        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs July 24, 2002

               STATE OF TENNESSEE v. MICHAEL E. OWENBY

                      Appeal from the Criminal Court for Sevier County
                           No. 8031 Richard R. Vance, Judge



                                No. E2001-02012-CCA-R3-CD
                                      August 28, 2002

The Defendant, Michael E. Owenby, appeals as of right from his conviction by a jury of theft of
property over $1,000, a Class D felony. He was sentenced to three years as a Range I standard
offender, with ninety days to be served in confinement and the balance to be served in the
Community Corrections program. He argues as his sole issue on appeal that there was not sufficient
evidence presented at trial to support his conviction of theft. We affirm the judgment of the trial
court but remand to the trial court for entry of an amended judgment deleting the “day for day”
requirement relating to the ninety days of confinement.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY,
JJ., joined.

James Greenlee, Sevierville, Tennessee, for the appellant, Michael E. Owenby.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Al Schmutzer, Jr., District Attorney General; and Steve Hawkins, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

        The Defendant, Michael E. Owenby, was convicted by a jury of theft of property over $1,000.
He was sentenced to a term of three years in the Department of Correction. After the service of
ninety days in confinement, the Defendant is to serve the balance of his sentence in the Community
Corrections program. The Defendant argues that the evidence presented to the jury was insufficient
to support a conviction of theft. We respectfully disagree.
        On February 11, 2000, Ms. Keiandra Dirl’s 1989 Cadillac Sedan DeVille was stolen from
her apartment complex. The next morning, all that she found in the parking space where she had left
her car was broken glass.

        On February 25, 2000, while on patrol, Deputy Johnny Bohanan of the Sevier County
Sheriff’s Department spotted the stolen Cadillac. The car was speeding and sliding sideways along
the road. Deputy Bohanan activated his emergency lights and siren and pursued the car. The
Cadillac fled from the Deputy, and as he gave chase, he could see that it did not have a license plate.
As the Cadillac crossed a bridge, Deputy Bohanan observed the passenger of the Cadillac, the
Defendant, throwing items out of the passenger window. Some of the items fell onto the bridge and
were retrievable, while others went over the railing and were lost in the lake below. Eventually the
Cadillac struck a stop sign and a concrete pole and came to an abrupt stop.

        After the car stopped and Deputy Bohanan had its two occupants out of the vehicle, he asked
them to whom the car belonged. The Defendant replied that “they had just purchased the car for a
hundred dollars.” When other officers arrived to assist Deputy Bohanan, he went back to the bridge
and collected the items that the Defendant had thrown out of the car during the pursuit. The Deputy
recovered three gloves and a broken beer bottle. Two of the gloves were a pair of camouflage
gloves, and one of the gloves was brown. The other brown glove was later found in the Defendant’s
pocket.

        An inspection of the stolen Cadillac revealed that the driver’s side window was broken and
shards of glass remained in the driver’s floorboard, the steering column was broken and a device had
been inserted to turn the ignition, and parts of the dashboard had been removed. Later, at the police
station, Deputy Bohanan questioned the Defendant about the stolen vehicle. The Defendant told the
Deputy that “somebody had just left the vehicle there and that he didn’t buy the vehicle.” The
Defendant told yet another story at trial. He testified that he was at a friend’s house at around 2:00
a.m. when a third person drove up in the stolen Cadillac. The Defendant and his friend decided to
get in the car and “just ride around.” When the Defendant got in the passenger side of the car, he
noticed the broken steering column, the broken window, and the glass in the floorboard. When
asked on cross-examination by the prosecuting attorney, “You got in a stolen car and you knew it
was stolen once you got into it, is that what you’re telling the Jury?”, the Defendant replied, “Yes,
sir.”

        The sole issue raised by the Defendant on appeal is whether there is sufficient evidence to
convict him of theft of property. Tennessee Rule of Appellate Procedure 13(e) prescribes that
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.” Evidence is sufficient if, after reviewing 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d
274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption
of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden


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of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn.
1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

         “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. The evidence in this case clearly establishes that the
Defendant did not have the owner’s consent to possess or use her car. Ms. Dirl testified that she
called the police once she discovered that her Cadillac had been stolen. She stated that she had not
given permission to the Defendant to use or be in her vehicle. Furthermore, the record shows that
the Defendant intended to deprive the owner of the stolen vehicle of that property. The Defendant
testified that he and his friend “just wanted to ride, you know, just ride around.” When asked by the
prosecutor whether he intended to “take [the stolen car] back to the victim,” the Defendant answered,
“No, sir.” Therefore, the Defendant intended to deprive the owner of the property.


         The question then becomes whether there was sufficient evidence that the Defendant, as a
passenger in the stolen automobile, knowingly obtained or exercised control over the property. In
State v. Mack Samuel Stokes, No. M1999-02252-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 460,
at *6-7 (Nashville, June 9, 2000), this Court affirmed the conviction of the defendant, a passenger
in a stolen vehicle, for theft of the vehicle. In that case, the defendant was riding in the passenger
seat of a stolen automobile when it was stopped by the police. He gave the police officer a piece of
paper that he submitted was the bill of sale and asserted ownership of the vehicle. This Court held
that a rational juror could find beyond a reasonable doubt that the defendant knowingly exercised
control over the stolen vehicle.


         The instant case is quite similar. The jury was presented with testimony that after a brief
chase of the stolen Cadillac by the Sevier County Sheriff’s Department, during which the Defendant
threw various items out the passenger side window of the vehicle, the Defendant volunteered that
he and his friend had bought the car for one hundred dollars. He changed his story at the police
station, saying that someone had apparently abandoned the vehicle. Ms. Dirl, the owner of the stolen
car, testified that when she recovered the car, the driver’s side window “had been smashed out,”

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“[t]he CD player had been taken out of the dashboard,” “[t]he back seat of the car had been pulled
out from where they had went and cut the speakers out of the car,” “[t]he steering column was
messed up and also the [glove] box had been torn off . . . .”


        We conclude that it was reasonable for the jury to find that the Defendant did exercise control
over the stolen automobile. The jury was entitled to credit the fact that the Defendant was throwing
items out of the car as he and his friend fled from Deputy Bohanan, as well as the initial statement
that the Defendant made to the Deputy, that he was, at least, the partial owner of the car. Obviously,
the Defendant did not act alone, but rather in concert with others. Nevertheless, we believe the proof
shows that he was exercising control over the vehicle at the time of his arrest.


         Based on our review of this record, we find that there is sufficient evidence for a rational trier
of fact to conclude that the Defendant is guilty of theft of property beyond a reasonable doubt.


         Although neither argued by the Defendant nor brought to our attention by the State, we note
the trial court was not authorized to order the Defendant to serve his ninety days in the county jail
“day-for-day,” thereby depriving the Defendant of good conduct credits. Good conduct credits apply
to felons serving less than one year in the county jail or workhouse. See Tenn. Code Ann. § 41-2-
111(b); State v. James Kevin Underwood, No. E2000-01945-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 585, at *8 (Knoxville, Aug. 2, 2001); see also State v. Clark, 67 S.W. 3d 73, 78 (Tenn. Crim.
App. 2001). Accordingly, we modify the time of confinement to the extent of deleting the “day-for-
day” language. Therefore, the Defendant will be entitled to any good conduct credits he earns, which
will apply toward his ninety days of confinement.


       We remand to the trial court for entry of an amended judgment deleting the “day-for-day”
language and affirm the judgment of the trial court in all other respects.




                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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