# FILED
December 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) No. 01C01-9710-CC-00457 ) Appellee ) ) Montgomery County vs. ) ) Honorable John H. Gasaway, Judge HARRY D. CLARDY, ) ) (Theft of prope rty) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY SM ITH JOHN KNOX WALKUP (On Appe al Only) Attorney General & Repor ter Assistant Public Defender One Public Square KAREN M. YACUZZO Suite 321 Assistant Attorney Gener al Clarksville, TN 37

040 Criminal Justice Div ision 425 Fifth Ave. North N. REESE BAGWELL 2d Floor, Cordell Hull Bldg. (At Trial) Nashville, TN 37243-0493 Attorney at Law 116 S. Second St. JOHN WESLEY CARNEY, JR. Clarksville, TN 37

040 District Attorney General ARTHUR BIEBER Assistant District A

ttorney General 204 Franklin St., Suite 200 Clarksville, TN 37

040

OPINION FILED: ____________________
AFFIRMED JAMES CURWOOD WITT, JR. JUDGE1 This case is before us on a gr ant of a delayed appeal. The defendant was sentenced on August 18, 1995. No motion for new tri al was filed. On September 14, 1997, the trial c ourt found that the defendant had receiv ed ineffective assistance of counsel and was entitled to a delay ed appeal. Appointed counsel filed a motion for new trial and an amended motion for new trial. The trial court denied the motions on August 22, 1997, and the notice of appeal was filed four days later. 2 OPINION The defen da nt, Harry D. Clar dy, appeals pursuant to Rul e 3 of the Tennessee Rules of Appellate Procedure fro m his judgment of conviction in the Cr iminal Court of Montgomery Count y for exercising

control over stolen pr

opert y valued at more than $10,000, a Class C felony. He was sent enced to serve fifteen years in the Department of Correcti on as a Range I II, persistent offender. In this appeal, the defendant contends that the evidenc e is insufficient to establish that the goods stolen were worth mor e than $10, 000 and that the trial in Montgomery County Circuit Court vi olated due process because the theft occurred in Davids on County. We affirm the judgment of the trial cour t. 1

The proofintroduced at trial show s that on October 25, 1994 Bobby Gray, an ex-police officer, beca me suspicious when he saw the driver of a tractortrailer truck attempt to back into a parking lot at Bel lamy Auction in Clark sville. The truckmissed the turn and went into a ditch. The back doors c ame open and several boxes fell out. He reco gnized the defendant who was standin g alongside the vehicle trying to guide i t into the lot. Gray c

alled the p olice on his cellular phone. He continued to watch as the driver j ockeyed the truck back and forth in his
unsu ccessful attempt to back in to the lot . Just as th e police a rrived, th e drive r pulled the truck into the street n ear the curb. When t he officers ran the VIN
num bers they discovered that the tractor belonged to L & M Enterpri ses i n Mississippi, that the t railer was owned by Dol lar General Stores Inc., and that L & M did not deliver f orDollar General Stores.At that time, neither busines s was aware of the theft ofits property. The poli ce arrested the defendant and Bobby J oe Hobson, the truck driv

er.2 Hobson and Bowlin testified to these events at trial . Hobson pleaded guilty to ex

ercising control ov

er stolen property v

alued at more than $10,000 and received three y ears on probation. At the time of Clardy’s trial, h e was awaiting tr

ial in Mississippi

on embezzlement charges . Bowlin was not indicted. 3

The res ul ting police investi gation discovered that Hobson, an employee of L & M, left Mississippi on Oc t. 23 with a load of furniture to be delivered in Detroit. Hobson had become seriously addicted to crack cocaine,and instead of proceeding to Detroit, he stopped in Nashvill e and sold the contents of the trail er for $1,400. He abandoned the empty trailer in a lot and spent the money on crack. Durin g the cours e of the evening, he encountered the defendant and a woman named Mary Bowlin. When the money ran out, Clardy

