        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 19, 2013 Session

               STATE OF TENNESSEE v. MICHAEL WEBSTER

                 Appeal from the Criminal Court for Davidson County
                       No. 2011-D-2944     Steve Dozier, Judge


                 No. M2012-00713-CCA-R3-CD                Filed 06/05/2013


The Defendant, Michael Webster, challenges his bench trial conviction for theft of property,
over $500, a Class E felony, contending that there was insufficient evidence presented at trial
to prove his knowing commission of the offense and that the value of the property exceeded
$500. After a review of the record and the applicable authorities, we conclude that the
evidence was insufficient to prove that the property at issue exceeded $500, modify the
conviction to theft of property, $500 or less, a Class A misdemeanor, and remand the case
to the trial court for resentencing.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Michael D. Rohling, Nashville, Tennessee, for the appellant, Michael Webster.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant
District Attorney General; for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       The record reflects that the Defendant was indicted on March 4, 2011, for theft of
property, more than $500 but less than $1000. His bench trial was held on October 27, 2011,
and the following evidence was presented.
        Emily Coakley testified that her home was burglarized sometime between February
25th and 26th in 2011 while she was away. After returning home, she discovered that her
iPad, a watch, and a laptop that belonged to her sister were missing. She contacted the police
and filed a report. Ms. Coakley testified that she received the iPad as a Christmas gift, and
she believed it cost “around $500.” The iPad was returned to her approximately one and a
half months prior to trial in the same condition as it was when it was stolen. Ms. Coakley
also stated that she had never seen the Defendant before and that she had never been to the
McDonalds on Gallatin Road.

        David Wynn, owner of the Hy’s Pawn Shop on South Gallatin Road for twenty-six
years, testified that the Defendant entered his pawn shop on March 4, 2011, with an iPad.
After Mr. Wynn turned it on, he examined it to make sure that there were no viruses on it.
Mr. Wynn testified, “[t]he particular model he had was sold for [$]499[. E]ven used[,]
because . . . they were not very old[, t]hey were still bringing $400 to $425.” He retrieved
the $499 price from stores such as Wal-mart and Apple and stated that he knew the cost
because he had recently purchased an iPad for his girlfriend. He then offered the Defendant
$150 to purchase the iPad, and upon the Defendant’s acceptance of this price, Mr. Wynn took
the Defendant’s driver’s license and began the paperwork. Mr. Wynn testified that he asked
the Defendant whether the iPad belonged to him and said, “this is so unique it will be
identified quickly in case it’s not.” The Defendant told Mr. Wynn that the iPad belonged to
him and signed the pawn ticket which contained the following language: “The pledger of this
item attests that it is not stolen, it has no liens or encumbrances against it, and that the
pledger has the right to sell or pawn the item and he’s not in voluntary or involuntary
bankruptcy.” Mr. Wynn was later informed by law enforcement that the iPad was stolen and
that the owner had the right to come pick the item up. Ms. Coakley retrieved the iPad
sometime thereafter.

        On cross-examination, Mr. Wynn testified that he had planned to price the iPad just
below what it was listed for on eBay1 and that would be “[$]3- [$]400 depending on what
they’re selling for because [he had] to take into account with the fees.” Mr. Wynn also
testified that the Defendant had valid identification and that he never appeared “overly
nervous or in any way suspicious.”

        William Turbeville, a detective with the Metro Police Department, testified that he
investigated Ms. Coakley’s home burglary where an iPad, watch, and laptop were stolen.
After inputting the iPad’s serial number in the Davidson County pawn shop database, he
learned that the Defendant had sold it to Hy’s Pawn shop. He contacted the pawn shop to
verify that the information he had learned was correct, instructed them to place the iPad on

1
    eBay is an internet site that allows consumers to buy and sell a variety of goods.

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hold, and took out a theft warrant on the Defendant.

        On cross-examination, Detective Turbeville admitted that Ms. Olivia Short was also
charged with theft of the iPad but stated that someone else charged Ms. Short. He also
admitted that law enforcement had not matched any fingerprints that were found in the house
after the burglary.

