1 The pre-sent ence report

reflect s that t he twenty-fi

ve-year old de

fendant had t

hree prior

convicti ons for fel

ony (continu ed...) 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs J

anuary 10, 2001 STATE OF TENNESSEE v. RICHARD CRAWFORD Direct Appeal from the Criminal Court for Shelby County

No. 98-09420 W. Otis Higgs, Judge

No. W2000-00335-CCA-R3-CD - Filed March 14, 2001

Defendant,

Richard Crawford, was convicted at a bench trial of theft of a motor vehicle valued over $10,000. On appeal, the defendant raises the following two issues for our review: (1) whether the evidence was sufficient to support his convict

ion for theft;

and (2) whether the value of the vehicle was properly established. The judgment of the Shelby County Criminal Court is affirmed.
Tenn. R. App. P. 3 as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the o pinion of the court

, in which A LAN E. G LENN , J., joined. D AVID G. H AYES , J., filed a dissenting opinion. Kendall Reeves (on appeal) and T imo thy Joel Williams (at trial), Memphis, Tennessee, for the appellant, Richard Crawford. Paul G. Summers, Attorney Gene ral and Re

porter; Kim R. Help

er, Assistant Attor

ney Gener

al; William L. Gibbons, Dis

trict Attorney

General; and Cam

ille McMullen, Assistant DistrictAttorney General, for the appellee, State of Tennessee.

OPINION The defendant, Ric hard Crawford, was indicted by the Shelby County Grand Jury for the Class C felony of theft of a motor vehicle valued over $10,000but less than $60,000. After a bench

trial, the trial court found the defendant guilty as charg ed and sentenced him to six years confinement as a Range I standard offender. 1 On appeal, the defendant raises the following issues for our review:1 (...continued)

theft, three pri

or convicti

ons for posses sion of items wit h altere d serial numbers, two pri

or convicti

ons for misdemeanor theft, and three prior convi ctions f or driving on a rev oked license. In ad dition, he had tw o prior proba tion violations. The de fendan t does no t contest his m aximu m six-y ear senten ce as a Ran ge I stand ard offen der.

2 On cross -examinat

ion defe nse couns el exhi

bited t o Sgt. Webb a

tit le to a 1989 Flee

twood Ca d illac is sued January 22, 1998, to “

Marie Coppage,” pur

porting t o be the same t

itle s hown by defendant

to Sgt. Webb at the ti

me of the stop. The VIN on

this t itle mat ches the VIN on t

he dash plat

e. This t itle was not in the poss

ession of the stat

e, and the prosecuti

ng attorney not

ed she had never s

een the ti

tl e. Sgt . Web

b was una ble to r eca ll whet her this wa s t

he s ame title he saw at the time of t he stop. This ti

tle was marked for “identifi cation” only. The ti

tle was never ident

ified by any witness an d never introduc ed as an e xhibit. At the concl usion of al

l the proof

, defense c

ounsel st ated he “[did] not wish to make the identifi cation as an exhibit

.” The titl

e does not have any indicati on on the back that it was t ransferred from “Marie Coppage” to the defe ndant o r any oth er person . No pers on nam ed “M arie Cop page” tes tified at trial. Since the title was

never identifi

ed by any witness or introduc ed as an e xhibit, it is not ev idence. H owev er, Sgt. W ebb did tes tify that the t

itle di splayed to him by the defendant was for a 1989 Cadi

llac i n someone’s name other than the defend ant, and th e VIN m atched th e VIN o n the dash plate.

3 Sgt. W. E. Dawkins,

who is ass

igned to the auto t

heft divi sion, t estified that he not

iced nothing unusual about the VIN plate - "[it] just

looked lik

e any VIN number on any car."

-2- (1) whether the evidence was sufficient to sup port the verdi ct; and (2) whether the value of the vehicle was properly established. Upon review, we aff irm the judgment of the trial court.

BACKGROUND On December 13, 1997, Dr. John McAllister was robbed, at gunpoint, of his 1992 Fleetwood Cadillac. Dr. McAllister and his wife h ad just returned to their residence in Memphis and were unloading Christmas gifts when the robbery occurred. The perpetrator was not apprehended. On February 12, 1998, Memphis Police Sgt. Jerry Webb wa s advised to be on the lookout for a 1992 light blue Cadillac in his assigned area of patrol. Webb w as furth er advised that the defendant would be the driver of the vehicle. On this date, Webb stopped a vehi cle matching thi

s description. The driver of theFleetwood Cadillac was the defendant, and defendant did not have a driver’s license. The defendant informed Sgt. Webb that he worked at

