
explanation. First, Mr. Millican testified that he saw a white man and a little girl on his
property shortly after Defendant possessed the Jeep, not a black man as Defendant
claimed. Mr. Millican also testified that Defendant was “crippled” and could not work on
a vehicle himself. Defendant never produced a name or contact information for the
person whom he claimed “dropped off” the Jeep for repairs. Investigator Bass drove the
Jeep after he confiscated it and testified that the Jeep “started fine,” “was operable,” and
was not making any noises, “jerking,” or doing anything unusual. The jury was free to
reject Defendant’s explanation and to infer that Defendant had “gained possession” of the
recently stolen vehicle “through theft” or that he “had knowledge that the property had
been stolen.” James, 315 S.W.3d at 440. Questions of fact, the credibility of witnesses,
and weight of the evidence are resolved by the fact finder, and this court will not reweigh
the evidence. Bland, 958 S.W.2d at 659. Defendant is not entitled to relief.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE
                                            -5-
