        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 2, 2016

                 STATE OF TENNESSEE v. HAROLD SMITH

                 Appeal from the Criminal Court for Shelby County
                  No. 13-05250       James C. Beasley, Jr., Judge
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              No. W2015-02229-CCA-R3-CD - Filed October 21, 2016
                    ___________________________________


A Shelby County jury convicted the Defendant, Harold Smith, of reckless aggravated
assault, vandalism over $1,000, and attempted theft of property over $1,000. The
Defendant received an effective sentence of twelve years as a career offender at sixty-five
percent. On appeal, the Defendant asserts that the evidence is insufficient to support the
convictions. After a thorough review of the record, we affirm the judgments of the trial
court.


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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

James E. Thomas (on appeal) and Jennifer Johnson Mitchell (at trial), Memphis,
Tennessee, for the appellant, Harold Smith.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and
Stephen Ragland, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

     The victim, Kathy Wade, owned a rental house in Memphis, Tennessee. Ms.
Wade testified that she arrived at the rental house on the day of the offenses to prepare
for a new tenant with the help of her daughter, Chelsea Johnson, and two of her nieces.
Upon their arrival, Ms. Wade noticed an unfamiliar vehicle parked in the driveway. She
stated that as she exited her vehicle, two men wearing skull caps and jackets came out of
the backyard and “jumped into the [unfamiliar] car.” The driver of the vehicle then
struck Ms. Wade as he was reversing out of the driveway, and she fell to the ground.
Despite stepping in front of the vehicle to try to prevent the vehicle from leaving, Ms.
Johnson was able to avoid being struck by the vehicle.

       Ms. Wade testified that about three or four minutes transpired from the moment
she arrived at the rental house to when she first saw the two men. During that time, she
said she and Ms. Johnson were examining the vehicle and deciding whether to enter the
backyard.

        After being knocked over, Ms. Wade was able to get off the ground and went to
the backyard from where the two men had come. She found the house’s air conditioning
unit sitting on top of the enclosure surrounding the unit, having been removed from the
locked, metal enclosure. The wires for the unit were cut, as was the deadlock on the
enclosure. Ms. Wade testified that the unit and backyard fence were damaged as a result
of the incident, resulting in over $1,300 worth of damages.

        Ms. Wade testified that a police officer later presented her with a photographic
lineup display from which she was able to identify the Defendant. At trial, Ms. Wade
identified the Defendant as one of the men who came from behind her rental house and
entered the vehicle that struck her. She acknowledged, however, that she had not been
able to identify the Defendant at the preliminary hearing.

        Ms. Wade described that the vehicle in her driveway was a silver “truck looking
car.” She also identified photographs of the vehicle that struck her. She testified that her
nieces remained in her vehicle and wrote down the getaway vehicle’s license plate
number. Ms. Johnson then called 911, and Ms. Wade provided the license plate number
to the police upon their arrival.

        Sergeant Charles Moore of the Memphis Police Department testified that the
officers collected bolt cutters and “snippers” found at the scene. No fingerprints were
identified from the items.

       Sergeant Moore testified that the police sent out a “be on the lookout” alert for a
silver Chevrolet HHR, which had been described as the vehicle involved in the incident.
Several weeks after the incident, the Memphis Police Department received information
regarding the location of a vehicle matching that description, and officers went to the
scene to investigate. Upon arrival, they learned from two occupants of the vehicle that a
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third occupant had fled the scene. The officers also matched the license plate number of
the vehicle with the one described to them by Ms. Wade and learned that the vehicle was
registered to the Defendant’s mother. During the investigation, the third occupant, the
Defendant, returned to the scene and told the officers that he was the driver of the
vehicle.

        Sergeant Moore testified that he contacted Ms. Wade to conduct a photographic
lineup identification, which included a photograph of the Defendant. Sergeant Moore
stated that Ms. Wade “immediately” identified the Defendant from the lineup as the man
who attempted to steal her air conditioning unit. Following her identification, formal
charges were filed against the Defendant for aggravated assault, vandalism, and
attempted theft.

       The jury found the Defendant guilty of reckless aggravated assault, vandalism of
property valued more than $1,000 but less than $10,000, and attempted theft of property
valued more than $1,000 but less than $10,000. The trial court sentenced the Defendant
as a career offender to concurrent sentences of twelve years for the reckless aggravated
assault conviction; twelve years for the vandalism over $1,000 conviction; and six years
for the criminal attempt to commit theft over $1,000 conviction, for an effective sentence
of twelve years.

                                       ANALYSIS

       When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient “to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e). The appellate court determines “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). This standard of review is the same regardless of whether the
conviction is predicated on direct or circumstantial evidence, or a combination of both.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2001).

       In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). Instead,
this court affords the State the strongest legitimate view of the evidence contained in the
record, as well as all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). The conviction replaces the presumption of innocence with a
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presumption of guilt, and the accused has the burden of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       As it relates to this case, a person commits aggravated assault who recklessly
causes bodily injury to another, and the assault “involved the use or display of a deadly
weapon.” T.C.A. §§ 39-13-101(a)(1); 102(a)(1)(B)(ii) (Supp. 2012). A person commits
the offense of vandalism who “knowingly [c]auses damage to or the destruction of any
real or personal property of another … knowing that the person does not have the
owner’s effective consent.” Id. § 39-14-408(b)(1) (2010). Vandalism is a class D felony
where the damage is $1,000 or more but less than $10,000. Id. §§ 39-14-105(a)(3), -
408(c)(1) (2010). “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.” Id. § 39-14-103(a). Criminal attempt is when a
person “[a]cts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the commission
of the offense.” Id.§ 39-12-101(a)(3). Criminal attempted theft of property is a class E
felony where the value of the property is $1,000 or more but less than $10,000. Id.§39-
12-107(a); § 39-14-105(a)(3).

       The Defendant does not challenge whether the State proved the elements of the
offenses, but only challenges the sufficiency of the evidence regarding his identity as the
perpetrator. The Defendant argues that the evidence relating to his identity as the
perpetrator was not credible and, thus, insufficient to establish his guilt. The identity of
the perpetrator “is an essential element of any crime.” State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006). Identity “may be established solely on the basis of circumstantial
evidence.” State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010). The issue of identity is a
question of fact left to the jury as the trier of fact to resolve. State v. Crawford, 635
S.W.2d 704, 705 (Tenn. Crim. App. 1982).

         In the present case, Ms. Wade identified the Defendant as one of the perpetrators
in a photographic lineup and at trial. Although Ms. Wade was unable to identify the
Defendant as one of the perpetrators during the preliminary hearing, the jury chose to
credit Ms. Wade’s testimony at trial that the Defendant was one of the men who fled in a
vehicle from her rental home, knocking her down in the process. This decision was
within the province of the jury as the finder of fact, and we will not reweigh or reevaluate
the evidence on appeal. See Bland, 958 S.W.2d at 659. Furthermore, the vehicle that
fled the scene was registered to the Defendant’s mother, and the evidence presented at
trial established that the Defendant had access to the vehicle and had driven it on another

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occasion. After viewing the evidence in the light most favorable to the State, the
evidence is sufficient to establish the Defendant’s identity as the perpetrator.

                                   CONCLUSION

     Based upon the foregoing reasons, we affirm the judgments of the trial court.




                                           ____________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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