        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs September 20, 2016 at Knoxville

           STATE OF TENNESSEE v. ELIZABETH GARDENHIRE

                    Appeal from the Criminal Court for White County
                      No. CR-6975    David A. Patterson, Judge


              No. M2015-01998-CCA-R3-CD – Filed December 29, 2016



Following a jury trial, the defendant, Elizabeth Gardenhire, was convicted of theft of
property valued at $1000 or more but less than $10,000, a Class D felony. The trial court
sentenced the defendant as a career offender to twelve years in the Department of
Correction. On appeal, the defendant challenges the sufficiency of the evidence, arguing
that the State failed to establish that she acted knowingly or that the value of the property
was $1000 or more. Based upon our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Michael J. Rocco (on appeal) and Daniel Barnes (at trial), Sparta, Tennessee, for the
appellant, Elizabeth Gardenhire.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Philip A. Hatch,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS


        The defendant and a co-defendant, Walmart employee Dixie Betterton, were
indicted for theft of property valued at $1000 or more but less than $10,000, based upon
their theft of over $3000, achieved through a series of fraudulent transactions, from the
Walmart store in Sparta, Tennessee, between July 6 and July 28, 2014.
        At trial, Diane Keele, an asset protection associate at the Sparta Walmart, testified
that she had reviewed the store’s surveillance video covering the dates of July 6-28, 2014,
and identified the video, which was published to the jury and admitted as an exhibit. She
identified the defendant on the video, as well as in the courtroom. Ms. Keele said she
retrieved receipts from the store’s computer database related to the time period of the
theft, which were also admitted as exhibits. All fourteen receipts contained price
overrides, competitive price matches, voided entries, debit loads,1 or refunded items. The
receipts reflected that each fraudulent transaction took place at cash register number 9
and that Ms. Betterton was the cashier in the majority of the transactions. Ms. Keele said
that the total loss to Walmart was $3250.90 and explained the dates and various items the
defendant received in each transaction, which are summarized as follows:

               July 6, 2014 at 2:28 a.m. – household items and men’s clothing,
       resulting in a loss of $28.90;

               July 7, 2014 at 3:22 a.m. – a fishing rod, tea lights, Bic lighters, and
       other items, resulting in a loss of $131.81;

              July 14, 2014 at 11:40 p.m. – beer, steaks and other meats, men’s
       shoes, snack cakes, candy, and other items, resulting in a loss of $97.21;

               July 14, 2014 at 3:27 a.m. – a debit load for $277.99 and $20 cash,
       resulting in a loss of $297.99;

                July 14, 2014 at 3:31 a.m. – skin care items, resulting in a loss of
       $9.95;

               July 22, 2014 at 12:55 a.m. – a debit load for $477 and $3 fee,
       resulting in a loss of $480;

               July 22, 2014 at 1:08 a.m. – “tattoo goo,” solar lights, clocks, blue
       jeans, Bic lighters, shoes, candy, soft drinks, and other items, resulting in a
       loss of $311.62;

              July 23, 2014 at 3:23 a.m. – a debit load for $400 and $3 fee, which
       the defendant paid, resulting in a loss of $400;


       1
         The witness explained that a debit load occurred when, for a fee, a customer placed a certain
amount of money onto a debit card and paid for that amount with either cash or another debit card.
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               July 25, 2014 at 1:16 a.m. – a cash refund for a sound bar, resulting
       in a loss of $48;

             July 25, 2014 at 1:36 a.m. – a debit load for $223, resulting in a loss
       of $222;2

             July 27, 2014 at 2:44 a.m. – a debit load for $450, resulting in a loss
       of $450;

              July 27, 2014 at 3:17 a.m. – numerous articles of clothing,
       carabiners, binder pouches, and other items, resulting in a loss of $264.92;

              July 28, 2014 at 2:02 a.m. – a carton of cigarettes, resulting in a loss
       of $50.50; and

             July 28, 2014 at 2:03 a.m. – a debit load for $475 and $3 fee, with a
       $20 cash tender, resulting in a loss of $458.

