                                                     FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  July 20, 1999
                                 AT KNOXVILLE
                                                                Cecil Crowson, Jr.
                                                               Appellate C ourt
                             MAY 1999 SESSION                      Clerk




STATE OF TENNESSEE,                   )
                                      )
             Appellee,                )      C.C.A. No. 03C01-9806-CC-00207
                                      )
vs.                                   )      Bradley County
                                      )
CHARLES HAMES,                        )      Hon. R. Steven Bebb, Judge
                                      )
             Appellant.               )      (Theft over $10,000)



FOR THE APPELLANT:                           FOR THE APPELLEE:

ARVIN H. REINGOLD                            PAUL G. SUMMERS
Attorney at Law                              Attorney General & Reporter
Suite 401, Park Plaza Building
1010 Market Street                           ELLEN H. POLLACK
Chattanooga, TN 37402                        Assistant Attorney General
                                             425 Fifth Ave. N., 2d Floor
                                             Nashville, TN 37243-0493

                                             JERRY N. ESTES
                                             District Attorney General

                                             SANDRA N. C. DONAGHY
                                             Assistant District Attorney General
                                             P.O. Box 1351
                                             Cleveland, TN 37364




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                                   OPINION
                The defendant, Charles Hames, appeals from his jury conviction for

theft over $10,000 but less than $60,0001 in the Bradley County Criminal Court.

The trial court imposed a three year sentence in the Tennessee Department of

Correction. In this direct appeal, the defendant challenges the admission of

testimony by the state’s expert, Buddy Kimsey, regarding the amount of theft. After

a review of the record, the briefs of the parties, and the applicable law, we affirm.



                The following facts were gleaned from the record supplied by the

defendant. The defendant was an employee of Beaty’s Feed and Farm Supply in

Bradley County, Tennessee. Mr. Beaty suspected that the defendant was stealing

money from his business through his position as a cashier. Mr. Beaty contacted

Buddy Kimsey, a certified public accountant, to determine the amount of theft.

Kimsey testified at trial regarding a 53 day period of time for which Kimsey

calculated the amount of loss by the business. The defendant objected to Kimsey’s

testimony as misleading and speculative. The trial court allowed Kimsey to testify

to certain findings. After hearing all the evidence, the jury found the defendant

guilty of theft over $10,000 but less than $60,000.



                Before Kimsey testified in front of the jury, the trial judge listened to

his proposed testimony. Kimsey testified how he calculated the amount of theft.

He reviewed daily reports over a 53 day period which showed the number of times

the defendant voided transactions on his register. Kimsey assessed a dollar value

to the voided transactions, which he maintained was the amount of theft committed

by the defendant. Kimsey did concede that the void button can be used for

legitimate reasons, but he assumed a theft occurred every time the void button was

used by the defendant. The trial judge overruled the defendant’s objection to



       1
           Tenn. Code Ann. § 39-14-103, -14-105(4) (1997).

                                            2
Kimsey’s testimony by finding the testimony was not misleading, and by noting that

a full cross examination would be allowed. Kimsey’s testimony at the jury-out

hearing was essentially the same in the jury’s presence.



              Additionally, during the jury-out hearing, Kimsey calculated the total

sales during the 53 day period on the defendant’s register, then calculated the

percentage of the total that constituted voided transactions. He applied this

percentage to total sales during the period from 1991 through August 1996.

Applying the percentage, he assessed a total amount of theft for that time frame.

The defendant objected to this five and a half year projection, and the court

sustained the objection. Kimsey did not testify to the jury regarding this projection.



              The defendant contends Kimsey’s testimony was confusing and

unfairly prejudicial, and that the trial court should have excluded the testimony

pursuant to Tennessee Rule of Evidence 403. Relevant evidence is generally

admissible, unless “its probative value is substantially outweighed by the danger of

unfair prejudice.” Tenn. R. Evid. 402, 403. In deciding whether evidence is more

probative than prejudicial, the trial court must consider “the questions of fact that the

jury will have to consider in determining the accused’s guilt as well as other

evidence that has been introduced during the course of the trial.”             State v.

Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995) (citing State v. Dulsworth,

781 S.W.2d 277, 287 (Tenn. Crim. App. 1989)). The standard of review applicable

to the decision to admit evidence is abuse of discretion. See State v. Dubose, 953

S.W.2d 649, 652 (Tenn. 1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim.

App. 1980).



              The appellate record only contains the transcript of Kimsey’s

testimony. The appellant must prepare a record which conveys a fair, accurate and

                                           3
complete account of the proceedings below regarding the issues on appeal. See

Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the

appellant fails to file an adequate record, this court must presume the trial court’s

ruling was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim.

App. 1993).



              We are unable to determine the prejudice, or lack thereof, caused by

Kimsey’s testimony without reviewing all the evidence adduced at trial. We do not

know if this was the only evidence introduced at trial which indicated to the jury the

amount of theft. The trial judge assessed Kimsey’s testimony at a jury-out hearing

and found it was not misleading. We must presume the trial court did not abuse its

discretion in allowing Kimsey to testify.



              The judgment of the trial court is affirmed.



                                            ________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE



CONCUR:


_______________________________
JOHN EVERETT WILLIAMS, JUDGE


_______________________________
ALAN E. GLENN, JUDGE




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