# FILED

July 18, 1997
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MARCH 1997 S ESSION
STATE OF TENNESSEE, * C.C.A. # 02C0 1-9610-CC- 00360

Appellee, * HARD EMAN COUN TY VS. * Hon. Jon Kerry Blackwo od, Jud ge TONY LEON H IGGS, * (Ag gra vat ed Bu rgl ary

and T heft o f Property $1,000.00 or more bu t less Appellant. * than $10,000.00)

For Appellant : For Appellee: Gary Antr ican Charles W. Burson Distric t Public Defender Attorney Gen eral & Repor ter Jeannie Kaess Kenneth W . Rucker Asst. Dist rict Publi c Defender Assistant Att orney Gener al 118 East Market Street Criminal J ustice Div ision P.O. Box 700 450 James Roberts on Parkway Somervill e, TN 38068 Nashvil le, TN 37243-4351 Elizabeth Rice District Attorney General Jerry N orwood Asst. Dist rict Attor ney General 302 Market Str

eet Somervill e, TN 38068

OPINION FILE D:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Tony Leon Hi ggs, was convic ted of aggrav

ated burglary and theft of property

valued over $1,000.00 but l ess than $10,000.00. The trial cour t imposed Rang e II, seven-and four-year sentences, res pectively . The sentences are t o be served concurrently

.

In this appeal of right, the de fendant challenges the sufficiency

of the evidence and contends that cert ain testimony should not have been admitted at tr ial. We f ind no error

and affirm the judgment of the trial court.
On the afternoon of September 4, 1995, Unice Woods, accompanied by her son, Jarvis

Beasley, d rove into the drivew ay of their r

esidence and noti ced that someone had broken into their front door. They heard noises fr

om inside the residence. Be asley, fourte en years ol d at the time of tri al, then saw a man, who was wearing a black bandanna ar ound his hand, car ry a radi o out the side door of the Woodses' residence. When the burglar went back insi de the house, Ms. Woods drove to the Bolivar Police Depar tment to report t he crime.
Deputies Wesley Green and Anthony By num of the Hardeman Count y Sheriff's Department

responded to a di spatch, made sure the residence w as secure, and then reported tha t it was safe for the fam ily to return. Whe n Ms. W oods's husband, Joe Woods, arrived at the residenc e, he saw th at the front door had been knocked down. A bedroom television had b een moved into the living room, jewelry had been scattered, and a VCR and a second telev ision had been unpl ugged. Sever al ite ms wer e rep orte d as a mon g thos e mis sing: a Puls ar wat ch, a tiger -eye ring, a wedding band, a ruby and diamond ring, a gold ring with a diamond, two pairs of dia mond e arrings, two gold brace lets, a go ld chain with a charm , some cl othing,3 and $475.00 in cash. Another VCRand compact discs had been placed i n a front room of the house as i f about to be carri ed away.

While at the polic e stati on, Bea sley identi fied thedefendan t from a lineup consisting of ten photog raphs. Beasle y remembered hav ing talked with the defendant on several occasions prior to the burglary; he described the burglar as a black male and, p rior to the photographic lineup, told hi s mother that the burglar w as the person who had borrowed his bike sometim e earlier. W hen Ms. W oods asked if he was refer ring to Tony Higgs , Beasley r

eplied, "Yes ." Eventuall y, the Woodses received approximatel y $1,500.00 in insurance pr oceeds.

At trial, E arnestine Mc Neal, Unic e Woods's cousin, testified that she had seen the defendant in the possession of four or five r ings someti me after the burglary. When the defendan t asked if she would like to purchase a ring, Ms. McNeal recognized on e of the rings, which had not been reported as stolen, as belonging to Ms. Woods.

The defense produced several wi tnesses. Vir ginia Williams recal led that the defendant had attende d a barbeque at her residence in Middlet on, Tennessee, late on th e afternoon of September 4, 19 95, which was Labor D ay. She did not recal l, however, when th e defendant arrived. Other w itnesses sai d they observed the defendant at the barbeq ue but could not pi npoint his ti me of arrival

. Clyde Br addock, howev

er, claimed th at he was w ith the defendant on that Labor Day from between 2:00 or 3:00 P.M . until the end of the day. Bra ddock, who conceded that he was a friend and co-worker of the defen dant, admitted on crossexamination t hat he had not informed au thorities of the alibi from the ti me of the arrest until the time of trial

.4 I Initially , the defendant contends t hat there was "no competent evidence of the v

alue of the property " to support the conviction of theft over $1,000. The defen dant points out that Joe W oods's testimony was that he filed an insu rance claim around "$1,100 .00, if that much, " and Eunice W oods estimated insuran ce coverag e in the amount of $1,500.00. The defendant insists that the amount of the coverag e was not s ufficient.

A jury v erdict, appr

oved by t he trial ju dge, accredi ts the testimony of the witnes ses for the state and resolves all conflic ts in favor of the theory of the state. State v. Hatchett , 560 S.W .2d 627 (Tenn. 197 8). On appeal, the state is entitled to the strongest legitimate view of the evidence an d all reasonable inferences w hich might bedrawn ther efrom. State v. Ca bbage , 571 S.W.2d 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, an d the reconcil iation of conflict s in the ev idence are matter s entrusted exclusiv ely to the j ury as tr iers of fact. Byrge v . State , 575 S. W.2d 295 (Tenn. Crim

. App. 1978). This court may not reevaluatethe evidenc e or substitu te its inferenc es for those draw n by the tr ier of fact. Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). A conviction may be set aside only when the reviewing court finds that the "evidence is insufficient to suppo rt the finding by the trier of fact of guilt beyond a reasonable doub t." Tenn. R. App. P. 13(e).5 One commits a theft of pr operty if, w ith the intent t o deprive t he owner thereof, the perso n knowingly obtains or exercises control without the owner's effective consent. Tenn. Code Ann. § 39- 14-103. Traditi onally, th e carryi ng away of property, no matter how slight the distance, with any intent to deprive the owner, constituted a l arceny. See, e. g. , Caruso v. State , 326 S.W.2d 434, 435 (Tenn. 1958). The successor of fense, thef t, is a Class D felony if the property obtained is $1,000 or more but less than $10,000. Tenn. Code Ann. § 39- 14-105(3).

