IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 19, 2013 Session

STATE OF TENNESSEE v. MICHAEL WEBSTER

Appeal from the Criminal Court for Davidson County

No. 2011-D-2944 Steve Dozier, Judge

No. M2012-00713-CCA-R3-CD Filed 06/05/2013

The Defendant, Michael Webster, challenges his bench trial conviction for theft of property,

over $500, a Class E felony, contending that there was insufficient evidence presented at trial

to prove his knowing commission of the offense and that the value of the property exceeded

$500. After a review of the record and the applicable authorities, we conclude that the

evidence was insufficient to prove that the property at issue exceeded $500, modify the

conviction to theft of property, $500 or less, a Class A misdemeanor, and remand the case

to the trial court for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as

Modified; Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and JEFFREY S. BIVINS, JJ., joined.

Michael D. Rohling, Nashville, Tennessee, for the appellant, Michael Webster.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant

District Attorney General; for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The record reflects that the Defendant was indicted on March 4, 2011, for theft of

property, more than $500 but less than $1000. His bench trial was held on October 27, 2011,

and the following evidence was presented.
Emily Coakley testified that her home was burglarized sometime between February

25th and 26th in 2011 while she was away. After returning home, she discovered that her

iPad, a watch, and a laptop that belonged to her sister were missing. She contacted the police

and filed a report. Ms. Coakley testified that she received the iPad as a Christmas gift, and

she believed it cost “around $500.” The iPad was returned to her approximately one and a

half months prior to trial in the same condition as it was when it was stolen. Ms. Coakley

also stated that she had never seen the Defendant before and that she had never been to the

McDonalds on Gallatin Road.

David Wynn, owner of the Hy’s Pawn Shop on South Gallatin Road for twenty-six

years, testified that the Defendant entered his pawn shop on March 4, 2011, with an iPad.

After Mr. Wynn turned it on, he examined it to make sure that there were no viruses on it.

Mr. Wynn testified, “[t]he particular model he had was sold for [$]499[. E]ven used[,]

because . . . they were not very old[, t]hey were still bringing $400 to $425.” He retrieved

the $499 price from stores such as Wal-mart and Apple and stated that he knew the cost

because he had recently purchased an iPad for his girlfriend. He then offered the Defendant

$150 to purchase the iPad, and upon the Defendant’s acceptance of this price, Mr. Wynn took

the Defendant’s driver’s license and began the paperwork. Mr. Wynn testified that he asked

the Defendant whether the iPad belonged to him and said, “this is so unique it will be

identified quickly in case it’s not.” The Defendant told Mr. Wynn that the iPad belonged to

him and signed the pawn ticket which contained the following language: “The pledger of this

item attests that it is not stolen, it has no liens or encumbrances against it, and that the

pledger has the right to sell or pawn the item and he’s not in voluntary or involuntary

bankruptcy.” Mr. Wynn was later informed by law enforcement that the iPad was stolen and

that the owner had the right to come pick the item up. Ms. Coakley retrieved the iPad

sometime thereafter.

On cross-examination, Mr. Wynn testified that he had planned to price the iPad just

below what it was listed for on eBay and that would be “[$]3- [$]400 depending on what

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they’re selling for because [he had] to take into account with the fees.” Mr. Wynn also

testified that the Defendant had valid identification and that he never appeared “overly

nervous or in any way suspicious.”

William Turbeville, a detective with the Metro Police Department, testified that he

investigated Ms. Coakley’s home burglary where an iPad, watch, and laptop were stolen.

After inputting the iPad’s serial number in the Davidson County pawn shop database, he

learned that the Defendant had sold it to Hy’s Pawn shop. He contacted the pawn shop to

verify that the information he had learned was correct, instructed them to place the iPad on

eBay is an internet site that allows consumers to buy and sell a variety of goods. 1

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hold, and took out a theft warrant on the Defendant.

On cross-examination, Detective Turbeville admitted that Ms. Olivia Short was also

charged with theft of the iPad but stated that someone else charged Ms. Short. He also

admitted that law enforcement had not matched any fingerprints that were found in the house

after the burglary.

