         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 1, 2005

                 STATE OF TENNESSEE v. EDWARD JOHNSON

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 03-05806    Joseph B. Dailey, Judge



                     No. W2004-02163-CCA-R3-CD - Filed July 14, 2005


Following a jury trial, Defendant, Edward Johnson, was convicted of Class E felony theft, and was
sentenced to serve six years imprisonment as a Range III career offender. In this appeal, Defendant
contends that the trial court committed reversible error by requiring him to go to trial in this case
after he had requested a continuance. He also challenges the sufficiency of the evidence to sustain
the conviction. We conclude that the evidence was sufficient to sustain the conviction. However,
under the particular facts of this case as set forth in the record, we conclude that the trial court
committed reversible error by denying Defendant's request for a continuance. We therefore reverse
the judgment and remand for a new trial.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and J.C. MCLIN , JJ., joined.

C. Anne Tipton, Memphis, Tennessee (on appeal), and Mozella Ross, Memphis, Tennessee (at trial),
for the appellant, Edward Johnson.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; Steven Jones, Assistant District Attorney General;
and Amy Weirich, Assistant District Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

       I. Background--Trial of Case # 03-05806 on January 14, 2004

        On August 21, 2003, in case # 03-05806, the Shelby County Grand Jury returned a two-count
indictment against Defendant, charging him with two counts of Class E Felony theft of money from
the victim, Barbara Letson. Both counts involved the same incident. One count alleged theft by
"obtaining" the property, and the other count alleged theft by "exercising control over the property."
Following conviction of both counts, the trial court merged the offenses into one judgment of
conviction. Case # 03-0586 is the subject of this appeal.

       According to the record, Defendant was arraigned in case # 03-05806 on August 29, 2003,
and Ms. Mozella Ross was appointed to represent Defendant. The transcript of the arraignment
provides the following:

       THE COURT:                   And Ms. Ross, you have another case as well?

       [DEFENSE COUNSEL]:           Yes, Your Honor, Mr. Edward Johnson.

       THE COURT:                   Johnson. Bring out Mr. Johnson, please.

              (Defendant in.)

       [DEFENSE COUNSEL]:           Your Honor, I have previously been appointed to
                                    represent Mr. Johnson on some other matters set for
                                    trial in this division of court. We request appointment
                                    to represent him on this one also.

       THE COURT:                   Yes, I will.

       [DEFENSE COUNSEL]:           We are waiving the reading of the indictment,
                                    entering a not guilty plea, ask the court for a report
                                    date.

       [ASSISTANT DISTRICT
       ATTORNEY GENERAL]:           He's got another matter set for trial, I believe.

       THE COURT:                   January 14th. I'll just set this for report on that
                                    trial date. And if you resolve everything prior to that
                                    date, feel free to advance it; otherwise we'll just hear
                                    from you that day.

       [DEFENSE COUNSEL]:           Thank you, Your Honor.

       [ASSISTANT DISTRICT
       ATTORNEY GENERAL]:           Thank you, Judge.

              (End of proceedings for Friday, August 29, 2003.)

(Emphasis added.)



                                              -2-
        Also in the record on appeal is an order of the trial court making the transcript a part of the
record on appeal. Included in this order is a portion wherein it is stated "that the Court has examined
the Transcript of Evidence of the [t]rial in this cause and has found it to be a true and accurate record
of the proceedings."

        The minute entry of the arraignment of August 29, 2003 in case # 03-05806 strangely
concludes with the following sentence: "Thereupon it is ordered by the Court that the above cause
be set NOVEMEBER [sic] 14, 2004, for REPORT." Not only does the "report" date of November
14, 2004, conflict with what was clearly stated by the trial court in open court, it can be readily
surmised that an initial "report date" over one year after arraignment would be unusual.
Furthermore, review of a 2004 calendar shows that November 14, 2004, was a Sunday, obviously
an unlikely date for a court appearance.

         The next minute entry in the record is of the proceedings of January 14, 2004, concerning the
trial of case # 03-05806, that the jury had been selected, and that the testimony would begin on the
following day. The minute entry for January 15, 2004, shows that the trial was completed and the
jury returned a verdict of guilty on each count of the indictment.

        At the beginning of the trial proceedings on January 14, 2004, the following transpired:

        THE COURT:                      Bring out [Defendant], please. All right. Then of
                                        [Defendant]'s two cases, the State intends to proceed?

        [ASSISTANT DISTRICT
        ATTORNEY GENERAL]:              03-05806. It's the E felony theft.

