### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 12, 2002 Se ssion STATE OF TENN ESSEE v. JAMES BRA DLEY WARNER Direct Appeal from the Circuit Court for Bedford County

No. 14768 F. Lee Russell, Judge

No. M2001-01371-CCA-R3-CD - Filed Marc h 26, 2002

The defendant was convicted of theft of prope rty over $500, after being observed leaving a W al-Mart store with merc

handise f or which he had no t paid. In

his appea

l, he alleges that the proof of the value of the items was insufficient and that the trial co urt erre d in ruling that certain of his prior convictions could

be used for impeachment and in sentencing. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opi nion of the court, in which J OSEPH M. T IPTON and J OHN E VERETT W ILL IAMS , JJ., joined. Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender (at trial and on appeal), f or the appellant, James Bradley Warner.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney Genera l; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION
The defendant was convicted of theft of property over $500, a

Class E felony, and sentenced to confinement fo

r four ye ars. In h

is appea l, he pre sents the

following

issues:
I. Whether

the evidence at trial was insuf ficient to support Defendant’s conviction of theft of property over $500.00.
II. Whether

the Trial Courterred i n denying Defend ant’s Moti on to Exclude his Prior Co nvictions , should the Defendant wish to testify.-2- III. Whether

the Tr ia l Court erred by imposing the maximum sentence. The State’s f

irst witne ss, Matt

Ledbette r, testif ied that f ormerly he had wo

rked at the WalMart in Shelbyvi lle in the electronics department. He explained that compact discs (“CDs”) offered for sale by Wal-Mart bore a price tag showing the price to the customer. He said th at the stor e sold only new CDs a

nd that Wa

l-Mart di scounted

its CD prices to meet those of its competitors. Prices were set at the Wal-Mart home office in Bentonville, Arkansas.
The next witness was Melissa Stacey, who had worked at Wal-Mart a total of five years. She testified that she observed the defenda

nt placin g two or thr

ee CDs at a time into

a green Rubberma

id tote, which was in his shopping c art. He filled the tote with CDs, placed the lid on the tote, and pushed the car

t from the electro nics d epar tment out the front door of the Wal-Mart store without stopping to pay for the items. Stacey identified herself to the defendant, and he followed her back into the store. He

admitted t

hat he ha d taken th

e items wit

hout paying. She test

ifie d that th e defendant had taken forty-five CDs and one Rub bermaid tote, w ith a total value of $722.83. She calcu la ted this price

by adding

the pric es on the C Ds, in add ition to tha

t on the Rub

bermaid tote which was priced at $3.97. The defendant had taken from the store twe nty CDs with price tags of $15.88 each, ten CDs with $ 17.88 price tags, eight CDs with price tags of $14.88, and three CDs with$12.88 price tags. In addition, he took three CDs with price tags, r espectively, of $20.96, $25.88, and $7.98. One CD in the Rubbermaid tote also taken by the defendant did not bear a price tag, but the scanner showed a price of $9.96. Subsequently, these items had been returned to stock to be sold.
Vance Cobb, the Wal-Mart assistant manager, testified that he a ssisted in a

dding the c osts of the CDs and said that CD prices were discounted when nece ssary to respond to the advertised prices of a competitor.
ANALYSIS I. Sufficiency of the Evidence
The de fendant ’s first a ssignment o f error is the cla

im that the

State did n ot suffic ie ntl y establish the value of the CDs removed from Wal-Mart by the defendant. This claim is based upon the assertion that “two out of the three[] Walmart [sic] employees admittedthat the price on the price tags are routinely discounted to meet their competitors[’] adver tised prices.” The State counters that there was no proof at the trial that the items were for sale for other than the price marked on the price tag of each.
In consider

ing this issue, we apply the familiar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rationa l trier of fact couldhave found the essentia

l element s of the of

fense charged beyond a reasonable doubt.” Jackson v . Virginia , 443-3-

U.S. 307, 319, 9 9 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992 ); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) ( “Findings o f guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to suppo rt the findings by the trier of fact of guilt beyond a reasona ble doubt.”). All questions involving the credibility of witnesses, the wei ght and v alue to be given the evidence, and all factual issues are reso lved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987)

