           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                              JULY, 1998 SESSION
                                                            FILED
                                                            November 9, 1998
STATE OF TENNESSEE,              )    No. 02C01-9707-CR-00252
                                 )                          Cecil Crowson, Jr.
      Appellee                   )                          Appellate C ourt Clerk
                                 )    Shelby Coun ty
vs.                              )
                                 )    Honorable Joseph B. Dailey, Judge
JOE E. JACKSON,                  )
                                 )    (Theft of a motor vehicle)
      Appellant.                 )



FOR THE APPELLANT:                     FOR THE APPELLEE:

A.C. WHARTON                           JOHN KNOX WALKUP
Shelby County Public Defender          Attorney General & Reporter

DIANNE THACKERY                        CLINTON J. MORGAN
Assistant Public Defender              Counsel fo r the State
(At trial)                             425 Fifth Ave . North
                                       2d Floor, Cordell Hull Bldg.
W. MARK W ARD                          Nashville, TN 37243-0493
Assistant Public Defender
(On appeal)
Suite 2-01, 201 Poplar Ave.                   WILLIAM L. GIBBONS
Memphis, TN 38103                             District Attorney General

                                       DAVID HENRY
                                       Assistant District Attorney General
                                       201 Poplar Ave., Suite 301
                                       Memphis, TN 38103




OPINION FILED: ____________________


AFFIRMED


CURW OOD WITT
JUDGE
                                       OPINION

              The defendant, Joe E. Jackson, appeals from his convictions in the

Shelby County Criminal Court for unlawfu lly and knowingly obta ining a moto r vehicle

valued at more than a thousand dollars but less than ten thousand dollars and for

unlawfully and knowingly exercising control over the same vehicle.1 The trial court

entered judgment only on the first count of the indictment and sentenced the defendant

to serve twelve years in the De partment of C orrection as a ca reer offender. In this

appeal, the defendant contends (1) that the evidence presented at trial is insufficient

to identify him beyond a reasonable doubt as the person who committed the offense

and (2) that the jury’s dual finding s of guilt violate dou ble jeopardy princip les. W e

affirm the defendant’s conviction for theft under the first count of the indictment and

dismiss the second co unt.



              On July 31, 1996, Joyce Carter parked her automobile, a 1993 Buick

Century, in the parking lot at her place of employment. At about 3:00 p.m., Rodney

Jenkins, a fellow employee, who was leaving work, watched as two men left the

parking lot in Carter’s vehicle . Jenkins reco gnized the autom obile as belon ging to

Joyce Carter, and he knew Carter’s husband. The Buick passed within eight feet of

Jenkins, and he paid particular attention because he realized that the driver was not

Carter’s husband. He described the driver as a black male weighing about 165 to 185

pounds with a light brown com plexion and w earing a dark colored T-shirt and a white

hat. The next day the police recove red the autom obile. Although it had been “burnt

to a crisp,” the police were able to identify it through its VIN number, and Carter

recognized so me of her be longings whic h had not bee n comple tely destroyed.



              Approxim ately one mon th later, on Augus t 30, 1996, som e of Carter’s

co-workers noted that two strang e men we re walking aroun d in the parking lo t and

pointing to various cars. Jenkins went to the parking lot to observe the men, and he

recognized one of them as the man who drove Carter’s au tomobile out of the parking




       1
              See Tenn. Code Ann. § 39-14-10 3 (1997).

                                           2
lot. When the police arrived, Jenkins positively identified the defendant as the person

who had prev iously remov ed Carter’s autom obile from the lot.2



              The grand jury returned a two count indictment. In the first count, the

indictment charged that on July 31, 1996, the defe ndant “ did unlawf ully and knowing ly

obtain property, to wit: a motor ve hicle . . . without the effec tive consent of Joyce

Carter with intent to deprive the owner thereof. . . .” The second count charged the

defendant with unlawfully and k nowingly exercis ing control over the same vehicle. The

jury found the defe ndant guilty on both counts of the ind ictment.



