         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 11, 2000 Session

                STATE OF TENNESSEE v. GENE ALLAN LOGUE


                       Appeal from the Circuit Court for Benton County
                          No. 99-CR831     Julian P. Guinn, Judge



                  No. W1999-01795-CCA-R3-CD - Filed December 15, 2000


Defendant was convicted of theft of property over $500.00, and sentenced to two (2) years as a
Range I standard offender. Defendant now appeals as of right, and raises the following issues: the
evidence is insufficient to sustain his conviction, the court erred in failing to grant his motion for
judgment of acquittal because the state failed to prove the value of the property stolen and the venue
of the crime in Benton County, and the court erred in sentencing defendant to serve two (2) years
and failing to consider alternative sentencing. We affirm the decision of the trial court.

          T.R.A.P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

CORNELIA A. CLARK, SP. J., delivered the opinion of the court, in which DAVID H. WELLES, J. and
ALAN E. GLENN, J., joined.

Terry J. Leonard, for appellant, Gene Allan Logue.

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, Robert
“Gus” Radford, District Attorney General, Beth Boswell, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

       Dean Akers owns a cabin on New Hope Road in Benton County. He is an over-the-road
truck driver. On May 17, 1998, Akers returned from a trip, found the cabin ransacked and
discovered that some of his personal property from that home was missing. He eventually recovered
his two missing alpine compound bows at the Pot ‘O Gold Pawn Shop in Paris, Henry County.
Akers testified at trial that he had paid $650.00 for one bow and $325.00 for the second bow when
he purchased them approximately one year prior to the theft. By the time of their recovery at the
pawn shop they had been stripped of many of their accessories, and damaged significantly. He last
saw the bows in their original condition not long before he discovered his house ransacked. Akers
never gave the defendant or anyone else permission to enter the house or take the bows.
        Deputy Richard Lynn Gallimore of the Benton County Sheriff’s Department began an
investigation of the theft after Akers reported it. The defendant was implicated in this offense
because he pawned the two bows at the Pot ‘O Gold Pawn Shop in Henry County on May 16, 1998.
Deputy Gallimore questioned the defendant, who gave a written statement. He admitted pawning
the bows in Henry County, but refused to tell the deputy where he obtained them.

        William Bryan Carter, owner of the pawn shop, testified that he gave the defendant $75.00
for both bows. He was unable to speculate on the actual fair market value of those items because
they do not sell well in a pawn shop. He testified that the bows are “pretty expensive” to purchase,
but that the resale value is low. Upon learning the true identity of the owner, Carter turned over the
bows to Akers.

        The defendant was indicted in Benton County for the offense of theft by obtaining or
exercising control over two alpine compound bows of a value of more than $500.00 but less than
$1,000.00. The defendant did not testify at trial.

         The defendant’s primary argument, stated in several ways, is that the evidence is insufficient
to support his conviction. When an accused challenges the sufficiency of the convicting evidence,
the standard is whether, after reviewing 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions
concerning the credibility of the witnesses, the weight and value to be given the evidence, as well
as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate
the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A verdict of guilty by the jury,
approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all conflicts
in the testimony in favor of the state. See State v. Cazes, 875 S.W. 2d 253, 259 (Tenn. 1994). A
presumption of guilt replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973).

       The undisputed proof in this case is that two compound bows belonging to the victim were
removed without his consent from a home he owned in Benton County sometime between mid-April
and mid-May, 1998. The defendant was observed in possession and control of the bows on May 16,
when he pawned them in Henry County and received money in return. The theft of the property was
discovered by the victim on May 17, one day after the property was pawned. The owner of the
property never gave his permission for the possession or taking. Defendant never offered any
explanation for his possession of the bows, responding only “I ain’t saying” when asked where he
got them.

        Tenn. Code Ann. §39-14-403 provides that “a person commits theft of property if, with the
intent to deprive the owner of property, the person knowingly obtains or exercises control over the
property without the owner’s effective consent”. Possession of recently stolen goods gives rise to
an inference that the possessor has stolen them. State v. Tuttle, 914 S.W.2d 912 (Tenn. Crim. App.