        THE COURT:                      Two counts, Theft of Property. All right. And for the
                                        record, would you like, [defense counsel], to put your
                                        client on the stand and make sure he understands what
                                        the offer is and what he's facing?

        [DEFENSE COUNSEL]:              Your Honor, before we do that, I would like to state to
                                        the Court that he has two cases pending. One case is
                                        out of 2001 and this case is out of last year, Your
                                        Honor. And the last time we were in court on these
                                        matters, the trial for the older case was continued.

                                        And, Your Honor, I believe the record will reflect and
                                        my announcement to the Court was that I would like
                                        to hold this matter over along with the other matter for
                                        report. In talking with [the assistant district attorney]
                                        and preparing to come to court today, I was advised



                                                  -3-
                      yesterday that he was going to proceed on the newer
                      case first.

                      And, Your Honor, I will submit to the Court that that
                      is not fair to the defense and we're asking the Court to
                      allow us a week to make sure we can adequately
                      defend [Defendant] in this matter.

[ASSISTANT DISTRICT
ATTORNEY GENERAL]:    Judge, first of all, I can't tell--I don't remember
                      whether I specifically told [defense counsel] at the last
                      court setting that this case would be tried first. I'm
                      sure if it was approached at all by her, I mean, there is
                      no question that this case was the case to be tried first.

                      The way these cases come about, the older case had
                      been pending for awhile. We negotiated that case for
                      a while. He had an eight-year offer on that case which
                      is a C felony Theft of an Automobile over $10,000
                      and two Burglary of a Motor Vehicle charges, two D--
                      two E felonies, so a C and two Es. He is a career
                      [offender] by far based on the notices and the
                      amended notices that the State's filed.

                      He rejected that eight-year offer. He picked up this
                      new case. The new case is a theft from the bail bond
                      company that had him on bond on the older case that
                      was pending. We had on the old case bond motions
                      dealing with, you know, the facts of this new case. In
                      fact, the defendant--and I don't know if [defense
                      counsel] had a part in this or not--filed a motion for
                      speedy indictment in this case in Division 3. This
                      new case was set for trial today. It's Wednesday. The
                      new case has two, maybe three witnesses, whereas the
                      other case would have a minimum of probably five or
                      six.

                      And if [defense counsel] was preparing solely for the
                      old case, which did not involve a security video, she
                      called my office either last week or the week before
                      last, not to talk about which case was going to be tried
                      first but to ask for a copy of the video in the new case.
                      I copied the video for her. And I did tell her yesterday


                                -4-
                     we were trying the new case and that was not passing
                     in the courtroom. She called me on the phone to talk
                     about it.

                     And so I submit even if I didn't specifically announce
                     on the record that this newest case would be tried first,
                     the one with the motion for speedy indictment filed in
                     it, that she should at the very least as we tell every
                     defense attorney in this division to be prepared to go
                     to trial on both of them, especially on a Wednesday
                     trial setting where there is a two to three witness case
                     versus five to six or seven witness case. And I just
                     submit it at that.

[DEFENSE COUNSEL]:   Your Honor, the motion for speedy indictment I don't
                     believe was on the bail bond case. That was another
                     matter, Your Honor, that I believe was dismissed
                     That was a Facilitation of a Robbery, Your Honor.
                     And I believe that case was dismissed. So the speedy
                     indictment was not filed on this matter.

                     And Your Honor, it's hard to switch gears in the
                     middle of the stream, Your Honor, in trying these
                     cases. I met with [the assistant district attorney] today
                     and we looked at the videotape. And I will, you
                     know, I indicated to the Court in chambers that we do
                     intend to file a motion regarding the videotape. But,
                     Your Honor, I would submit to the court it's unfair to
                     the defense to come in thinking that we're going to try
                     one matter and then–

THE COURT:           Did you in fact call [the assistant district attorney] last
                     week asking for a copy of the videotape?

[DEFENSE COUNSEL]:   I did, Your Honor.

THE COURT:           So it was not just yesterday that [the assistant district
                     attorney] mentioned that we're going to trial on this
                     newer case and you had to drop everything and
                     change gears midstream and get ready for this new
                     case. You obviously were contemplating going to
                     trial on this case even last week.



                               -5-
[DEFENSE COUNSEL]:    Your Honor, I was contemplating reporting, having a
                      report prepared for the Court on the case that was set
                      for report as I was preparing for the other case. And,
                      you know, we–

THE COURT:            I don't--I'm not going to comment on that. I'll simply
                      state that in this courtroom and I imagine this is true
                      in most courtrooms, given the length of time it takes
                      to get a case to trial, that when you announce for trial
                      and your client has two cases pending, and this case
                      was announced for trial back in April--well, and then
                      it was set to July.

