IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2000 Session

STATE OF TENNESSEE v. TOSCAR C. CARPENTER, SR.

 Appeal as of Right from the Circuit Court for Williamson County

No. I599-139 Donald P. Harris, Judge

No. M2000-00990-CCA-R3-CD - Filed December 29, 2000

The appellant, Toscar C. Carpenter, Sr., pursuant to a bench trial, was convicted of one count of theft

over $1000, a class D felony. The trial court sentenced the appellant as a career offender to twelve

years incarceration in the Tennessee Department of Correction. The appellant presents the following

issue for our review: whether, considering the inconsistency and nature of the testimony of the

prosecution’s witnesses, there was sufficient evidence to convict the appellant of theft over $1000.

Based upon a review of the record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL, and

ROBERT W. WEDEMEYER, JJ., joined.

Larry D. Drolsum, Franklin, Tennessee, for the appellant, Toscar C. Carpenter, Sr.

Paul G. Summers, Attorney General and Reporter, Russell S. Baldwin, Assistant Attorney General,

Sharon Guffee, Assistant District Attorney General, and Ronald L. Davis, District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

On November 6, 1993, the appellant, Toscar C. Carpenter, Sr., entered the Castner

Knott Department store at Cool Springs Mall in Williamson County. Security cameras in the store

recorded the appellant carefully checking merchandise in the section of the store containing

expensive men’s clothing. He then proceeded into the mall and spoke with six individuals. The

individuals followed the appellant back into Castner Knott, and the group proceeded to a table

displaying Nautica brand shirts and pants. One of the females in the group held open a large white

bag while the appellant placed nine shirts and nine pairs of pants into the bag. The group left the

store after noticing that two members of the Castner Knott Loss Prevention Security team, Jonathan

Boese and Robert Huey, were approaching. 
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Boese and Huey followed the appellant and one of the females into the parking lot.

The appellant held the bag containing the stolen merchandise. Boese and Huey approached the

appellant in order to recover the merchandise and apprehend the appellant. However, both Boese

and Huey backed away from the appellant when they noticed that he had a knife in the waistband of

his pants. The appellant dropped the bag containing the stolen merchandise and got into his car. The

appellant and the female sped away in the vehicle. For a brief time, Officer Andrew Green with the

Franklin Police Department followed the two suspects. However, Officer Green soon terminated

his pursuit of the vehicle. Boese, Huey, and Officer Green returned to the Loss Prevention

department of Castner Knott. They inventoried the bag and found that the bag contained nine

Nautica shirts with a price tag of $59 each and nine pairs of Nautica pants with a price tag of $57

each, for a total of $1044 worth of stolen merchandise.

TheState charged the appellant with theft of property over $1000 and with aggravated

assault. Following a bench trial, the trial court acquitted the appellant of aggravated assault but

found him guilty of theft of property over $1000, a class D felony. The trial court sentenced the

appellant as a career offender to twelve years incarceration in the Tennessee Department of

Correction. The appellant presents the following issue for our review: whether, considering the

inconsistency and nature of the testimony of the prosecution’s witnesses, there was sufficient

evidence to convict the appellant of theft over $1000.

II. Analysis

The appellant challenges the sufficiency of the evidence adduced at trial to support

his conviction of theft of property over $1000. As the prevailing party in the trial court, the State

is afforded the strongest legitimate view of the evidence produced at trial and all reasonable

inferences which may be drawn from that evidence. State v. Henning, 975 S.W.2d 290, 299 (Tenn.

1998). Additionally, this court has stated that “it is logical and compelling that the judge’s role at

a bench trial be considered the same as the jurors’ role at a jury trial. Each, when so sitting, is acting

as the trier of facts.” State v. Daniels, 531 S.W.2d 795, 801 (Tenn. Crim. App. 1975). Accordingly,

in a bench trial, the trial judge, as the trier of fact, must resolve all questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all factual

issues raised by the evidence. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). This

court will not reweigh or reevaluate the evidence in determining the sufficiency of that evidence to

convict the appellant. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).