suggested that they pick up
a loa ded tra iler from the lot at RAM-3 Distribution Servi ces. Hobson followed Clardy’s directions to the lot and s elected a loaded, sealed trail er. Hobson attached the trailer to the “bobtail ,” and the threesome drove to Clarksville w here they attempted to sell the contents of the trailer at Bellamy Auction. 2 Hobson and Bowlin both testified that, at one point, they decided to abandon the trailer. They emptied
some of the cartonsand packed the goods in the sleeper. Hobson, however, had broken a pin in the “fifth wheel” when he attached the trailer, and he was unable to release the mechanism. Clardy managed to sell a few of the loose itemsalong the road.
According t o Nancy Bellamy, Cl ardy came to Bellamy Auc tion at about 3:00 p.m. on Oct. 25 and offered to sell her the contents of the trailer. He showed her a blanket, a kerosene lamp, and a tea kettle. She asked h im if he had a bill of sale, and when he said that he did, she agreed to take a l ook at the merchandise. Because of the difficultiesHobson encountered in try ing to back into the parki ng lot and the arrival of the police, she never actually saw any of the merchandise in the vehicle.

At trial, Mark Spencer, Dollar General Corporation’s traffic manager, testified that the trailer it self was wo rth appr oximately $7,000. He s ubmitted a3 At trial, Spencer testified that the cartons numbered 1,381. Our

calculations based on the summary indicate that the number was 1,364. The actual number is not of any par ticular significance i n this instance. 4 detailed summary sheet which specified the ex act contents of thetrailer and their value. Acco rding to the summary, the trailer contained 1,364 car tons valued at $47,089. 3 When he examin ed the trai ler, approximately 30 or 40 of the cartons
were missing; however, t he cab’s sleeper was pac ked full of blankets and other items.

After

hearing the testi mony, the jur y found the defendant guilty of the ft of pr operty va lued at more than $10,000. The defendant now complains that the evidence at trial is legally insufficient to support his convictio n. We disagree.

When an accused challenges the s ufficiency of theevide nce, an appellate court’s standard of revi ewis, whether after considering the evidence in the light most favorable to the prosecution, any rati onal trier of fact cou ld have found the essential elements of the crime beyond a reasonable doubt. Jacks on v. Virginia , 443 U.S. 307, 317 (1979); Sta te v. Du ncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). Because a jury conviction removes the presumption of innocence with whi ch a defendant is initially cloaked and replaces it with one of guilt, a convicted defendant has the burd en of demon stratin g on appeal that the evidence is insufficient. State v, Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the state is entitled to the strongest legitimate view of the evi dence and all reasonable or legitimate inferences w hich may be drawn there from. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992).

In determining the sufficiency of the evidence, this cou rt should not reweigh or reev

aluate the evidence. State v. Ma tthews , 805 S.W.2d 250, 253 (Tenn. Crim. App. Tenn. 1990). Questi ons concerning the credi bility of the witnesses, the weight and valu e of the evidence, as well as all factual issues

raised bythe evidence are resolved by the trier o f fact. State v. Cabbage , 571 S.W.2d5

833, 835 (Tenn. 1978). This court may not substitute its inferences for thos e drawn bythe trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 286S.W.2d 856,859 (1956), cert
. denied 325 U.S. 845, 77 S. Ct. 39 (1956) ; Farmer v. State , 574 S.W.2d 2d 49, 51 (Ten n. Crim. App. 1978). It is the appellate co urt’ s duty to affirm the conviction if the ev idence, viewed under these standards, was sufficient for any r ational trier of fact to have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S. Ct. 2781, 2789; State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994); Tenn. R. App. P. 13(e).

The defendant contends that the record does not prove that

the value of th e stolen property exc eeded $10,000. Our legislatu re has defined t heft o f property as follows:

A perso n c ommits theft of property if, wi th intent to deprive the owner o f property, the person knowingly obtains or exercises contr ol over the property

withou t the owner’s effective cons ent. Tenn. Code Ann. § 39-14-103 (1997). Another sectio n grades the offe nse of the ft according to the value of the property involved. Theft

is a Class D felony i

f the value of the prope rty obtaine d is more than $1,000 but less than $10,000. Tenn. Code Ann. § 39-14-105(3) (1997). If the property is valued at more than $10,000 but less than $60,000, theft is a Class C felony. Tenn. Code An n. § 39-14-105(4).

