        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 14, 2015

                   STATE OF TENNESSEE v. KEVIN PRICE

                 Appeal from the Criminal Court for Shelby County
                      No. 13-01597    John Campbell, Judge


                No. W2014-00402-CCA-R3-CD - Filed June 24, 2015


Aggrieved of his Shelby County Criminal Court jury convictions of aggravated burglary
and theft of property valued at $1,000 or more but less than $10,000, the defendant,
Kevin Price, appeals, claiming that the evidence was insufficient to support his
convictions. Discerning no error, we affirm the judgments of the trial court.

           Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

John R. Scott, Jr., and James P. Coleman, Memphis, Tennessee, for the appellant, Kevin
Price.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               The defendant‟s convictions relate to his entering a storage area owned by
the victim, Donald Hodge, and stealing a lawn mower, weed trimmer, hedge trimmer, and
a leaf blower.

             Mr. Hodge testified that when he left for work at 6:30 a.m. on October 1,
2012, the door to the storage shed adjacent to his carport was locked. When he returned
home at approximately 5:30 p.m., the door was open, and “the bottom panel of the door
ha[d] been knocked out.” He said that “all [his] gas operated lawn equipment was
missing,” including “a Torro mower, an Echo weedeater, Echo hedge trimmer, and a
Craftsman blower.” The mower was valued “right at $400,” the weed trimmer at $250,
the hedge trimmer at $260, and the blower at $130. Mr. Hodge placed the total value of
all the items taken at $1,040. Mr. Hodge said that he did not give anyone permission to
enter his residence or to take the lawn equipment. Mr. Hodge said that the lawn mower
had been returned to him.

              During cross-examination, Mr. Hodge confirmed that although the storage
shed was “part of the carport,” it was not adjoined to the house and that one could not
“access the house from the storage room.” He explained that the carport was connected
to the house and that the shed was connected to the carport.

              Memphis Police Department Officer Matthew Longshore responded to Mr.
Hodge‟s call of a theft at his residence. He observed that “a wooden panel” had been
“kicked out of the door” to a shed. Mr. Hodge provided Officer Longshore with serial
numbers for all but one of the items taken. He said that he found no fingerprint evidence
at the scene.

              Regis Eleby, a pawn broker at E-Z Pawn on Sumner Avenue in Memphis,
identified a pawn ticket issued on October 1, 2012, for a lawn mower with a serial
number that matched the one provided by Mr. Hodge. The ticket showed that the item
had been pawned by the defendant at 9:09 a.m. for $100.

              At the conclusion of this proof, the State rested. After a full Momon
colloquy, the defendant elected not to testify but did choose to present proof.

              The defendant‟s brother, Danny Price, testified that the two men had
breakfast together on the morning of October 1, 2012, at approximately 8:00 a.m. After
approximately 15 minutes, Mr. Price received a call to report to a job for his wrecker
service, and the two left. As he drove down the street, Mr. Price saw the defendant pull
into an Exxon station where some men were “selling a lawn mower and stuff out of the
back of a truck.”

              Based upon this proof, the jury convicted the defendant as charged of
aggravated burglary and theft of property valued at $1,000 or more but less than $10,000.
The defendant filed a timely but unsuccessful motion for new trial followed by a timely
notice of appeal.

               In this appeal, the defendant challenges the sufficiency of the convicting
evidence. He also challenges his conviction of aggravated burglary on grounds that the
trial court erred by failing to define the term “felony” in its instructions to the jury. We
consider each claim in turn.

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                                               I. Sufficiency

               The defendant argues that the evidence was insufficient to support both of
his convictions because the State failed to establish his identity as the perpetrator. He
also challenges the sufficiency of the evidence for his theft conviction on grounds that the
State failed to establish that the value of the items taken exceeded $1,000.1

              We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As charged in this case, “[a] person commits burglary who, without the
effective consent of the property owner . . . [e]nters a building other than a habitation (or