Value is defined as

follows: (i) [t]he fair market value of the property or serv ice at the time and place of the o ffense; or (ii) [i ]f the fair market v alue of the property

cannot be ascertained, t he cost of replac ing the prope rty w ithin a reasonable time after the offense. Tenn. Code Ann. § 39 -11-106(a)(35)(A).

In addition to the sum of $475.00 in cash, the W oodses collectively testified that a Pu lsar watch, a tiger-eye ri ng, a wedd ing band, a r uby and diamond ring, a di amond ring and b and, a gold r ing wi th diamonds, a g old chain w ith a diamond charm, two pairs of diamond ear rings, a thin gold c hain with a diamond charm, two gold bracelets, a Tommy Hilfiger shirt, a compa ct disc, a radio/compact disc player with a dual cassette, a denim jacket, and one leather j acket had been stolen from their

residence. None of the items were recovered. Other pr operty had been moved around by the burg lar and, by all appearance s, would h ave also been hauled away

had the Woodses not interrupted t he burglar y. Insurance benefits ranged between $1,100.00 and $1,500.00. See Rule 701(b) , Tenn. R. Evi d.; Neil P. Cohen et al., Tennessee Law of Evidence , § 701.6 (3d ed. 1 995).

From all of the c ircumstantial evidence, a jury could properly

infer that6 the value of the p roperty t aken was bet ween $1,000.00 and $10,000.00. A tr ier of fact may, from all of the evidence presented at tr ial, determinethe fair market value of the stolen proper

ty. State v . Hamm , 611 S.W.2d 826, 828-29 (Tenn. 1981). Thus, the evide nce is sufficient. Moreover , any sug gestion that Beasley di d not ade quat ely ide ntif y the d efe nda nt wou ld no t be a basi s fo r rever sal. He had known the defendant for sever al years, used to be a neig hbor to the defendant, had talked to the defendant on pri or occasions , and had once all owed the defendant to borrow his bicycle. There is

no indication that the photogr aphic lineup w

as sugges tive or improperly

conducted. See Neil v. Biggers , 409 U.S. 188 ( 1972); Bennett v. State , 530 S.W.2d 511 (Tenn. 1975).

II

The defendant also complai ns that the tri al court shoul d have exc luded the testimony of Earnest ine McNeal who stated that she had seen the defendan t in possession of Ms . Woods's jewelry . The defendant complained that the testimony was irr elevant becaus e Ms. McN eal described a piece of jewelry that Ms. Woods had not reported as stolen in the burglary. The defendant points out that evidence is relevant only i f it has "any t endency to make the existence of any fact that i s of consequence to the determination of the action more pr obable or less

probable than it would be without t he evidence." Rule 401, Tenn. R . Evid. The d efendant argues that the evi dence should have also been excluded under the rule prohibi ting evidence of other

crimes. The defendant also argues that other cr imes, wr

ongs, or bad acts are not admissible to prove the c haracter of a per son in order to show action and conformit

y wi th a character

trait. Ru le 404(b), Tenn. R. Evid.; Stat e v. Parton , 694 S.W.2d 299 (Tenn. 1985).

"The decision to admi t or excl ude evidence i s left to the dis cretion of7 the trial j udge and his dec ision wi ll not be disturbed unless i t is arbitr arily e xercise d." State v. Baker , 785 S.W .2d 132, 134 (Tenn . Crim. App. 1989). Here, the trial court made the determinati on that Ms. M cNeal's testimony qual ified withi n the definition of relevance. That the Woodses might not have discover ed and then report ed to police all of the property taken in the b urglary would not have been an unreasonable inference. Cer

tainly, t hat Ms. McN eal, even thou gh a relati ve, had recognized t he defendant in possessi on of a ring bel onging to Ms. Woods was probative of the crimes. The unex plained possess ion of stolen go ods has tradit ionally permitted the trier of fact to i nfer that the posses sor has stol en the items. Bush v. Stat e , 541 S.W.2d 391 (Tenn. 1976); State v. Gaut ney , 607 S.W.2d 907 (Tenn. Crim. App. 1980). The credi bility of the witness and the wei ght to be gi ven the testi mony was for the jury

to determine.

Moreover , this evi dence does not, in our view , qualify as evidence of another crime. It is not, i n the words of the ruling in Parton , "wholly independent of that f or which [th e defe ndant ] is charge d." 694 S.W .2d at 3 02 (citin g Bunch v. Stat e , 605 S.W.2d 227, 229-30(Tenn. 1980)) . That M s. Mc Neal t estifi ed that , somet ime after the burgl ary, she s aw a ringwhich bel onged to Ms. Woods in the possession of the defendant related to the offenses at iss ue. It was the jury 's prerog ative to accept or rej ect any poss ible implication of guilt

.

Accordingl y, the judg ment is affirmed.

__________________________________ Gary R. W ade, Ju dge8 CONCUR:

______________________________ Joe B. Jones, Pr

esiding Ju dge

_______________________________ Curwood Witt, Judge