### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

STATE OF TENNESSEE v. LISA M ARIE GARREN

Direct Appeal from the Circuit Court for Blount County No. C-10185 D. Kelly Thomas, Jr., Judge

No. E1999-02420-CCA-R3-CD - Dec ided April 25, 2000

A jury found the defendant, Lisa Marie Garren, guilty of misdemeanor theft of property. The proof established that

the defendant stole a red Mickey Mouse sweatshirt from Proffitts Department Store. The defendant contends that the evidence is insufficient and that the trial court erred by imposing

a one-thousand-dollar fine. We hold that the evidence is sufficient and that the fine is not excessive.

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

T IPTON , J., delivered the opinion of the court, in which W ADE , P.J., and O GLE , J., joined.

Raymond Mack Garner, D istric t Pu blic Defender, Maryville, Tennessee (At Trial); Julie A. Rice, Knoxville, Tennessee (On Appeal), for the appellant, Lisa Marie Garren.

Paul G. Summer s, Attorney Gene ral and Reporter

; Patricia C. Kussma

n, Assistant Attorne

y General; Michael L. Flynn, District Attor ney General; an

d Edward P. Bailey, Jr., Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

The defendant,

Lisa Marie

Garren, appeals as of right from her conviction by a jury in the Blount County Circuit Court for theft of property valued under five hu ndred dollars, a Class A misdemeanor. The defendant received a suspended sentence of ele ven months, twenty-

nine days,

on probation andwas fined one thousand dollars. She conte

nds that the eviden

ce is insufficien

t to suppo rt herconviction and that the trial court erred by approving the jury’s fine. We affirm the judgment of conviction.

At trial, Terry Aski

n testified that he

is the Loss Pr evention Manager for Proffitts Department Store in Foothills M al l. On January 21, 1997, he was patrolling the store dressed in plain clothes when he noticed the defendant acting suspiciously. The defendant made a lot of eye movement and

was watching Liz Best, the sales associate in the Juniors Department. The defendant looked at Mr. Askin a couple of times as well. She was accompanied by her teenage niece, Sarah, and wa s pushing

a baby in a stroller. Two largeSears bags were hanging on the stroller. Mr. Askin testified that the-2-

bags were “fairly empty” and slightly translucent, revealing the color of items inside.

Mr. Askin testified that the defendant selected two black

sweatshirts, one r

ed Mickey Mouse sweatshirt,

and two pair of Bon

go jeans and laid th

em on the stroller.

All it e ms were on hanger s, and the defendant

and her niece took the stroller with the items on top into the fitting room. Several minutes later, the defendant’s niece left the fitting room, picked up a gray top on a hanger, and

carried the top into the fitting room. The defendant was in the fitting room for a total of fift ee n minutes. When she and her niece exited, Mr. Askin saw the defendant shove a red item into one of the Sears bags. The defendant ha nded her niece t

wo black sweatsh

irts, a gray top, a

nd one pair

of jeans, which the niece then placed on the rack. The defendant went to the counter and exchanged the remaining pai

r of jeans with

a pair she had in her bag. The defendant and her niece then went into the mall.

Mr. Askin

testified that he had his detective check the fitting room for the red sweatshirt but that it was not found. Mr. Askin followed the defend ant into the mall, and the defendant turned aroundand asked Mr. Askin why he was following her. Mr. Askin explained to the defendant that he needed to get the sweatshirt she had in her bag. Mr. Askin said that a mall security guard then approached

them and witnessed what happened. Mr. Askin said the defendant replied that she did
notknow what he was talking about. The defendant became irate and stated that she was not a thief and did not have a red sweatshirt. Mr. Askin testified tha t he had not previo

usly mentioned that the sweatshirt was red. He said

that he could

see the sweatshirt through the bag. He took the bag off the stroller and p

ulled out the Micke

y Mouse sweatshir

t. Mr. Askin said that the shirt had a price tag on it when the defendant took it into the fitting room but that the price tag was missing when he pulled it out of the bag.

