        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 18, 2012 Session

              STATE OF TENNESSEE v. BO W. PRENDERGAST

                Appeal from the Circuit Court for Williamson County
                   No. II-CR064237      Timothy L. Easter, Judge


                No. M2011-00571-CCA-R3-CD - Filed March 28, 2012


A Williamson County Circuit Court jury convicted the defendant, Bo W. Prendergast, of one
count of theft of property valued at over $10,000 but less than $60,000, see T.C.A. §§ 39-14-
103, -105(4) (2006), and the trial court imposed a sentence of 15 years’ incarceration as a
Range III, persistent offender to be served consecutively to a previously imposed sentence.
On appeal, the defendant challenges the sufficiency of the evidence to support his conviction
and urges this court to conclude that the trial court committed plain error by excluding a
State’s witness’s felony convictions for use as impeachment. Discerning neither a paucity
in the evidence nor that substantial justice requires consideration of the alleged error, we
affirm the judgment of the trial court.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.

Drew Justice, Franklin, Tennessee (on appeal); and LaShawn A. Williams, Memphis,
Tennessee (at trial), for the appellant, Bo W. Prendergast.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White, for
the appellee, State of Tennessee.

                                        OPINION

               On May 1, 2009, Linda May Waller contacted the Franklin Police Department
(FPD) to turn in a ring she believed to be stolen. FPD Sergeant Eric Anderson received the
stolen ring from Ms. Waller following their conversation. That same day, Sergeant Anderson
also confirmed the location of a reputedly stolen trailer in the defendant’s yard. Sergeant
Anderson contacted the victim, Harold Dean Baker, and asked Mr. Baker whether he was
missing a diamond ring and a red trailer. Mr. Baker checked his safe for the ring and
confirmed its absence. He, likewise, confirmed that a red motorcycle trailer was missing
from his backyard. Within days of Ms. Waller’s report, Sergeant Anderson substantiated Ms.
Waller’s claim that the defendant had given her the ring through statements of others who
had seen the defendant in possession of the ring or who knew the defendant had access to the
ring.

                Harold Dean Baker, the victim, had hired the defendant to perform carpentry
work in his home from November 2008 until the completion of the work sometime in March
2009. Mr. Baker, a retired contractor who suffered from Parkinson’s disease, hired the
defendant and several other individuals to finish an area over his garage and enlarge the
master bathroom area of the home. Mr. Baker allowed the defendant and other workers use
of his red trailer to haul away scraps and garbage from the renovation site. Mr. Baker first
realized the red trailer was missing when Sergeant Anderson contacted him in May 2009.

              The renovations to Mr. Baker’s home required that a safe be removed from the
master bedroom closet and relocated to an office closet. Mr. Baker recalled that the
defendant and the other men moved the safe and secured it to the floor of the office closet.
To secure the safe to the floor, the men opened the safe via access to the combination and
key. Mr. Baker kept a 14 carat gold and diamond ring in the safe. The ring included a two
carat center diamond surrounded by 1.25 carats of baguettes. An insurance appraisal
performed at the time of the ring’s purchase in February 2005 valued the ring at $21,175.

              Mr. Baker testified at trial that the defendant was a good carpenter. He
recalled, however, that the defendant became upset when Mr. Baker hired a more qualified
contractor for a subsequent project because, at the time of the hiring, the defendant did not
have a truck. Mr. Baker later saw the defendant driving “an old blue pick-up truck.”

               Mr. Baker admitted that he showed the defendant and other workers the coins
and ring that he kept in the safe. He also admitted that the combination and key to the safe
were kept in a file folder in his office file cabinet and that all of the workers had access to
that area of the house during the renovations. In addition to the stolen ring, Mr. Baker
suffered the theft and forgery of some checks from his checkbook. Another carpenter and
his wife, Bradley and Amy Knupp, pleaded guilty to the theft of the checks prior to the
defendant’s trial. Mr. Baker testified that he now keeps the diamond ring in a safety deposit
box at his bank.

            Brenda A. Peeler, a 49-year employee and manager of Hodges Jewelers in
Dickson, confirmed that Mr. Baker’s ring was appraised by the since-deceased owner,

                                              -2-
Thomas E. Hodges. She identified the appraisal document and confirmed, as a licensed
appraiser herself, the value of the ring to be $21,175.

