FILED

November 9, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JULY, 1998 SESSION

STATE OF TENNESSEE, ) No. 02C01-9707-CR-00252

)

Appellee )

) Shelby County

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 for 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

CURWOOD WITT 

JUDGE
1 See Tenn. Code Ann. § 39-14-103 (1997).

2

OPINION

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

Shelby County Criminal Court for unlawfully and knowingly obtaining a motor 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 Department of Correction as a career 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 findings of guilt violate double jeopardy principles. We

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

dismiss the second count.

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 recognized the autom obile as belonging 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 wearing a dark colored T-shirt and a white

hat. The next day the police recovered the automobile. Although it had been “burnt

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

recognized some of her belongings which had not been completely destroyed. 

Approximately one month later, on August 30, 1996, some of Carter’s

co-workers noted that two strange men were walking around in the parking lot 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 automobile out of the parking
2 The appellant did not testify nor did he offer any evidence on his

behalf.

3

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

who had previously removed 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 defendant “ did unlawfully and knowingly

obtain property, to wit: a motor vehicle . . . without the effective consent of Joyce

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

defendant with unlawfully and knowingly exercising control over the same vehicle. The

jury found the defendant guilty on both counts of the indictment.

First we consider whether the evidence presented at trial is sufficient to

prove beyond a reasonable doubt that the defendant is the person who committed the

offense charged in the indictm ent. 

In Tennessee, appellate courts give great weight 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 presumption of innocence and replaces it with a presumption of

guilt, the accused has the burden in this court of demonstrating why the evidence is

insufficient, as a matter of law, to support the verdict. 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. 2781, 2789 (1979). 
4

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

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

188, 120 (Tenn. Crim. App. 1981); Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978). The record before us indicates 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 man was not the owner’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 writing 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. Questions of credibility are for the jury, and

the jury believed Jenkins’ testimony. W e find that the evidence is sufficient for a

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

man who drove the stolen Buick from the parking lot. See State v. Williams, 623

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

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

1980) (eyewitness identification sufficient to support 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 both for unlawfully and knowingly

obtaining a motor vehicle belonging to Joyce Carter and for unlawfully and knowingly

exercising control over that same motor vehicle. The jury found the defendant guilty

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
5

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

Code Annotated section 39-14-103. 

We agree that the second count should be dismissed. The evidence in

the record is sufficient to prove beyond a reasonable doubt that the defendant

“unlawfully and unknowingly 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 automobile. 

Accordingly, 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 judgment. The second count is dismissed. 

_________________________

CURWOOD WITT, Judge

CONCUR:

______________________________

JOE G. RILEY, Judge

______________________________

ROBERT W. WEDEMEYER, Special Judge