         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 25, 2001

                 STATE OF TENNESSEE v. RICKY LYNN EARLS

                      Appeal from the Circuit Court for Bedford County
                         No. 14684     Franklin Lee Russell, Judge



                   No. M2001-00063-CCA-R3-CD - Filed October 25, 2001


The defendant, Ricky Lynn Earls, appeals from his conviction for theft of property valued over
$1,000, contesting the sufficiency of the evidence. We affirm the judgment of conviction.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

Donna Leigh Hargrove, District Public Defender; A. Jackson Dearing, III, Assistant Public Defender;
and Gregory D. Smith, Clarksville, Tennessee, for the appellant, Ricky Lynn Earls.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael David Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant was convicted by a Bedford County Circuit Court jury for theft of property
valued over $1,000, a Class D felony. The trial court sentenced him as a career offender to twelve
years in the Tennessee Department of Correction. The defendant contends that the evidence is
insufficient to support his conviction and that his conviction should be reduced to theft of property
valued at less than $500, a Class A misdemeanor.

        This case involves the theft of a bank deposit bag from the Davis Hill Market on August 15,
1999. Shannon Gray, who owns the store, testified that on August 15, she was working alone and
that about 1:00 p.m., the defendant, three children, and a woman entered the store. She said that
before they came in, she had been counting money and preparing a bank deposit for the next day.
She said that she had finished counting the money and that she was banding it. She said that because
she does not like to handle money in front of customers, when the defendant entered the store, she
put the money in a deposit bag, zipped the bag, and laid it on the store counter. She said that the bag
was a couple of feet to her left and behind a cigarette rack. She said that the defendant stood just
inside the door while the woman and the children walked around the store. She said that while the
defendant was standing at the door, he could have seen the deposit bag. She said that the woman and
the children brought snacks to the cash register and that she began ringing up the items. She said
that the children went outside while the woman paid for the items with a food stamp card. She said
that in order to complete the transaction, she had to bend over and swipe the card through a machine
that sat on a shelf below the cash register.

        Ms. Gray testified that as she was bending over to run the food stamp card through the
machine, she heard a sound to her left. She said that she looked up and noticed that the defendant
had moved away from the front door, which was to her right, and was kneeling in front of the
cigarette rack, which was to her left and slightly behind her. She said that she saw the cigarette rack
move forward and that she asked the defendant, “What is it?” She said that she leaned over the
counter and saw the defendant squatting in front of the rack. She said that he was resting on the
heels of his feet and that he was stuffing something into the front of his pants. She said that she
thought the defendant was stealing cigarettes. She said that the defendant told her that he dropped
all of his change and that she heard his change hit the floor. She said that the woman walked over
to the defendant and asked him, “You got it?” She said that the woman was standing between her
and the defendant and that she could not see the defendant very well. She said that she tore the
receipt from the food stamp machine and that the woman came back to the counter and asked her
if she needed to sign anything. She said she thought that was unusual because the woman had used
the food stamp card in the store before and had never had to sign a receipt.

        Ms. Gray testified that the woman went outside and that the defendant asked her about the
prices of oil and transmission fluid. She said that she told him she did not know the prices but that
the bottles of oil and transmission fluid were by the front door, where he had been standing earlier.
She noticed that when the defendant stood up, he already had a bottle of oil and a bottle of
transmission fluid in his hand. She said that he threw his change on the counter and quickly walked
out the door. She said that he did not wait for her to count the money. She said that she walked
around the counter to the cigarette rack and saw cigarettes on the floor. She said that she looked out
the door and saw the defendant using one hand to stuff her deposit bag into the back of his pants
while he held the bottles of oil and transmission fluid in his other hand. She said that she looked at
the counter and saw that her deposit bag was gone. She said that the defendant ran across the
parking lot, got into a car, and quickly drove away.

        Ms. Gray testified that when a customer came into the store, she asked the customer to get
her husband for her. She said that when her husband got to the store, they called the police. She
stated that the deposit bag contained $1,261. On cross-examination, she acknowledged that the store
had video cameras but that she had not turned them on that day. She said that she had seen the
woman in the store about eight times but that she had never seen the defendant before.

      Detective Eric Stephenson of the Bedford County Sheriff’s Department testified as follows:
On August 15, 1999, Captain Steve Elliott went to the Davis Hill Market to investigate a theft. Ms.


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Gray gave Captain Elliott a food stamp receipt. From the receipt, Detective Stephenson was able
to determine that the food stamp card, which was used to buy snacks at the time of the theft,
belonged to Nancy Cooper, the defendant’s mother. On August 20, 1999, Detective Stephenson
showed Ms. Gray a photograph array of six females. Without hesitation, Ms. Gray identified Ms.
Cooper as the woman who was in the store with the defendant. On August 26, 1999, Detective
Stephenson showed Ms. Gray a photograph array of six men. Without hesitation, Ms. Gray
identified the defendant as the man who took her deposit bag. On cross-examination, Detective
Stephenson acknowledged that the sheriff’s department did not recover the deposit bag or the money.

        Heather Ghea, the defendant’s eleven-year-old niece, testified as follows: She went to the
Davis Hill Market with her sister, grandmother, and the defendant. While her grandmother paid for
snacks, she and her sister went out to the car. The defendant came out of the store after her
grandmother. She did not remember if the defendant had anything in his hands when he came out
of the store. The defendant was not in a hurry when he drove away from the store.