               Bradley A. Knupp testified that he and the defendant worked together on the
renovations to Mr. Baker’s home. Mr. Knupp admitted that he stole checks from the victim’s
checkbook and that he pleaded guilty to the offenses involving the stolen checks. At the time
of the defendant’s trial, Mr. Knupp was serving a probationary sentence for the check
offenses. Although candidly admitting the check offenses, Mr. Knupp denied ever seeing
the ring. He testified, however, that the defendant had the key to the safe at one time and that
the victim kept a folder containing the combination in open view during the construction.
Mr. Knupp also denied seeing the safe open at any time.

              Linda May Waller testified at the time of trial that she was an inmate in the
Williamson County Jail following her conviction of theft charges in July 2010. Prior to her
conviction, Ms. Waller managed a mobile home park that had been in her family for over 44
years. She leased a mobile home and later a house to the defendant. The Knupps also rented
a mobile home from Ms. Waller. Ms. Waller described the defendant as a good renter who
would always “get caught up” after periods of non-payment.

              During one such period, the defendant offered Ms. Waller a ring in exchange
for unpaid rent and utilities and toward the purchase of a blue pick-up truck belonging to Ms.
Waller. The defendant told Ms. Waller that he had inherited the ring from his grandmother.
Ms. Waller rode with the defendant to a home in Boyd Mills Estates where he retrieved the
ring. She agreed to exchange the ring for payment of the back-owed rent and utilities and
the truck. Within weeks of receiving the ring, Ms. Waller became suspicious that the ring
may be stolen. She contacted the FPD, prompting Sergeant Anderson’s investigation and her
turning over the ring for return to Mr. Baker. Ms. Waller denied ever going to the victim’s
home or seeing any other people in possession of the ring.

              Kimberly Webber met the defendant through a mutual friend sometime in early
2009. In March 2009, the defendant offered to sell Ms. Webber the victim’s ring for $2,000.
Ms. Webber also recalled visiting the defendant’s home and seeing a red trailer in the
backyard. Johnny Lee Scales, one of the defendant’s roommates during early 2009, fathered
a child with Ms. Webber and had also worked in the victim’s home.

              Georgia Polk, the defendant’s neighbor in May 2009, recalled borrowing a
trailer from her neighbor to move some furniture. She testified that the defendant and
another man named “Hulk” shared the neighboring home. Jimmy Lewis Polk testified that
he borrowed a red trailer from “Hulk,” who told him that the defendant would not mind him
using it to move furniture. He said that he would not have borrowed it had he known it was

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stolen.

               Following a full Momon colloquy, see Momon v. State, 18 S.W.3d 159,161-62
(Tenn. 1999), the defendant elected not to testify. Carolyn Batte testified for the defendant
that she worked for the victim as a bookkeeper and assistant during the same time period as
the defendant worked on the victim’s home renovations. She recalled that a lot of people
frequented the victim’s home during that time. She was often concerned because the victim
would let workers use his credit cards to purchase construction materials and because the
victim often left private paperwork in plain view of the workers. She also described the
victim as very vulnerable due to his suffering from Parkinson’s disease. Ms. Batte left the
victim’s employment when she obtained full-time employment elsewhere. She said she
would not return to work for him because she did not have “a good feeling” about working
for the victim due to the condition of his health.

                Lindsey Vaughn, the defendant’s girlfriend and mother of his child, denied ever
seeing the defendant with the ring. She recalled that the defendant worked for the victim
from November 2008 until March 2009, but she said that the defendant never worked inside
the victim’s home. She said that the victim allowed the defendant and Mr. Scales to use his
red trailer to haul trash from the construction site.

              Based upon this proof, the jury convicted the defendant in count one of theft
of property valued at over $10,000 but less than $60,000 for the theft of the ring. The trial
court declared a mistrial as to count two after the jury was unable to reach a unanimous
verdict regarding the theft of the red trailer. At sentencing, the trial court found the
defendant qualified as a Range III, persistent offender and sentenced the defendant to 15
years’ incarceration.

              On appeal, the defendant argues that the evidence is insufficient to support his
conviction because the value of the ring was not established relative to the date of the
offense. He also asserts that the trial court committed plain error by restricting his cross-
examination of Ms. Waller concerning prior felony convictions.1 The State contends that the
evidence supports a conviction of theft of property valued at over $10,000. The State also
concedes that the trial court committed error in excluding, as impeachment evidence, proof
of Ms. Waller’s felony drug convictions but argues that the error did not rise to the level of
plain error because reversal is not necessary to do substantial justice.




