           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs July 27, 2011

                 STATE OF TENNESSEE v. GROVER L. PARKS

                Direct Appeal from the Criminal Court for Polk County
                          No. 08-130 Carroll Ross, Judge




                   No. E2010-02557-CCA-R3-CD - February 17, 2012



A Polk County jury convicted the Defendant, Grover L. Parks, of theft of property valued
over $10,000 and less than $60,000, and the trial court sentenced him to five years in the
Tennessee Department of Correction. On appeal, the Defendant contends: (1) the evidence
is insufficient to sustain his conviction; and (2) the trial court erred when it failed to
disqualify the special prosecutor from prosecuting the case. After a thorough review of the
record and applicable authorities, we conclude there exists no error. We, therefore, affirm
the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN, J., joined. J.C. M CL IN, J., not participating.1

Richard Hughes, Cleveland, Tennessee, and James O. Martin, III, Nashville, Tennessee (on
appeal) and John Fortuno, and Larry Wright, Cleveland, Tennessee (at trial), for the
appellant, Grover L. Parks.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Stephen Bebb, District Attorney General; Carl Petty, Special Prosecutor; and Drew
Robinson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       1
        The Honorable J.C. McLin died September 3, 2011, and did not participate in this
opinion. We acknowledge his faithful service to this Court.
        In April 2007, a Polk County grand jury indicted the Defendant, Grover L. Parks, for
one count of theft of property valued over $10,000 and less than $60,000 and one count of
assault. The State dismissed the assault charge, and the record reflects the State informed
the Defendant that it would dismiss the theft of property charge if the Defendant paid
restitution to the victim, Paul Syiek. The Defendant agreed, and the State dismissed the
charge. The Defendant, however, failed to pay the agreed restitution, and the Polk County
grand jury re-indicted him for theft of property valued over $10,000 and less than $60,000.

       At the Defendant’s trial, Syiek testified that, while he maintained his primary
residence in Georgia, he had purchased 720 acres of land in Cleveland, Tennessee, in
December 2006. When he returned to the property in February 2007, he discovered that
missing from the property were a tractor, a bush hog, and a tarp-covered trailer he stored on
the land. Syiek reported the theft to authorities on February 25, 2007, and informed them
that he knew the equipment had been taken within the last three weeks. He said he further
informed authorities that he had seen the missing equipment in open view on the property of
his neighbor, the Defendant.

        Syiek further testified that where he stored the trailer on his property, before it was
taken, blocked a portion of a road used by the Defendant but that there were many other
roads the Defendant could have used to access his property. Syiek recounted that
successfully taking the equipment from his property required that someone open a locked
gate at the entrance of his property and then move the equipment. He said that, additionally,
the ignition switch on the tractor had been replaced, the seat on the tractor and shaft
connecting the tractor to the bush hog were missing, and the muffler suffered damage. Syiek
estimated the value of the three pieces of equipment at $23,000.

        Officer James Burris of the Polk County Sheriff’s Office testified that he took Syiek’s
report. Officer Burris accompanied Syiek to the Defendant’s residence, where they
discovered the tractor, bush hog, and trailer on the Defendant’s land. Officer Burris testified
that the Defendant told him that he had reported the equipment as abandoned to the Sheriff’s
Department and then, fearing it may be stolen, he moved the equipment onto his property in
order to prevent it from being stolen. The Defendant admitted that he used the tractor to
work on his own property. Based on finding the equipment on the Defendant’s property and
the Defendant’s admission, Office Burris arrested the Defendant.

       Detective Joe Price of the Polk County Sheriff’s Office testified that his office did not
receive a report regarding abandoned equipment at that location.

       Michael Cantrell testified on behalf of the Defendant that he saw a large tractor

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parked in the middle of the dirt road he used to access the Defendant’s residence. He
testified that the tractor had the bush hog attached to it. He also testified that the tractor was
not on the trailer, but the trailer sat near the tractor on Syiek’s property. He said that he
noticed that someone had removed the key switch assembly. Cantrell said that he and the
Defendant used Cantrell’s truck to move the tractor to a location away from the path of
traffic. Cantrell said he helped the Defendant remove the battery in order for the Defendant
to charge it, enabling him to move the tractor to his property.

        Marty Lillard also testified as a witness for the Defendant. He testified that he saw
the tractor on the side of the road and saw a detached bush hog sitting in the middle of the
driveway used by the Defendant. He noticed that both the tractor and bush hog appeared to
be vandalized. He testified that the tractor had a missing key switch, the bush hog had been
removed from the tractor, and a hydraulic hose on the tractor had damage. Lillard said that
he noticed the ignition wires were cut, but he and the Defendant found an ignition key switch
under the seat of the tractor. Lillard assisted the Defendant in moving the tractor and
reattaching the bush hog. Lillard testified that the Defendant wanted to move the tractor and
bush hog because it blocked the entrance to his residence and people had been vandalizing
it.

