The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 12, 2014
STATE OF TENNESSEE v. JOSHUA ALLEN FELTS
Direct Appeal from the Criminal Court for Davidson County
No. 2011-B-1597 Monte Watkins, Judge
No. M2013-01404-CCA-R3-CD - Filed June 25, 2014
A Davidson County Criminal Court Jury convicted the appellant, Joshua Allen Felts, on
count one of theft of property valued less than $500, a Class A misdemeanor; on count two
of attempted theft of property valued more than $1,000 but less than $10,000, a Class E
felony; on count three of attempted theft of property valued more than $500 but less than
$1,000, a Class A misdemeanor; and on counts four and five of theft of property valued more
than $1,000 but less than $10,000, a Class D felony. The trial court imposed a total effective
sentence of twelve years in the Tennessee Department of Correction. On appeal, the
appellant challenges the sufficiency of the evidence sustaining his convictions, the trial
court’s denial of his motion to suppress, and the State’s failure to preserve the chain of
custody of the stolen items. Upon review, we affirm the appellant’s conviction in count five.
However, the State concedes, and we agree, that the State failed to establish the value of the
stolen items in the remaining counts; therefore, we remand to the trial court for amendment
of the judgments of conviction in counts one and four to theft of property valued less than
$500, a Class A misdemeanor, and to reflect the reduction in the sentence on each of those
convictions to eleven months and twenty-nine days. Additionally, we remand to the trial
court for amendment of the judgments of conviction in counts two and three to attempted
theft of property valued less than $500, a Class B misdemeanor, and to reflect the reduction
in the sentence on each of those convictions to six months.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed
in Part, Modified in Part; Case Remanded.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.
Elaine Heard (at trial and on appeal) and Michael Freeman (at trial), Nashville, Tennessee,
for the appellant, Joshua Allen Felts.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Leticia Alexander, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
A multi-count indictment was returned against the appellant, charging him with five
counts of theft. The items taken were four laptop computers and a Garmin navigational
device (“Garmin”).
James Collins testified at trial that one night in November 2010, he parked his
Chevrolet Suburban in his driveway. The next time he went outside, he noticed that items
from the vehicle were strewn about the yard. He looked at the vehicle and noticed damage
to the key lock on the driver’s side door. He discerned that some items were missing from
the vehicle, including his laptop computer, camera, leather-bound “Day Timer,” pens, and
loose change. Thereafter, he learned that on the same evening, someone had broken into his
next-door neighbor’s garage and that another house in the neighborhood had been
burglarized. Collins said that he had paid approximately $1,300 for the computer.
On cross-examination, Collins said that he had purchased the computer approximately
three or four years prior to the theft. Collins acknowledged that he would not be surprised
to learn that a three- or four-year-old computer could be purchased for $700. Collins stated
that he did not know the appellant.
Williamson County Sheriff’s Detective Grant Benedict testified that on January 31,
2011, he went to 3107 Gallatin Pike to serve some papers on the appellant. Prior to the visit,
Detective Benedict checked records related to the building and learned that the appellant was
the leaseholder and that the electric bill for the property was in the appellant’s name. The
building appeared to be a single-family residence that had been converted into a tattoo parlor.
At the time Detective Benedict arrived, the business was closed. Detective Benedict knocked
on the back door for some time before the appellant answered. Inside the premises were
Charlene Wittenmore, Pamela Martin, Joshua Spurling, and the appellant.
Detective Benedict said that when he walked through the back door, he saw a kitchen
area to the right. He said that the kitchen “had a lot of groceries” in it. Further inside the
house were stairs leading to a bedroom where Martin and Wittenmore were located.
Spurling’s work area, an open waiting area, and the appellant’s work area were on the main
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floor of the building.
