           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned on Briefs January 10, 2001

                   STATE OF TENNESSEE v. RICHARD CRAWFORD

                      Direct Appeal from the Criminal Court for Shelby County
                               No. 98-09420     W. Otis Higgs, Judge



                         No. W2000-00335-CCA-R3-CD - Filed March 14, 2001


Defendant, Richard Crawford, was convicted at a bench trial of theft of a motor vehicle valued over
$10,000. On appeal, the defendant raises the following two issues for our review: (1) whether the
evidence was sufficient to support his conviction for theft; and (2) whether the value of the vehicle
was properly established. The judgment of the Shelby County Criminal Court is affirmed.


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

JOE G. RILEY, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined. DAVID G.
HAYES, J., filed a dissenting opinion.

Kendall Reeves (on appeal) and Timothy Joel Williams (at trial), Memphis, Tennessee, for the
appellant, Richard Crawford.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                      OPINION

       The defendant, Richard Crawford, was indicted by the Shelby County Grand Jury for the
Class C felony of theft of a motor vehicle valued over $10,000 but less than $60,000. After a bench


trial, the trial court found the defendant guilty as charged and sentenced him to six years confinement
as a Range I standard offender.1 On appeal, the defendant raises the following issues for our review:


       1
           The pre-sentence report reflects that the twenty-five-year old defendant had three prior convictions for felony
                                                                                                            (continu ed...)
(1) whether the evidence was sufficient to support the verdict; and (2) whether the value of the
vehicle was properly established. Upon review, we affirm the judgment of the trial court.


                                                  BACKGROUND

       On December 13, 1997, Dr. John McAllister was robbed, at gunpoint, of his 1992 Fleetwood
Cadillac. Dr. McAllister and his wife had just returned to their residence in Memphis and were
unloading Christmas gifts when the robbery occurred. The perpetrator was not apprehended.

        On February 12, 1998, Memphis Police Sgt. Jerry Webb was advised to be on the lookout
for a 1992 light blue Cadillac in his assigned area of patrol. Webb was further advised that the
defendant would be the driver of the vehicle. On this date, Webb stopped a vehicle matching this
description. The driver of the Fleetwood Cadillac was the defendant, and defendant did not have a
driver’s license. The defendant informed Sgt. Webb that he worked at T & A Auto Sales on Lamar
Avenue in Memphis. When asked by defense counsel if he had independent knowledge that the
defendant did “in fact, buy and sell automobiles,” Sgt. Webb responded, “No, Sir. I’ve just gone
by his word.” The Cadillac displayed a drive-out tag from T & A Auto Sales. The defendant
informed Webb that he owned the vehicle and retrieved from the glove compartment a Tennessee
title. Sgt. Webb explained that this title was for a 1989 Cadillac in someone’s name other than the
defendant.2 The VIN (vehicle identification number) on the title matched the VIN on the dashboard
of the Cadillac; however, Sgt. Webb testified that the metal VIN plate had “scratch marks” on it.3


         Lt. Farris A. McCartney with the Memphis Police Department, Auto Theft Division, was


         1
           (...continued)
theft, three prior convictions for possession of items with altered serial numbers, two prior convictions for misdemeanor
theft, and three prior convictions for driving on a rev oked license. In ad dition, he had tw o prior proba tion violations.
The de fendan t does no t contest his m aximu m six-y ear senten ce as a Ran ge I stand ard offen der.
         2
           On cross-examination defense counsel exhibited to Sgt. Webb a title to a 1989 Fleetwood Cadillac issued
January 22, 1998, to “Marie Coppage,” purporting to be the same title shown by defendant to Sgt. Webb at the time of
the stop. The VIN on this title matches the VIN on the dash plate. This title was not in the possession of the state, and
the prosecuting attorney noted she had never seen the title. Sgt. Webb was unable to recall whether this was the same
title he saw at the time of the stop. This title was marked for “identification” only. The title was never identified by
any witness an d never introduc ed as an e xhibit. At the conclusion of all the proof, defense counsel stated he “[did] not
wish to make the identification as an exhibit.” The title does not have any indication on the back that it was transferred
from “Marie Coppage” to the defe ndant o r any oth er person . No pers on nam ed “M arie Cop page” tes tified at trial. Since
the title was never identified by any witness or introduc ed as an e xhibit, it is not ev idence. H owev er, Sgt. W ebb did
testify that the title displayed to him by the defendant was for a 1989 Cadillac in someone’s name other than the
defend ant, and th e VIN m atched th e VIN o n the dash plate.
         3
          Sgt. W. E. Dawkins, who is assigned to the auto theft division, testified that he noticed nothing unusual about the
VIN plate - "[it] just looked like any VIN number on any car."