        The Defendant testified that the first time he knew of the presence of the equipment
was in December of 2006 when visitors inquired as to why the equipment, specifically the
tractor, blocked a portion of his driveway. The Defendant testified that Cantrell helped him
move the tractor to a portion of the driveway where it did not block his path. Later, when the
Defendant tried to leave his residence, he testified that the bush hog had been moved and
blocked his driveway. At that time, he had Lillard help him use the tractor to move the bush
hog onto his land. He testified that he moved the equipment so he could get around them and
to prevent them from being stolen. The Defendant said that, before he moved the tractor, it
appeared that someone replaced the ignition key switch on the tractor but that he had a key
that worked on the new switch. The Defendant said that he called the sheriff’s department
once from his neighbor’s house to report the abandoned equipment; however, he did not call
a second time because he did not have access to a phone. The Defendant acknowledged
using the tractor to do work on his property, and he planned to keep it if no one claimed it.

       Based upon this evidence, the jury convicted the Defendant of theft of property valued
over $10,000 and less than $60,000. It is from this judgment that the Defendant appeals.

                                          II. Analysis

       On appeal, the Defendant presents two issues for review: (1) the evidence is
insufficient to sustain his conviction; and (2) the trial court erred when it failed to disqualify

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the private prosecutor from prosecuting the case.

                               A. Sufficiency of the Evidence

        The Defendant contends that the evidence is insufficient to sustain his conviction for
theft of property because no evidence exists to prove his intent to deprive the owner of his
property. He argues that, as a result, the State did not prove all the elements of theft of
property beyond a reasonable doubt.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[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 jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “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. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee 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

                                            4
       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
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274,
279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption
of innocence and raises a presumption of guilt, the convicted criminal defendant bears the
burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        In the case under submission, the jury convicted the Defendant of theft of property
valued over $10,000 and less than $60,000. This crime requires a jury to find the following
elements beyond a reasonable doubt: (1) that the defendant knowingly obtained or exercised
control over property owned by another; (2) that the defendant did not have the owner’s
effective consent; and (3) that the defendant intended to deprive the owner of the property.
T.C.A § 39-14-109 (2010). The Defendant acknowledges that the State proved beyond a
reasonable doubt that he knowingly obtained and exercised control over the property without
the owner’s consent. The Defendant, however, contends that no evidence establishes his
intent to deprive the owner of the property.

        The evidence presented at trial, when viewed in the light most favorable to the State,
established Syiek’s equipment (a tractor, trailer, and bush hog) were removed from his
property and found on the Defendant’s property. The Defendant admitted that he moved the
equipment onto his land, and he admitted that he used the equipment to work on his property.
The Defendant said that, before he moved the tractor, it appeared that someone replaced the
ignition key switch on the tractor; he also testified that he had a key that happened to work
on the new switch. The Defendant testified that he called the sheriff’s department to report
that the tractor blocked the Defendant’s property entrance; however, both Officer Burris and
Detective Price testified that the sheriff’s department received no reports regarding the
tractor. Further, the Defendant testified that he planned to keep the tractor if no one claimed
it.

        We conclude that the evidence is sufficient to support the jury’s finding that the
Defendant intended to commit theft when he took the tractor and other equipment from
Syiek’s property and moved it onto his own property. The Defendant not only moved the
tractor onto his property, but he fixed and made various changes to the tractor and used it to

                                              5
do work on his property. Thus, we find the evidence sufficient to support the jury’s finding
beyond a reasonable doubt that the Defendant knowingly obtained or exercised control over
property owned by Syiek, that the Defendant did not have Syiek’s consent, and that the
Defendant intended to deprive Syiek of the property. See T.C.A. § 39-14-103 (2010). He is
not entitled to relief on this issue.

                                B. Involvement of the Special Prosecutor

         The Defendant next contends that the trial court erred when it denied his motion to
disqualify the special prosecutor. The record shows that, on the morning of the Defendant’s
trial, the Defendant filed a motion to disqualify Special Prosecutor Carl Petty, whom had
been appointed to represent the State. In support of his motion, the Defendant argued that
(1) Special Prosecutor Petty’s participation in the case presented a conflict of interest because
of his involvement in a civil suit between the victim and the Defendant, and that (2) the
special prosecutor’s involvement violated his due process rights because Special Prosecutor
Petty had personal interest in the outcome of the trial.