          1
           The defendant failed to include this allegation of error in his motion for new trial filed by his
original trial counsel. Subsequent counsel raised the issue via plain error on appeal.

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                                  Sufficiency of the Evidence

              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.

              “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103. Theft of property valued at more
than $10,000 but less than $60,000 is a Class C felony. See id. § 39-14-105(4).

              The defendant does not contest the sufficiency of the proof to establish that a
theft occurred but does contest the sufficiency of the proof establishing the value of the ring.
“Value,” as relevant to the theft in this case, is defined by our Code as

               (i) The fair market value of the property or service at the time of
               the offense; or
               (ii) If 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). The Code further provides “[i]f the property or service
has value that cannot be ascertained by the criteria set forth . . . ., the property or service is
deemed to have a value of less than fifty dollars.” Id. at §39-11-106(36)(C). Furthermore,
Tennessee Rule of Evidence 701(b) provides “[a] witness may testify to the value of the
witness’s own property or services.”



                                               -5-
               In this case, Mr. Baker testified that he paid $3,600 for the ring setting and an
additional $16,000 for the two carat diamond center-stone. He identified, without objection,
insurance appraisal documents relevant to the stolen ring. Ms. Peeler, a lifelong employee
of Hodges Jewelers where Mr. Baker purchased the center-stone, authenticated, without
objection, the appraisal document and confirmed that the appraisal, completed in February
2005, valued the ring at $21,175. Contrary to the defendant’s argument, the State is not
obliged to perform an independent appraisal of a stolen item when it becomes evidence in
a prosecution. Furthermore, a theft victim may base testimony concerning the value of a
stolen item upon an appraisal of the item. See, e.g., State v. Jerry Lee Truette, M2005-
00927-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. July 19, 2006) (victim’s testimony
concerning value of stolen antiques based, in part, upon appraisal of items held sufficient to
establish value for restitution purposes in a theft case). Accordingly, we conclude that
sufficient evidence exists to establish the value of the ring and, therefore, the defendant’s
conviction of theft of property valued at over $10,000 but less than $60,000.

                                     Plain Error/Rule 609

                Next, the defendant urges this court to conclude that the trial court committed
plain error by limiting the use of Ms. Waller’s felony convictions as impeachment. See Tenn.
R. Evid. 609(a). The State concedes that the trial court erroneously excluded evidence of Ms.
Waller’s felony drug convictions but argues that the error does not rise to level of plain error.

                Pursuant to Rule 36(b) of the Tennessee Rules of Appellate Procedure, “an
appellate court may consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial” where consideration
of the error is “necessary to do substantial justice.” Tenn. R.App. P. 36(b). Before an error
may be so recognized, however, it “must be ‘plain’ and it must affect a ‘substantial right’ of
the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The word
“‘plain’ is synonymous with ‘clear’ or equivalently ‘obvious.’” United States v. Olano, 507
U.S. 725, 734 (1993) (citing United States v. Young, 470 U.S. 1, 16 n.14 (1985)). Authority
to correct an otherwise “forfeited error” lies strictly “within the sound discretion of the court
of appeals, and the court should not exercise that discretion unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. at 732
(citations omitted).


               In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court
adopted the definition of “substantial right” promulgated by this court in Adkisson. There,
we held that “a ‘substantial right’ is a right of ‘fundamental proportions in the indictment
process, a right to the proof of every element of the offense, and is constitutional in nature.’”


                                               -6-
Adkisson, 899 S.W.2d at 639. Our supreme court also adopted Adkisson’s five factor test for
determining whether an error should be recognized plain:


              (a) the record must clearly establish what occurred in the trial court;

              (b) a clear and unequivocal rule of law must have been breached;

              (c) a substantial right of the accused must have been adversely
              affected;

              (d) the accused did not waive the issue for tactical reasons; and

              (e) consideration of the error is “necessary to do substantial
              justice.”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll five factors must
be established by the record before this court will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record that
at least one of the factors cannot be established.” Id. at 283. To be reviewable as “plain,”
the error “‘must [have been] of such a great magnitude that it probably changed the outcome
of the trial.’” Id. (quoting Adkisson, 899 S.W.2d at 642) (alteration in original). Finally, “the
burden of establishing entitlement to relief for plain error is on the defendant claiming it.”
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).