         Olivia Short testified on behalf of the Defendant. Ms. Short stated that she babysat
for the Defendant and that she had asked him to pawn the iPad for her because she did not
have a driver’s license or any knowledge of pawn shops. According to Ms. Short, she found
the iPad in a McDonalds on Gallatin Road while waiting on a friend. She played with the
iPad for a few weeks and decided to pawn it because she needed the money. Ms. Short
testified that she told the Defendant that she had received the iPad a few weeks prior as a
birthday gift. She explained that, after asking her several times if the iPad was stolen, the
Defendant agreed to pawn it for her. Ms. Short went with the Defendant to pawn the iPad,
but she remained in the car. She testified that when the Defendant returned to the car, he
gave her the $150 that he received for the iPad and that she offered him $20 for gas. After
she learned that the Defendant had been charged with theft, she contacted the Defendant’s
lawyer, probation officer, and the detective about her involvement. Ms. Short explained, “I
just tried to do the right thing. I knew it was my fault. . . . So, I wouldn’t want anybody else
to be in jail because of me[.]” Ms. Short admitted that she was recently charged with theft.

          The Defendant testified in his own defense. He stated that he agreed to pawn the iPad
for Ms. Short, his daughter’s sitter, because “she didn’t have no ID,” and he trusted her
because she got along with his daughter. He explained that he did not know what an iPad
was and that he had never seen Ms. Short with the iPad before. The Defendant testified that
he and Ms. Short went to the pawn shop together and that Ms. Short remained in the car
while he went inside to pawn the iPad. The Defendant said that the pawn shop gave him
$150 for the iPad and that he gave all the money to Ms. Short; although, she did offer him
$20 to pay for gas. He stated that Ms. Short told him that the iPad belonged to her and that
she gave him permission to pawn it. The Defendant stated, “[i]t is the truth. I mean, really,
I mean, like I said, I wouldn’t never never used my ID if I knew it was stolen. You know,
it’s -- it’s nonsense. I mean, it would have been stupid, crazy if I knew it was stolen. I mean,
ain’t no way I would have did that.”

        On cross-examination, he said that he asked Ms. Short if the iPad was stolen two or
three times; she insisted that it was not stolen and that it was a gift. The Defendant explained
that he trusted her, even though he had only known her for a few weeks because she
“babysitted [his] child.” He admitted that he had the following prior convictions: two counts
of theft of property, over $1,000; second degree burglary; burglary; four counts of robbery,

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armed with a deadly weapon; two counts of simple robbery; larceny from a vehicle; assault
with intent to commit robbery; and receiving stolen property. The Defendant also admitted
that he was on parole when the instant incident occurred.

       In issuing its findings, the trial court stated “. . . he exercised control over it. He had
sole possession in the Hy’s pawn shop. He jointly possessed it on the way, so he had
possession. And he knowingly had that.” The trial court stated that the Defendant’s recent
possession of the stolen property, unless satisfactorily explained, was a circumstance from
which it could reasonably infer that the Defendant had knowledge that the property had been
stolen. See State v. James, 315 S.W.3d 440, 450-51 (Tenn. 2010). After noting the
Defendant’s contention that he believed that the iPad belonged to Ms. Short, the trial court
stated that the Defendant’s explanation of his possession of the stolen property was
insufficient to rebut the inference of guilty knowledge. The trial court explained,

               I mean, it doesn’t make sense to me that [the Defendant’s] . . . argument
       is, well, with my record I would never do something like that.

              But the reverse of that makes more sense to me. With his record, he
       would run as far away as he could from the circumstance. What is the
       circumstance? Well . . . a young girl; has no job, and is making -- the only
       money he’s aware she’s making is what little he pays on the few occasions that
       he’s had her baby sit for him, . . . produces a new computer-like product that’s
       in a case and says, will you pawn this for me.

              Well, and then he acknowledges; she, Ms. Short, as well, these
       suspicions that he had about that. That’s when he should have run. Those
       suspicions were true. His gut feeling was correct. And his record bore that
       out. He’s been through all of this. He’s had possessions of stolen property.
       He’s had burglaries. He’s had robberies. He’s had thefts.

               ....