        During the motion hearing, the Defendant presented a letter that Special Prosecutor
Petty had written to the Defendant on Syiek’s behalf. The letter referred to an agreement the
State made with the Defendant: the Defendant’s theft charge would be dismissed if he paid
restitution to Syiek. The letter also advised the Defendant to cease using the dirt road on
Syiek’s property to access the Defendant’s land.2 The letter warned that the State could
pursue criminal trespass charges if he did not do so.

        The Defendant argued that the letter showed that Special Prosecutor Petty represented
Syiek in a civil capacity, and Special Prosecutor Petty’s continued involvement in the
criminal case presented a conflict of interest and also violated the Defendant’s constitutional
rights. At the motion hearing, Special Prosecutor Petty testified that Syiek retained him at
a fixed rate to encourage the Defendant to pay the restitution, and he would not receive any
amount of the restitution. Special Prosecutor Petty stated that neither he nor Syiek had any
intention of filing a civil suit against the Defendant.

       The trial court concluded that no civil suit existed and that Special Prosecutor Petty’s
actions did not amount to representation of Syiek in a civil action. Therefore, the letter did
not prove the existence of a conflict of interest, his involvement did not violate the due
process rights of the Defendant, and the trial court found Special Prosecutor Petty qualified
to continue working on the case in his capacity as a special prosecutor.

          2
              This Court notes that the easement dispute is not within the scope of this case as presented on
appeal.

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                                    1. Conflict of Interest

       In the case under submission, the Defendant contends that the participation of Special
Prosecutor Petty amounted to a conflict of interest. He argues that a conflict of interest
existed because Syiek retained Special Prosecutor Petty to represent him in his efforts to
resolve a property dispute with the Defendant and to recover restitution from the Defendant.
The Defendant contends that the special prosecutor’s involvement constituted a conflict of
interest because, after Special Prosecutor Petty agreed to serve on behalf of the State in the
criminal matter, he stated that he did not plan to file a civil suit in the matter. The Defendant
argues that such an action violates the special prosecutor’s ethical duties, which gives rise
to a conflict of interest. The State argues that no conflict of interest exists because the
special prosecutor did not file a civil suit against the Defendant. We agree with the State.

        In Tennessee, “[a] victim of crime or the family members of a victim of crime may
employ private legal counsel to act as co-counsel with the district attorney general or the
district attorney general’s deputies in trying cases, with the extent of participation of such
privately employed counsel being at the discretion of the district attorney general . . . .”
T.C.A. § 8-7-401(a) (2002). The trial court must hold a hearing to determine whether the
private legal counsel employed as a special prosecutor is qualified and whether there exists
a conflict of interest. T.C.A. § 8-7-401(b)(1) (2002).

        The United States Supreme Court addressed the conflict of interest issue as related to
special prosecutors, stating that “[a]n arrangement represents an actual conflict of interest if
its potential for misconduct is deemed intolerable. The determination whether there is an
actual conflict of interest is therefore distinct from the determination whether that conflict
resulted in any actual misconduct.” Young v. United States ex rel. Vuitton, 481 U.S. 787, 807
n.18 (1987) (finding due process rights violated when private prosecutors pursued a criminal
contempt charge that arose out of a civil court order).

        The Defendant argues that the present matter is analogous to State v. Eldridge,
wherein this Court found that ethical dilemmas and conflicts of interest arise “due to
differing roles of the government prosecutor and private prosecutor.” 951 S.W.2d 775, 781
(Tenn. Crim. App. 1997) (holding that participation by special prosecutors who represented
the victim in a civil matter arising from the same incident giving rise to the criminal
prosecution violated the defendant’s rights to due process of law). The Court explained that
a public prosecutor must advocate for justice, make decisions that affect the public interest,
and make timely disclosures of exculpatory materials. Id. On the other hand, private counsel
have “an obligation to zealously represent the client so as not to prejudice or damage the
client during the course of the professional relationship. Counsel has a duty of . . .
unquestioned, continuing fidelity to the client.” Id. (citing Bhd. of Locomotive Firemen &

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Enginemen v. United States, 411 F.2d 312, 319 (5th Cir. 1969)). Because the special
prosecutor “is placed in the awkward position of representing both the government and the
individual victim,” conflicts of interest may occur. Id. at 781.