Olivia Short testified on behalf of the Defendant. Ms. Short stated that she babysat

for the Defendant and that she had asked him to pawn the iPad for her because she did not

have a driver’s license or any knowledge of pawn shops. According to Ms. Short, she found

the iPad in a McDonalds on Gallatin Road while waiting on a friend. She played with the

iPad for a few weeks and decided to pawn it because she needed the money. Ms. Short

testified that she told the Defendant that she had received the iPad a few weeks prior as a

birthday gift. She explained that, after asking her several times if the iPad was stolen, the

Defendant agreed to pawn it for her. Ms. Short went with the Defendant to pawn the iPad,

but she remained in the car. She testified that when the Defendant returned to the car, he

gave her the $150 that he received for the iPad and that she offered him $20 for gas. After

she learned that the Defendant had been charged with theft, she contacted the Defendant’s

lawyer, probation officer, and the detective about her involvement. Ms. Short explained, “I

just tried to do the right thing. I knew it was my fault. . . . So, I wouldn’t want anybody else

to be in jail because of me[.]” Ms. Short admitted that she was recently charged with theft.

The Defendant testified in his own defense. He stated that he agreed to pawn the iPad

for Ms. Short, his daughter’s sitter, because “she didn’t have no ID,” and he trusted her

because she got along with his daughter. He explained that he did not know what an iPad

was and that he had never seen Ms. Short with the iPad before. The Defendant testified that

he and Ms. Short went to the pawn shop together and that Ms. Short remained in the car

while he went inside to pawn the iPad. The Defendant said that the pawn shop gave him

$150 for the iPad and that he gave all the money to Ms. Short; although, she did offer him

$20 to pay for gas. He stated that Ms. Short told him that the iPad belonged to her and that

she gave him permission to pawn it. The Defendant stated, “[i]t is the truth. I mean, really,

I mean, like I said, I wouldn’t never never used my ID if I knew it was stolen. You know,

it’s -- it’s nonsense. I mean, it would have been stupid, crazy if I knew it was stolen. I mean,

ain’t no way I would have did that.”

On cross-examination, he said that he asked Ms. Short if the iPad was stolen two or

three times; she insisted that it was not stolen and that it was a gift. The Defendant explained

that he trusted her, even though he had only known her for a few weeks because she

“babysitted [his] child.” He admitted that he had the following prior convictions: two counts

of theft of property, over $1,000; second degree burglary; burglary; four counts of robbery,

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armed with a deadly weapon; two counts of simple robbery; larceny from a vehicle; assault

with intent to commit robbery; and receiving stolen property. The Defendant also admitted

that he was on parole when the instant incident occurred.

In issuing its findings, the trial court stated “. . . he exercised control over it. He had

sole possession in the Hy’s pawn shop. He jointly possessed it on the way, so he had

possession. And he knowingly had that.” The trial court stated that the Defendant’s recent

possession of the stolen property, unless satisfactorily explained, was a circumstance from

which it could reasonably infer that the Defendant had knowledge that the property had been

stolen. See State v. James, 315 S.W.3d 440, 450-51 (Tenn. 2010). After noting the

Defendant’s contention that he believed that the iPad belonged to Ms. Short, the trial court

stated that the Defendant’s explanation of his possession of the stolen property was

insufficient to rebut the inference of guilty knowledge. The trial court explained,

I mean, it doesn’t make sense to me that [the Defendant’s] . . . argument

is, well, with my record I would never do something like that.

But the reverse of that makes more sense to me. With his record, he

would run as far away as he could from the circumstance. What is the

circumstance? Well . . . a young girl; has no job, and is making -- the only

money he’s aware she’s making is what little he pays on the few occasions that

he’s had her baby sit for him, . . . produces a new computer-like product that’s

in a case and says, will you pawn this for me.

Well, and then he acknowledges; she, Ms. Short, as well, these

suspicions that he had about that. That’s when he should have run. Those

suspicions were true. His gut feeling was correct. And his record bore that

out. He’s been through all of this. He’s had possessions of stolen property.

He’s had burglaries. He’s had robberies. He’s had thefts.

. . . .

The inference language from circumstantial evidence talks about logical

decisions that follow a disputed fact from circumstantial proof. The

circumstance that presented it to him there on March the 4th of 2011 was,

hmm, I’ve got a young girl that doesn’t make much money, if any, other than

what I pay her, that wants me to take her to a pawn shop and ponder this new

looking computer device. I’m not sure what it is.