[DEFENSE COUNSEL]:    I believe it was September, Your Honor.

[ASSISTANT DISTRICT
ATTORNEY GENERAL]:    August 27th on the new case was the first setting. It
                      was reset to August 28th. And then it might have
                      been on 10/6 as well, but I think it was just set for trial
                      on the 14th.

THE COURT:            Back in June it appears was when we set today for
                      the--as the trial date on that case. And then this one
                      was set for trial on--it appears as though August was
                      the date, August 29th is what I'm showing.

                      And in fact, I'm showing it was set for trial on the day
                      that you were appointed to represent [Defendant] on
                      the newer case. And that's entirely consistent with my
                      practice in here, which is to go ahead and set them
                      both for trial. And you're expected to be ready on
                      both in the event a witness is missing or sick or that
                      some other delay or conflict in the one, you can go to
                      trial on the other so that we don't lose valuable trial
                      time, which we now have this week, this being
                      Wednesday afternoon, but we're not in trial, we're
                      ready to try this case.

                      And I'll further add that neither of these cases is, while
                      they're both important to the State and to the defense,
                      neither is a complex 50-witness murder trial. And so
                      these are both cases that you've had more than ample
                      time to get ready and prepare on. And you were


                                 -6-
                                       speaking with Mr. Jones at least last week regarding
                                       the video and other discovery in the case. So we're
                                       going to trial today.

        The issue of whether or not case # 03-05806 was set for trial on January 14, 2004, came up
again during the hearing on a motion by Defendant regarding the admissibility of a photograph which
the State sought to introduce into evidence. This hearing was held on January 15, 2004, after the jury
had been selected, but prior to any testimony being heard. The following statements were made by
Defendant's counsel, the prosecutor, and the trial court:

       [DEFENSE COUNSEL]:              Well, Your Honor, I would say it again for the record.
                                       We were prepared for trial on another case. And we
                                       had two matters set. The other matter is out of 2001
                                       that we have been reset for trial forever. And then I
                                       just found out the day before yesterday that we were
                                       going to trial on this matter. If I knew or had known
                                       that we were going to trial on this matter, then of
                                       course I would have investigated these things. But I
                                       was not preparing for trial on this matter as I stated to
                                       the Court earlier.

       [ASSISTANT DISTRICT
       ATTORNEY GENERAL]:              Judge, I submit assuming that's all true, there is no
                                       prejudice. She knows now what it is and what's it of.
                                       There is no harm in introducing the photograph, even
                                       if it's true she didn't know beforehand. There is no
                                       prejudice.

       THE COURT:                      First off, we have been over that already and I am
                                       satisfied, although we can go back and listen to the
                                       tape, but I'm satisfied that when you were appointed
                                       to represent [Defendant] on this other case that you
                                       were either told or the understanding was on this trial
                                       date you are to be ready on both because the jacket
                                       shows trial on both. It doesn't show report on this and
                                       trial on the other. And that's certainly my practice in
                                       here. And when the person has two or three cases set,
                                       unless one of them is a capital murder case, but if you
                                       have two or three cases set, you are ready on all of
                                       them in the event one of them can't go, you can go on
                                       the other. But we've been through all of that. I don't
                                       want to go into that again.



                                                 -7-
        Thus, it can be reasonably surmised that an entry made on the "jacket" was inconsistent with
what is reflected in both the transcript and in the court's minute entries of the arraignment on August
29, 2003. Although nothing in the record specifically describes what the "jacket" is, it is commonly
understood that it is a folder containing the indictment, orders, and pleadings filed in the case.

        In his first three grounds for relief alleged in his motion for new trial, Defendant sets forth
the following:

       1.      The Court erred in allowing the State of Tennessee to proceed to trial on the
               above referenced indictment when it was clear that the State of Tennessee
               failed to inform Counsel for the Defense in a timely manner that it intended
               to go to trial on the said indictment.

       2.      The Court erred in allowing the State of Tennessee to proceed to trial on the
               above referenced indictment when pending before this Court was an older
               case that had been set for trial before the present case was even indicted; thus
               the State of Tennessee was given the advantage of prejudicial and unfair
               surprise.

       3.      The Court erred in allowing the State of Tennessee to proceed to trial on the
               above referenced indictment over defense objection, thus denying the defense
               the opportunity to adequately prepare.