. “A guilty verdict by the jury, approved by the trial judge, accre dits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury s ee the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibi lity to be given t o the testimony of witnesses. In the trial forum alone is there hum an atmo sphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court. Bolinv. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v . State , 212 Tenn. 464, 370 S. W.2 d 523 (1963)). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of gui lt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
The defendant and the State both cite this court’s opinion in Norris v. State , 475 S.W.2d 553 (Tenn. Crim. App. 1971), in support of their respective positions as to the sufficiency of proof of the value of the items removed from Wal-Mart. In per tinent part, this court stated in Norris : We hold thatin a shopli fting ca se evidence that merchandise was displayed for regular sale at a marked pric e r epresen ting its re tail price is sufficient circumstantial evidence o f value, w here tot ally uncontradicted, to support a conviction grounded upon the marked price as its value. That the television set was displayed for sale over a period of time with a certain price tag up on it is not hearsay, but fact; and is evidence that the tag reflected its retail value.
Id. at 555-56. Although the defe

ndant is cor rect in h

is assert ion that W al-Mart

employee s testifie d their employer matches prices of its competitors, the fact remains that there w as no proof that any of the items which the defendant removed from the store wer e offered for any price othe r than that set out on the price ta

g affixe d to each . Additiona lly, we no te that fo

r the com bined val ue of the items to-4-

drop below $500, it would be necessary that the total markdown be in excess of 33%, a very substantial discount. Other tha n the gene

ral testi mony that W al-Mart marks prices to match the competition, there is no basis for our making the dual assumptions that Wal-Mart marked down the CDs in question and that the combined discounts wereat least 33% of the total of the ma rked pri ces. Bothassumptions would be required before we could concl ude tha t the State

did not suf

ficientl y prove that the value of the items exceeded $50 0. Since we can make neither assumption , this assignment is without merit.

II. Motio n in Limine as t o Defenda

nt’s Prio r Convict

ions
Af terthe Stat e had re sted, the trial cou rt took up t

he State’ s notice, filed pur suant to Tennessee Rule of Criminal Procedure 609, of itsintent to im peach th e defendant with c ertain o f his prior convictions. The notice sets out eight separate c onvictions or sets of convictions, consisting of one conviction for fraudulent use of a cre dit card; four convictions for theft; two convictions for fo rg er y; and what

appear to be appr

oximately seventy con victions f

or passin g worth

less che cks. Defense counsel argue d that none of the convictions could be used to impeach the defendant if he testified because

of their s imilarity

to the offense for which he was being tried. As to this issue, the trial court ruled:
All right. I am going

to agree with

you on the thef t charg es in Dyer County, which is Number 2. I am going to agree

with you on the theft charges in Dy

er County ag ain, whic h is Number 3. I am going to agree with you on the Dyersbur g Municipal Court charges of theft in Number 6. And I am g oing to agree with you on Number 7, Dyersburg

Municipal, theft again.
I find, fr ankly , that the

y a re all pr obati ve – in fact , highly probative. But those

that are actually theft, the same

offense charged here, I think the prejudicial value or the prejudic ial risk would far outweigh the probative value. However, on the fr

audulent use of a c

redit card and on the P.W.C.’s and on the

forge ries, the y a re high ly probativ e, and it’ s a di fferent offense . I do n’t think th ere is a ny d anger here of the ju r y using the two. And I don’t think they are par ticularl y prejudicial or prejudicial at all. So, I am going to a llow the State to introduce those.
The defenda

nt argu es on app eal that t

he trial c ourt err

ed in concluding that the defendant’s prior convictions for fraudulent use of a credit ca rd, passing

worthles s checks , and for gery could be used to impeach him if he testified.
Tennessee Rule of Evidence 609(a)(3) sets out the procedur es for determining whether prior convicti ons may

be used f or impea chment:-5- If the witne ss to be impe ached isthe accused in a c rim in al prosecution, the S tate m ust gi ve th e accused reasonable written notice of the impeaching conviction before trial, and the c ourt upon request must determine that t

he conv iction' s probati ve value on credi bility outweighs its unfair prejudicial effect on the substantive issues. The court may ruleon the admissibility of such proof prior to the trial but in any event sha