1
         As part of his challenge to the sufficiency of the convicting evidence, the defendant argues that
the pawn ticket identified by Mr. Eleby contained inadmissible hearsay in the form of the date the lawn
mower was pawned. He argues that without this hearsay evidence, the evidence would have failed to
establish his possession of recently stolen property. Because the defendant failed to object to this
evidence at the time of its admission, he may not challenge its admission on appeal. See Tenn. R. Evid.
103 (“Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of
the party is affected, and . . . [i]n case the ruling is one admitting evidence, a timely objection or motion to
strike appears of record, stating the specific ground of objection . . . .”); Tenn. R. App. P. 36(b) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when
the defendant fails to make a contemporaneous objection); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn.
Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). Moreover, even if
the evidence was erroneously admitted, it would not be excluded from our review of the sufficiency of the
evidence. See State v. Longstreet, 619 S.W.2d 97, 101 (Tenn. 1981).
                                                      -3-
any portion thereof) not open to the public, with intent to commit a . . . theft.” T.C.A. §
39-14-402(a)(1). Aggravated burglary is burglary of a habitation. T.C.A. § 39-14-
403(a). “„Habitation‟ also includes garages and other outbuildings that are „separately
secured and occupied portions‟ of a habitation.” Id. § 39-14-403, Sentencing Comm‟n
Comments. “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner‟s effective consent.” Id. § 39-14-103(a). Theft of property is a Class D felony
when the value of the property stolen is $1,000 or more but less than $10,000. Id. § 39-
14-105(a)(3).

               “Value,” as relevant to the theft in this case, is defined by our Code as
either “[t]he fair market value of the property or service at the time of the offense” or
“[i]f the fair market value of the property cannot be ascertained, the cost of replacing the
property within a reasonable time after the offense.” T.C.A. § 39-11-106(36)(A)(i)-(ii).
Furthermore, Tennessee Rule of Evidence 701 provides “[a] witness may testify to the
value of the witness‟s own property or services.” Tenn. R. Evid. 701(b).

                The evidence adduced at trial established that when Mr. Hodge left for
work at approximately 6:30 a.m. on October 1, 2012, the door to his storage shed, which
was connected to Mr. Hodge‟s house via his carport, was intact and locked, and his lawn
maintence equipment was inside. When he returned from work at approximately 5:30
p.m., the door to the shed had been kicked in, and Mr. Hodge‟s equipment was gone. Mr.
Hodge testified that the value of the items stolen exceeded $1,000. Specifically, he said
that the value of the lawn mower was $400, the value of the weed trimmer was $250, the
value of the hedge trimmer was $260, and the the value of the leaf blower was $130. Mr.
Eleby identified a pawn ticket that indicated that the defendant pawned Mr. Hodge‟s lawn
mower at 9:09 a.m. on October 1, 2012. The defendant‟s possession of the lawn mower
shortly after it was taken and the fact that he pawned the item for less than one-third of its
market value supports an inference that the defendant committed both the aggravated
burglary of Mr. Hodge‟s shed and the theft of his lawn equipment. See State v. James,
315 S.W.3d 440, 452 (Tenn. 2010). Furthermore, the jury accredited Mr. Hodge‟s
valuation of the property, as was its prerogative. See State v. Hamm, 611 S.W.2d 826,
828-29 (Tenn. 1981) (holding that it is up to the jury to determine the value of the items
stolen).

                                    II. Jury Instructions

             The defendant next challenges his conviction of aggravated burglary on
grounds that the trial court failed to define the word “felony” in its instructions to the
jury. The defendant appears to argue that an aggravated burglary may not be predicated
upon an intent to commit a misdemeanor theft because the word “felony” in the burglary
                                             -4-
statute actually modifies “theft” and “assault” so that only felony theft and felony assault
may serve as a basis for a conviction of aggravated burglary.

               As an initial matter, we note that the defendant failed to lodge a
contemporaneous objection to the jury instructions or to challenge their propriety in his
motion for new trial. Accordingly, he has waived plenary review of this issue. Tenn. R.
App. P. 3(e) ( “[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in . . . jury instructions granted or refused, . . . or other ground upon
which a new trial is sought, unless the same was specifically stated in a motion for a new
trial; otherwise such issues will be treated as waived.”); Tenn. R. App. P. 36(b) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.”). Moreover, because the trial court‟s instructions on
aggravated burglary were an accurate statement of the law, no “clear and unequivocal
rule of law” was breached, and the defendant has failed to establish that the court‟s
instructions rose to the level of plain error. See State v. Smith, 24 S.W.3d 274, 282-83
(Tenn. 2000).

                                         Conclusion

              Because the evidence was sufficient to support the defendant‟s convictions
and because the jury instructions provided by the trial court were correct and complete,
we affirm the judgments of the trial court.

                                           _________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




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