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called to the scene for further investigation. Lt. McCartney testified that the Cadillac had a drive-out
tag from T & A Auto Sales, and he was at the time the “lead investigator on a theft ring investigating
T & A Auto Sales.” The defendant related to Lt. McCartney that he was the owner of the Cadillac,
and that "he had purchased it in the past couple of weeks." Lt. McCartney testified that the defendant
produced, as alleged proof of ownership, "some paperwork . . . it wasn’t anything official as I recall.
It was just a bill of sale or something . . . I don’t recall seeing a title at that point.” However, Lt.
McCartney stated that the defendant subsequently provided a title for a 1989 Cadillac.4 Lt.
McCartney related that he observed scratch marks on the VIN plate located on the dash of the
Cadillac. Further inspection of this 1992 Fleetwood Cadillac revealed that the attached VIN plate
belonged to a 1989 Cadillac. McCartney also observed that several of the secondary VINs had been
removed, along with the federal sticker from the driver’s door, and that other VINs under the hood
did not match the model of the vehicle. Lt. McCartney further testified that he questioned the
defendant at the police department. Although the defendant denied that he got the car from “Little
Jimmy,” a “notorious auto thief,” the defendant said he got the “radio and speakers” from “Little
Jimmy.” The defendant told Lt. McCartney that he bought the Cadillac from “a car lot,” but declined
to identify which car lot.

       After locating other secondary VINs, officers were able to confirm that the seized vehicle was
the same vehicle stolen from the McAllister residence two months previously. However, Dr.
McAllister testified that the person who actually stole his car was not the defendant.

        The defendant offered no proof at trial.

       The trial judge, as the finder of fact, found the defendant guilty of the Class C felony of theft
of property over $10,000 in value.


                                     SUFFICIENCY OF THE EVIDENCE

        The defendant asserts that the evidence produced at trial is insufficient to support his
conviction for theft of the motor vehicle. Specifically, the defendant contends that the State failed
to establish that he knew the Cadillac was stolen.

A. Standard of Review

        In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as a jury
verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). A finding of guilt by the
trial court shall be set aside if the evidence is insufficient to support the finding by the trier of fact
of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e).




        4
            We assu me this is the same title sho wn to Sg t. Webb . See Footno te 1.

                                                            -3-
         In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts
contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter
of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v.
Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty to
affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational
trier of fact to have found the essential elements of the offense beyond a reasonable doubt. 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. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

         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). However, in order
for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused
but it must also be inconsistent with innocence and must exclude every other reasonable theory or
hypothesis except that of 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. (quoting Pruitt v. State, 460 S.W.2d 385, 390
(Tenn. Crim. App. 1970)).

       While following the above guidelines, this Court must remember that the trier of fact decides
the weight to be given to circumstantial evidence and that “[t]he inferences to be drawn from such
evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence are questions primarily for the [trier of fact].” Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958); see also Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn.
Crim. App. 1985); Pruitt, 460 S.W.2d at 391.

B. Theft

       In order to sustain a conviction for theft of property under the indictment in this case, the
evidence must show that the defendant (1) knowingly exercised control over the vehicle; (2) he did
so without the owner’s effective consent; and (3) he acted with the intent to deprive the owner of his
vehicle. Tenn. Code Ann. § 39-14-103. Clearly, the defendant knowingly exercised control over
the vehicle without the true owner’s consent. Thus, the ultimate question for our determination is
whether the defendant possessed the vehicle with the requisite criminal intent to deprive the true
owner of his vehicle. In short, the issue is whether the state established that the defendant knew the
car was stolen.

       A defendant’s intent or mental state is rarely capable of proof by direct evidence and must
usually be inferred from the circumstances surrounding the offense. See State v. Holland, 860
S.W.2d 53, 59 (Tenn. Crim. App. 1993). This is particularly true in theft offenses where the
prosecution is initiated upon a theory of exercising control over stolen property.