Detective Benedict said that as he walked through the building, he found several
laptop computers, an unplugged flat screen television, a stack of DVDs, a small television,
tattoo equipment, and various tools. Specifically, Detective Benedict found two laptop
computers around Spurling’s work area, one laptop computer upstairs, and another laptop
computer in the waiting area. A Garmin was found mounted on the dashboard of the
appellant’s car. Detective Benedict became suspicious and began checking serial numbers
on the laptop computers and on the Garmin. He learned that the items had been reported
stolen; two of the computers and the Garmin were stolen in Williamson County, and two
computers were stolen in Rutherford County.
On cross-examination, Detective Benedict said that the lease had been signed by the
appellant and Wittenmore. The appellant’s bedroom, containing a bed, dresser, and clothing,
was on the second floor. The appellant and Wittenmore “were in an on again, off again
relationship,” and she occasionally stayed in the bedroom. He said that his “understanding”
was that Martin was brought in to help run the business and also occasionally stayed in the
building.
Detective Benedict said that he did not investigate Spurling’s background. He
explained that his “understanding” was that the appellant “was in control of that building.”
Spurling told Detective Benedict that some of the property, including the laptop computers,
was given to him by the appellant to use in the business.
Detective Benedict said that when he found the Garmin, he turned on the device and
checked the address that was listed as the home setting. The resident at that address told
Detective Benedict that a Garmin was stolen from her Chevrolet Suburban at approximately
1:00 a.m. “a night earlier.” The Suburban was parked in her garage. The resident had not
reported the theft because she believed the loss was insignificant.
On redirect examination, Detective Benedict said that neither Spurling, Wittenmore,
nor Martin were considered suspects. He explained that Wittenmore had serious health
issues and, in his view, was physically unable to commit the thefts and that Martin was
merely an employee of the tattoo parlor. Further, Detective Benedict noted that the appellant
had grown up in Williamson County and that none of the other people in the building had any
connection with Williamson County.
On recross-examination, Detective Benedict acknowledged that people from outside
Williamson County frequently came into the county to commit crimes.
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Detective Benedict said that he was at the tattoo parlor to serve an arrest warrant on
the appellant for the burglary of a Williamson County residence.1 The appellant became a
suspect in the burglary after he, Wittenmore, and Brandon Whey attempted to use a credit
card that was stolen from the residence to buy $400 worth of merchandise at a Walmart in
Williamson County. Wittenmore was in possession of the card. Detective Benedict said that
he did not try to arrest Wittenmore but that he got an arrest warrant for the appellant because
he was a suspect in a series of car and home burglaries. Detective Benedict explained that
the appellant became a suspect in the crimes after a subdivision near the Davidson County
line had a rash of car and home burglaries “over nights.” During patrol, the police came
across the appellant in the subdivision at approximately 2:00 a.m. When the police asked the
appellant why he was in the area, he responded that he was lost and trying to get to Fairview.
The police gave the appellant directions to Fairview, and he left. However, he returned to
the subdivision twenty minutes later. The police spoke with him again, and he said that his
global positioning system (“GPS”) was not working.
Detective Benedict did not know the appellant before January 31; however, he knew
that the appellant had a prior conviction for burglary. In order to obtain the arrest warrant,
Detective Benedict stated in the affidavit that the appellant had used the stolen credit card.
He explained that he had security video reflecting that the appellant attempted to use the
stolen credit card at an automatic teller machine. However, after the appellant’s arrest, he
learned that Wittenmore was in possession of the card; therefore, the charges against the
appellant were dismissed.
Despite knowing of Wittenmore’s involvement with the stolen credit card, Detective
Benedict acknowledged that he focused his investigation of the stolen laptop computers on
the appellant. He explained, “Everybody in that house told me that the property that [was]
in there belonged to [the appellant]; it was given to them by [the appellant], or that [the
appellant] was using it.”
Detective Benedict said he took physical possession of the four computers that were
seized from the tattoo parlor. Pursuant to police procedure, the items were photographed,
and three of the computers were returned to their owners. The owner of the fourth computer
could not be located. The police did not attempt to find fingerprints on the computers. One
of the computers was sent to the Tennessee Bureau of Investigation (“TBI”) for a forensic
examination, but the other three were not. Detective Benedict did not know what the
examination revealed. Detective Benedict said that he was not surprised to learn that
1
Despite the advice of defense counsel, the appellant insisted that counsel question Detective
Benedict regarding his reasons for going to the appellant’s property. As a result, the jury heard testimony
regarding the appellant’s prior convictions.