ll rule pr ior to the t

estimony of the ac cuse d. If

th e court makes a f

inal dete rminatio n that such proof is admissible for impeachment

pu rp os es , t he ac cu se d n ee d n ot ac tu al ly testi fy at the trial to later challenge the propriety of the determination.
In the instant case, the trial court, following the hearing required by Rule 609, concluded that while the prejudicial value of the four prior theft convictions outweig hed their probative value and, thus, prevented their being used for impeac hment purposes, the reverse was true for the convictions for fraudulent use of a credit car d, forgery , and passing worthless checks. The standard of r eview which we apply

to this matte

r is to dete

rmine whe

ther the trial cou rt abuse d its discr etion in concluding that cer

tain of the

defenda nt’s convictions co

uld be use d for impe achment purposes . State v. Blanton , 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).
Our supreme court instructed in State v. M ixon , 983 S.W.2d 661, 674 (Tenn. 1999), that “trial courts sh ould

carefully balance the probative value of the impeach ing con viction on credibi lity again s tits unfair

ly p rejudic ial effect on subst

antive iss ues.” I

n the insta

nt case, the trial

court did make such an a

naly sis, dete

rmining that conv

ictions fo r offen ses ident

ic al to that for which the defendant was being tried could not

be utilized

because of their p rejudic ial effect. For us to conclude that the trial court then erred in determining th at th e p ro ba ti ve va lu e o f t he co nv ic ti on s f or fo rg er y, fraudulent

use of a credit card, and

passing worthles s checks outweighed their prejudicial ef fect, we would have to determine that a defendant convicted of one of the panop lyof theft offenses was immunized from impeachment when being tried for another theft offense. However, we believe the trial court acted properly

in allowing the use of the particular convicti ons, giv en their

releva nce to c redibilit y and their lack of similarity to the of fense charged. Moreove

r, it is difficult to e nvisio n how this ruling

could hav e prejud

iced the defenda nt. On cross-examination, Melissa Stacey gave an affirm ative answer to th e foll owing q uesti on by defen se cou nsel r egardin g h er confronting the defend ant in the Wal-Mart parking lot: “And I think he just willingly – he admitted that, y eah, I goofed up, I stole these things, didn’t he?” At the hearing on the motion f

or new tr ial, def ense counsel a dvised the

court: Judge , this case, as the Court well remembers, in that Mr. Warner admitted that he was guilty of the offense of

theft. And the only issue left for t he ju ry to decide

was the v alue of t

he prope rty , whethe

r it was less than or more than $500.-6-

Thus, this matter is in sharp contrast with Mixon , in which the conviction w as reve rsed because the error in allowing the defendant, subseque ntly convicted of at tempted rape, attempted incest, and sexual battery of his daug hter, was im pea che d as to a pr io r se xu al b att ery co nvi cti on. In Mixon , the evidence was not overwhelming, and the State e mphasized the prior conviction to the ju ry. By contras t, the def

endant in the instan t case contested only the value

of the items he took

from Wal-Mart , not the fa

ct of the taking. Thus, it is d

ifficult to envision what the defendant could have testified to, other

than value, and difficult, as well, to imagine what his testimony could have been in that reg ard, g iven the f

act he a dmitted, th

rough h is attorne y, t hat he wa s caught stealin g from WalMart. Ac co rd in gl y, we conclude that even if the trial court did err, as the defendant urg es, the error was har mless. This assig

nment is without meri

t. III. Sente

ncing
The defendant was sentenced to four yea rs confinement as a Range II offende r, and the court ordere d that his sentence be served consecutively to previously imposed sentenc es. He argues on appeal that the trial court

erred both in sentencing him to the maximum punishment and in ordering consecutive sentencing.
When an accu sed challengesthe leng th and man

ner of se rvice of a sentence, it

is the duty of this court to conduct a de novo review on the record wi th a presumption that “the determinations made by t he c ourt from which the appeal is taken are cor rect.” Tenn. Code Ann. § 40-35-401(d). T his presumption is “conditioned upon the affirmative showing in the record tha t the t rial cour t considered

the sentencing principles and all relevant facts and circumstance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) . T he presumption does not apply to the leg al conclusions reached by the trial court in sentencing the accused or to the de terminations made by

the trial court which are predicated

upon uncontroverted

fac ts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this court is required to give g reat weight to the trial court’s determin ation of c ontrover ted fac ts as t