        Lori Ghea, the defendant’s thirteen-year-old niece, testified that she went with her sister,
grandmother, and the defendant to the Davis Hill Market on August 15, 1999, to get snacks. She
said that the defendant was driving and that when they arrived at the store, Shannon Gray was sitting
outside in a rocking chair. She said everyone went into the store. She said that she and her sister
got snacks and that as they were standing at the store counter with their grandmother, the defendant
dropped his change and bent over to pick it up. She said that after she and her sister got their snacks,
they went outside to the car. She said that her grandmother and the defendant remained inside the
store. She said that her grandmother came out of the store first and that the defendant came out right
behind her grandmother. She said that the defendant did not run out of the store and that he had a
bottle of oil in his hand. She said that the defendant raised the hood of the car and put the oil in the
car. She said that the defendant put the hood down, threw the bottle of oil in the back seat, and drove
the car away from the store at a normal rate of speed. She said that she did not see anything stuffed
in the defendant’s pants and that they did not have a conversation in the car about money.

         On cross-examination, the prosecutor asked Ms. Ghea if she remembered him and Detective
Stephenson interviewing her a few days before trial. Ms. Ghea said that she remembered the
interview. Ms. Ghea acknowledged that she told the prosecutor and the detective that she could not
remember anything that happened in the Davis Hill Market on August 15, 1999. She denied telling
them that she did not hear the defendant drop his change or see him bend over to pick it up. Ms.
Ghea acknowledged that she told the prosecutor and the detective that she could not remember how
fast the defendant came out of the store. However, Ms. Ghea testified that she was lying during the
interview and that the defendant walked out of the store. She also denied telling them that she did
not remember when the defendant put the oil in the car.

       The defendant testified that on August 15, 1999, he was living with his mother and that he
and his family stopped by the Davis Hill Market about 1:00 p.m. He said that he had been to the
Davis Hill Market about twenty times before and that he had known Shannon Gray for about eight


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months. He said that when he pulled up to the store, Ms. Gray was sitting on the porch in a rocking
chair. He said that everyone went into the store. He said that his mother and two nieces got snacks
while he stood at the door. He said that Ms. Gray went behind the counter and that his mother
started paying for the snacks with her food stamp card. He said that he asked Ms. Gray about the
price of oil and that she told him the price was on the oil rack. The defendant said that he got a
bottle of oil and that he was standing behind his mother when he dropped his change. He said that
he did not see a deposit bag on the counter. He said that his mother and nieces left the store and that
Ms. Gray rang up his bottle of oil. He said that Ms. Gray asked him if he would buy some Dilaudid
pills for her and that she gave him $425 to buy seventeen Dialudid pills. He said that she told him
that if he got the pills for her, she would give him two of them. He said that he put his change on
the counter to pay for the oil. He said that Ms. Gray told him that he did not give her enough money
for the oil but that he could pay the rest when he came back with the pills. He said that he took the
$425 and put it in his pocket. He said that he walked outside and emptied the bottle of oil into the
car. He said that he put the empty bottle on the back floorboard and that he drove the car away from
the store at a normal rate of speed. He said that he kept the $425 and never bought the pills for Ms.
Gray. On cross-examination, the defendant acknowledged that he had been previously convicted of
sixteen counts of forgery and one count of felonious escape.

         The state recalled Ms. Gray as a rebuttal witness. She said that she did not ask the defendant
to buy Dilaudid tablets for her and that she did not give him $425. She denied telling the defendant
that if he bought the pills for her, she would give him two of them. She said that she has never been
involved with buying Dilaudid.

        The defendant contends that the evidence is insufficient to support his conviction for theft
of property valued over $1,000. He admits that he kept the $425 that Ms. Gray gave him and that
he never bought Dilaudid for her. He argues that his conviction should be reduced to theft of
property valued at less than $500. The state argues that the evidence is sufficient. We agree with
the state.

        Our standard of review when the sufficiency of the evidence is questioned on appeal 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). We do not reweigh the evidence but
presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

        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.
Tenn. Code Ann. § 39-14-104. Viewed in the light most favorable to the state, the evidence shows
that the defendant was guilty of theft of property valued over $1,000. Ms. Gray put the deposit bag
containing $1,261 on the store counter, and the bag was in plain view of the defendant. While Ms.


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Gray was bending over to run Ms. Cooper’s food stamp card, the defendant walked from the front
door, where he had been standing, to the cigarette rack. The deposit bag was directly behind the
rack. Ms. Gray heard a noise, looked up, and saw the cigarette rack move forward. She looked over
the counter and saw the defendant stuff something into the front of his pants. After the defendant
left, Ms. Gray saw him stuff her deposit bag in the back of his pants, and the deposit bag that she had
put on the counter was gone. The jury heard the defendant deny taking the bag and explain that Ms.
Gray gave him $425 to buy Dilaudid pills. It chose to believe Ms. Gray’s testimony, and that is its
prerogative. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.1987). We hold that the
evidence is sufficient to support the conviction.

       Based upon the foregoing and the record as a whole, we affirm the judgment of conviction.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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