# FILED
April 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TENN ESSEE, ) C.C.A. NO. 01C 01-9707-CC-00310 ) Appellee, ) BEDFORD COUNTY ) ) (No. 1404 1 Bel ow) VS. ) ) JAMES EARL MASON, ) The Hon. William Charles Lee a/k/a JAMES OSCAR MA SON, )

) (Theft of Property Under $500) Appellant. ) )

FOR THE APPELLANT : FOR THE APPELLEE : ON APPEAL : CURTIS H. GANN JOHN KNOX WALKUP Assistant Public Defender Attorney General and Repor ter AT TRIAL : GEORGIA BLYTHE FELNER Assistant Attorney Gener al MICHAEL D. RANDLES Cordell Hull Buildi ng, Second Floor Assistant Public Defender 425 Fifth Avenue North 105 South Main Nashville, TN 37243-0493 P.O. Box 1119 Fayetteville, TN 37334 W. MICHAEL McCOW N District Attorney General ROBERT C. CRIGLER Assistant District A

ttorney General One Public Square, Suite 100 Shelbyville, TN 37160

OPINION FILED ___________________

AFFIRMED
GARY R. WADE, JUDGE1 O P I N I O N

The defendant, James Earl Mason, who w as indicted for both burglar y and theft, was convicted of theft of property under $500. The jury assessed a fine of $500, and the trial court sentenced the defendant to 11 mo nths in the co unty jail. In this appeal of right, the primary issue pre sented for review is

whe ther the e vidence was sufficient to support the defenda nt’s convic tion. The defendant also claims that the jury was inconsistent in its v

erdicts. We affirm the judgment.

The proof showed that on August 14, 1996, Smith’s Auto Repair and Rebuild, located in Shelbyville, Tennessee, was burglari zed. That night, sometime ar ound 9:30 or 10 p.m., Timmy Freeman was working on his car

at Garrett’s Auto Sales when he heard
a noise that sounded like chain link fence rattling. The noise appear ed to be coming from the di rection of Smith’s Auto Repair and Rebuild and J & J Detail Shop (also known a

s Sullivan’s Detail Shop). When Mr. Freeman went to investigate, he hear

d the noise again. He then used his cellular phone to call the police. The police arrived, as did Scotty Garrett, the owner of G arrett’s Au to Sales. Approximately one hour later, Mr. Garr ett was
a pproa ched by the defendant and another unidentifie d man. The defendant, who had frequently come by the shop trying to sell things, asked if Mr. Garrett wanted to buy a die grinder. Mr. Garrett asked the defendant wher e the die grinder came from or if it was “hot,” and the defendant responded that Mr. Ga rrett “didn’t have to worry about that. It would
never be found.” Although Mr. Garrett was suspicious, he purchase d the tool from the defendant for $10.

On the morning of August 15, 1997, when David Smith, the owner of Smith’s Auto Repair and Rebuild, returned to work, he discovered that the door had been kicked in. Upon in ventorying his tools, Mr. Smith determ ined that severa l items were missing, including a die grinder, whi ch he estimated to be worth $30 or more. L ater thatnight, Mr. Smi th dr ove around the neighborhood l ooking for persons with information about the burglar y. He stop ped at Garrett’s Auto Sales and asked Mr. Garrett if he ha d any2

information. Mr. Garrett told him abou t the police coming the prev ious night and asked whatitemswere missing from Mr. Smith’s shop. Upon learning that Mr.Smith was missing
a die grinder, Mr. Garr

ett showed him the one he had purchased from the def endant. Mr. Smith identified the die grinder as the one stolen from his shop, and Mr. Garret t returned it to Mr. Smith, who gave him $10. Mr. Garrett described the person who sol d it to him, and Mr. Smith asked if it w as the defen dant. Mr. Garrett said that it was the defendant. Subseque ntly, when the police showe d Mr. Garrett a photogr

aphic line-up, he identified the defendant as the person who sold him the die grinder.

On the day of the burglary , Mr. Smith stop ped on his way home from work at a gas station a few str eets away from his shop. He saw the defen dant with another man, David Ransom, on the str eet b ehin d the gas station. Earlier in the afternoon, Mr. Ransom had gone up to Mr. Smith’s car, w hich was parked in front o f the shop, and leaned
on the top of it. When Mr. Smith asked if he could hel p him with something, M r. Ransom said no and left.

The defendant den ied taking Mr. Smith’s die gri nder and testified that he found it on t he side of the road as he was w alking home from a girlfri end’s house. According to the defendant, as hewas walking home alone, he saw Mr. Garr ett at his car lot. He stopped and asked Mr. Garrett if he would like to buy the die grinder. He confirmed that Mr. Garrett asked him if the die grinder was “hot,” and that

he responded that it could not be found. The defendant indicated that he did not tell Mr. G arrett about finding the die grinder on the side of the road because then Mr. Garrett probably would not have bought it. The defendant also denied being w ith Mr. Ransom the day of the burglary. Based on the proof, the jury

convicted the defendant of theft o f property over $500, but acquitted him of burgla ry.

