        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 11, 2005

                  STATE OF TENNESSEE v. STEVE JOHNSON

                  Direct Appeal from the Circuit Court for Obion County
                          No. 4-45  William B. Acree, Jr., Judge



                  No. W2004-01444-CCA-R3-CD - Filed March 16, 2005


The defendant was convicted of theft under $500 and evading arrest, and was sentenced to two
consecutive sentences of eleven months and twenty-nine days at 75% release eligibility. On
appeal, he challenges the sufficiency of the evidence, the failure to admit the testimony of a
defense witness, and the length and consecutive nature of his sentences. Upon thorough review,
we affirm the judgments and the sentences.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
J.C. MCLIN , JJ., joined.

Joseph P. Atnip, District Public Defender, and William K. Randolph, Assistant Public Defender,
for the appellant, Steve Johnson.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Thomas A. Thomas, District Attorney General; and Allen Strawbridge, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                 Facts and Procedural History

       The defendant, Steve Johnson, was indicted on one count of theft of property under $500
(a Class A misdemeanor), and one count of evading arrest (a Class A misdemeanor). Following
a jury trial, the defendant was convicted on both counts and the trial court imposed two
consecutive sentences of eleven months and twenty-nine days on the charges. The defendant
now appeals to this Court, contesting the sufficiency of the evidence, the failure to admit the
testimony of a defense witness, and the length and consecutive nature of his sentences.

       At trial, Justin Roman (“Roman”) testified that he was employed at the Movie Gallery
video rental store and was present on the evening of the incident in question. On that evening,
he was alerted, while on break, that the defendant had entered the store. Thereafter, he went
inside and notified the police of the defendant’s presence. Roman stated that the defendant was
accompanied by another individual, later identified as Tara Roney (“Roney”), and that the two
walked around the store and talked. As they attempted to leave the store, the security scanner
sounded, indicating that merchandise was being taken from the store. Roman stated that the
defendant pushed Roney towards the counter and said, “You’d better pay for that.” He further
stated that Roney then walked to the counter and attempted to rent the video she had in her
possession; however, when it was discovered she did not have an account with the store, some of
the employees had to open an account for her.

        Roman testified that, in the meantime, the defendant exited the store as the first officer
arrived on the scene. Roman then walked out of the store and heard an officer yell, “Somebody
grab that,” in reference to a game which was lying on the ground next to the car the defendant
had been standing beside. Roman picked the item up and later identified it at trial as a
Playstation 2 game valued at between $40 and $45.

       At trial, Roman acknowledged that the alarm could have been “set off by one or more
items passing through [the scanner] at the same time.” He further stated that the defendant and
Roney “were touching each other really close together as they left.” On cross-examination,
Roman admitted that he did not see the defendant remove the game from the store or drop the
game from his clothing. Finally, he stated that, at the time of the incident, he was not sure
whether the individual in the store was the defendant or his brother.

        Responding Officer Tack Simmons (“Officer Simmons”), a patrolman with the Union
City Police Department, then testified that he was the first officer to arrive at the Movie Gallery
store on the night in question. Officer Simmons stated that, upon arrival, he pulled to the front
of the building where he witnessed the defendant leaving the store. He then exited the police car
in an attempt to speak with the defendant; however, the defendant appeared nervous, “trotted” to
his car, and opened the door. Fearing for his safety, Officer Simmons instructed the defendant to
get out of the car, but the defendant “kept fidgeting with something under the seat.” He stated
that the defendant then stepped away from the car, and a Movie Gallery case fell from beneath
his coat to the ground. Officer Simmons testified that the defendant then backed away, fled the
scene, and ignored his repeated order to stop. He further stated that he called to the manager of
the store to pick the item up and then began to chase the defendant. At that time, a second
responding officer arrived and, observing that the defendant was fleeing the scene, attempted to
use his patrol car to “head [the defendant] off.” The second officer then exited his cruiser and
eventually apprehended the defendant.

        On cross-examination, Officer Simmons acknowledged that he knew both the defendant
and his brother. Moreover, he testified that the dispatch call he received related that the
defendant’s brother was possibly in the Movie Gallery store. He also admitted that he did not
see the defendant take the video game from the shelf or conceal it. However, he reiterated that
he did see the game fall from the defendant’s coat.

       The defendant then testified that he took Roney into the Movie Gallery Store and that
they were followed around the store as they shopped. He stated that he believed the employees

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were suspicious of him because they had mistaken him for his brother, who was pictured behind
the counter. The defendant further testified that, frustrated with being followed, he left the
building to find a police car waiting outside. He stated that the officer tried to “tackle” him and
he ran.

       Regarding the item in question, the defendant testified that he had no use for a video
game and did not steal it. He further stated that he did not see the game until the officers brought
him back to the police car. Finally he testified that, although the game was Roney’s, she was not
charged with the theft.

         Following the presentation of evidence, the jury accredited the testimony of the State’s
witnesses and returned a verdict of guilty on both charges. Thereafter, the court imposed two
consecutive sentences of eleven months and twenty-nine days to be served at 75% release
eligibility. The defendant now appeals, challenging the sufficiency of the evidence, the trial
court’s failure to admit the testimony of a defense witness, and the sentence imposed. Upon our
review, we affirm the judgments and the sentences.