              First we consider wh ether the eviden ce presented at trial is sufficient to

prove beyond a reaso nable doubt that the defendant is the person who committed the

offense ch arged in the indictm ent.



              In Tenness ee, appellate co urts give great weigh t to the result reached

by a jury in a criminal trial. A jury’s verdict approved by the trial judge accredits the

state’s witnesses and resolves all conflicts in favor of the state. State v. Williams, 657

S.W.2d 405, 410 (Tenn. 1983). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict

of guilty removes the presum ption of innoce nce and repla ces it with a presumption of

guilt, the accused has the burden in this court of dem onstrating why the ev idence is

insufficient, as a matter of la w, to support the verd ict. State v. Tuggle , 639 S.W.2d

913, 914 (Tenn. 1982). 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. 278 1, 2789 (1979 ).




          2
              The appellan t did not testify nor did he o ffer any evidenc e on his
behalf.

                                            3
               The identity of the accused as the person who committed the offense for

which he is on trial is a ques tion of fact for the jury. State v. Williams, 623 S.W.2d

188, 120 (Tenn. Crim. App. 19 81); Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978). The record before us indic ates that Rodney Jenkins stood within eight

feet of the defendant during daylight hours.          He testified that he paid particular

attention to the driver of the vehicle when he realized that the m an was not the o wner’s

husband. He was able to describe the driver as a black male with a light brown

complexion who was wearing a dark T-shirt and a white hat with some w riting on it.

A month later, Jenkins again saw the defendant in the same parking lot. He was

wearing the same hat and Jenkins recognized him at once. The arresting officer

testified that Jenkins identified the defendant without hesitation.             Jenkins also

positively identified the defendant at trial. Ques tions of c redibility are f or the jury, and

the jury believed Jenkin s’ testimony. W e find that the evide nce is sufficie nt for a

rational trier of fact to conclude beyond a reasonable doubt that the defendant was the

man who drove the stolen Buic k from the pa rking lot. See State v. Williams, 623

S.W.2d 118, 120 (Tenn. Crim. App. 1981) (victim’s testimony, by itself, is su fficient to

support a conviction); State v. Livingston, 607 S.W.2d 489, 491 (Tenn. Crim. App.

1980) (eyewitness identification suf ficient to suppo rt conviction).



               In his second issue, the defendant contends that his two convictions for

theft violate double jeopardy principles. The state agrees that only one conviction may

stand.



               The grand jury indicted the defendant bo th for unlawfully and k nowingly

obtaining a motor vehicle belonging to Joyce Carter and for unla wfully and knowin gly

exercising control over that same motor vehic le. The jury found the d efendant gu ilty

on both counts. At the hearing on the defendant’s motion for new trial, the trial court

and both counsel agreed that one of the convictions had to be dismissed. The trial

court, however, was reluctant to dismiss either charge because he was uncertain

which count should be retained and which should be dismissed. The record before us

contains only one judgment. According to this judgment, the defendant was convicted



                                              4
on count one of theft of property valued at more than $1000 in violation of Tennessee

Code Ann otated section 3 9-14-103.



              W e agree that the second count should be dismisse d. The evidenc e in

the record is s ufficien t to prove b eyond a reasonable doubt that the defendant

“unlawfully and unknow ingly obtained a motor vehicle worth more than a $1000 but

less than $10,000 without the consent of Joyce Carter, the owner,” and that he acted

with the intent to deprive the owner of her au tomobile.



              Accord ingly, we affirm the defendant’s conviction for theft of property

valued at more than $1000 but less than $10,000 as charged in the first count of

Indictment No. 96-13935. The disposition of the second count of that indictment was

never reflected in a judgme nt. The second count is dism issed.




                                                   _ _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ _ _ _ _ __
                                                   CURW OOD WITT, Judge

CONCUR:



______________________________
JOE G. RILEY, Judge



______________________________
ROBERT W . WEDEMEYER, Special Judge




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