With regard for these grounds for a new trial, the trial court made the following ruling at the hearing
on the motion for new trial:

       With regard to the state proceeding on this indictment as opposed to the other
       indictment, that was all discussed, in length, on the day of trial; and the transcript
       would bear all of this out; but clearly [defense counsel] had been on the case--the
       matter had been announced for trial back in August, and as is my policy because we
       have so many cases set for trial, in an effort to make sure that cases go to trial every
       week, attorneys are asked to and expected to be ready on both cases is [sic] an
       individual has two cases set unless one of the cases is an extraordinarily difficult case
       to prepare for--a capital murder case or something. But cases of this sort, it worked
       no prejudice to the defendant to be ready on both of these matters.

        The record on appeal also contains a transcript of proceedings involving Defendant which
were held on June 2, 2003, a little more than two months prior to Defendant's indictment for the
charges in case # 03-05806. While the transcript of the proceedings on June 2, 2003, is styled as
being in case #03-05806, the transcript reflects that the case involved charges of burglary and theft
of property, set for trial for June 2, 2003, and continued to January 14, 2004, because subpoenaed
witnesses had not been served. Furthermore, the facts of that case as reflected by the prosecutor in
statements made to the trial court show that the case involved a situation at a Kellogg's production


                                                 -8-
facility. The theft charges in case # 03-05806 involved a situation at a bail bond company's office;
furthermore, it is obvious that a June 2, 2003, trial date would not be set for a case where the
indictment was not returned until August 21, 2003. On June 2, 2003, the burglary and theft charges
related to the Kellogg production facility were continued for trial on January 14, 2004.


        II. Analysis--Trial of Case on January 14, 2004

         On appeal, Defendant initially argues that the trial court violated his Constitutional rights to
due process, protected under the Fourteenth Amendment to the United States Constitution and
Article I, section 8 of the Tennessee Constitution, by requiring him to proceed to trial in case # 03-
05806 on January 14, 2004. The constitutional argument was not made during court proceedings
in the trial court and was not raised in the motion for new trial. Therefore, consideration that the trial
court's action violated Defendant's constitutional right to due process is waived. See Tenn. R. App.
P. 3(e); see also State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995); State v. Thompson, 36 S.W.3d
102, 108 (Tenn. Crim. App. 2000).

        However, Defendant also presents in his brief the argument that it was "fundamentally unfair"
for Defendant to come to trial expecting to have a trial on one case, and then be forced to go to trial
on a separate indictment, which had previously been set for "report," but not for trial, for January 14,
2004.

          The transcript of the arraignment held on August 29, 2003, clearly and unequivocally shows
that case # 03-05806 was set for "report" (and not set for trial) on January 14, 2004. The trial court's
minute entry for August 29, 2003, also reflects that case # 03-05806 was set for "report" and not for
trial at the arraignment, although the month of the report date strongly appears to be in error.

         Despite acknowledging that the "tape" could be listened to in order to resolve the issue, the
trial court relied on notes written in the case file (the "jacket") to conclude case # 03-05806 was set
for trial. While it might be difficult and time consuming to locate a tape of the August 29, 2003,
arraignment, apparently the court's minute entries for August 29, 2003, though easily accessible,
were not reviewed. The prosecutor candidly admitted on January 14, 2004, before the trial started
that he did not "remember whether I specifically told [defense counsel] at the last court setting that
this case [# 03-05806] would be tried first."

         It is well settled law that a trial court speaks through its minutes. See, e.g., In re Adoption of
Gillis, 543 S.W.2d 846 (Tenn. 1976); Hines v. Thompson, 148 S.W.2d 376, 379 (Tenn. Ct. App.
1940). If there is a conflict between the minute entry and what the transcript reflects, then the
transcript controls. See State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991) (citing State
v. Zyla, 628 S.W.2d 39, 42 (Tenn. Crim. App. 1981) and Farmer v. State, 574 S.W.2d 49, 50 (Tenn.
Crim. App. 1978)). A notation on a court file ("jacket") does not control either a minute entry or the
transcript of the proceedings. See Reed v. State, 581 S.W.2d 145, 147-49 (Tenn. Crim. App. 1978)
(holding that handwritten entries "contained on or in the court's 'yellow jackets'" which the State filed


                                                   -9-
as exhibits in an attempt to prove the defendant's prior convictions could not "properly or validly
establish any dates of convictions, or that final judgments were rendered in the cases in question").