Mr. Askin testified that he took t he defe ndant and her niece to his office at Proffitts and instructed another employeeto call the police. He found children’s jeans in one of the

Sears bags, and the defendant tol

d him she had exchanged the jeans earlier at Sears. After speaking with a Sears employee, he determined that the jeans were not stolen. The defendant was very uncooperative and would not sign a statement. She claimed to have purchased the sweatshirt at

another store but

could
notproduce a receipt. Mr. Askin testified that the defe ndant’s niece stated that her family had a lawyer in Florida who would “sue the pants off” him. Mr. Askin testified that although shoplifting suspectsare usually arrested at the store, the defendant was not arrested because they could not find anyone to pick up the defendant’s baby. He said the police officer suggested that the defendant be released and that a warra

nt would be taken ou

t a gainst h er the next day. Mr. Askin stated that although he could not technically tell the jury that the defendant did not have a red sweatshirt in her bag upon entering t he stor e, he saw the defendant enter the fitting room with a red sweatshirt and leave without it being placed on a rack.

Liz Best testified that she was working as a sales associate in the Juniors Department at the time of the incident. She

did not see the items

that the defenda

nt took into

the fitting room. When the defendant left the fitting room, the defendant’s niece placed jeans and tops on a rack. Ms.

Best exchanged Bongo jeans for the defendant, and thedefendant had a receipt for the jeans. After the defendant left the area, Ms. Best checked the jeans the defendant’s niece had placed on the r ack and-3-

found two top hangers stuffed down the leg of one pair of jeans.

The defendant testified that shepurchased a red Mickey Mouse sweatshirt f

rom Proffitts in Athens about t

wo weeks be fore the incident. She said that she purchased the sweatshirt with her Proffitts charge card. Sh

e went to Foothills Ma

ll on January 21 to

exchange children’s jeans at Sears and to exchange her Bongo jeans at Proffitts because the y had a hole in them. She said that she brought the Micke y Mousesweatshirt with her because she thought she might exchange it for something better. She tried on two or three pair of jeans and several tops, but she did not find anything for which she wanted to exchange the sweatshirt. Her niece, Sarah, had gon e into the fitting room with her to try on clothes. The defendant te stified that befor

e Sarah left,

she gave Sarah all the clothing she hadtried on to return to the racks, except one pair of Bongo jeans. She then left the fitting room af

ter Sarah, went t

o the cash registe

r, and exchange

d her jeans.

The defendant testified

that as she was walking through the mall, someone said something from behind her. She turned around and saw Mr. Askin. She testified that when she asked him what he had said, he replied, “yes, it’s too late to di tch it .” She said that when she asked him what he meant, he told her it was to o late to ditch the me

rchandise. She sa

id she asked him why

she would do such a thing, and he replied, “Because it’s not yours.” She said that she asked him who he was and that he told her he was a manager at Proffitts. She testified that she then pulled everything out of her bag and told him that it was all paid for but that Mr. Askin grabbed all the merchandise and claimed that it was his. The defendant said that she showed Mr. Ask

in her receipt bu

t that he told her receipts meant nothing. She said he starte d to crumble up the receipt, but she grabbed it from him. The defen dant admitted that she did not have her Proffitts charge card statement nor the cancelled che

ck showing paymen

t of the bill.

The defendant testified that she went with Mr. Askin to the Proffitts office and that Mr. Askin cursed at her. Sh

e said that she denied stealing anything and that sh e finally got Mr. As

kin to call Sears to verify that the children’s jeans we re not stolen . She said that Mr. Askin accused her of stealing the Bongo jeans as w ell until the sales c

lerk verified tha

t she had exchang

ed them. She said that an officer was called in to arrest her but that when Mr. Askin was out of the room, she showed the officer the sweat shirt and her rece ipt. She said that the sweatshirt still ha

d the price tag on i

t. She said that the officer told her he was going to let her go. The defendant said that when the officer escorted her out of the room, she looked for her niece and baby, who were in the restroom. She said that Mr. Askin clapped his hands and said, “We’ve got them now.” She said that he stated that he knew it was Sarah all along and that he had four women check the bathroom, but nothing was found. She testified that she went to Proffitts the next day to speak with Vice Preside

nt Jim Pratt because she wanted her sweatshirt returned. She testified that her niece has since moved to Virginia and that she is unable to contact her.

The defendant’s moth

er, Marie Bivens,

testified that in

January 1997, before the defendant’s arrest, she accompanied the defendant to Prof

fitts in Athens. She s

aid that the defenda

nt bought a red Mickey Mouse sweatshirt and used a credit card for the purchase.-4- I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support her conviction. She argues that the evidence does not show that she is the person who took the sweatshirt but instead points to her niece. She further argues that the state failed to prove that the sweatshirt was stolen. The state contends that the evidence supports the defendant’s conviction.