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1995). In this case the defendant clearly exercised control over property without the owner’s
effective consent. He evidenced his intention to deprive the owner when he pawned the property.
Based on the timing of his possession in relation to the discovery of the theft, and his refusal to
explain how he came into possession of the items, a jury could reasonably conclude he was guilty
of theft. The proof of these elements of the offense are sufficient to support his conviction for theft.

         Defendant next contends that insufficient evidence exists to convict him of the Class E felony
of theft of property valued at more than five hundred dollars but less than one thousand dollars. He
asserts that failure to prove the value of the property taken results in failure to prove the offense
itself.

       Value is defined as “(i) the fair market value of the property . . . at the time and place 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”. Tenn. Code Ann. §39-11-106(a)(36)(A).
Tenn. R. Evid. 701(b) permits the owner of personal property to testify about the value of that
property. See also Reeves v. State, 523 S.W.2d 218, 220 (Tenn. Crim. App. 1975); Meeks v. State,
519 S.W.2d 410, 421 (Tenn. Crim. App. 1974). Presumably, he can testify about either the fair
market value at the time of the offense or the replacement cost.

        Theft is graded as a Class E felony if the stolen property is valued at more than five hundred
dollars but less than one thousand dollars. Tenn. Code Ann. §39-14-105(2). Theft is graded as a
Class A misdemeanor if the stolen property is valued at five hundred dollars or less. Tenn. Code
Ann. §39-14-105(1). If property cannot otherwise be valued, it is presumed to have a value of fifty
dollars or less. Tenn. Code Ann. §39-11-106(a)(36)(C). The theft is then punished as a Class A
misdemeanor.

        In this case, the victim testified that he originally paid $650.00 for one bow and $325.00 for
the second bow. The purchase occurred just over one year prior to the theft. Although the pawn
shop owner paid only $75.00 for the two bows, he declined to estimate their actual value because
bows do not comprise a large part of his business. Additionally, the victim testified that the bows
when recovered at the shop were significantly stripped down from the condition in which they
existed when he last saw them before the theft.

        The determination of fair market value is a jury question based on the evidence presented at
trial. State v. Hamm, 611 S.W.2d 826, 828-829 (Tenn. 1981). Given the information presented
concerning the original purchase price, the original condition of the bows, and the length of
ownership, the evidence was sufficient for the jury to determine that the value of the property taken
was more than five hundred dollars but less than one thousand dollars. This issue is without merit.

         Defendant next contends that the state failed to prove venue in Benton County. An accused
is entitled to a trial in the county in which the offense was committed. State v. Marbury, 908 S.W.2d
405, 407 (Tenn. Crim. App. 1995); State v. Bloodsaw, 746 S.W.2d 722, 723 (Tenn. Crim. App.
1987). The burden is on the state to prove by a preponderance of the evidence that the offense was

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committed in the county specified in the indictment. Marbury, 908 S.W.2d at 407; Bloodsaw, 746
S.W.2d at 724. However, if one or more elements of an offense are committed in one county and
one or more elements in another, the offense may be prosecuted in either county. Tenn. R. Crim.
P. 18(b).

        Tenn. Code Ann. §39-11-201(e) provides that the state must prove venue “by a
preponderance of the evidence”. The factual information must be sufficient to cause the fact finder
to believe that an allegation is probably true. For the evidence to preponderate, it must have the
greater convincing effect in the fact finders’ belief. See Marbury, 908 S.W.2d at 408. Venue may
be shown by either direct or circumstantial evidence. See State v. Hutcherson, 790 S.W.2d 532, 533
(Tenn. 1990). A jury is entitled to draw a reasonable inference as to venue from proven facts. State
v. Reed, 845 S.W.2d 234, 238 (Tenn. Crim. App. 1992).

       Assuming arguendo that the evidence contained in the record was insufficient to establish
the venue of the offense, the remedy would be a remand to the trial court for a new trial, not a
dismissal of the prosecution. State v. Hutcherson, 790 S.W.2d 532, 534-535 (Tenn. 1990).

        However, in this case venue has been proven by preponderance of the evidence. Defendant
was indicted for obtaining or exercising control over property in Benton County. Theft is deemed
to be a continuing course of conduct. See State v. Lon Mitchell Pierce, Jr., Sullivan County, No.
03C01-9703-CR-0017 (Tenn. Crim. App., Knoxville, September 10, 1998). The taking occurred
in Benton County. The defendant was observed in possession of the stolen goods in Henry County.
His pawning of the property there clearly evidenced his intention to deprive the owner of the
property. Since some elements of the offense took place in two different counties, the state had the
right to prosecute in either county. This issue is without merit.