         According to the controlling portion of the record, the trial court granted the State's request,
over Defendant's objection, to proceed to trial against Defendant in case # 03-05806 on January 14,
2004, even though the case was not set for trial on that date, but only set for "report." The State gave
defense counsel one day's notice of its intent to ask the court to have a trial in case # 03-05806 on
January 14, 2004. The fact that defense counsel requested a copy of the videotape in case # 03-
05806 a week or so prior to January 14, 2004, is not as significant as the trial court and the
prosecutor deemed it to be. Review of discoverable evidence in a criminal case not only can, but
actually should, be done before the "eleventh hour." This is not an indication, absent other
circumstances, that defense counsel was on notice that case # 03-05806 would go to trial on January
14, 2004. The trial court relied on a notation handwritten on the "jacket" that stated the case was set
for trial on January 14, 2004. The record on appeal clearly indicates this information was erroneous.
The prosecutor could only definitely state that he gave verbal notice on January 13, 2004, to defense
counsel that he planned to prosecute case # 03-05806 on January 14, 2004.

        Defense counsel voiced objection to proceeding to trial in case # 03-05806 at the outset of
the proceedings on January 14, 2004. Defense counsel correctly knew that case # 03-05806 was set
only for "report" and not for trial, on January 14, 2004. She made a very reasonable request on
behalf of Defendant for a one week continuance in order to be properly prepared to represent
Defendant.

        The record clearly reflects that Defendant and his counsel came to court on January 14, 2004,
prepared to go to trial on a case other than case # 03-05806. Defense counsel had one day's notice
that the State intended to go to trial in case #03-05806, despite the fact that the record on appeal
shows that case # 03-05806 had not yet been set for trial and had only been set for "report" on
January 14, 2004. Defense counsel timely objected and asked for a one week continuance. The State
persisted, and the trial court overruled the objection and denied the continuance.

        We conclude that the trial court erred. See Carver v. Crocker, 311 S.W.2d 316, 317 (Tenn.
Ct. App. 1957) ("while continuances are generally subject to the discretion of the trial Judge, when
this discretion is abused, it is reversible error"). We further conclude that under the circumstances
that the error requires a reversal of the conviction and a remand for a new trial. Tenn. R. App. P.
36(b) (error results in setting aside a judgment of conviction when to do otherwise would result in
prejudice to the judicial process). Therefore, the judgment must be reversed and this case remanded
for a new trial. In the event of further review, and to address all issues presented on appeal, we will
review Defendant's challenge to the sufficiency of the evidence even though the conviction is
reversed and remanded for a new trial. In the event a defendant prevails on a challenge to the
sufficiency of the evidence, the conviction must be reversed and the case dismissed rather than
remanded for a new trial. See Tenn. R. App. P. 13(e); Burks v. United States, 437 U.S.1 (1978);
Greene v. Massey, 437 U.S. 19 (1978).



                                                  -10-
       III. Sufficiency of the Evidence

               A. Evidence at Trial

        At trial, the victim, Barbara Letson, testified that she is a secretary at a bail bond company.
Her responsibilities include doing paperwork, answering phones, filling out contracts, taking pictures
of customers, and operating the video surveillance system. The video surveillance system in the
office consists of two cameras, which record twenty-four hours a day, alternating between cameras
at three-second intervals. The cameras record the three-second intervals onto “time-lapse”
videotapes, which have the capability to record four or five days worth of surveillance per tape.
When the tapes are replayed on the surveillance system’s VCR and monitor, they play in real time,
but look “choppy” because they consist of the three-second intervals alternating between the two
cameras.

         On the date of the offense, the victim’s wallet along with $600 was stolen while she was
working at the bail bond company. She brought $600 in cash to work with her that morning because
she planned on depositing that amount to cover a check she had written for her car payment. The
cash consisted of three one-hundred-dollar bills and fifteen twenty-dollar bills, and was kept inside
her wallet. When the victim arrived at work that morning at approximately 7:50, she placed her
purse beside her desk where she always keeps it. She got some change out of her wallet to purchase
a soda at approximately ten o’clock in the morning, which was the last time she saw her wallet. She
left her wallet lying on top of her purse.

