Opinion
No. W2003-01176-CCA-R3-CD.
Assigned on Briefs February 10, 2004.
Filed February 12, 2004.
Direct Appeal from the Criminal Court for Shelby County, No. 01-13505, W. Fred Axley, Judge.
Judgments of the Criminal Court Affirmed in Part; Reversed in Part; and Remanded.
Robert Wilson Jones, District Public Defender, and Timothy J. Albers and Garland I. Ergïden, Assistant Public Defenders, for the appellant, Sharn Green.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Eric Christensen, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the court, in which Joe G. Riley and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant was convicted of two counts of theft of property over $10,000 and one count of burglary of a motor vehicle. The defendant contends on appeal that (1) the evidence was insufficient to support the convictions for theft and burglary, and (2) double jeopardy prohibits multiple convictions for the theft of a single vehicle by both "obtaining" and "exercising control." We conclude that the two convictions for theft must be merged into a single conviction in order to avoid double jeopardy. The judgments of the trial court are affirmed in all other respects. We remand for correction of the judgment forms and merger of the theft convictions.
The Shelby County Grand Jury returned a three-count indictment charging the defendant with two counts of theft of property over $10,000, a Class C felony, and one count of burglary of a motor vehicle, a Class E felony. Following a jury trial, the defendant was found guilty on all three charges. The trial court sentenced the defendant as a Range III offender to ten years for each of the theft convictions and four years for the burglary conviction. The trial court ordered the two theft sentences to be served concurrently to each other and consecutively to the burglary sentence, for a total effective sentence of fourteen years. The defendant timely filed his notice of appeal. The defendant contends on appeal that (1) the evidence was insufficient to support the convictions for theft and burglary, and (2) double jeopardy prohibits multiple convictions for the theft of a single vehicle by both "obtaining" and "exercising control." We conclude that the two convictions for theft must be merged into a single conviction in order to avoid double jeopardy. The judgments of the trial court are affirmed in all other respects. We remand for correction of the judgment forms and merger of the theft convictions.
Facts
On the morning of September 11, 2001, Jennifer Prince discovered that her 1998 Oldsmobile Cutlass was missing. The last time she had seen the vehicle parked in front of her residence was at approximately 9:00 p.m. the previous evening. The victim reported the vehicle stolen around 9:00 or 10:00 a.m. on September 11. According to the victim, the blue book value of the vehicle was $12,000. Among the contents of the vehicle when it was taken were various compact discs, a portable bassinet, costume jewelry, and a red "Marlboro" duffel bag that contained various items.
Around midday on September 11, 2001, Marquette Woods was retrieving his garbage cans near the curb in front of his residence. Woods observed a car pull in front of a nearby vacant house and park. A man, later identified as the defendant, got out of the vehicle and hid behind the bushes. Moments later, two police cars drove by. After the patrol cars left, Woods saw the defendant throw a set of keys in the yard and walk away with a red Marlboro duffel bag over his shoulder. Woods saw the defendant walk down the street and enter a nearby liquor store.
Sensing that something was amiss, Woods flagged down a police officer as one of the patrol cars drove by again. He relayed what he had observed to the police officer, Andre Nelson. Nelson called in the license plate number of the vehicle and determined that it was the same vehicle that had been reported stolen by the victim earlier that morning. Nelson's partner, Michael Bremmer, went inside the liquor store to investigate. Upon entering the store, he noticed a red Marlboro bag behind the counter with the owner. The owner told him that the bag was given to him by the defendant, who was still in the store. After being questioned by the officer about the bag, the defendant stated that he had bought it at a flea market. The officer detained the defendant and transported him back to the location of the stolen vehicle. Woods confirmed to the officers that the defendant was the same person that he saw driving the vehicle.
Analysis
The defendant contends on appeal that (1) the evidence was insufficient to support the convictions for theft and burglary, and (2) double jeopardy prohibits multiple convictions for the theft of a single vehicle by both "obtaining" and "exercising control."
I. Sufficiency of the Evidence
The defendant contends on appeal that the evidence was insufficient to support the convictions for theft and burglary. When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992). On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). This Court will not re-weigh the evidence, reevaluate the evidence, or substitute its evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn.Crim.App. 1995). Furthermore, in a criminal trial, great weight is given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn.Crim.App. 1995).
Once approved by the trial court, a jury verdict accredits the witnesses presented by the State and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted exclusively to the jury as trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);State v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App. 1996). A jury's guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of overcoming this presumption of guilt on appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).
Although the evidence of the defendant's guilt is circumstantial in nature, circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn.Crim.App. 1993). However, in order for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused, but it must also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, "it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed the crime." Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn.Crim.App. 1970)).