                                             Analysis

                                          I. Sufficiency

        The defendant first challenges the sufficiency of the evidence to support the verdict. In
determining sufficiency, this Court does not reweigh or reevaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict, once approved by the trial judge,
accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). Accordingly, the State is entitled to the strongest legitimate
view of the evidence and all legitimate and reasonable inferences which may be drawn
therefrom. Id. It is our duty to affirm the conviction if the evidence, viewed under the
appropriate standards, was sufficient for any rational trier of fact to have found the essential
elements of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003).

        Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-
900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The
circumstantial evidence, however, must exclude every other reasonable theory or hypothesis
other than guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a certainty of
guilt of the accused as to convince the mind beyond a reasonable doubt that [the defendant] is
the one who committed the crime.” Id. (citations omitted).

       Viewed in a light most favorable to the State, the record reflects that the defendant and
Roney walked into the Movie Gallery store and shopped for a few minutes. As the two started
out of the store, walking “really close together,” the security scanner sounded, indicating that
merchandise was being taken from the store. The defendant then told Roney that she should pay

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for the item she was holding, and the defendant proceeded out of the store. Upon seeing an
officer outside, the defendant appeared nervous and “trotted” to his car, where he “fidgeted”
with something under the seat. After exiting the car at the officer’s behest, a Movie Gallery case
fell from beneath the defendant’s coat to the ground. The case was ultimately discovered to
contain a Playstation 2 game, valued at between $40 and $45. The defendant then fled the scene
but was eventually apprehended by a second responding officer. We conclude that the evidence
presented was sufficient for a rational trier of fact to find the defendant guilty of the charged
offenses. As such, the judgments are affirmed.

                                      II. Exclusion of Testimony

       As his next issue, the defendant contends that the trial court erred in precluding him from
presenting the statements made by Roney to his fiancée, Bobbie Forrest (“Forrest”), via Forrest’s
testimony. He argues that the testimony was not hearsay but was admissible as a declaration
against Roney’s penal interest, pursuant to Tennessee Rule of Evidence 804(b)(3). That rule
provides in pertinent part:
       (b)     The following are not excluded by the hearsay rule if the declarant is
               unavailable as a witness:
               ....
               (3)    Statement Against Interest. - A statement which was at the time of
                      its making so far contrary to the declarant’s pecuniary or
                      proprietary interest, or so far tended to subject the declarant to
                      civil or criminal liability or to render invalid a claim by the
                      declarant against another, that a reasonable person in the
                      declarant’s position would not have made the statement unless
                      believing it to be true.
Tenn. R. Evid. 803(b)(3) (emphasis added).

         In the present case, the defendant avers that the trial court should have allowed Forrest to
testify regarding alleged inculpatory statements made by Roney to Forrest following the incident
at Movie Gallery. However, the defendant fails to show the requisite unavailability of the
declarant. Section (a) of Rule 804 enumerates various ways in which a declarant may be shown
to be unavailable as a witness. The defendant in this case relies on subsection (a)(5), which
states that the witness is unavailable if the declarant “[i]s absent from the hearing and the
proponent of a statement has been unable to procure the declarant’s attendance by process.”
Tenn. R. Evid. 803(a)(5).

       At trial, however, counsel for the defense candidly stated:
       And then finally, if Your Honor please, I had contacted my client yesterday, and
       he told me that this woman [Roney] has left the state and she’s unavailable. So
       we would also ask the Court to allow it under 804(a), under the unavailability
       issue, is absent from the hearing and the proponent of a statement has been unable
       to procure the declarant’s attendance by process. I will tell the Court I have not

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        issued a subpoena for this woman. I didn’t learn about this woman’s existence
        until yesterday. Of course, I didn’t talk to my client about this case until
        yesterday either.
Therefore, as the defense never attempted to serve Roney with process, she cannot be deemed an
unavailable witness under this subsection and her statement cannot be admitted under this
exception to the hearsay rule. Therefore, we conclude that the trial court did not abuse its
discretion in denying admission of Forrest’s testimony.

                                     III. Sentencing

        Finally, the defendant challenges the propriety of the sentences imposed by the trial
court. Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides in part that the trial court shall impose a specific sentence consistent with the
purposes and principles of the 1989 Criminal Sentencing Reform Act. See State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an authorized
determinate sentence with a percentage of that sentence designated for eligibility for
rehabilitative programs. Id. at 394.

        The trial court retains the authority to place the defendant on probation either
immediately or after a time of periodic or continuous confinement. Tenn. Code Ann. § 40-35-
302(e). We further note that the trial court has more flexibility in misdemeanor sentencing than
in felony sentencing. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). One convicted of a
misdemeanor, unlike one convicted of a felony, is not entitled to a presumption of a minimum
sentence. State v. Humphreys, 70 S.W.3d 752, 768 (Tenn. Crim. App. 2001).

        In the present case, a jury convicted the defendant of two misdemeanors, theft under
$500 and evading arrest. At the sentencing hearing, the trial court emphasized the defendant’s
lengthy criminal record, which included: seven (7) forgery convictions; two (2) robbery
convictions; two (2) petit larceny convictions; and one conviction each of burglary, theft,
aggravated assault, receiving stolen property, and possession of a controlled substance. The trial
court further found enhancement factors (2) and (9) applicable, due to the defendant’s prior
record and because he was on parole at the time of the offense, respectively. Consequently, the
trial court imposed two consecutive sentences of eleven months and twenty-nine days, to be
served at 75% release eligibility. Upon our review, we conclude that the sentences imposed by
the trial court were within its discretion and were justified under the circumstances. The
sentences are affirmed.
                                           Conclusion

      Based on the foregoing and the record as a whole, the judgment and the sentences
imposed by the trial court are affirmed.



                                                       _________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE

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