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Spurling had a conviction for burglary. Nevertheless, Detective Benedict did not consider
Spurling to be a suspect in the instant offenses and focused the investigation completely on
the appellant.
On further redirect examination, Detective Benedict said that one of the laptop
computers belonged to Collins. Detective Benedict stated that the appellant had seven
convictions for aggravated burglary; however, none of the convictions related to the burglary
of an automobile.
Nashville Police Department Sergeant Bryan Brown testified for the appellant.
Sergeant Brown said that he arrested Spurling for theft from a motor vehicle that occurred
on October 11, 2011. In that case, a window was broken, and a bag containing a laptop
computer was taken.
Gidget Diane Miles testified that the appellant was her younger brother. She said that
the appellant lived with her after he was released on parole in March 2009. She said that the
appellant took responsibility for his actions and that he abided by the rules she imposed, such
as finding employment and being home by midnight.
Miles said that the appellant found employment at Payless Tattoos. After working
there for approximately one to one and one-half years, he decided to open his own tattoo
parlor. He rented the property on Gallatin Road, and the business was scheduled to open in
mid-February 2011. Miles knew that Spurling frequently listened to music and downloaded
music onto a computer. She saw posts on Spurling’s Facebook page indicating that he was
selling laptop computers. Miles did not know whether the appellant had laptop computers
at his tattoo parlor, but she knew that he had a desktop computer in the main reception area.
Miles said that each tattoo artist was responsible for providing their own computer. Miles
stated that after the appellant rented the tattoo parlor, he sometimes slept in a small room
upstairs. She said, “I wouldn’t say that somebody could live there because there is no
refrigerator, stove, running water. There’s no bathroom up there.”
Miles said that after the appellant was arrested, she spoke with Detective Benedict.
At the beginning of the conversation, Detective Benedict appeared to want to help the
appellant. However, by the end of the conversation, Detective Benedict appeared to want
to return the appellant to prison.
The appellant testified that he had worked at Payless Tattoos. He decided to start his
own tattoo business and rented a building on Gallatin Road. He said that the building was
not fit to live in because it had no heat; the building was to be used primarily for the business.
Nevertheless, the appellant said, “[I]t’s my house, it’s my dwelling.”
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The appellant said he had not been aware that a warrant had been issued for his arrest.
Therefore, when he opened the door of the tattoo parlor and saw Detective Benedict pointing
a gun at him, he became frightened. The appellant was upset when he was told he was being
arrested for a burglary relating to the stolen credit card because he “knew that [he] hadn’t
done anything wrong.”
The appellant said he did not know that the laptop computers in the building were
stolen and that he did not know where the police found the computers. The appellant told
Detective Benedict that he knew nothing about the computers and that Detective Benedict
should speak to Spurling. He said that Spurling brought his own computer when he was
hired. The appellant asserted that the tattoo artists were responsible for bringing their own
supplies to the tattoo parlor; the appellant supplied only the tattoo chair.
The appellant acknowledged that he had been convicted of crimes when he was
younger but maintained that he was changing his life and did not commit the instant crimes.
The appellant said that the State could not prove its case because it could not produce the
stolen property.
The appellant said that the Garmin was purportedly found in his car. However, the
car was titled in the appellant’s and his mother’s names because the appellant’s credit was
too poor to buy a car. His mother drove the car whenever she wanted. The appellant did not
drive the car very often and did not know who placed the Garmin device in the car.
The appellant said that he had never stolen anything from a car. He said that he only
burglarized houses and that he committed all of his crimes during the day when people were
generally not at home.
On cross-examination, the appellant acknowledged that he had at least thirty
convictions for theft. He stated that Detective Benedict could have searched his home
without a warrant because the appellant was a parolee. He claimed that Detective Benedict
“took property that he said that he found out of my house, and never logged it into evidence,
never put fingerprints on it. . . . That right there, to me, is unjust. You know, there is a
fourth amendment right that says, unreasonable search and seizures. . . . [T]hat was
unreasonable.”
