State v. David Davenport ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9612-CC-00444
Appellee, * HENDERSON COUNTY
VS. * Hon. Whit Lafon, Judge
DAVID DAVENPORT, * (Theft Over $10,000)
Appellant. * FILED
For Appellant: For Appellee:
Gregory D. Smith, Attorney John Knox Walkup
One Public Square, Ste. 321 August 14, 1997
Attorney General & Reporter
Clarksville, TN 37040
(on appeal) Kenneth W. Rucker
Assistant Attorney General
Jeff Mueller Cecil Crowson, Jr.
450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
Appellate C ourt Clerk
227 West Baltimore
Jackson, TN 38301 James W. Thompson
(at trial and co-counsel on appeal) Asst. District Attorney General
Lowell Thomas State Office Building
Jackson, TN 38301
OPINION FILED:_____________________
AFFIRMED AND REMANDED
GARY R. WADE, JUDGE
OPINION
The defendant, David Davenport, was convicted of automobile
burglary and theft of property valued over $10,000. See Tenn. Code Ann. §§ 39-14-
402(a)(4) (Class E felony), 39-14-101 and -105(4) (Class C felony). The trial court
merged the convictions into a single count of theft over $10,000 and imposed a
Range I sentence of three years.
In this appeal of right, the defendant challenges the sufficiency of the
evidence and complains that the sentence was improper. We affirm the sentence
and conviction but remand for the trial court to modify the judgment form to provide
the correct statutory reference.
Sometime between 11:30 P.M. on December 8, 1994, and 10:00 A.M.
on the following morning, a Chevrolet Silverado pickup truck owned by Gregory
McComick was stolen from the parking lot of his place of employment. Four months
earlier, the victim had acquired the vehicle for $26,000.00. McComick, who had
driven the vehicle only 600 miles before the theft, estimated the value of the truck to
be $23,000.00.
At about midnight, James Alexander, a co-worker of the victim at the
Columbus-McKinnon factory in Lexington, observed a stolen vehicle being driven
out of the parking lot. Tonya Atkinson had seen the defendant and his girlfriend,
Lisa Colson, and Braxton Hicks in a silver Monte Carlo on the evening before the
theft. Alexander had seen a silver Monte Carlo parked on a street near the
Columbus-McKinnon parking lot when the victim's truck was stolen. The Monte
Carlo was driven away once the stolen vehicle passed by. About three hours later,
Ms. Colson asked Ms. Atkinson and her fiancé "to take her to Parker's Crossroads
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to see if David had got away okay." Three days later, Linda Allen, the mother of Ms.
Colson, received a telephone call from the defendant. The defendant asked her if
she had heard anything and then admitted stealing a truck from a factory parking lot
in Lexington.
A jury verdict, approved by the trial judge, accredits the testimony of
the witnesses for the state and resolves all conflicts in favor of the theory of the
state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is
entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which might be drawn therefrom. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the evidence are matters
entrusted exclusively to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292,
295 (Tenn. Crim. App. 1978). This court may not re-evaluate the evidence or
substitute its inferences for those drawn by the trier of fact from the evidence.
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). A conviction may only be set aside when the
reviewing court finds that the "evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13 (e).
A person commits a theft of property if, with intent to deprive the owner
thereof, he knowingly obtains or exercises control over the property without the
owner's consent. Tenn. Code Ann. § 39-14-103. If the value is in excess of
$10,000 but less than $60,000, the theft is a Class C felony. Tenn. Code Ann. § 39-
14-105(4).
Here, the circumstances clearly linked the defendant to the crime. His
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girlfriend, Ms. Colson, asked Ms. Atkinson to "see if David had got away." Later, the
defendant admitted to Ms. Colson's mother that he "stole a truck off a parking lot at
a factory there in Lexington." The value of the stolen vehicle was established by the
victim. In our view, this evidence demonstrates that a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
Next, the defendant concedes that a Range I, three-year sentence for
the Class C felony is the minimum possible. He points out that if the trial court had
not merged the convictions, a three-year sentence would exceed the statutory
maximum for vehicular burglary, a Class E felony. Tenn. Code Ann. § 39-14-
402(a)(4). Counsel for the defendant notes that the judgment form mistakenly refers
to Tenn. Code Ann. § 39-14-402, the vehicular burglary statute, for the conviction of
theft over $10,000.00.
The record demonstrates that the defendant was not sentenced at all
on the vehicular burglary conviction; thus, the point raised by the defendant is moot.
See State v. Baby John Doe, 813 S.W.2d 150, 152 (Tenn. Crim. App. 1991). The
state concedes that the judgment form requires correction. Thus, the conviction and
sentence are affirmed and the case is remanded for the trial court to correct the
judgment form to provide for theft of property over $10,000, Tenn. Code Ann. § 39-
14-103. See Tenn. R. Crim. P. 36 (providing for correction of clerical mistakes on
judgment forms).
__________________________________
Gary R. Wade, Judge
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CONCUR:
______________________________
John H. Peay, Judge
_______________________________
Thomas T. Woodall, Judge
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