                                                  -4-
        It has long been recognized that the unexplained possession of recently stolen property may
warrant an inference that the possessor had guilty knowledge of the theft. Barnes v. United States,
412 U.S. 837, 846-48, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973); State v. Anderson, 738 S.W.2d 200,
202 (Tenn. Crim. App. 1987). “Recently” is a relative term with no fixed meaning and depends
upon the nature of the property and the facts and circumstances shown by the evidence. Anderson,
738 S.W.2d at 202. The longer the period of time since the theft the more doubtful the inference.
Bush v. State, 541 S.W.2d 391, 397 (Tenn. 1976). The inference is permissive only, and it is for the
trier of fact to determine whether the inference is warranted. Barnes, 412 U.S. at 845, n.9.
Furthermore, the state still has the burden of establishing the defendant’s knowledge that the property
was stolen; the burden never shifts to the defendant. Id. In our view, the permissible inference is
simply based upon common sense. See id.

C. Trial Judge’s Verdict

       In announcing the guilty verdict, the trial judge explained in detail his findings. Among these
findings were the following:

               (1) the defendant was driving and claimed ownership of the stolen
               1992 Cadillac;

               (2) the defendant produced a title to a 1989 Cadillac, not a 1992
               Cadillac, reflecting an owner other than himself;

               (3) numerous VINs, along with the federal sticker from the driver’s
               door, had been removed;

               (4) the defendant never produced any documentation reflecting his
               ownership of the vehicle;

               (5) there was no credible evidence that the defendant purchased the
               vehicle, and no evidence how the defendant acquired the vehicle;

               (6) the defendant made incriminating statements upon being
               interviewed;

               (7) the defendant said he worked at T & A Auto Sales as a salesman;
               and

               (8) the defendant would have knowledge that VIN alterations had
               been made.

       Based upon these findings, the trial judge found “beyond a reasonable doubt” that the
defendant “must have been aware that he was exercising control over a vehicle that belonged to


                                                 -5-
someone else.” The trial judge further stated, “I don’t see any other conclusion I can come to. . . .
I don’t know how the proof would be any clearer. . . .” Accordingly, the trial judge found the
defendant guilty of theft.

        Viewing the evidence in a light most favorable to the state, as we must, we can only conclude
that the findings and verdict reached by the trial court were supported by the evidence. Therefore,
a rational trier of fact could reasonably conclude that the defendant knew the vehicle was stolen. The
defendant was properly convicted of theft.

        In reaching this conclusion, we note that the purported title produced at trial, but never
introduced as an exhibit, was presented by defense counsel and was not in the possession of the state.
Additionally, this title was not for a 1992 Cadillac and was in another person’s name. Since the
alleged title was in defendant’s possession and never identified by any witness as being the exact title
displayed by the defendant, we are unable to infer that the state should have subpoenaed the person
on this title, and are unable to infer the person named on this title would testify favorably for the
defendant.

         In sustaining the guilty verdict, we emphasize that there is no indication the trial court
shifted the burden of proof to the defendant, nor that it drew an adverse inference from his failure
to testify. We further conclude that the state is not required to subpoena all car lot dealers in and
around Shelby County to establish that none of them sold this vehicle to the defendant, in order to
dispute his statement that he bought it from an unnamed “car lot.” Simply put, viewing the evidence
in a light most favorable to the state, the state’s proof allowed the trier of fact to conclude beyond
a reasonable doubt that the defendant knew the vehicle was stolen.

        This issue is without merit.


                                   VALUATION TESTIMONY

       Defendant contends the state did not establish that the value of the vehicle was more than
$10,000. More specifically, the defendant contends the owner’s testimony that the “Blue Book”
value was approximately $16,000 was inadmissible hearsay.

        The owner of property may give his or her opinion as to the value of that property. Tenn. R.
Evid. 701(b). Regardless of whether or not the owner may simply recite the “Blue Book” value,
there is adequate evidence in this case to establish that the value of the Cadillac was more than
$10,000. The owner testified that his mother originally purchased the vehicle for approximately
$45,000 and gave the vehicle to him approximately one year prior to the theft. He further testified
he settled upon the amount of $15,500 with his insurance company. If the trial court erred in
allowing the owner to state the “Blue Book” value, the error was harmless. This issue is without
merit.



                                                  -6-
                                          CONCLUSION

        Based upon our review of the record, we conclude that the evidence is sufficient to establish
the defendant’s guilt. We further conclude the state properly established that the value of the vehicle
was more than $10,000. Accordingly, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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