I’m having nothing to do with it. Why? Because I know from my

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record that people will do these kinds of things; take stolen stuff to pawn

shops. And, you know, his honesty, I guess, from one point is the number of

times he asked about whether it’s stolen. Why is he asking if he doesn’t think

it is?

The trial court continued, “A lot of people go -- like I said, get involved in crimes use their

own ID. . . . Well, that’s stupid. Okay, does that mean he’s not guilty? No. So I do find that

the State has shown [the Defendant] guilty of theft of property.”

Turning to the valuation of the property, the trial court stated,

Well, I mean, what is the value of this iPad to Ms. Coakley? And . . .

what is the value to her or to a consumer to replace that particular iPad?

Well, the testimony is that they cost [$]499 according to Mr. Wynn;

according to Ms. Coakley, she says, had it been her testimony, around [$]500.

You know, maybe that wouldn’t have been sufficiently beyond a reasonable

doubt. Mr. Wynn says he’s looked it up: Wal-mart, Apple store, the value’s

[$]499. He’s sold them used for [$]4- to [$]425. Paid [$]300 or so for them.

He was surprised that [the Defendant] took [$]150.

The trial court then concluded, “the fair market value of this particular property or the

cost of replacing that particular piece of property would have been over $500. So I find [the

Defendant] guilty of theft over $500.” Sometime thereafter the trial court sentenced the

Defendant to serve six years in the Department of Correction (DOC).

This appeal followed.

ANALYSIS

The Defendant contendsthat there wasinsufficient evidence presented at trial to prove

(1) his knowing commission of the offense because Ms. Short testified that she committed

the crime and that the Defendant did not know the property was stolen and (2) that the fair

market value of the property exceeded $500, noting that sales tax should be excluded when

calculating value. The State responds that the evidence is sufficient to sustain the

Defendant’s conviction (1) because the trial court, in its role as the trier of fact, determines

the credibility of witnesses, and the record clearly illustrates that it found Ms. Short

incredible and (2) because the trial court properly concluded that sales tax should be included

in the calculation of value because buyers consider it in deciding whether to purchase an

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item.

As a preliminary matter, we note that the State also asserted a waiver argument.

However, despite the Defendant’s failure to comply with Tennessee Rule of Appellate

Procedure 27(a)(7)(B) and his scant complicity with Rule 10(b) of the Court of Criminal

Appeals, in the interests of justice, we elect to address the Defendant’s issues.

A. Sufficiency of the Evidence

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). When

assessing the sufficiency of the evidence following a conviction from a bench trial, “the

verdict of the trial judge is entitled to the same weight on appeal as a jury verdict.” State v.

Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (citing State v. Hatchett, 560 S.W.2d

627, 630 (Tenn. 1978)). This court does not reweigh the evidence; rather, it presumes that

the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); see also State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding

witness credibility and the weight and value to be given to evidence were resolved by the

trier of fact. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes

the presumption of innocence and replaces it with a presumption of guilt, and on appeal the

defendant has the burden of illustrating why the evidence is insufficient to support the

verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In Dorantes, our supreme court held that circumstantial evidence is as probative as

direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the

supreme court rejected the previous standard which “required the State to prove facts and

circumstances so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.

Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Therefore, “direct

and circumstantial evidence should be treated the same when weighing the sufficiency of

such evidence.” Id. at 381. To that end, the duty of this court “on appeal of a conviction is

not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all

reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60,

67 (Tenn. 2011).

Under Tennessee law, a person commits theft of property if, with intent to deprive the

owner of property, the person knowingly obtains or exercises control over the property

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without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a). “A person acts

knowingly with respect to a result of the person’s conduct when the person is aware that the

conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). To

sustain the Defendant’s Class E felony theft conviction, the State must prove the

aforementioned and that the value of the property was over $500. Tenn. Code Ann. §§ 39-14-

103(a), 39-14-105(2). Tennessee Code Annotated 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(a)(36)(A). The fair

market value of property is a question of fact for the trier of fact. See State v. Hamm, 611

S.W.2d 826, 828-29 (Tenn. 1981); see also, State v. Leverette, No. M2009-01286-CCA-R3-

CD, 2010 WL 2943290, at *2 (Tenn. Crim. App. Jul. 26, 2010).