The jury convicted the appellant of the following:
Count Item Offense Victim Class of Offense
1 Garmin theft valued less than Robert Johnson Class A misdemeanor
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$500
2 laptop attempted theft valued Bryan Bath Class E felony
computer more than $1,000 but
less than $10,000
3 laptop attempted theft valued Joseph Yadon Class A misdemeanor
computer more than $500 but less
than $1,000
4 laptop theft valued more than Michael Galtie Class D felony
computer $1,000 but less than
$10,000
5 laptop theft valued more than James Collins Class D felony
computer $1,000 but less than
$10,000
The court sentenced the appellant to eleven months and twenty-nine days for each
conviction on counts one and three, to six years for the conviction on count two, and to
twelve years for each conviction on counts four and five. The court ordered the sentences
to be served concurrently, for a total effective sentence of twelve years. As a career offender,
the appellant was ordered to serve sixty percent of the sentence in confinement before
becoming eligible for release.
On appeal, the appellant challenges the sufficiency of the evidence sustaining his
convictions, the trial court’s dismissal of his motion to suppress, and the State’s failure to
preserve the chain of custody of the stolen items.
II. Analysis
A. Motion to Suppress
The appellant contends that the trial court erred by denying his pretrial motion to
suppress evidence regarding the computers based on the State’s failure to preserve the
evidence. The record reflects that prior to trial, the appellant filed a motion to suppress the
stolen items, alleging that the State could not establish the chain of custody of the evidence.
Defense counsel contended that although the laptop computers, which were the majority of
the stolen items, were found in a tattoo parlor owned by the appellant, they were found in
areas “that were accessible, and almost exclusively, inhabited by other people,” namely
Joshua Spurling. Defense counsel said that “almost as soon as” the State recovered the
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laptop computers, they were returned to the people who had reported them stolen. Defense
counsel complained that the defense was never given access to the computers and was
therefore unable to have the computers tested or fingerprinted. Defense counsel alleged that
testing could have revealed the appellant never touched the computers. Further, defense
counsel asserted that State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), required the State to
preserve the evidence.
The State argued that the issues raised by the appellant were factual questions for the
jury to determine, not for the court to determine in a motion to suppress. The State
maintained that the appellant was the leaseholder of the location where the computers were
found. The State said that in February 2012, Detective Benedict allowed defense counsel
access to two laptop computers that had not been returned to the victims. The State
maintained that it was not required to retain the stolen items until the case was concluded.
Defense counsel responded that Ferguson obligated the State to preserve evidence
with potential exculpatory value. Defense counsel said, “Had we been allowed to take
possession of them before they had gone back to the people that originally owned them, that
they were originally assigned to by their employers[,] we feel like we could have shown that
[the appellant] was not guilty of the charges that he’s facing today.”
The court denied the motion to suppress, finding “that these are, really, factual issues
for the jury to make that determination.” On appeal, the appellant challenges the trial court’s
ruling.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As
such, the State has a constitutional duty to furnish a defendant with exculpatory evidence
pertaining to the defendant’s guilt or innocence or to the potential punishment faced by a
defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
In Ferguson, our supreme court addressed the issue of when a defendant is entitled to
relief in the event the State has lost or destroyed evidence that was alleged to have been
exculpatory. Once the proof demonstrates the existence of a duty to preserve the evidence
and further shows that the State has failed in that duty, a court must proceed with a balancing
analysis involving consideration of the following factors:
1. The degree of negligence involved;
2. The significance of the destroyed evidence, considered in
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light of the probative value and reliability of secondary or
substitute evidence that remains available; and
3. The sufficiency of the other evidence used at trial to support
the conviction.
Id. at 917 (footnote omitted). If the court’s consideration of these factors reveals that a trial
without the missing evidence would lack fundamental fairness, the court may consider
several options such as dismissing the charges or providing an appropriate jury instruction.