              The inference language from circumstantial evidence talks about logical
       decisions that follow a disputed fact from circumstantial proof. The
       circumstance that presented it to him there on March the 4th of 2011 was,
       hmm, I’ve got a young girl that doesn’t make much money, if any, other than
       what I pay her, that wants me to take her to a pawn shop and ponder this new
       looking computer device. I’m not sure what it is.

               I’m having nothing to do with it. Why? Because I know from my


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       record that people will do these kinds of things; take stolen stuff to pawn
       shops. And, you know, his honesty, I guess, from one point is the number of
       times he asked about whether it’s stolen. Why is he asking if he doesn’t think
       it is?

The trial court continued, “A lot of people go -- like I said, get involved in crimes use their
own ID. . . . Well, that’s stupid. Okay, does that mean he’s not guilty? No. So I do find that
the State has shown [the Defendant] guilty of theft of property.”

       Turning to the valuation of the property, the trial court stated,

              Well, I mean, what is the value of this iPad to Ms. Coakley? And . . .
       what is the value to her or to a consumer to replace that particular iPad?

              Well, the testimony is that they cost [$]499 according to Mr. Wynn;
       according to Ms. Coakley, she says, had it been her testimony, around [$]500.
       You know, maybe that wouldn’t have been sufficiently beyond a reasonable
       doubt. Mr. Wynn says he’s looked it up: Wal-mart, Apple store, the value’s
       [$]499. He’s sold them used for [$]4- to [$]425. Paid [$]300 or so for them.
       He was surprised that [the Defendant] took [$]150.

        The trial court then concluded, “the fair market value of this particular property or the
cost of replacing that particular piece of property would have been over $500. So I find [the
Defendant] guilty of theft over $500.” Sometime thereafter the trial court sentenced the
Defendant to serve six years in the Department of Correction (DOC).

       This appeal followed.


                                         ANALYSIS

        The Defendant contends that there was insufficient evidence presented at trial to prove
(1) his knowing commission of the offense because Ms. Short testified that she committed
the crime and that the Defendant did not know the property was stolen and (2) that the fair
market value of the property exceeded $500, noting that sales tax should be excluded when
calculating value. The State responds that the evidence is sufficient to sustain the
Defendant’s conviction (1) because the trial court, in its role as the trier of fact, determines
the credibility of witnesses, and the record clearly illustrates that it found Ms. Short
incredible and (2) because the trial court properly concluded that sales tax should be included
in the calculation of value because buyers consider it in deciding whether to purchase an


                                               -5-
item.

      As a preliminary matter, we note that the State also asserted a waiver argument.
However, despite the Defendant’s failure to comply with Tennessee Rule of Appellate
Procedure 27(a)(7)(B) and his scant complicity with Rule 10(b) of the Court of Criminal
Appeals, in the interests of justice, we elect to address the Defendant’s issues.

                                A. Sufficiency of the Evidence

         An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing 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 (1979). When
assessing the sufficiency of the evidence following a conviction from 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) (citing State v. Hatchett, 560 S.W.2d
627, 630 (Tenn. 1978)). This court does not reweigh the evidence; rather, it presumes that
the trier of fact has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.
1984); see also State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding
witness credibility and the weight and value to be given to evidence were resolved by the
trier of fact. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the
verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In Dorantes, our supreme court held that circumstantial evidence is as probative as
direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the
supreme court rejected the previous standard which “required the State to prove facts and
circumstances so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Therefore, “direct
and circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” Id. at 381. To that end, the duty of this court “on appeal of a conviction is
not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all
reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60,
67 (Tenn. 2011).

      Under Tennessee law, a person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property


                                               -6-
without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a). “A person acts
knowingly with respect to a result of the person’s conduct when the person is aware that the
conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). To
sustain the Defendant’s Class E felony theft conviction, the State must prove the
aforementioned and that the value of the property was over $500. Tenn. Code Ann. §§ 39-14-
103(a), 39-14-105(2). Tennessee Code Annotated defines “value” as “(i) The fair market
value of the property or service 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). The fair
market value of property is a question of fact for the trier of fact. See State v. Hamm, 611
S.W.2d 826, 828-29 (Tenn. 1981); see also, State v. Leverette, No. M2009-01286-CCA-R3-
CD, 2010 WL 2943290, at *2 (Tenn. Crim. App. Jul. 26, 2010).

