### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs O

ctober 18, 2000 Sessi

on
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 yearsincarceration in the Tennessee Department of

Correction. The appellant presents the following issue for our review: whether, considering the inconsistency a nd nature of the testimon y of th e 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 th

e trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMAS T. W OODALL , and R OBERT W. W EDEMEYER , JJ., joined.

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

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

nt Attorney G

eneral, Sharon Guffee, Assistant District Attorney General, and

Ronald L. Davi

s, District Attorne

y General
, for the appellee, State of Tennessee.

OPINION

I. Factual Backgr

ound On November 6, 1993, the appellant, Toscar C. Carpenter, Sr., entered the Castner Knott Department store

at Cool Springs Mal

l in Williamson County

. Security cameras in the store recorded the appellant carefully checking mercha ndise in the section of the store containing expen sive men’s clothing. He then proceeded into the mall and spoke with six individuals. The indi viduals followed the appe llant back into Cast

ner Knott, and the

group proceed

ed to a tabl e displaying

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

hite bag while the appella

nt placed nine shir

ts a nd nine pair s 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 approac hing.-2- Boese and Huey followed the appellant and one of the female

s into the parking

lot. The appellant held the

bag conta

in ing the stolen merchandise. Boese and Huey appr oached the appellant in order to recover

the merchandise

and apprehend th

e appellant. How

ever, both Boes

e 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 suspe cts. Ho wever, Officer Green soon terminated his pursuit of the vehicle. Boese, H uey, and Officer Green returned to the L oss Prevention department

of Castner Knott. They invent oried 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.

The Sta te charged the appellant with theft of property over $1000 and with aggravate d assault. Following a bench trial, the trial court acquitted the appellant of aggrava ted 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 ye ars incarceration in the Tennessee Department of Correction. The appellant pr esents the followi

n g issue for our review: whether, considering the inconsiste ncyand 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 t heft of property over $1000. As the

prevailing par

ty in the tria

l court, the State is afforded the str

ongest legitima

te view of the evid

ence produced a

t trial and all rea

sonable 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 co

nsidered the same

as the jurors’ ro

le 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). Acco rdi ngly, in a bench trial, the trial judge, as the trier of fact, must resolve all questions concer ning th e credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence. Sta te v. Ball , 97 3 S.W.2d 288, 292 (Ten n. Crim. App. 1998).

This court will not reweigh or reevaluate the evidence in determining the sufficienc y of that evidence

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

The appellant’ s conviction removes the presumption of the appe llant’s innocence and,

on appeal, replaces it with a presumption of gui lt. St ate v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Accordingly, the appellant bears the burden of prov ing to this court why the evidence adduced at trial does not suppor t his conviction. Id. Put another way , the appellant mus

t demonstrate that n

o reasonable

trier of fact could hav

e found the essen

tial elements of th

e offense beyond a reas onable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).-3- In order to sustain a

conviction for the

ft of property

over $1000, the Sta

te needed to prove that the appellan

t, with the intent to deprive the owner of the property, knowingly obtained or exercised control over property without the owner’s effec

tive consent, and

the value of the pr

operty

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 t

o deprive the owner, the property of Castner Knott. H

owever, the app

ellant contends th

at the State

failed to prove that the value of the property taken was over $1000.

The appellant first a

rgues that the Sta

te failed to

prove the va lue of the stolen mercha ndise thro ugh a competent witness. He cites State v. Bridge forth , 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 own

er, as a bailee,

was not a compete

nt witn ess to te stify 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.

Init ial ly, we note that the appellant failed to object at trial to the introduction of the testimonyof Boese. Therefore, this issue is waived. See Tenn. R. App. P. 36(a ). Ac cord ingl y, “[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, Decembe r 2 9, 1992). Add iti ona lly, 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 test

ify concer

ning his opinion of the value of th e 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. Boe

se, a Loss Pre

vention officer

withCastner Knott at the time of the theft, testified that, based upon the price tags on each item, the value of the merc

handise at the time of t he theft was $59 f or 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 befor e the theft and were not on sale.

The appellant

also contends that

the tes tim ony o f Boe se an d Hu ey was con tra dic tor y, and, therefore, the

prosecution fail

ed 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 a dmitted that he did not independently recall the numbe r of items stolen because the theft happened six years earlier. Huey further state

d 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- 14 9-III, 1989 WL 28786, at *1 (Tenn. Crim. App. at Nashville, March 30, 1989). Additionally, the incident report indicated that the appellant had sto

len nine shirts and nine pairs of pants. See State v. Nash , No. 83, 19 89 WL 100228, at *2 (Tenn. Crim. App. at Jacks on, August 3 0, 1989). Furthermore, Officer Greene1 This figure i s the total

achieved when the

rounded off price of

each item ($60) is mul tiplied by t

he number of items stolen (18 total).

-4- 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 383 146, at *3 (Tenn. Crim. App. at Nashville, July 11, 1997). We will not substitute o

ur view on appea

l for that of the tr

ial court. This issu

e is without merit.

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

___________________________________ NORMA McGEE OGLE, JUDGE