# FILED
November 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT

OF CRIMINAL APPEALS OF TENNESSEE AT JA CKSON JULY, 1998 SESSION

STAT E OF TENNESSEE, ) No. 02C01-9707- CR-00252 ) Appellee ) ) 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 & Repor

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

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

OPINION FILED: _____

_______________ AFFIRMED
CURW OOD WITT JUDGE1 See Tenn. Code Ann. § 39-14-10 3 (1997). 

### 2 OPINION The defendant, J oe E. Jackson, ap peals f rom his convict ions in the Shelby County Criminal Court for unlawfu lly and knowingly obta ining a moto r vehicle val ued at m ore than a t housand dollar s but less t han ten thousa nd dollars and for unlawf ully and knowingly exercising control ove r the same vehicl e. 1 The trial court entered judgment only on the firs

t count of the indictment and sentenced the defendant to se rve tw elve years in the De partment of C orrection as a ca reer offender. In this appeal, the defendant cont ends (1) that the evidence presen ted at tr ial is i nsufficient to identify

him beyond a re asonable doubt as the person who committed the of fense and (2 ) th at the jury’s dual finding s of guilt violate dou ble jeopardy princip les. W e affirm the defe ndant’s co nviction f or theft under the f irst count

of the indi ctment and dismiss the second co unt.

On July 31, 1996, Joyce Cart er parke d her automobil e, a 1993 Buick Century, in the parking lot at her place of

employment. At about 3:00 p. m., Rodney Jenkins, a fellow employ ee, who was l eaving work, watched as tw o 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 ei ght feet of Jenkins, and he

paid part icular at

tention be cause he reali zed that t he driver was not Carter’s husband. He descr ibed thedriver as a black male weigh ing about 165 to 185 pounds with a light brown com plexion and w earing a dark colored T-shirt anda white hat. The next day the police recove red the autom obile. Although it had been “burnt to a crisp ,” th e police were ab le to i dentif y it throug h its VI N 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, 1 996, som e of Carter’s co-work ers noted that two strang e men we re walking aroun d in the parking lo t an d pointingto vario us cars. Jenki ns went to t he parking lo t to obser

ve the men, and he recognizedone ofthem as the man who drove Carter’s au tomobile out of the parking2 The appellan t did not testify nor did he o ffer any evidenc e on his

behalf. 

### 3 lot. When the police arrived, Jenkins posit ively i dentifiedthe defendant as the person who had prev iously remov ed Carter’s autom obile from the lot. 2

The grand jur

y returned a two c ount indictment. In the fi rst 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 int ent to deprive the owner thereof . . . .” T he second count cha rged the defendant

with unlawfully and k nowingly exercis ing control over t he same vehicle. Th e 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 per

son who committed the offense ch arged in the indictm ent.

In Tenness ee, appellate co urts give great weigh t to the resul t reached by a ju ry in a

criminal t rial. A jury’ s verdict a pproved by t he trialjudge accredits the state’s witnesses and resolvesall confl icts in fa vorof the state. State v . Wil li ams , 657 S.W.2d 405, 410 (Ten n. 1983). On appeal, t he s tate is entitled t o the stro ngest legitimate view of the evidence and all reasonable infer ences which may be drawn the ref rom. 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 guil t , the accused has the burden in this court of dem onstrating why the ev idence is insu fficient , as a matter of la w, to support the verd ict. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 19 82). Our st andard of re

view when the sufficiency of the evide nce is questione d on appeal is "wheth er, afte r viewing the evidence i n the light most favorable to the pr

osecution, any rati onal tri er of fact could have found the essential elements of the cri me beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 278 1, 2789 (1979 ).

### 4 The identit

y of the acc used as theperson who committe d the offense f or which he is on trial is a ques tion of fact for the jury. State v . Wil li ams , 623 S.W.2d 188, 120 (Tenn. Crim. App. 19 81); Byrge v. State , 575 S.W.2 d 29 2, 2 95 ( Ten n. C ri m. App. 1978). The record before us indic ates that Rodney Jenkins stood w ithin ei ght feet of the defenda nt during daylight hours. He testified that he paid pa rticula r attenti on to the driver of t he vehicle whenhe realized that the m an was not the o wner’s husband. He w as a ble to describe the driver as a black male with a li ght brown complexion who was weari ng a dark T-sh irt anda white hat with some w riting on it. A month later,Jenkins again saw the defendant in the same parki ng l ot. He was wearing the same hat and Je nkins recogni zed him at onc e . The arresting offi cer testifi ed that Jenki ns identif ied the defen dant witho ut hesitat ion. Jenki ns also positively identifi ed the defendant at trial. Ques tions of c redibility are f or the jury, and the jury be lieved Jenkin s’ testimony. W e find that the evide nce is sufficie nt for a rationaltrier

of fact to

conclude beyo nd a reasonable doubtthat the defendant was t he
man who drove the stolen Buic k from the pa rking lot. See Sta te v . Wil li ams , 623 S.W.2d 118 , 12 0 (Tenn . Crim. App. 1981) (victim’s testimony, by itself, is su fficient to
s upport a conviction); State v. Livingston , 607 S. W.2d 489, 491 ( Tenn. Crim. Ap p . 1980) (eyewitness identification suf ficient to suppo rt conviction).

In his second issu e, the defendant contends that his two convict ions for theft violate double jeopardy principl es. The stat

e agrees that

only one conv iction may stand.

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

vehicle bel onging to Joy ce Carter and for unla wfully and knowin gly exercisingcontrol o

ver that samemotor vehic le. The jury found the d efendant gu ilty
on both counts. At the hearing on the def endant’s motio n for

new trial, the trial court and both counsel agreed that one of the convi ctions had t o be dismissed. T he trial court, however, was reluctant to dismiss either charge beca use he w as uncertain which count should b e retainedand which shoul d be dismissed. T he record bef ore us containsonly one j udgment. Accordi ng to this j udgment, thedefendant was co nvicted

### 5

on count one of t heft of pro perty val ued at more than $10 00 in viola tion of Tennessee Code Ann otated section 3 9-14-103.

We agree that

the second count

should be dismisse d. The evidenc e in the record is s ufficien t to prove b eyo nd a re asonable doubt that the d efendant “unlawfully and unknow ingly obta i ned a motor vehicl e worth more t han a $1000 but less than $10,000 without the consent of Joy ce 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 convicti on for theft of property valued at more than $10 00 but less t han $10,000 as char ged in the fi rst cou nt o f Indictment

No. 96-13935. Th e dispositi on of the second count of that i ndictment was never reflected in a judgme nt. The second count is dism issed.

_______ ______ ___________ _ CURW OOD WITT, Judge CONCUR:

_______________________ _______ JOE G. RILEY, Judg e

_______________________ _______ ROBERT W . WEDEMEYER, Special Judge