The defendant argues that t he circumstantial evidenc e is insufficient to support his conviction because he provided a reasonable explanation as to how he came into po ssessi on of the stolen property and the state failed to produce any ev idence to3

refute his claim. Moreover, the defendant submitsthat the jury’s verdi ct was inconsistent, in that the jury found him gui lty of theft but not guilty of burglary. The defendant argues that in order to have commit ted the thef t, he would have also had to have committed the burglary.

Initiall y, we note that there is no r equirement of

consistency in a jur

y verdict. Wiggins v. State , 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe , 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992); State v. Hicks , 835 S.W.2d 32, 36 (Tenn . Crim. App. 1992). An acquittal

on one count o

f an indictme nt cannot be considered res judi cata to another count even when both counts ste m from the same criminal transaction. Wiggins , 498 S.W.2d at 94; Gennoe , 851 S.W.2d at 836. If satisfied that the proof estab lished guilt of the offense upon which the convicti on was returned, this Court will not upset a seemingly inconsistent

verdict by specul ating as to the jury's reasoning. Wiggins , 498 S.W.2d at 94. Accordin gly, the only issue is w hether the evidence supports the defendant’s convictionof theft.

In reviewing the sufficiency of the evidence on appeal, the state is entitled to the strongest legitimate view of the evidence and to

all reasonable inferences w hich might be dr awn therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978). W hen th e sufficiency of the evidence is challenged, the r elevantquestion for the appellate court is whether, after r eview ing the evidence in a l ight most favorable to the pr osecution, any rational trier of fact could have found the essenti al elements of the crime beyond a reasonable do ubt. Jackso n v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560 (1979); State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); T.R.A.P. 13(e).

As in this case, a crime may be establ ished by circumstantial evidence. State
v. Tharpe , 726 S.W.2d 896, 89 9-900 (Tenn. 1987). Before an accused may be convicted of a criminal offense based upon circumstantial evidence, the facts and the circumstances "must be so strong and cogent as to exclude every other reasonable hypotheses save the guilt of the defendant, and that beyond a reasonable doubt." State v. Crawford , 225 Tenn.4

478, 482, 470 S.W.2d 610, 612. "A web of guilt must be woven aroundthe defendant from which he cannot escape and from w hich facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reas ona ble do ubt." Id . at 484, 470 S.W.2d at 613.

In order t o obtain a convi ction of

theft of property under T.C.A. § 39- 14-103, the state must prove beyond a reasonable doubt the following essential elements: (1) th at the defendant intended to deprive the ow ner of th e pr operty, (2) that the defendant knowin gly

obtained or exercised control over the property of another, and (3) t hat th e defendant did not have the owner's effective consent. It is undisputed that

the defendant knowingly

obtained control ov

er the die grinder and that he did not have Mr. Smith’s effect ive consent. The defendant admitted that he was in possessio n of the die grinder and that he sold it to Mr. Garrett. Moreover, Mr. Smith testified that he did not consent to the defendant taking possession of the die grinder. In essenc e, the defendant argues that he did not knowingly

obtain or exercise co ntrol over the property of another because he did not know that the die gr inder belonged to Mr. Smith.

At trial, the defendant testified that on the nig ht of the burglary, he found the die grinder on the side

of the road and picked it up. The unexplai ned possession of goods recentlystolen may warrant the inference that such goods were illegally received and so impose on the accused the obligat i on of accounting for their posses sion “in a straightforward, truthful way.” Tackett v. State , 223 Tenn. 176, 443 S.W.2d 450, 451 (Tenn. 1969). In Tennessee, an unsatisfactorily explained possession of very recently stolen property may, in li ght of surroundingcircumstances, support a conviction for theft. See State v. Hatchett , 560 S.W.2d 627, 629 (Tenn. 1978). This inference of guilt remains intact notwithstanding contradictory evidence and the defendant's explanations. State v. Land , 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984). It is within the discretion of the jury to weigh the import of the inference against the defend ant's explanation. Bush v. State , 541 S.W.2d 391, 395 (Tenn. 1976). The defendant, in this case, attempted to explain his possession of the die grinder, howev er, as evidenced by the jury’s verdic

t, they chose not5

to accredit his explanati on. Accordingly, ba sed on this inference and the surr ounding circumstances

of this ca se, this Co urt concl udes tha t the jury had suff icient facts from which they c ould rationally infer that the defendant intend ed to deprive the owner of his property. T.R.A.P. 13(e). Finding that the evidence is s uffic ient to support the jury’s verdict, we affirm the j udgment.

_______________________________________ GARY R. WADE, JUDGE
CONCUR:

_______________________________________ THOMAS T. WOODALL, JUDGE

_______________________________________ TERRY L. LAFFERTY, SPEC IAL JUDGE