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State v.Ealey11/15/1999
A Greene County jury acquitted the defendant, J. D. Edward Ealey, of aggravated burglary but convicted him of theft of property less than $500 in value, a Class A misdemeanor, and recommended a $500 fine. The trial Judge imposed the fine and an incarcerative sentence of eleven months and twenty-nine days, of which the defendant must serve 75 percent before becoming eligible for rehabilitative programs. The defendant appeals and challenges the sufficiency of the convicting evidence and the sentence imposed by the trial court. We affirm.
The victim, Maudie Franklin, lived in an apartment next door to the defendant's apartment. On June 7, 1996, the defendant came to her apartment and stated that he needed to raise a total of $300. He proposed to trade a gun for her television set, which he hoped to sell. The victim declined to sell or trade a gun for her personal property, and the defendant "threatened [the victim's] stuff in home." The defendant persisted in asking the victim to give him not only her television, but also her video cassette recorder. When the victim continued to refuse his request, he threatened to "take a tire tool and come in and get [the victim]."
After the defendant left the victim's apartment in the late afternoon or early evening of June 7, the victim proceeded with her plans to go to her son's home to spend the night. When she returned to her apartment at 7:00 a.m. the following day, she found her backdoor broken open and found her television, VCR, stereo, audio tapes, and some telephone equipment missing. The police investigated the break-in but found no witnesses nor any readable fingerprints.
Rick Tweed, the defendant's employer in 1996, testified that at different times in the weeks prior to October 1996, the defendant sold him a television set, a VCR, and a number of tapes. The tapes had the name "Maudie Franklin" inscribed on them, and Tweed testified that the defendant explained that Franklin was his ex-girlfriend and that he desired to dispose of the tapes before his wife saw them. Tweed retained the television and VCR but gave the tapes to his brother, Tim Tweed, whose in-laws coincidentally were related to Maudie Franklin. After Tweed's in-laws discovered Franklin's tapes, she reclaimed them and alerted the police to the new developments in the case. The police recovered the television and VCR from Rick Tweed, and the victim identified these items by model number and by some scratches or marks on the VCR which she recognized. Also, even though the serial numbers had been removed from the two appliances, the police located a serial number hidden on the television chassis and confirmed that it matched the number of the television purchased by Franklin.
The only defense witness was Brenda Ealey, the defendant's wife, who testified that on the night that the Franklin home was burglarized, her husband was at home all night and did not leave. The defendant did not testify.
The jury acquitted the defendant of the burglary of Franklin's apartment but convicted him of theft of the property.
I.
It is well established that 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); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). 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. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978).
Moreover, a verdict against the defendant removes the presumption of innocence and raises
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