Bobby Gray, Nancy Bell amy, and one other witness testified

that the defendant was with the stolen v ehicle and that he attempte d to sell at least some of its contents. Bobby Hobson and Mary Bowlin testified that the defendant directed them to the lot where the tr a iler was parked, that he was present when the trailer
was sto len, that he rode with them t o Clarksville, and that he actively participated in the attempts todispos e of the stolen merchandise. The repr esentative of the Dollar General Stores testified that the tra iler it self was worth about $7,0 00. The company

records introduced at trial indicate the value of the merchandise was more than $47,000.6 Although it is true that there is no direct proof tha

t the trail er was actuallyloaded with th e merch andise, a criminal offense may be e stablished exclusively

by circumstantial ev

idence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Cr im. App. 1987). The circumstantial evidence in the recor d is more than sufficient for a rati onal jury to conclude tha t the cartons listed on the summary sheet w ere actually loaded onto th e trailer.

Fir st, Hobso n testified that he and the defendant looked for a trailer with a seal because they knew that a seal indicated that the trailer was full. He also testi fied that he removed the seal from the trailer and threw it away. Hobso n described the trailer as being fil led with cartons “from t op to bottom and front to back.” Nancy Bellamy and Bobby Gray saw cartons fall out of th e tr uck when it backed into the ditch. Charles William Poff testified that the defendant approached him with a blanket and a kerosene lamp and asked him where he could sell a truckload of such merchandise. Moreover, the summary provided by Dollar General Stores indicates that the cartons c ontained a variety of merchandise including blankets, kerosene lamps, and tea kettles. Piles of

blankets and other items were found in the cab of the truck.

The defendant contends that both Hobso n and Bowli n are liars and that their testimony is incredi ble. This court, howev er, does not determine the credibility

of the witnesses or the w eight and value of the evi dence State v. Cabbage , 571 S.W.2d 833, 835 (Tenn. 1978). The jury as the trier of fact resolves any conflicts in the testimony as well as issues o

f credibility and w

eight. Id . In this instance, the jury accr

edited the evidence presented by the state’s witnesses and resolved the conflicting testimony in favor of the st ate.

The evidence is more than suffici ent t o pr ove beyond a reasonable doubt that the goods described i n the Dollar GeneralStores’ paperwork w as in the7

trailer when Hobson and the defendant remov ed it from the RAM-3 lot in Nashville without the consent of its owner. The evidence is also legally sufficient toshow that the defendant unlawfully and knowingly

exercised control ov

er the stolen property in Clarksville.According to Dollar General’s invoices,the value of the load was in
excess of $47,000. The trailer was v alued at $7, 000. W e find that the state established beyond a reason able dou bt that the valu e of t he stolen property was greater than $10,000. The defendan t’s challenge to the sufficiency of the evidence is without merit.

In his amended motion for new tri al, the defendant contended that the trial court lacked jurisdiction to tryhim in Montgomery County as the theft occurred in Davidson County. On appeal, he argues that Ru le 18 of the Tennessee Rules of Criminal P rocedure violates d ue proce ss becaus e it allows a case to be triedin multiple venues. It is wel l established in thi s state that a party may not take one position rega rdi ng an issue in the trial court, change its strategy or theory in midstream, and advocate a different ground or reason in this Court. See State v. Aucoin , 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988), State v. Dobbins , 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988). T here fore, the issue is waiv ed. See Tenn. R. App. P. 36(a).

Moreo ve r, the general rule is that an offense shall be prosecuted in the county where the offens e w as committed. Tenn. R. Crim. P. 17(a). In this instance, the defendantw as charged with theft by exercising contr

ol over the loaded Do llar Gene ral box tra iler in Mon tgomery Co unty with th e intent to deprive4 The rule provides that if one or more elements of an offense are

committ ed in one county an d other el ements a re commi tted in a s econd co unty, the state may prosecute the offense in eithe r county. Tenn. R. Crim. P. 18(b). 8 the Dollar General Stores of that pro perty. The proof at trial overwhelmingly demon stratesthat he was in possession of the property and that he exercise d control over that property. He sh owed the merchandise whi ch he and his codefendant removed from the cartons to at l east two persons in an att empt to sell it, and, in fact, he sold a few of the items for tw enty dollars. Without

question, these actions took place in Montgomery County. Even though the trailer was stolen from
a lot in Davidson County, the defendant committed the offense for w hich he was indicted in Montgomery County. On these facts, no viable issue exists concerning either the trial court’s jurisdiction or the constitutionality of Rule 18(b). 4

For the reasons discussed abov e, we affirm the judgment of the trial court.

______________________________ JAMES CURW OOD WIT T, JR., Judge
CONCUR:

______________________________ GARY R. WADE , Presiding Judge

______________________________ THOMAS T. W OODALL, Judge