1. Determination of Guilt

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In finding the Defendant guilty of theft, the trial court stated, “. . . he exercised control

over it. He had sole possession in the Hy’s pawn shop. He jointly possessed it on the way,

so he had possession. And he knowingly had that.” The trial court properly noted that the

Defendant’s recent possession of the stolen property, unless satisfactorily explained, was a

circumstance from which it could reasonably infer that the Defendant had knowledge that

the property had been stolen. See State v. James, 315 S.W.3d 440, 450-51(Tenn. 2010). The

trial court found that there were credibility issues with the Defendant’s explanation of his

possession of the stolen property, and as such, the inference of guilty knowledge was not

rebutted. The Defendant used his driver’s license to pawn the stolen iPad at issue only one

week after the theft occurred. Although Ms. Short testified that she asked the Defendant to

pawn the iPad and, in response to his inquiries, repeatedly told the Defendant that it was not

stolen, the Defendant knew or should have known that the iPad was stolen because Ms.

Short’s only job was babysitting for him a few days a week, and he had not seen Ms. Short

with the iPad previously. The trial court clearly found both the Defendant’s and Ms. Short’s

testimony incredible, and we will not second guess that assessment on appeal. After our

review of the record and the applicable authorities, we cannot conclude that the trial court’s

determination of guilt was in error.

2. Determination of iPad’s Value

The trial court also found that the iPad’s value, including tax, exceeded $500,

concluding that “the fair market value of this particular property or the cost of replacing that

To adequately address the issues presented, we will analyze the evidence supporting the Defendant’s guilt 2

as to his theft conviction and the value of the property stolen separately. 

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particular piece of property would have been over $500.” Our supreme court has held that

“[t]he market value of the article stolen, and not its original cost, is the true criterion when

it is necessary to establish the value of the property in order to fix the grade of the offense[.]”

Hamm, 611 S.W.2d at 829; see also, Leverette, 2010 WL 2943290, at *2; State v. Pittman,

No. W2009-02316-CCA-R3CD, 2011 WL 856382, at *3 (Tenn. Crim. App. Mar. 10, 2011);

State v. Watts, No. W2010-00705-CCA-R3CD, 2011 WL 1220766, at *3 (Tenn. Crim. App.

Mar. 31, 2011); State v. Tappan, No. W2006-00168-CCA-R3CD, 2007 WL 1556657, at *5

(Tenn. Crim. App. May 29, 2007). The record reflects that Ms. Coakley received the iPad

as a gift, and she believed the iPad cost around $500. Additionally, Mr. Wynn testified that

the iPad sold for $499, plus tax, in a new condition, and that used iPads sold for

approximately $400 - $425. He had planned on re-selling the iPad for between $300 and

$400, depending on the current market price. Given the aforementioned facts, we cannot

conclude thatsufficient evidence was presented to prove that the iPad’s value exceeded $500.

As previously stated, Tennessee Code Annotated 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(a)(36)(A) (emphasis

added). Because the item was at least two months old, thus classified as “used,” its value

would have depreciated from the original selling price of $499, plus tax. See generally,

Tappan, 2007 WL 1556657, at *5 (concluding that information concerning the original

purchase price, the original condition of the property, and the length of ownership, was

relevant evidence from which the jury could determine the value of the stolen property). As

such, the trial court’s valuation of the iPad at $499 could only be based on the replacement

value of the iPad and not on the estimate of its market value at the time of the offense. This

was error because an item’s replacement value is only a relevant inquiry when the fair market

value cannot be ascertained, and the testimony at trial estimated that the fair market value

was approximately $300 - $425; this amount would not exceed $500, even with tax included.

Even drawing all inferences in favor of the State as required by Dorantes, there is no proof

in the record that the used iPad was worth over $500. For the foregoing reasons, the

Defendant’s conviction is modified to theft of property, valued at $500 or less.

CONCLUSION

Based on our review of the record and the applicable law, we modify the conviction

to theft of property, $500 or less, a Class A misdemeanor, and remand the case to the trial

court for resentencing.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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