T & A Auto Sales on Lamar Aven ue in Memphis. When asked by defense counsel if he had independent knowledge that the defendant did “in

fact, buy and sell automobiles,” Sgt. Webb responded, “No,Sir. I’ve just gone by his word.” The Cad

il lac displayed

a drive-out tag from T & A Auto Sales. The defendant informed Webb that

he owned the vehi

cle and retrieved from the glove compartment a Tennessee title. Sgt. Webb explained that this title was for a 1989 Cadillac in someone’s name other than the defendant. 2 The VIN (vehicle identification number) on the title matched the VI N on the dashboard of the Cadillac; howe

ver, Sgt. Webb tes

tified that the meta

l VIN plate

had “scratch marks

” on it. 3

Lt. Farris A. McCartney with the Memphis Police Department, Auto Theft Division, was4 We assu me this is the same title sho wn to Sg t. Webb

. See Footno te 1. -3- calledto the scene for further investigation. Lt. McCartney testified that the Cadillac hada drive-out tag from T & A Auto Sales, and he was at the time

the “lead investigator on a theft ring investigating T & A Auto Sales.” Thedefendant rela ted to Lt. McCartney that he was the owner of the Cadillac, and that "he had purchased it in the past couple of weeks." Lt. McCartney testified that the defendant produced, as alleged proof of ownership, "some paperwork . . . it wasn’t anything official as

I recall. It was just a bill of sa

le or something . .

. I don’t rec

all seeing a title

at th at point.” However, Lt

. McCartney

stated that the defendant subsequently provided a title for a 1989 Cadillac. 4 Lt. McCa rtne y related that he observed scratch marks on the VIN plate located on the dash of the Cadillac. Further

inspection of this 1992 Fleetwood Cadillac revealed that the attached VIN plate belonged to a 1989 Cadillac. McCartney also observed that several of the seconda ry VINs had been removed, along with the federal sticker from the driver’s door, and that other VINs under the hood didnot match the model of the vehicle. Lt. McCartney further testified that he questioned the defendant at the police depa

rtment. Although the defendant de nied that he got th

e car from “L

ittle Jimmy,” a “noto rious auto th ief,” the defen

dant said he got th

e “radio and spe

akers” from “L

ittle Jimmy.” The defendant to ld Lt. McCartney that he bought the Cadillac from “a car lot,” but declined to identify which car lot. After loca ting othe r secondary VINs, office rs were able to confirm that the seized vehicle was the same vehicle stolen from the McAllister residence two months previously. However, D r . McAllister testified that the person who actually stole his car was not the defendant. The defendant offered no proof at trial. The trial judge, as the finder of fact, found the defendant guilty of the Class C felony of theft of property over $10,000 in value.

SUFFICIENCY OF THE EVIDENCE The defendant asse

rts that the eviden

ce produced at trial is insufficient to s upport his conviction for theft of the motor vehicle. Specifically, the defendant contends that the State failed to establish that he knew the Cadillac was stolen. A. Standard of Review In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as a jury verdict. Sta te v. H older , 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). A finding of guilt by the trial court shall

be set aside if the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e).-4-

In determining the sufficiency of the evidence, this Court does not re

weigh or reeva

luate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not disturb a verdict of guilt due to

the sufficiency

of the evidence

unless the defendant de

monstrates that the

facts containedin the record and theinferences which may be drawn therefrom a re insufficient, as a matter of law, for a rational trier of fact to find the accused guilty be y ond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. A pp. 1996). Accor

dingly, it is

the appellate

court's duty

to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to havefound the essential elements of the offense beyond a reasonable do

ubt. Tenn. R. App. P . 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Although the evidence of the defendant’s

guilt is circumsta

ntial in natu

re , circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis

except that of

guilt. Tharpe , 726 S.W.2d at 900. In addition, “it must establish such a certainty of guilt of the accused as to convince the mind beyond a rea sonable doubt that [the defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State , 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)). While following the above guidelines, this Court must remember that the trier of fact decides the weight to

be given to

circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent wi th guilt and incons

istent with innocence are questions p rimarily for the [trier of fact].” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958); see also Gregory , 862 S.W.2d at 577; State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt , 460 S.W.2d at 391. B. Theft In order to sustain a conviction for theft of property under the indictment in this case, t h e evidence must show that the defendant (1) knowingly exercised control over the vehicle; (2)

he did so without the owner’s effective consent; and (3) he acted with the intent to deprive the owne

r of his vehicle. Tenn. Code Ann. § 39-14-103. Clearly, the defen da nt knowingly exercised control over the vehicle without the true owner’s consent. Thus, the ultimate question for our determin

ation is whether the defendant possessed th e vehicle with the requisite criminal intent to deprive the true owner of his vehicle. I

n short, the issue is whether the state established that the defendant knew the car was stolen. A defendant’s intent or mental sta te is rarely

capable of proo

f by direct

evidence and mus

t u sually be inferred from the circumstances surrounding the offense. See State v. Holland , 8 6 0 S.W.2d 53, 59 (Tenn. Crim. App. 1993). This is particularly true in theft offenses whe re the prosecution is initiated upon a theory of exercising control over stolen property