Id. We will review a trial court’s decision concerning the fundamental fairness of the trial
under a de novo standard. State v. Merriman, 410 S.W.3d 779, 790 (Tenn. 2013). In the
event we determine the trial would be fundamentally unfair in the absence of the lost
evidence, we will review the remedy applied by the trial court under an abuse of discretion
standard. Id.
Initially, we note that during the suppression hearing, the State maintained that
We had this case set for a bench trial in February of last year. At
that point in time, Detective Benedict provided [defense
counsel] with the items that he had left, that were not given back
to the victims; and, that was two computers, to process in any
way, shape, or form that [defense counsel] would like to do.
That never happened, for whatever reason.
Defense counsel did not dispute that he had access to two of the computers. Accordingly,
there is no potential Ferguson issue with regard to those two computers.
Turning to the other two computers, we note that the State’s duty to preserve evidence
turns first upon whether the defendant would be entitled to receive the evidence in discovery.
Ferguson, 2 S.W.3d at 917. Tennessee Rule of Criminal Procedure 16 permits a defendant
to inspect tangible objects within the State’s possession that are material to the preparation
of the defense, that the State intends to use in its case-in-chief, or that were taken from or
belong to the defendant. Tenn. R. Crim. P. 16(a)(1)(F). Because the computers were the
stolen items at issue in the instant case, the appellant was entitled to inspect the items.
However, the State’s duty to preserve evidence also turns upon the materiality of that
evidence and the availability of comparable evidence. Ferguson, 2 S.W.3d at 917. Our
supreme court has explained that evidence is constitutionally material if it both possessed
apparent exculpatory value before its loss or destruction and is of a type that other
comparable evidence is not reasonably available to the defendant. Id. Defense counsel
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argued that fingerprint analysis, DNA testing for skin cells, and examination of the data on
the computers could be exculpatory because it might show that the appellant had not touched
the items and that other people had touched the items. Specifically, the appellant contended
that analysis of the computers “could have shown that if any [tattoo] designs were on there,
. . . those designs would have belonged to Joshua Spurling, not [the appellant].” However,
according to Detective Benedict, the other people in the tattoo parlor stated that the appellant
owned the computers, that the appellant gave them the computers to use, and that they used
them. Although comparable evidence may not have been available, we conclude that proof
of another person’s fingerprints and/or the lack of the appellant’s fingerprints on the
computers would not necessarily be exculpatory. Accordingly, we conclude that the State
did not breach its duty to preserve the evidence.
Regardless, even if the State had an obligation to preserve the evidence,
Ferguson affords the appellant no relief. Concerning the first factor, which addresses the
degree of negligence involved, Ferguson generally “presumes negligence in the loss or
destruction of the evidence.” 2 S.W.3d at 917 n. 10. The record contains no proof that the
State acted in bad faith; therefore, it appears that the State’s actions were simple negligence.
Id. at 918.
The second factor is the significance of the destroyed evidence in light of its probative
value and the reliability of any secondary or substitute evidence. Id. at 917. Probative value
“requires that evidence assists in proving what it is offered to prove.” Neil P. Cohen et al.
Tennessee Law of Evidence § 4.01[3] (LEXIS publishing, 6th ed. 2011). The appellant
contends that fingerprints could possibly have been taken from the hard surfaces of the
computers, revealing that his fingerprints were not on the computers. Additionally, he
contends that the data memories and histories of the computers might have revealed who had
actually used the computers. As we stated earlier, the employees of the tattoo parlor said that
the computers belonged to the appellant and that he provided the computers for their use.
Accordingly, even if the appellant’s fingerprints and/or data were not on the computer, it
would not necessarily be exculpatory, thereby minimizing its probative value. Moreover, the
appellant cross-examined Detective Benedict about the State’s failure to thoroughly perform
fingerprinting or forensic testing on the computers,2 calling into question the completeness
of the State’s investigation of the case.