        In Eldridge, special prosecutors actively negotiated a civil settlement with the
defendant for injury damages stemming from the same incident as the criminal charge. As
a result, the civil suit created a conflict of interest that prejudiced the defendant, and the
special prosecutors created an ethical dilemma because their duties to the government and
the victim conflicted. In the current case, unlike the situation in Eldridge, the victim did not
file a civil suit against the Defendant. In his letter on behalf of Syiek, Special Prosecutor
Petty simply acknowledged that the District Attorney’s Office would handle any future legal
action. Special Prosecutor Petty’s actions did not amount to a conflict of interest because he
did not represent Syiek in a civil case arising out of the occurrence that gave rise to the
criminal prosecution. Syiek paid Special Prosecutor Petty a fixed fee to write a letter to the
Defendant. The special prosecutor received the fixed fee from Syiek prior to the
commencement of these criminal proceedings against the Defendant, and the fee was not tied
to the outcome of the criminal case.

       Special Prosecutor Petty did not have a contingency fee agreement with the victim,
whereby the special prosecutor would receive any portion of the restitution sought by the
victim. At the motion hearing, the trial court found that Special Prosecutor Petty “does not
represent the victim in any civil case arising out of the occurrence which gave rise to this
criminal prosecution.” Because Special Prosecutor Petty did not represent Syiek in any civil
matter concerning the Defendant, no conflict of interest existed that would call his
prosecutorial decisions into question. Therefore, the trial court correctly ruled that Special
Prosecutor Petty was qualified to prosecute the case with the assistant district attorney. The
Defendant is not entitled to relief on this issue.

                                 2. Due Process Violation

       The Defendant argues that Special Prosecutor Petty had a personal interest in the
outcome of the trial. He contends that the “dual representation” of the special prosecutor
violated the Defendant’s due process rights. We disagree.

       In Tennessee, victims have the right to hire a special prosecutor. T.C.A. § 8-7-401
(2002). Our Supreme Court has held that special prosecutors are not automatically
disqualified because of due process concerns. See Wilson v. Wilson, 984 S.W.2d 898, 903-04
(Tenn. 1998) (holding that if “due process precludes a litigant’s private attorney from
prosecuting contempt proceedings, many citizens would be deprived of the benefits to which
they already have been adjudged entitled by state courts and many state court orders would

                                               8
remain unenforced”). Further, as stated in Wilson, the Tennessee Supreme Court has found
“no ethical standard which mandates adoption of an automatic rule of disqualification.” Id.
at 904.

        In State v. Bennett, this Court has analyzed whether a deprivation of a constitutional
right was related to the participation of a private prosecutor, describing four circumstances
when the involvement of a private prosecutor could cause a constitutional violation: (1) when
the private prosecutor engages in prosecutorial misconduct; (2) if the private prosecutor
represents the victim or the family of the victim in a civil case arising out of the same
criminal action(s); (3) it is a contempt proceeding arising out of a civil prosecution; and (4)
the district attorney general does not maintain control of the case as required by statute. 798
S.W.2d 783, 786 (Tenn. Crim. App. 1990).

        Three of the four the situations that would amount to constitutional violations, as
described in Bennett, do not apply to this case: the Defendant did not claim prosecutorial
misconduct, this matter is not a contempt proceeding, and the Assistant District Attorney
maintained control of the case by participating in bench conferences and delivering the final
rebuttal, which satisfies the statutory requirements discussed above. See id.; T.C.A. § 8-7-
401 (2002). The trial court held a pretrial hearing to determine the qualifications of Special
Prosecutor Petty, and the trial court found him fit to proceed with the criminal case.
Therefore, the single remaining issue is whether a civil case arose from the same occurrence
as the criminal case, causing a violation of the Defendant’s due process rights.

        In this case, Syiek paid Special Prosecutor Petty a flat fee retainer to send the
Defendant a letter to remind him to comply with a previous agreement made with the trial
court, whereby his charges would be dismissed if he paid restitution to Syiek for the damage
the Defendant caused to Syiek’s property. Special Prosecutor Petty’s letter reminded the
Defendant that he would be subject to re-indictment on the theft charge if he did not comply
with the agreement. Special Prosecutor Petty stated in the letter that he will “proceed directly
to the District Attorney’s Office and see what can be done to enforce the payment of this
restitution and follow through with the orders of the Court.” The trial court found that,
despite the special prosecutor’s authorship of the letter, Special Prosecutor Petty did not file
a civil suit on behalf of Syiek against the Defendant. As a result, no civil suit existed, and
the trial court held that the special prosecutor’s involvement “is not a violation of the due
process rights of the [D]efendant.” Therefore, considering the record and applicable law, we
agree with the conclusion of the trial court. The Defendant is not entitled to relief on this
issue.

                                       III. Conclusion



                                               9
       After a thorough review of the record and applicable law, we conclude the evidence
was sufficient to support the Defendant’s conviction for theft of property valued over
$10,000 and less than $60,000, and the trial court properly allowed the special prosecutor to
participate in the trial. As such, we affirm the trial court’s judgment.


                                                   ________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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