he trial court' s determination of these fa cts is predi cated u pon t he wit nesse s’ dem eanor a nd app earance when t estifying.
In conducting a de novo review of a sentence, this court must conside r ( a) an y evidence received at the trial and/or

sente ncing hearing, (b) the pr esentence report, (c) the princ iples of sente ncing, (d) the a

rgumen ts of coun sel rela

tive to sen

tencin g alternatives, (e) the nature and characteristics of the offense, (f) any mitigati ng or e

nhance ment fac tors, (g ) any

statemen ts made by the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or treatme nt. Tenn. Code Ann. §§ 40-35- 103 and - 210; State v. Sc ott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987)

. The party cha

llenging the sentences imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40- 3 5-401, Sentencing Commission Cmts.;-7-

Ashby , 823 S.W.2d at 169 . In this case, the defendant has the burden of illustrating the sentence imposed by

the trial court is e rroneou s. The trial court made the following determinations in setting the defe ndant’s sentence at four ye ars: So, we beg in with the statutory presumption in favor of the 2 year sentence. In loo

king at t his case , it appea

rs to me the

re are some enhancement

factors pr esen t. Certainly, he has a ve ry extensive p revious history of criminal convictions. Those r ecited i n th e presentencereport a

nd discuss ed at len gth

by us in our discussion on the range. So, I

find that enhancing factor Number 1 is pre sent. He does have a p

revious h istory of unwilli ngness to comply with the conditions of a

sentence involving release. So, I find that enhancing factor Number 8 [is] present. And as to enhancing factor Number 13, it does appear that this felony wa s c ommitted wh

ile on det erminate releas e and state probation for felony convictions. So, I

do enhance up to the ma

ximum in this ra

nge of 4 ye ars. As far as mitigating factors ar e concerned, it is true that there was

–that mitig ating f

actor Nu mber 1 is present, that what was done, the taking these C.D.’s did not cause or threaten serious bodily harm. I do not giv e that s ubstantia l weigh t howeve r. It is the natu

re of this particular offense . It isnot going

to cause or

threate n seriousbodily harm. So, I

would not f

ind that to b e prese

nt.
I don’t find the fac t that he h as a drug problem to be a mitigating factor here. I do n’t fi nd any oth er mit iga ting fac tors present other than Numb er 1. So, th

e sentence will be

4 ye ars. The defend ant’s speci fic com plain t as to the le ngt h of his se ntence is that “the trial court erred by failing to find [his] drug addiction to be a mitigating factor.”
Tennessee Code Annotated Section 40-35-113(8) providesthat a mitigating factor may

be the fact tha

t “[t]he def

endant w as suffe

ring fr om a menta

l or phy sical c ondition th at signi ficantly reduced the defe ndant’s c ulpability for the o ffense ; howeve

r, the vol untary use of intoxicants does notfall within the purview of this factor.” Previously , this court has determined that Section 40-35- 113(8) does not permit drug addiction to be recognized as a “mental or

phy sical co ndition” a

nd, thus, a mitiga ting fa ctor for sentenc ing purp oses: We find that Tennessee Code Annotated Section 40-35-113 (8) , the mitigating factor concerning the appellant’s mental or phy sical condition, does not a

pply . The app ellant as se rts th at his drug-8- addiction is a physical or mental c ondition as con templated by the st atut e which reduces hisculpability, but the sta tute spec ifically provides that volu ntary us e of intoxic ants is not included in this mitigating factor. T.C.A. § 40-35-113(8) (1990)

. Statev. Black , 924 S.W.2d 912, 91 7 ( Te nn . C ri m. Ap p. 19 95 ). Ac co rd in gl y, we conclude that the trial court was correct in determining that voluntary drug addiction could not be a mitigating factor for purposes of calculating the sentenc e. The defendant

also argues on

appeal that the trial court should not have ordered the sente nce imposed for the i ns tant offense to be served consecutively to sentences previously imposed. According to the judg

ment, the sentenc e imposed

in this matte

r is to be ser

ved cons ecutively to

those imposed in Dy er County

Case No. C 99-307, O

bion County

Case No. 9 204, and B edford C ounty CaseNo. 30191-116-213. As to these sentences, it appears from the prese ntence report that the Dy er County sentence had

been imposed on October 26, 1999, and then suspended, the suspension being revoked on April 3, 2001; the Bedford County sentence had beenimposed on October 17, 2000, the conviction being for

theft; and the Obio n County sentence had been imposed on August 11, 1999, withthe s uspe nsion revoked on February 23, 2001. As for its reasons for imposing consecutive sentencing, the trial court stated:

The next question is whether or not he would serve that consecu tively or con cu rrently

with, I believe he has se

ntences– altho ugh th ere are holds out of two states and I think at least three counties , we are talking about – the only sentence tha

t we would be talking about being cons ecutive to or concurrent

with is the sentence that he has – that he’s on pa ro le fo r r ig ht no w, is th at ri gh t? Ok ay. Well, with his exte

nsive cr iminal re cord, it

does not appear

to me that it would b e approp riate to make this sentence concurrent with the sentence on which h

e is on pro

bation. I don’t thin

k under st

atute th at ’s pr op er an ywa y. As far as alterna

tive sente ncing, to say the ver

y least, his potential for rehabilitation loo

ks very , very

limited to me. He has an enormous number of offenses beginning in ‘99 and c oming forward. And I think there would be a very

seri ous risk o f his committing another cri me w hi le o n pr oba ti on. In fact, he did it when he committ

ed this crim e. So, I don’t believe he is a g ood candidate for alternative sentenc ing. So, h

e’ll be se ntenced to 4 y ears. MR. DEARING: Was that co ncurr ent with hi s curre nt parole sentence?-9- THE COURT: Tha

t’s consecutive to

his parol e sentenc e. All rig ht. Anything e

lse on this one?
GEN. RANDLES: I

think he was technically

on probation. So, you mean the West Tenn essee D ye r County and the O

bion County sentenc es?
MR. DEARING: I

t’s a probation sentence.
GEN. RANDLES: He has sentences out of both of those counties consecu tive to tha

t. THE COURT : Both of t

hose cou nties, rig ht.
GEN. RANDL

ES: There

was also a

Bedfor d County sentence, a misdemeanor

sentence where he

had gotten like 40 day s, time served.
THE COURT : Consecu

tive to all other se ntenceshe has.
As a general rule, consecutive sentenc es are imposed at the discretion of the trial court upon its finding of one or more of the following statutory criteria:

(1) Th e defenda

nt is a pro fessiona

l crimina l who has k

nowingly devotedsuch defendant ’s life to criminal acts as a major source of livelihood; (2) The defendant is an offender whose recordof criminal activity i s extensive; (3) The defendant is a dangerous me ntally ab normal pe rson so declared by a compe

tent psychiatrist w

ho conclu des as a

result of an investigation prior to sentencing that the defendant’s criminal conduct has been c harac terized by a pattern of repetitive or compulsive behavior

with heed less in d iffere

nce to co nsequences; (4) The defendant is a dangerous offender w hose behavior

indicates littl e or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving sex u al abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defenda

nt and vic tim or vict

ims, the time

span of defendant’s-10- undetected

sexual activity, the nature and scope of the se

xual act s and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The def

endant issentenc ed for c

riminal c ontempt.
Tenn. Code Ann. § 40-35-1 15(b) (1 997). The se criteri a are st ated in the alter native; th erefor e, only one need exist to support the appropriateness of consecutive se ntencing. Here, the trial

court found that “ withhis extensiv e crimina l recor d, it does n ot appea

r to me that it would be

appropr iate tomake this sentence concurrent with the sentence on which he is on probation.” Although the trial court may have also believed that consecutive sentencing was required because the defenda nt was on probation at the time he committed the instantoffense, the fact remains that one of the bases for consecutive sente ncing was the defendant’s extensive criminal record. That is a statutory basis for ordering consecutive sentencing, and the defendant certainly has a very lengthy r eco rd of convictions. Accordingly, we conclude that the rec ord supports the trial court’s order th at the se

ntence imposed in

the instant case be served consecutively to those imposed previously.
CONCLUSION
Based upon the foregoing r easo ning and a uthoritie s, we af

firm the j udgment of

the trial court.

___________________________________ ALAN E. GLENN, JUDGE