Our standard of re view when the sufficiency of the evidence

is questioned on ap

peal is “whether, after viewing

the evidence in th

e light most favor

able tothe 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, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that th e jury has r

esolved all confl

icts in the testimo

ny an d drawn all reasonable

inferences from the evidenc e in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 198

4); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Mr. Askin testified tha

t he saw the defe

ndant enter the f

itting room with

a red sweatshirt and that as she was lea ving, he saw her stuff a red item into her shopping bag. The defendant did not
return the red sweatshirt to a clothes rack when she left nor was it found in the fitting room. Instead, it was found in the defendant’s shopping bag after she left the store. The defendant

could produce

no receipt or credit card statement to support her claim that she purchased the sweatshirt at another Proffitts. We hold that the evidence is sufficient to support the defendant’s conviction.

II. FINE The defendant contends that the trial court erred by imposing a one-thousand-dollar fine. She argues that the jury was confused about the fine amount and that the trial court imposed the fine without considering the facts of the case or the principles of sentencing. The state contends that the fine was properly imposed.

The record reflects that when the jury returned a guilty verdict, the following colloquy occurred betwe

en the jury forep

erson and the tria

l court: THE COURT: And did the jury impose a fine? FOREPERSON: Minimum fine. THE COURT: Well, zero is the minimum fine. FOREPERSON: Zero is th e minimum? A thousan

d dollars. The record reflects that the trial court then asked each juror to raise his or her hand to verify tha t they had agreed to a guilty verdict and a one-thousa

nd-dollar fine a

nd that all jurors r

aised their hands

. The defendant’s attorneythen told the trial court that he was unsure whether the jurors had agreed upon a one-thousand-dollar fine, and the trial court again

asked them to raise their hands if they had so agreed. The record shows that all the jurors raised their hands.

The defendant f

irst contends that the record is unclear whether each juror approved of the fine. She argues that the record shows that the jury foreperson simply created the fine on his own, without consulting the other jurors. However, our reading of the record leads us to conclude that although the jury may have been confused about the minimum fine, the jurors all agreed upon a fine of one-thousand dollars. The trial court ensured that the jurors had agreed

upon that fine by asking-5-

them twice to verify it. We do not believe that the jury’s setting of the fine was improper.

Ne xt, the defendant c

ontends that the tr

ial court imposed th

e jury’s recomme

nded fin e without considering the facts of the case and the principles of sentencing. She argues that this was her first offense

in over eigh t years, the item stolen was worth only thirty-six dollars, and her potential for reh

abilitation is grea

t.
Although the jury is to “fix” the amount of the fine and re

port it with the guilty

verdict, it is th e trial court’s obligation to impose a fine not to exceed that fixed by the jury as part of the
sentence. SeeTenn. Code Ann. § 40-35- 301(b); State v. Blevins , 968 S.W.2d 888, 895 (Tenn. Cri m. App. 1997). The trial court’s imposition of a fine should be based upon the factors and principles of the 1989 Sentencing Act, such as prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors relevant to an appropriate, total sentence. See Bryant , 805 S.W.2d at 766.

Although the trial court did not place its findings on the record, we do no t necessarily

view this to require a de novo review with n o pres umption of correctness. See generally State v. Troutman
, 979 S.W.2d 271, 274 (Tenn. 1998) (noting that for misdemeanor sentencing, a trial court neednot place its findings on the record but need only “consider the principles o f sentencing and enhancement

and mi t igating factors . . . .”). We believe that the record supports the trial court’s impositi on of the fine. The record shows that although the defendant does not have a lengthy criminal history, she does have one prior conviction for driving under the influence. In addition
, although the defendant c

laims t hat her potential for

rehabilitation is g

reat, we note tha

t at no time has the defendant accepted responsibility for stealing the sweatshirt. See State v. Dowdy
, 8 94 S.W.2d 301, 306 (Tenn. Crim. App. 1994) (holding that a defendant’s lack of truthfulness and failure
to accept responsibi lity for his crimes are circumstances germane to his rehabilitation potential). With regard to the defendant’s ability to pay, the record does show that the defendant was declared indigent. However, this does not preclude the imposition of a fine. This court has previously noted that although “indigency may in certain cases justify no fine . . ., it must be considered with the other relevant f actors.” Blevins , 968 S.W.2d at 895. The record shows that the defendant earns approximately

one thousand dollars per month in wages and receives four hundred doll ars per month for child support. We do not believe that the defendant has shown the fine, well below the maximum allowed, to be excessive.

In consideration of the for egoing and t he record as a whole, we affirm the judgment of conviction.