Finally, we will consider the sufficiency of the other evidence used at trial to support
the conviction. Detective Benedict testified without objection that the employees of the
2
Detective Benedict testified that one of the computers was sent to the Tennessee Bureau of
Investigation crime laboratory for a forensic examination; however, no evidence was introduced
regarding the results of the examination.
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tattoo parlor told him that the computers belonged to the appellant. All of the computers
were found in the residence leased by the appellant; one was found in the appellant’s
bedroom and one in a common area. Additionally, Detective Benedict testified that
Wittenmore’s health issues made it “improbable” that she could have stolen the computers
and that Martin was “just an employee.” Moreover, Detective Benedict testified that the
appellant had the strongest ties to Williamson County, where the bulk of the thefts were
committed. Based upon the foregoing, we conclude that the appellant was not entitled to
relief under Ferguson.
B. Chain of Custody
The appellant argues that the State failed to properly preserve the chain of custody for
the computers and the Garmin. The appellant contends:
In this case the circumstances surrounding the
introduction of the evidence did not reasonably establish its
integrity. The only witness to testify that there was a theft at all
was Mr. Collins. But Mr. Collins property was only the subject
of count 5 of the indictment. All remaining counts were
testified to only by Detective Benedict, who failed in every
respect to provide a description, a value, or a nexus between the
Appellant and the property other than it was located in a
structure to which the Appellant had access along with multiple
others.
The State contends that because the computers were not entered into evidence, the
prosecution did not need to establish an unbroken chain of custody. We agree with the State.
Generally, Tennessee Rule of Evidence 901 governs the authentication of evidence.
In order to admit physical evidence, the party offering the evidence must either introduce a
witness who is able to identify the evidence or establish an unbroken chain of custody. State
v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998). “The purpose of the chain of
custody is to ‘demonstrate that there has been no tampering, loss, substitution, or mistake
with respect to the evidence.’” State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting
State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)).
In the instant case, the stolen items were not introduced as evidence at trial. Therefore,
there was no need to establish a chain of custody for authentication. State v. Jeremy
McMillon, No. E2010-01091-CCA-R3-CD, 2011 WL 4424732, at *8 (Tenn. Crim. App. at
Knoxville, Sept. 22, 2011).
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Regardless, although the appellant framed his issue as a challenge to the chain of
custody, the heart of his complaint is the sufficiency of the evidence, which we will address
infra.
C. Sufficiency of the Evidence
On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). Moreover, the State is under no “‘affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.’” Id. at 380 (quoting Jackson, 443 U.S. at
326).
A theft of property occurs when someone, with the intent to deprive the owner of
property, knowingly obtains or exercises control over the property without the owner’s
effective consent. Tenn. Code Ann. § 39-14-103. The appellant complains that Collins was
the only owner of stolen property who testified at trial, that the State failed to prove that the
property was stolen or that the appellant was the person who stole the property, and that the
State failed to establish the value of the property. The appellant’s primary argument is that
Spurling was the person who stole the property. The State contends that it sufficiently
proved that the appellant stole the property. Further, the State contends that Collins’
testimony that he paid $1,300 for his computer was sufficient to establish the value; however,
the State concedes that the value of the remaining stolen items was not established at trial.
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The proof at trial established that the laptop computers were found inside a building
leased by the appellant, that the employees told Detective Benedict that the appellant gave
them the laptop computers to use in the business, that one of the laptop computers was found
in the appellant’s bedroom and one in a common area, and that the Garmin was found in the
appellant’s car. This court has previously stated that “[p]ossession of recently stolen goods
gives rise to an inference that the possessor has stolen them.” State v. Tuttle, 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995) (citing Bush v. State, 541 S.W.2d 391, 394 (Tenn. 1976));
see also State v. James Ray Walker, No. W2012-01593-CCA-R3-CD, 2013 WL 3968804,
at *4 (Tenn. Crim. App. at Jackson, Aug. 1, 2013).
