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State v. Duckett10/9/2001
Assigned on Briefs August 21, 2001
The defendant was indicted for robbery and convicted of misdemeanor theft, for which she was sentenced to eleven months and twenty-nine days, and payment of restitution, with the defendant to serve thirty percent of the sentence. She timely appealed, arguing that the entire sentence should have been probated. Based upon our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Alan E. Glenn, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and John Everett Williams, J., joined.
OPINION
The defendant, Evelyn Elissa Duckett Melton, was convicted of misdemeanor theft and sentenced to eleven months and twenty-nine days, with thirty percent of this sentence to be served in confinement and the remainder probated. The defendant appealed, raising as the sole issue, whether the entire sentence should have been probated.
The victim, Charles H. Ritchey, who was seventy-five years old at the time of the incident, testified that the defendant came to his house at about 9:15 p.m. on July 15, 1999. He was the owner of a used car lot which was located next to his house. He said that the defendant had come to his car lot to look at cars on three other occasions. He carried a pistol as he went to the door, but put it down when he recognized the defendant. She asked to use the restroom at his home as well as his telephone. He declined to allow her to come into the house to use his restroom but brought his telephone to the garage; she spoke on it for about three minutes.
The defendant then asked the victim if she could have a soft drink, and he turned to go get one for her. As he was going up the stairs, the defendant hit him in the back and grabbed his right ankle, causing him to fall face-first on the floor. The defendant got on top of him and took his wallet from his back pocket. As she ran to her car and left, the victim telephoned 911 for assistance.
The victim testified that his wallet contained "a twenty dollar bill and two fives and some ones" and four credit cards. Even though he reported the credit cards as stolen, he still received statements for unauthorized charges at Wal-Mart for a television, Sears for a vacuum cleaner and attachments, and Lowe's Hardware for some air tools and attachments.
The defendant testified that she had been to the victim's home on other occasions and that, on one of these visits, he had offered to pay her for sex, and to pay her $50 if she would return for the same purpose. She said that she had returned to collect this money on July 15, 1999, but the victim told her that he did not have it. According to the defendant, the victim fell as he was going up the stairs, and she never touched him. The defendant admitted taking the victim's wallet but denied using any of his credit cards. She said that she took $35 to $40 out of the victim's wallet and then threw the wallet down as she was leaving the victim's driveway.
Officer Doug Moore, of the Blount County Sheriff's Department, testified that he had interviewed the defendant two days after the incident. The videotape of the interview was played for the jury. Although the sound quality was poor, it appeared the defendant gave Officer Moore the same version of events that she testified to at trial.
Following the presentation of this proof, the defendant was convicted of the lesser-included offense of misdemeanor theft and sentenced to eleven months and twenty-nine days, with the defendant to serve thirty percent of the sentence and the remainder on probation. Additionally
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