                                     1. Determination of Guilt2

        In finding the Defendant guilty of theft, the trial court stated, “. . . he exercised control
over it. He had sole possession in the Hy’s pawn shop. He jointly possessed it on the way,
so he had possession. And he knowingly had that.” The trial court properly noted that the
Defendant’s recent possession of the stolen property, unless satisfactorily explained, was a
circumstance from which it could reasonably infer that the Defendant had knowledge that
the property had been stolen. See State v. James, 315 S.W.3d 440, 450-51(Tenn. 2010). The
trial court found that there were credibility issues with the Defendant’s explanation of his
possession of the stolen property, and as such, the inference of guilty knowledge was not
rebutted. The Defendant used his driver’s license to pawn the stolen iPad at issue only one
week after the theft occurred. Although Ms. Short testified that she asked the Defendant to
pawn the iPad and, in response to his inquiries, repeatedly told the Defendant that it was not
stolen, the Defendant knew or should have known that the iPad was stolen because Ms.
Short’s only job was babysitting for him a few days a week, and he had not seen Ms. Short
with the iPad previously. The trial court clearly found both the Defendant’s and Ms. Short’s
testimony incredible, and we will not second guess that assessment on appeal. After our
review of the record and the applicable authorities, we cannot conclude that the trial court’s
determination of guilt was in error.

                                 2. Determination of iPad’s Value

      The trial court also found that the iPad’s value, including tax, exceeded $500,
concluding that “the fair market value of this particular property or the cost of replacing that


2
 To adequately address the issues presented, we will analyze the evidence supporting the Defendant’s guilt
as to his theft conviction and the value of the property stolen separately.

                                                   -7-
particular piece of property would have been over $500.” Our supreme court has held that
“[t]he market value of the article stolen, and not its original cost, is the true criterion when
it is necessary to establish the value of the property in order to fix the grade of the offense[.]”
Hamm, 611 S.W.2d at 829; see also, Leverette, 2010 WL 2943290, at *2; State v. Pittman,
No. W2009-02316-CCA-R3CD, 2011 WL 856382, at *3 (Tenn. Crim. App. Mar. 10, 2011);
State v. Watts, No. W2010-00705-CCA-R3CD, 2011 WL 1220766, at *3 (Tenn. Crim. App.
Mar. 31, 2011); State v. Tappan, No. W2006-00168-CCA-R3CD, 2007 WL 1556657, at *5
(Tenn. Crim. App. May 29, 2007). The record reflects that Ms. Coakley received the iPad
as a gift, and she believed the iPad cost around $500. Additionally, Mr. Wynn testified that
the iPad sold for $499, plus tax, in a new condition, and that used iPads sold for
approximately $400 - $425. He had planned on re-selling the iPad for between $300 and
$400, depending on the current market price. Given the aforementioned facts, we cannot
conclude that sufficient evidence was presented to prove that the iPad’s value exceeded $500.

       As previously stated, Tennessee Code Annotated defines “value” as “(i) The fair
market value of the property or service 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) (emphasis
added). Because the item was at least two months old, thus classified as “used,” its value
would have depreciated from the original selling price of $499, plus tax. See generally,
Tappan, 2007 WL 1556657, at *5 (concluding that information concerning the original
purchase price, the original condition of the property, and the length of ownership, was
relevant evidence from which the jury could determine the value of the stolen property). As
such, the trial court’s valuation of the iPad at $499 could only be based on the replacement
value of the iPad and not on the estimate of its market value at the time of the offense. This
was error because an item’s replacement value is only a relevant inquiry when the fair market
value cannot be ascertained, and the testimony at trial estimated that the fair market value
was approximately $300 - $425; this amount would not exceed $500, even with tax included.
Even drawing all inferences in favor of the State as required by Dorantes, there is no proof
in the record that the used iPad was worth over $500. For the foregoing reasons, the
Defendant’s conviction is modified to theft of property, valued at $500 or less.


                                        CONCLUSION

        Based on our review of the record and the applicable law, we modify the conviction
to theft of property, $500 or less, a Class A misdemeanor, and remand the case to the trial
court for resentencing.
                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE


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