              Tennessee Rule of Evidence 609 provides in pertinent part:


              (a) General Rule. For the purpose of attacking the credibility of
              a witness, evidence that the witness has been convicted of a
              crime may be admitted if the following procedures and
              conditions are satisfied:
              (1) The witness must be asked about the conviction on cross-
              examination. If the witness denies having been convicted, the
              conviction may be established by public record. If the witness
              denies being the person named in the public record, identity may
              be established by other evidence.
              (2) The crime must be punishable by death or imprisonment in

                                                -7-
              excess of one year under the law under which the witness was
              convicted or, if not so punishable, the crime must have involved
              dishonesty or false statement.
              (3) If the witness to be impeached is the accused in a criminal
              prosecution, the State must give the accused reasonable written
              notice of the impeaching conviction before trial, and the court
              upon request must determine that the conviction’s probative
              value on credibility outweighs its unfair prejudicial effect on the
              substantive issues. The court may rule on the admissibility of
              such proof prior to the trial but in any event shall rule prior to
              the testimony of the accused. If the court makes a final
              determination that such proof is admissible for impeachment
              purposes, the accused need not actually testify at the trial to later
              challenge the propriety of the determination.


Tenn. R. Evid. 609(a).


               In this case, the State requested a jury-out hearing prior to Ms. Waller’s
testifying to determine the admissibility of Ms. Waller’s prior felony convictions. The State
agreed that Ms. Waller’s recent felony theft conviction could be used as impeachment. The
State, however, argued that Ms. Waller’s felony drug convictions should be excluded because
they were not probative of her credibility. Although the trial court questioned the
applicability of the State’s argument to a witness other than the defendant, the State insisted
that the holdings of State v. Waller, 118 S.W.3d 368 (Tenn. 2003), and State v. Walker, 29
S.W.3d 885 (Tenn. Crim. App. 1999), required that a trial court find that a felony conviction
used as impeachment be probative of credibility when used to impeach any witness, not just
“the accused in a criminal prosecution.” But see Tenn. R.Evid. 609(a). We note that the
holdings in Waller and Walker concerned the admissibility of a defendant’s prior convictions
via Rule 609(a)(3) and have no application to the impeachment of a non-accused witness via
Rule 609(a)(2). Nevertheless, persuaded by the State’s argument and with little or no
insightful argument to the contrary presented by trial counsel, the trial court ruled
inadmissible Ms. Waller’s felony drug convictions. As previously noted, the defendant did
not raise the exclusion of the felony convictions as error in his motion for new trial.


               On appeal, the State correctly asserts that the trial court erred by excluding Ms.
Waller’s prior felony convictions. Rule 609(a)(2) clearly allows the impeachment of a
witness who is not “the accused in a criminal prosecution” by evidence of a felony conviction
regardless of the conviction’s bearing on veracity. The State, however, argues that this error

                                               -8-
did not rise to the level of plain error due to the ambiguity in the record concerning the nature
of the erroneously excluded convictions and also because consideration of the error is not
necessary to do substantial justice in light of Mr. Knupp’s and Ms. Webber’s testimony that
the defendant possessed the key to the victim’s safe and possessed the ring for some weeks
leading up to his giving the ring to Ms. Waller.


               In our view, the record is somewhat ambiguous regarding the nature of the
prior convictions sought by the defendant to be used as impeachment. The record only shows
that the witness possessed prior felony drug convictions possibly relating to the sale or
delivery of marijuana and/or oxycodone. The defendant never proferred any specific
evidence concerning the witness’s prior convictions. See Tenn. R.Evid. 103(a)(2) (requiring
a proffer by a party opposing the exclusion of the evidence). Furthermore, the defendant
extensively cross-examined the witness concerning her recent theft conviction as it related
to her veracity at trial. Ms. Waller, however, was not the only witness to testify concerning
the defendant’s possession of the ring. Ms. Webber testified that in late March the defendant
attempted to sell her the ring. Mr. Knupp, the victim, and Ms. Batte all testified that the
defendant had access to the combination and key to the safe where the ring was stored.
Under these circumstances, we conclude that consideration of the error is not necessary to
do substantial justice and decline to afford plain error review.


                                          Conclusion


                The evidence is sufficient to support the defendant’s conviction of theft of
property valued at over $10,000 but less than $60,000. We decline to review the trial court’s
exclusion of impeachment evidence via the plain error rule. Accordingly, the judgment of
the trial court is affirmed.


                                            _________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




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