         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE          FILED
                         NOVEMBER 1998 SESSION
                                                    January 7, 1999

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9803-CC-00138
      Appellee,                    )
                                   )    MARSHALL COUNTY
VS.                                )
                                   )    HON. CHARLES LEE,
WILLIAM LAVERN DAVIS,              )    JUDGE
                                   )
      Appellant.                   )    (Theft)



FOR THE APPELLANT:                      FOR THE APPELLEE:

N. ANDY MYRICK, JR.                     JOHN KNOX WALKUP
116 West Market Street                  Attorney General and Reporter
Fayetteville, TN 37334
                                        KIM R. HELPER
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM MICHAEL MCCOWN
                                        District Attorney General

                                        WEAKLEY E. BARNARD
                                        Assistant District Attorney General
                                        Marshall County Courthouse
                                        Room 407
                                        Lewisburg, TN 37091




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, William Lavern Davis, appeals his conviction by a

Marshall County jury of theft of property over $1,000. He was sentenced as a

career offender to twelve (12) years. On appeal, he contends the evidence

adduced at trial was insufficient to sustain a guilty verdict and the trial court erred

in admitting evidence of a prior bad act. The judgment of the trial court is

AFFIRMED.



                                        FACTS



       The defendant and his wife, Mattie Hill Davis, telephoned Doris Harris on

the day in question and requested she drive them from Shelbyville to Lewisburg.

Harris picked up the defendant and his wife, ultimately driving them to the Family

Dollar Store in Lewisburg.



       Mrs. Davis purchased transmission fluid from the store and gave it to

Harris to add to her car. While Harris was putting the transmission fluid in her

car, the defendant and his wife discovered a yellow bag in the store’s parking lot.

The bag had “Family Dollar” written in 2½ to 3 inch black letters on one side.

The defendant retrieved the bag, stuffed it in his pants, and got into Harris’ car.

The defendant’s wife instructed Harris to “hurry up” and drive away.



       Once Harris had driven off, the defendant opened the bag and discovered

cash and checks totaling $1,374.44.1 The defendant and his wife began

“fighting” over the bag. The defendant’s wife removed the cash from the bag

and threw the bag and checks out the window. The defendant’s wife

subsequently gave Harris $105 in cash from the bag. Upon their return to



       1
          The store manager testified to the amount in the bag. The defendant’s
wife testified there was $1,001.00 in cash in the bag with no checks.

                                           2
Shelbyville, the defendant advised Harris “they had stolen the money bag at

Family Dollar.”



         The defendant was observed picking up the bag by a young boy who

secured the license tag number on Harris’ vehicle. The defendant, his wife, and

Harris were subsequently arrested.2



                             SUFFICIENCY OF THE EVIDENCE



         The defendant contends the evidence is insufficient to show he committed

theft as he believed the money was lost and had a valid claim to it. Additionally,

he claims the state failed to prove he had the required intent to commit theft and

did not appropriate for his own use the amount alleged in the indictment.



         When an accused challenges the sufficiency of the convicting evidence,

our standard of review is whether, after reviewing the evidence in a 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). Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence as well

as all factual issues raised by the evidence, are resolved by the trier of fact, not

this Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor

may this Court reweigh or re-evaluate 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 inferences therefrom. Id. Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this Court of illustrating why

the evidence is insufficient to support the verdict returned by the trier of fact.



         2
             Prior to defendant’s trial, his wife and Harris both pled guilty to the
theft.

                                                 3
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



       The defendant was convicted of theft of property. This offense requires a

person, with intent to deprive the owner of property, to knowingly obtain or

exercise control over the property without the owner’s effective consent. Tenn.

Code Ann. § 39-14-103. An affirmative defense to theft of property is that the

person “[a]cted in the honest belief that the person had the right to obtain or

exercise control over the property . . . as the person did.” Tenn. Code Ann. § 39-

14-107(2).



       The evidence presented at trial, when viewed in a light most favorable to

the state, shows the defendant picked up a bag labeled “Family Dollar” outside

of the Family Dollar Store. The defendant took the property to Harris’ car while

his wife exhorted Harris to leave quickly. The defendant opened the bag and

discovered it contained over $1,000 in cash and checks. The majority of checks

in the bag were made payable to the order of “Family Dollar.” The defendant

took a portion of the cash from the bag. His wife then threw the bag out of the

car window. The defendant stated to Harris that the bag had been “stolen.” The

jury was charged as to the affirmative defense and, by their verdict, rejected it. It

was within their prerogative to do so. Unquestionably, the evidence was

sufficient to support the verdict.



       This issue is without merit.



                        EVIDENCE OF PRIOR BAD ACTS



       The defendant complains he was unfairly prejudiced by Harris’ testimony

that the defendant had stolen telephones from a “Wal-Mart” store earlier in the

day. He claims the trial court admitted this evidence in violation of Tenn. R. Evid.

404(b), which provides that evidence of other crimes is not admissible to prove



                                          4
the character of a person in order to show action in conformity with the character

trait.



         During direct examination of Harris by the state, the prosecutor asked her,

“What happened at Wal-Mart?” Harris replied, “William Davis stole some

telephones.” Defense counsel objected and the trial court, after an extended

bench conference, decided not to give any instructions to the jury as to this

evidence.



         At the conclusion of Harris’ testimony, the trial court sua sponte re-visited

the issue and stated he had deferred ruling on the previous objection. The trial

court agreed to sustain the objection. Defense counsel moved for a mistrial.

The trial court denied the motion and offered to give the jury a curative

instruction. Defense counsel declined the instruction for tactical reasons. Later,

the trial court again asked defense counsel whether he wished a curative

instruction given. Defense counsel again declined after the prosecution

indicated they would not raise the issue again.



         Firstly, we note the trial court offered to give a curative instruction.

Defense counsel refused. Secondly, even if the trial court erred in not

immediately sustaining the objection, the error was harmless in light of the

overwhelming evidence.3 Tenn. R. App. P. 36(b). Certainly, the trial court did

not err in refusing to grant a mistrial.



         This issue is without merit.



         Accordingly, the judgment of the trial court is AFFIRMED.




         3
          We need not reach the question of whether this evidence was, in fact,
admissible under Tenn. R. Evid. 404(b) in order to show the defendant’s “intent.”
See State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

                                             5
                                   _________________________
                                   JOE G. RILEY, JUDGE

CONCUR:



____________________________
PAUL G. SUMMERS, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




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