 

The appellant’s conviction removesthe presumption ofthe appellant’s innocence and,

on appeal, replaces it with a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). Accordingly, the appellant bears the burden of proving to this court why the evidence

adduced at trial does not support his conviction. Id. Put another way, the appellant must

demonstrate that no reasonable trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979);

Tenn. R. App. P. 13(e).
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In order to sustain a conviction for theft of property over $1000, the State needed to

prove that the appellant, with the intent to deprive the owner of the property, knowingly obtained or

exercised control over property without the owner’s effective consent, and the value of the property

was over $1000 but less than $10,000. Tenn. Code Ann.§ 39-14-103, -105(3)(1997). The appellant

concedes that he knowingly obtained, without consent and with the intent to deprive the owner, the

property of Castner Knott. However, the appellant contends that the State failed to prove that the

value of the property taken was over $1000.

The appellant first argues that the State failed to prove the value of the stolen

merchandise through a competent witness. He cites State v. Bridgeforth, 836 S.W.2d 591 (Tenn.

Crim. App. 1992), in support of this proposition. In Bridgeforth, the owner of a trucking company

testified as to his opinion regarding the value of the merchandise stolen from the truck. This court

held that the truck owner, as a bailee, was not a competent witness to testify to the value of the

property and that the title owner of the property would need to testify to the value of the stolen items.

Id. at 593. The appellant argues that, in this case, the owner of the merchandise did not testify, and,

therefore, the testimony of Boese, Huey, and Officer Green was incompetent to prove the value of

the stolen merchandise. We disagree. 

Initially, we note that the appellant failed to object at trial to the introduction of the

testimony of Boese. Therefore, this issue is waived. See Tenn. R. App. P. 36(a). Accordingly,

“[Boese’s] testimony is proper proof of the value of the property. . .” State v. Wright, No. 03C01-

9203-CR-00087, 1992 WL 386323, at *2 (Tenn. Crim. App. at Knoxville, December 29, 1992).

Additionally, Bridgeforth addresses who is allowed to testify regarding their opinion of the value

of the stolen merchandise. See Tenn. R. Evid. 701 (discussing opinion testimony by a lay witness).

In the instant case, Boese did not testify concerning his opinion of the value of the stolen

merchandise. Instead, Boese testified that the items stolen had a certain price marked on their price

tag. See Norris v. State, 475 S.W.2d 553, 555-556 (Tenn. Crim. App. 1971). Accordingly, Tenn.

R. Evid. 701 does not apply in this case. Boese, a Loss Prevention officer with Castner Knott at the

time of the theft, testified that, based upon the price tags on each item, the value of the merchandise

at the time of the theft was $59 for each shirt and $57 for each pair of pants, for a total value of

$1044. Boese also maintained that the items had just arrived at the store the day of or the day before

the theft and were not on sale. 

The appellant also contends that the testimony of Boese and Huey was contradictory,

and, therefore, the prosecution failed to prove the value of the stolen merchandise. Boese testified

that the appellant had stolen nine Nautica shirts and nine pairs of Nautica pants. Huey testified that

the appellant had stolen seven shirts and seven pairs of pants. However, Huey admitted that he did

not independently recall the number of items stolen because the theft happened six years earlier.

Huey further stated that the number of items stolen was correctly entered on the incident report

Boese and Huey made after the theft. See State v. McAnally, No. 88-149-III, 1989 WL 28786, at

*1 (Tenn. Crim. App. at Nashville, March 30, 1989). Additionally, the incident report indicated that

the appellant had stolen nine shirts and nine pairs of pants. See State v. Nash, No. 83, 1989 WL

100228, at *2 (Tenn. Crim. App. at Jackson, August 30, 1989). Furthermore, Officer Greene
1

 This figure is the total achieved when the rounded off price of each item ($60) is multiplied by the number

of items stolen (18 total).

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testified that his report indicated that approximately $1080 worth of merchandise was stolen.1

 The

trial court, as the trier of fact, resolved this conflict in the testimony in favor of the State by

concluding that the appellant had stolen nine shirts and nine pairs of pants. See State v. Farrar, No.

01C01-9605-CC-00198, 1997 WL 383146, at *3 (Tenn. Crim. App. at Nashville, July 11, 1997).

We will not substitute our view on appeal for that of the trial court. This issue is without merit.

III. Conclusion

Based upon the foregoing, we affirm the judgment of the trial court. 

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NORMA McGEE OGLE, JUDGE