       Dixie Betterton testified that she had pled guilty to theft over $1000 in this case
and was awaiting her sentencing hearing. She said the defendant approached her one
evening when she was on a smoke break, told her she had recently taken in some family
members, and was having a hard time providing “daily essentials” for them. Ms.
Betterton informed the defendant about the store’s price match policy, after which the
defendant shopped and checked out at Ms. Betterton’s register. Ms. Betterton said that
“everything [was done] by the books” in this transaction. She and the defendant then
discussed if “there was a way to load money on [a debit] card without actually having all
of the money up front.” Ms. Betterton explained the debit load process she used: “[The
defendant] comes up and she hands me the card, either she has to buy it or she’s
previously bought it . . . . I hit a specific code on the register, . . . swipe the card and load
however much she needs and it charges a fee and you pay the money.” She further
explained that the defendant mimicked this process by giving Ms. Betterton a “fake card”
and “keep[ing] the front covered up and you slide it and act like you type in your pin and
ask for money back.”

       Ms. Betterton identified store receipts bearing her operator number and
acknowledged that she was the cashier for the majority of the transactions. She said that
the transactions occurred between 1:30 and 3:30 a.m. when the store managers were
usually on their break.

       2
         Ms. Keele testified that the debit load was for $223 and the receipt reflects that amount.
However, Ms. Keele later testified that the loss for this transaction was $222.
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        The defendant testified that she met Ms. Betterton through a mutual friend and had
known her for three years prior to July 7, 2014. The defendant acknowledged that the
$1700 monthly disability benefit she received was enough for her “to survive on.” She
denied making any of the fraudulent transactions but admitted that she had “a lot of
criminal history,” with her last conviction occurring in 2008 or 2009. She said she had
changed her life and did not “have to string out on drugs trying to steal this and that.”
The defendant said that she had never been banned from Walmart or caught shoplifting
there. She elaborated, “[I]f I was stealing their stuff and . . . wouldn’t pay for it in the
store, somebody should have stopped me before a whole month or fifteen transactions
went through.”

       The defendant acknowledged that, at the time of the offense, Ms. Betterton was
living with her and that they had “got[ten] into it” because Ms. Betterton refused to pay
the $50 weekly rent the defendant was charging her. On cross-examination, the
defendant admitted that she had prior convictions for “a bunch of forgeries” and burglary
of a motor vehicle. She acknowledged that she did not have consent from Walmart to
take any of the property and that she had refused to sign a “no trespassing paper” at the
store. On redirect, the defendant denied using a “fake card” to make any of the
transactions, saying that she swiped her card to transfer funds and “truly paid for it.”

      As a rebuttal witness, the State called Brandon Upchurch, the asset protection
manager at the Sparta Walmart. Mr. Upchurch testified that it was impossible for
customers “to swipe a card to load a debit card that they have purchased and the receipt
show cash was tendered.”

                                        ANALYSIS

       The defendant argues that the evidence is insufficient to support her conviction
because     she     had     no    control  over     the   cash    register   and     the
State failed to prove that she acted “knowingly.” She also argues that the State did not
prove the value of the property was $1000 or greater.

       In considering this issue, we apply the rule that where sufficiency of the
convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
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1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same
standard applies whether the finding of guilt is predicated upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

       All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       “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.” Tenn. Code Ann. § 39-14-103(a). Theft of property valued
at $1000 or more but less than $10,000 is a Class D felony. Id. § 39-14-105(a)(3). A
person “acts intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in the conduct or
cause the result” and “acts knowingly with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result.” Id. §
39-11-302(a), (b).

       Viewed in the light most favorable to the State, the evidence established that the
defendant made fourteen fraudulent transactions at the same cash register, mostly when
Ms. Betterton, whom the defendant knew, was the cashier. The defendant made the
transactions during times when the store managers were on their breaks. The defendant
and Ms. Betterton discussed ways to load a debit card “without actually having all of the
                                             -5-
money up front.” Ms. Betterton testified the defendant mimicked the debit load process
by giving Ms. Betterton a “fake card” and “keep[ing] the front covered up” out of view of
the store cameras. Although the defendant denied using a “fake card,” the jury obviously
found the testimony of the State’s witnesses more credible than that of the defendant.
The value of the property listed on the store receipts, showing a total loss of $3250.90,
was established by Ms. Keele’s testimony. We conclude that the evidence is sufficient to
establish that the defendant acted knowingly and that the value of the property taken from
Walmart was $1000 or more.

                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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