        The victim testified that Defendant was also in the office that morning. She was familiar
with him because he was a customer of the company and she had prepared his paperwork on
previous occasions and prepared his file, making sure the company had his photograph and account
cards. She had also seen him and personally spoken with him when he was in the office on at least
three previous occasions. On the day the victim’s wallet was stolen, she noticed Defendant standing
around her office beginning around 10:30 or 11:00 in the morning. It was a cold day and Defendant
did not have a coat on, and he said he was waiting for a ride. He was walking around in the office,
going around and behind the desks in order to look out of the office’s large window, going in and
out the office door, and periodically standing on the sidewalk. The office’s large window
encompasses the entire wall which runs along the victim’s desk. The victim testified that she was
certain it was Defendant who was in the office waiting for a ride that day. He said hello when she
called his name, and other employees in the office had spoken to him as well.

        Around 3:30 or 4:00 that afternoon, one of the victim’s coworkers offered to take the victim’s
deposit to the bank for her because he was leaving the office to deposit his paycheck. When she
went to get the cash from her wallet, she discovered that her wallet was missing. She immediately
rewound the surveillance tape in order to see if anyone had been around her desk. When she did so,
she saw Defendant come around behind her desk. She viewed the entire video, and although there
were other people around her desk that day, Defendant was the only person who was at the location
of her purse. She gave the police the surveillance video along with a picture of Defendant from one


                                                 -11-
of the company’s customer files. A few weeks later, her wallet was found in the mud under some
stairs behind another bail bond company a few blocks away and was returned to the victim.
Everything was still inside the victim’s wallet when it was returned to her except for the cash.

        During her testimony, a portion of the surveillance video was played for the jury so that the
victim could explain what was on the tape. While the tape was being played, the victim described
the office, and what could be seen from the two cameras. She pointed out herself, her desk, the
window that runs along her desk, as well as the location between her desk and the window where
her purse was located. She identified Defendant on the tape, and described his actions as he went
in and out of the office, walked behind her desk, walked behind the desk next to hers and looked at
where her purse and wallet were located. She described, as the jury watched the video, Defendant
looking at a newspaper, placing it under his arm, and then looking at her purse. She then testified,
“He’s sitting down behind my desk. He’s reaching over to where my purse is. My wallet is laying
right on top of my purse right there. He put it under his arm and walked out the door.”

       On cross-examination, the victim testified that her office has a very “relaxed atmosphere”
and that “all kinds of people come and go pretty much all day.” She also admitted that she did not
personally witness any person take her wallet. Her knowledge of what happened was based on the
video surveillance tape.

        The only other witness to testify at trial was an investigator with the District Attorney’s
Office. She described how, as part of her responsibilities as an investigator to set up and operate
audio and video equipment from the District Attorney’s Office, she used a jog shuttle VCR to slow
down the surveillance video. A jog shuttle VCR is a piece of equipment that will display
surveillance videos in slow motion or slower motion that otherwise are very fast and unviewable.
The investigator only copied approximately ten minutes of the original surveillance tape in slow
motion because it would have been “almost impossible” to use the equipment to copy eight hours
of tape. Both the original surveillance video and the video containing the slowed-down portion of
the surveillance video were entered as evidence.

               B. Analysis

        The standard of review for a sufficiency of the evidence challenge is whether viewing 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. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. S.W.2d 560, 573 (1979); State v. Evans,
838 S.W.2d 185, 190-91 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate
view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Great weight is given to the result reached
by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). This Court will not
reweigh or reevaluate the evidence, nor substitute its evidentiary inferences for those reached by the
jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).



                                                -12-
         At trial, the victim testified that her wallet, containing six-hundred dollars in cash was taken
from on top of her purse, which was sitting next to her desk, while she was working at a bail bond
company. She testified that when she noticed her wallet was missing, she reviewed the company’s
surveillance video. As she watched the video, she saw Defendant, a customer of the bail bond
company, look at her purse from the desk behind hers. A few minutes later, the video depicted
Defendant as he sat at her desk, reached down to her purse, took her wallet, put it under his arm, and
left the building. She testified that, although the video showed other employees and customers near
her desk that day, Defendant was the only person who came near the location of her purse. The
evidence was sufficient for a reasonable trier of fact to find beyond a reasonable doubt that
Defendant was guilty of theft of property over five-hundred dollars.

        Defendant argues that the trial court erred when it allowed the victim to testify at trial as to
her opinion of what was depicted on the surveillance video. However, by failing to make a
contemporaneous objection to testimony given at trial, Defendant has waived appellate consideration
of the issue. See State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).

      Defendant is not entitled to relief on his challenge to the sufficiency of the evidence.
Accordingly, the case, based upon trial court error heretofore discussed, is remanded for a new trial.

                                           CONCLUSION

        For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded
for a new trial.
                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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