.-5-

It has long been recognized that the unexplained possession of recently stolen prope rty may warrant an inference that the

possessor hadguilty knowledge of the theft. Barnes v. United States , 412 U.S. 837, 846-48, 93

S. Ct. 2357, 37 L. Ed. 2d 380 (1973); State v. Anderson , 738 S.W.2d 200, 202 (Tenn. Crim. App. 1987). “Recently” is a relative term with no fixed meaning and depends upon the nature of the property and the facts and circumstances shown by the evidence. Anderson , 738 S.W.2d at 202. The longer the period of time since the theft the more doubtful the inference. Bush v. State , 541 S.W.2d 391, 397 (Tenn. 1976). The inference is permissive only, and it is for the trier of fact to determine whether the inference is warranted. Barnes , 41 2 U.S. a t 845, n.9. Furthermore, the state still has th e burden of esta

blishing the defe

ndant’s knowledge that the property was stolen; the burden never shifts to the defendant. Id

. In our view, th e permissible

inference is simply based upon common sense. See id

. C. Trial Judge’s Verdict In announcing the guilty verdict, the trial judge explained in

detail his finding

s. Among these findings we re the follo wing:

(1) the defendant was driving and claimed ownershi p of t he stolen 1992 Cadillac; (2) the defend an t produced a title to a 1989 Cadillac, not a 1992 Cadillac, reflecting an owner other than himself; (3) numerous VIN

s, along with the f

ederal sticker

from th e driver’s door, had been removed; (4) the def

endant never pr

oduced any

documentation re

flecting his ownership of the v

ehicle; (5) there was no credible evid ence that the defendant purchased the vehicle, and no e

vidence how the d

efendant acqui

red the vehicle; (6) the defendant made i ncr iminating statements upon being interviewed; (7) the defendant said he worked at T & A Auto Sales as

a salesman; and (8) the defendant wo

uld have knowledg

e that V IN alterations had been made. Based upon t hese fi ndings, the trial judge found “beyond a reasonable doubt” that the defendant “must have been aware that he was ex ercising co ntrol over a vehic le that belonged

to-6-

someone else.” The trial judge further stated, “I don’t see a ny other conclusion I can come to. . . . I don’t know how the p

roof would be any

clearer. . . .”

Accordingly

, the trial ju

dg e found the defendant guilty of theft. Viewing the evidence in a light most favorable to the state, as we must, we can only c onclude that the findings and verdict reached by the trial court we re supported by the evidence. Therefore, a rational trier of fact could reasonably conclude that the defendant kn

ew the vehicle

was stolen. The defendant was properly convicted of theft. In reaching this

c onclusion, we note that the purported title produced at trial, but never introducedas an exhibit, was presented by defense counsel and was not in the possession of the state. Add iti ona lly, this title was not for a 1992 Cadillac and was in anothe r p erson’s name. Since the alleged title was in defendant’s possession and never identified by any

witness as being

the exact title displayed by the defe

ndant, we are unable to

infer that the sta

te should have subpoenaed the person on this title, an d ar e unable to infer the person named on this title would testify favorably for the defendant. In sustaining the guilty verdict, we emphasize that there is no indication the trial court shifted the burden of proof to the defendant, nor that it drew an adverse inference from his failure to testify. We further conclude that the state is not required to s ubpoena all car

lo t dealers in and aroundShelby County to establish that none of them sold this vehicle to the defendant, in order to dispute his statement that he bought it from an unnamed “car lot.” Simply put, viewing the evidence in a light most favorable to the state, the state’s proof allowed the trier of fact to conclude beyond a reasonable doubt that the defendant knew the vehicle was stolen. This issue is without merit.

VALUATION TESTIMONY Defendant

contends the state did not establish that the value of the vehicle was more than $10,000. More specifica lly, the def

endant contends t

he owner’s testim ony that the “Blue Book” value was approximately $16,000 was inadmissible hearsay. The owner of property may g ive his or her opinion as to the value of that property . Tenn. R. Evid. 701 (b) . Re gard les s of whe the r or not the own er m ay si mpl y r ecite the “Blue Book” value, there is adeq ua te evidence in this case to establish that the value of the Cadillac was more than $10, 000. The owner testif ied that his mother o

riginally purchased the ve

hicle for approxima

tel y $45,000 and gave the ve

hicle to him approximately one year prior to the theft. He further testified he settled upon the amount of $15,500 with his insurance company. I f th e trial court err

ed in allo wing the owner to state the “Blue Book” value, the error was harmless. This issue is without merit.-7- CONCLUSION Based upon our review of therecord, we con clude that the evi

dence is suffici

ent to establish the defendant’s g

uilt. We further concl

ude the state prop

erly estab lished that the valu

e of the vehicle was more than $10,000. Accordingly, we affirm the judg ment of the trial court.

___________________________________ JOE G. RILEY, JUDGE