While following the above guidelines, this Court must remember that the jury decides the weight to be given to circumstantial evidence, and "[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury." Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958);see Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn.Crim.App. 1985); Pruitt, 460 S.W.2d at 391.
The defendant was convicted of theft of property valued at over $10,000 and burglary. A defendant may be convicted of theft if the State proves that, with the intent to deprive the owner, the defendant knowingly obtained or exercised control over property without the owner's consent. See Tenn. Code Ann. § 39-14-103. To sustain a conviction for burglary, the State must prove that the defendant entered a freight or passenger car, automobile, truck, trailer, boat, airplane, or other motor vehicle without the owner's consent and with the intent to commit a felony, theft, or assault. See id. § 39-14-402(a)(4). The "unexplained possession of recently stolen property is sufficient evidence to sustain a burglary conviction." Smart v. State, 544 S.W.2d 109, 110-11 (Tenn.Crim.App. 1976) (citations omitted). Additionally, the unexplained possession of recently stolen property gives rise to an inference that the person is guilty of theft. State v. Anderson, 738 S.W.2d 200, 202 (Tenn.Crim.App. 1987).
On the morning of September 11, 2001, the victim reported that her vehicle had been stolen sometime during the previous night. Around midday on September 11, 2001, the defendant was seen driving the stolen vehicle and abandoning it near the home of Marquette Woods. Woods saw the defendant exit the vehicle carrying a red Marlboro bag. The defendant then hid behind the bushes as two police cars drove by. He then saw the defendant walk down the street and enter a liquor store. The witness described these suspicious events to police. Minutes later, the police located both the red bag and the defendant inside of the liquor store. Woods confirmed that the defendant was the same person he saw exiting the stolen vehicle. We conclude that the evidence was legally sufficient to sustain the convictions for theft and burglary. This issue is without merit.
II. Double Jeopardy
The defendant also contends that double jeopardy prohibits multiple convictions for the theft of a single vehicle by both "obtaining" and "exercising control." The defendant did not object to the multiple convictions for theft nor include this issue in his motion for new trial. Generally, a defendant waives the right to challenge an error by the trial court when the defendant did not object to the error and did not include it in the motion for new trial. Tenn. R. App. P. 3(e); State v. Kendricks, 947 S.W.2d 875, 885 (Tenn.Crim.App. 1996). However, an error which has affected the substantial rights of a defendant may be noticed at any time at the discretion of the appellate court where necessary to do substantial justice. Tenn. R. Crim. P. 52(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Thus, we will address this issue under the plain error doctrine.
The indictment in the present case charged the defendant with two counts of theft of property over $10,000. Count One of the indictment charged the defendant with unlawfully and knowingly obtaining property, to wit: a motor vehicle, valued at over $10,000; and Count Two charged the defendant with unlawfully and knowingly exercising control over property, to wit: a motor vehicle, valued at over $10,000. The jury found the defendant guilty as to both counts, and the trial court sentenced the defendant to ten years on each conviction. Upon review of the record, there is no question that the same evidence was used to support both convictions.
The United States and Tennessee Constitutions protect the accused from being placed in jeopardy on more than one occasion for the same offense. U.S. CONST. amend. V; TENN. CONST. Art. I, Sec. 10. The constitutional right against double jeopardy protects against (1) a second prosecution after an acquittal; (2) a second prosecution after a conviction; and (3) multiple punishments for the same offense. State v. Beauregard, 32 S.W.3d 681, 682 (Tenn. 2000). In the case before us, the defendant's constitutional protection against multiple punishments for the same offense was violated. "Clearly, from the plain language of the theft offenses, theft by obtaining and theft by exercising control are the `same offense.'" State v. Kennedy, 7 S.W.3d 58, 70 (Tenn.Crim.App. 1999). Accordingly, we conclude that the defendant's two separate convictions for theft of the vehicle in this case violates double jeopardy. The two convictions shall be merged into one single conviction for theft. We recognize that the defendant's total effective sentence will not be altered because the trial court ordered the theft sentences to run concurrently with each other.
Conclusion
On the judgment forms in this case, the trial court incorrectly marked a box under the Sentencing Reform Act of 1982. Obviously, the defendant was sentenced under the Sentencing Reform Act of 1989. Upon remand, the trial court shall correct the judgment forms to indicate that the defendant's offender status is "persistent" under the Sentencing Reform Act of 1989, and nothing should be checked under the Sentencing Reform Act of 1982. See Tenn. R. Crim. P. 36. We conclude that the two convictions for theft must be merged into a single conviction in order to avoid double jeopardy. The judgments of the trial court are affirmed in all other respects. We remand for correction of the judgment forms and merger of the theft convictions.