Further, Detective Benedict testified without objection that the four computers and
the Garmin were reported stolen. Additionally, Detective Benedict testified that Spurling
told him that “some of that property that was in there was given to [Spurling] to use as
operating his business, and among those things were the laptops that he said he was provided
by [the appellant].” Detective Benedict also testified, “Everybody in that house told me that
the property that [was] in there belonged to [the appellant]; it was given to them by [the
appellant], or that [the appellant] was using it.” Although the testimony consisted of hearsay,
the defense did not object; therefore, the jury could consider the testimony as substantive
evidence. See State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (citing State v. Harrington,
627 S.W.2d 345, 348 (Tenn. 1981); State v. Bennett, 549 S.W.2d 949, 950 (Tenn. 1977)).
We conclude that the State sufficiently established the appellant’s identity as the person who
stole the items.
Finally, regarding the value of the stolen items, we note that Collins testified that
approximately three or four years prior to the theft, he bought the laptop computer at issue
in Count 5 for approximately $1,300. Our criminal code defines value as
(i) The fair market value of the property or service at the time
and place of the offense; or
(ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a
reasonable time after the offense.
Tenn. Code Ann. §39-11-106(36)(A)(i)-(ii). Generally, “[a] witness may testify to the value
of the witness’s own property or services.” Tenn. R. Evid. 701(b). It is the jury’s prerogative
to determine the fair market value of the items stolen. State v. Hamm, 611 S.W.2d 826,
828-29 (Tenn. 1981); State v. Michael Webster, No. M2012-00713-CCA-R3-CD, 2013 WL
2457181, at *6 (Tenn. Crim. App. at Nashville, June 5, 2013); State v. Alton Tappan, No.
W2006-00168-CCA-R3-CD, 2007 WL 1556657, at *5 (Tenn. Crim. App. at Jackson, May
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29, 2007). Moreover, the jury was instructed on how to determine the fair market value of
the item(s) stolen. See State v. Rodger Watts, No. W2010-00705-CCA-R3-CD, 2011 WL
1220766, at *3 (Tenn. Crim. App. at Jackson, Mar. 31, 2011). Viewing the evidence in the
light most favorable to the State, we conclude that a jury could reasonably have determined
that the fair market value of the laptop at the time of the theft was more than $1,000 but less
than $10,000, a Class D felony. See State v. Steven Bernard Sydnor, No. M2007-02393-
CCA-R3-CD, 2010 WL 366670, at *20 (Tenn. Crim. App. at Nashville, Feb. 2, 2010).
The State concedes that it produced insufficient evidence at trial to establish the value
of the remaining laptop computers and the Garmin. We agree. Our code provides that “[i]f
property or service has value that cannot be ascertained by the criteria set forth in
subdivisions (a)(36)(A) and (B), the property or service is deemed to have a value of less
than fifty dollars ($50.00).” Tenn. Code Ann. § 39-11-106(36)(C). Accordingly, we must
modify the appellant’s convictions in Counts 1 and 4 to theft of property valued less than
$500, a Class A misdemeanor. We must also modify the appellant’s convictions in Counts
2 and 3 to attempted theft of property valued less than $500, a Class B misdemeanor.
See State v. Walter Dan McFarland, Sr., No. 01C01-9406-CR-00199, 1995 WL 301447, at
*3 (Tenn. Crim. App. at Nashville, May 18, 1995).
III. Conclusion
Based upon the foregoing, we affirm the appellant’s conviction in count five of theft
of property valued more than $1,000 but less than $10,000 and the accompanying twelve-
year sentence. However, due to the State’s failure to prove the value of the items on the
remaining counts, we remand to the trial court for amendment of the judgments of conviction
in Counts 1 and 4 to theft of property valued less than $500, a Class A misdemeanor, and to
reflect the reduction in the sentence on each of those convictions to eleven months and
twenty-nine days. Additionally, we remand to the trial court for amendment of the judgments
of conviction in Counts 2 and 3 to attempted theft of property valued less than $500, a Class
B misdemeanor, and to reflect the reduction in the sentence on each of those convictions to
six months. The sentences will be served concurrently for a total effective sentence of twelve
years.
_________________________________
NORMA McGEE OGLE, JUDGE
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