        The defendant finally argues that the trial court improperly denied alternative sentencing
based solely on his refusal to name the person he claims actually took the property in Benton
County. He asserts that the trial court acknowledged his presumptive eligibility for alternative
sentencing, but found that the defendant represented a threat to society and was not amenable to
rehabilitation solely because he would not name the “friend” who had sold him the bows in question.

       When an accused challenges the length, range or the manner of service of a sentence, this
court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. §40-35-401 (d). This
presumption is, however, “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W. 2d 166, 169 (Tenn. 1991).

        In conducting a de novo review of a sentence, this court must consider (a) the evidence, if
any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles
of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statements

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that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§40-35-102, -103, and -210; See State v. Smith, 735 S.W. 2d 859,
863 (Tenn. Crim. App. 1987).

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. The defendant, convicted of a Class E felony, is presumed to be a
favorable candidate for alternative sentencing options in the absence of evidence to the contrary.
Tenn. Code Ann. §40-35-102(6). However, the burden of establishing suitability for probation rests
with the defendant. Tenn. Code Ann. §40-35-303(b). The statutory presumption of an alternative
sentence may be rebutted by “evidence to the contrary”. See Tenn. Code Ann. §40-35-102(6).

        Among the factors applicable to an application for probation are the circumstances of the
offense, the defendant’s criminal record, social history, and present condition, and the deterrent
effect upon and the best interest of the defendant and the public. State v. Grear, 568 S.W2d 285, 286
(Tenn. 1978). Alternative sentencing issues must be determined by the facts and circumstances of
the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). “Each case must be
bottomed upon its own facts”. State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Because sentencing requires an individualized, case by case approach, the method of analysis will
necessarily embody the exercise of discretion at the trial court level. State v. Fletcher, 805 S.W.2d
785 (Tenn. Crim. App. 1991). “It is not the policy of this court to place trial judges in a judicial
straight-jacket in this or any other area, and we are always reluctant to interfere with their traditional
discretionary powers.” Ashby, 823 S.W.2d at 171. (quoting Moten v. State, 559 S.W.2d 770, 773
(Tenn. 1977)).

        The trial court found that two enhancement factors applied to this case: Tenn. Code Ann.
§40-35-114(1) - previous history of criminal convictions or criminal behavior, and (8) - previous
history of unwillingness to comply with the conditions of a sentence involving release into the
community. We find both enhancement factors to be applicable. The defendant, who was only
nineteen (19) years of age at the time of sentencing, already had two alcohol-related misdemeanor
convictions. Additionally, those offenses were committed after the defendant was released on bail
following his arrest in the instant case. Further, at the time of sentencing, defendant had two
additional charges pending which were alleged to have been committed while he was on probation
from the earlier alcohol-related cases and released on bond in the instant case. All of these matters
were considered by the trial judge in reaching his sentencing decision.

        It is improper for a trial court to deny alternative sentencing based solely on a defendant’s
refusal to reveal the names of his sources. See State v. Ricky Keele, No. 02C01-9805-CC-00139,
Hardin County (Tenn. Crim. App., Jackson, March 22, 1999). However, a trial court may consider
such refusal along with other factors in determining whether alternative sentencing is in the best
interest of the defendant and society. See State v. Larry Neal Wilson, No. 02C01-9303-CC-00040,
Hardin County (Tenn. Crim. App., Jackson, April 6, 1994). A lack of candor, bearing upon the
defendant’s amenability to probation, is a basis for denying probation. State v. Neely, 678 S.W.2d
48, 49 (Tenn. 1984); State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993). Similarly, a

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defendant’s untruthfulness is a factor that can be considered. State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983).

        Based on the defendant’s prior criminal history, his lack of apparent amenability to
rehabilitation, as well as his lack of candor about how he received the bows, this court finds that the
presumption of alternative sentencing has been rebutted. This issue is without merit.

       For the reasons set forth above, the judgment of the trial court is affirmed in all respects.



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                                                       CORNELIA A. CLARK, SPECIAL JUDGE




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