         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs June 26, 2007

                 STATE OF TENNESSEE v. TOMMY RAY KITTS

                  Direct Appeal from the Criminal Court for Knox County
                        No. 83597 Richard R. Baumgartner, Judge



                      No. E2006-01964-CCA-R3-CD - Filed July 12, 2007


Defendant, Tommy Ray Kitts, was convicted of two counts of theft of property between $1,000 and
$10,000, a Class D felony. The trial court merged count two into count one and sentenced Defendant
as a Range III, career offender, to twelve years. In his appeal, Defendant challenges the sufficiency
of the convicting evidence. After a review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
D. KELLY THOMAS, JR., J., joined.

J. Liddell Kirk, Knoxville, Tennessee; and Mitchell T. Harper, Knoxville, Tennessee, for the
appellant, Tommy Ray Kitts.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

I. Background

        Kimberly Kitts, Defendant’s ex-wife, testified that she and Defendant remained on friendly
terms after their divorce in approximately 2000. Ms. Kitts said that she got a telephone call from
Defendant on the evening of August 17, 2005, asking Ms. Kitts to pick him up because he had
nowhere to stay. Ms. Kitts said that she could not leave her children home alone at night and did not
pick up Defendant. Ms. Kitts said that Defendant called her again early on the morning of August
18, 2005, and repeated his request. Ms. Kitts and her friend, Chris Spriggs, picked Defendant up in
front of his grandmother’s house in Ms. Kitts’ van. Ms. Kitts ran errands before returning home.
Mr. Spriggs left, and Defendant stayed at Ms. Kitts’ house that night. Defendant slept most of the
following day until Mr. Spriggs picked him up around 3:00 p.m.
         When Defendant did not return that night, Ms. Kitts went to bed. She was awakened around
3:00 a.m. by the sound of a car. Defendant got out of a car which Ms. Kitts assumed belonged to
Mr. Spriggs. Defendant came to the door and asked to use the telephone. Ms. Kitts left him alone
in the living room while she went to the bathroom. Ms. Kitts said her purse was on the living room
couch with her cell phone either inside the purse or lying next to it. Ms. Kitts said that her car keys
were in her purse.

         Ms. Kitts heard a car while she was in the bathroom. She came out and looked out the
hallway window. Ms. Kitts said that she saw Defendant driving her 1994 Dodge Caravan away from
the trailer. Ms. Kitts said she was shocked and upset because she did not think Defendant would do
that type of thing. Ms. Kitts went outside to verify that the van was gone. She noticed that her purse
and cell phone were missing when she went back inside her trailer. Ms. Kitts attempted several
times to reach Defendant by calling her cell phone number, but she did not get any response from
Defendant. Ms. Kitts called 911 and reported the incident. Ms. Kitts signed a warrant for
Defendant’s arrest the following day.

        Ms. Kitts testified that the value of her van was approximately $3,500. Ms. Kitts said she
kept numerous items in her purse including jewelry, which she valued at $3,000. In addition, she
also kept her medication and her children’s school, medical and birth records in the purse. Ms. Kitts
said that she never recovered either her vehicle or her other personal property.

II. Sufficiency of the Evidence

         In reviewing Defendant’s challenge to the sufficiency of the convicting evidence, we must
review the evidence in a light most favorable to the prosecution in determining whether a rational
trier of fact could have found all the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560, 573 (1979). Once
a jury finds a defendant guilty, his or her presumption of innocence is removed and replaced with
a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the
burden of overcoming this presumption, and the State is entitled to the strongest legitimate view of
the evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

       “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.” T. C. A. § 39-14-103. “‘Effective consent’ means assent in fact, whether express or
apparent, including assent by one legally authorized to act for another.” Id. § 39-11-106. Theft of


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property is a Class D felony if the value of the property or services obtained is one thousand dollars
($1,000) or more but less than ten thousand dollars ($10,000). Id. § 39-14-105(3).

        Defendant argues that the evidence was insufficient to support a finding that he intended to
deprive Ms. Kitts of her property that night. Defendant points to the fact that Ms. Kitts invited him
into her home that morning and gave him permission to use her cell phone. Defendant essentially
challenges the jury’s assessment of the credibility of Ms. Kitts’ testimony. Ms. Kitts testified that
she allowed Defendant to come into her home for the purpose of using her cell phone. Ms. Kitts
stated that she did not give Defendant consent to take her van, her purse, and her cell phone.
Although no property was subsequently recovered, Ms. Kitts testified that she looked out her
window and saw Defendant drive away in her vehicle, and she discovered immediately after
Defendant’s departure that her purse was missing from the couch. The jury heard Ms. Kitts’
testimony and found it credible, a finding which we will not disturb on appeal.

        Based on our review of the record, we conclude that a rational trier of fact could find beyond
a reasonable doubt that Defendant intended to deprive Ms. Kitts of her property without her consent.
Defendant is not entitled to relief on this issue.

                                          CONCLUSION

       After review of the record, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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