         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2005

                  STATE OF TENNESSEE v. BILLY RAY RILEY

                  Direct Appeal from the Circuit Court for Madison County
                              No. 03-344 Roger Page, Judge



                     No. W2004-02016-CCA-R3-CD - Filed July 26, 2005


A Madison County Circuit Court jury convicted the appellant, Billy Ray Riley, of theft of property
valued one thousand dollars or more but less than ten thousand dollars, and the trial court sentenced
him as a Range III offender to twelve years in the Department of Correction. In this appeal, the
appellant claims that the evidence is insufficient to support the conviction. Upon review of the
record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Angela J. Hopson (at trial and on appeal), Jackson, Tennessee, and Marcus M. Reaves (at trial),
Denmark, Tennessee, for the appellant, Billy Ray Riley.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and James Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        Harriet Elaine Newbern testified that she lived in Jackson, Tennessee and had a twenty-five-
year-old daughter who suffered from diabetes and blindness. According to Ms. Newbern, her
daughter sometimes had to stay in Maplewood Nursing Home in order to receive treatment for her
diabetes. On January 13, 2003, Ms. Newbern was having a birthday party in her home for her
daughter. During the party, Farley Hardison and the appellant arrived and told Ms. Newbern that
they were traveling from Nashville to Memphis. Ms. Newbern knew Mr. Hardison, but she had not
previously met the appellant. Ms. Newbern could tell that the men had been drinking alcohol, and
she invited them to spend the night in her home.
       After the birthday party, Ms. Newbern, Mr. Hardison, and the appellant drove Ms. Newbern’s
daughter back to the nursing home. The next day, Ms. Newbern and the appellant drove to the
nursing home in order to pick up Ms. Newbern’s daughter. Ms. Newbern stated that she allowed the
appellant to drive her car to the nursing home and that she rode with him. Later that day, they drove
Ms. Newbern’s daughter back to the nursing home in the appellant’s car. On January 15, Ms.
Newbern had a doctor’s appointment. The appellant asked Ms. Newbern if he could visit her
daughter in the nursing home while Ms. Newbern was at the appointment. Ms. Newbern agreed and
gave the appellant permission to drive her car to Maplewood. The appellant left before noon, and
Ms. Newbern left to go to her appointment. When she returned home from her doctor’s
appointment, the appellant was not there. Concerned, Ms. Newbern drove to Maplewood Nursing
Home and learned that the appellant had never arrived.

         Ms. Newbern returned home and waited for the appellant. When he had not returned with
her car by 5:00 p.m., Ms. Newbern telephoned the police. The police came to her home, and Ms.
Newbern gave a report. While the police were there, the appellant telephoned Ms. Newbern. Ms.
Newbern told the appellant to return her car, and the appellant replied, “I can’t.” Ms. Newbern
testified that the appellant never returned her car, that it was worth about $3,500, and that her
insurance company paid her $1,400 for it. She stated that she had allowed the appellant to drive the
car in order to visit her daughter but that she had not given him permission to keep the car
indefinitely. On cross-examination, Ms. Newbern acknowledged that when the appellant telephoned
her on January 15, he told her that he was lost. She also acknowledged that when she gave the
appellant permission to drive her car, she did not tell him what time to return it.

         Melissa Green, Harriet Newbern’s daughter, testified that she usually lived with her mother
but sometimes received treatment at Maplewood Nursing Home. On January 13, 2003, Ms. Green
had a birthday party at her mother’s home. During the party, Mr. Hardison and the appellant arrived.
Ms. Green stated that she had not previously met the appellant. On January 15, Ms. Green was
staying at the nursing home. The appellant telephoned Ms. Green and told her that he was planning
to visit her but had gotten lost. Ms. Green stated that the appellant never arrived at Maplewood.

        Investigator Steve Gregory of the Jackson Police Department testified that he was assigned
to investigate Ms. Newbern’s case. At some point, the appellant was arrested. Investigator Gregory
read the appellant his Miranda rights and interviewed him. According to the appellant’s statement
to Investigator Gregory, the appellant rode with Mr. Hardison from Knoxville to Ms. Newbern’s
home in Jackson. Ms. Newbern invited them to stay with her, and the appellant got to know Ms.
Newbern’s daughter. On January 15, the appellant asked Ms. Newbern if he could “borrow” her car
in order to visit her daughter at the nursing home. Ms. Newbern allowed the appellant to take the
car but the appellant got lost on his way to Maplewood. The appellant telephoned Ms. Newbern’s
daughter, and she gave him directions to the nursing home. However, the appellant got lost again
and drove toward Knoxville. In the statement, the appellant said, “I should not have went to
Knoxville. I am wrong for that.”




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         The appellant claims that the evidence is insufficient to support his conviction for theft and
that the trial court erred by denying his motion for judgment of acquittal. Specifically, he argues that
he did not commit a theft because Ms. Newbern gave him permission to drive her car. In addition,
he claims that the State failed to prove that he intended to deprive Ms. Newbern of her car because
the evidence shows that she gave him permission to use it and did not tell him when to bring it back.
The State argues that the evidence is sufficient. We agree with the State.

        “The standard by which the trial court determines a motion for judgment of acquittal at the
end of all the proof is, in essence, the same standard which applies on appeal in determining the
sufficiency of the evidence after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn.
Crim. App. 2000). When an appellant challenges the sufficiency of the convicting evidence, the
standard for review 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); Tenn. R.
App. P. 13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and
all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and
value to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved
by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not
reweigh or reevaluate the evidence. Id. Because a jury conviction removes the presumption of
innocence with which a defendant is initially cloaked at trial and replaces it on appeal with one of
guilt, a convicted defendant has the burden of demonstrating to this court that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       A person is guilty of theft if that person, with the intent to deprive the owner of property,
knowingly obtains or exercises control over the property without the owner’s effective consent. See
Tenn. Code Ann. § 39-14-103. “Deprive” means to “[w]ithhold property from the owner
permanently or for such a period of time as to substantially diminish the value or enjoyment of the
property to the owner.” Tenn. Code Ann. § 39-11-106(a)(8)(A). If the value of the property is
between one thousand and ten thousand dollars, the theft is a Class D felony. See Tenn. Code Ann.
§ 39-14-105(3).

        Taken in the light most favorable to the State, the evidence shows that Ms. Newbern loaned
the appellant her car in order for the appellant to drive to the Maplewood Nursing Home. The
appellant took the car and never returned it. Although the appellant initially had permission to use
the car, the evidence shows that when he telephoned Ms. Newbern on January 15, she told him to
return the car and he refused. The evidence is sufficient to support the conviction.




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                                 III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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