         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 30, 2003

             STATE OF TENNESSEE v. KATHYRN WHITE BYRD

               Direct Appeal from the Criminal Court for Washington County
                           No. 23186     Robert E. Cupp, Judge



                                 No. E2002-00417-CCA-R3-CD
                                        May 29, 2003

The Defendant, Kathryn L. Byrd, was convicted by a jury of one count of theft over $1,000. The
trial court subsequently sentenced the Defendant to four years in the Department of Correction, to
be served consecutively to a previous sentence. The Defendant now appeals, contesting the
sufficiency of the evidence; claiming reversible error because the State was not required to elect the
offense for which it was seeking a conviction; and contesting the trial judge’s order of consecutive
sentencing. We affirm the Defendant’s conviction. We reverse the imposition of consecutive
sentences and order the Defendant’s sentences to run concurrently.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Debbie Huskins, Assistant Public Defender, Johnson City, Tennessee and Steve McEwen, Mountain
City, Tennessee, for the appellant, Kathryn White Byrd.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Joe Crumley, District Attorney General; and Steve Finney, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION


        The proof at trial established that Mr. Steve Grindstaff hired the Defendant to work for him
in one of his hotels in 1996. The Defendant began her service as a desk clerk and was eventually
promoted to general manager. As general manager, her duties included collecting the cash receipts
for each day of business and depositing them in the hotel’s bank account with First Tennessee Bank
(“the Bank”). The Defendant also had access to the hotel’s petit cash fund.
        Vaughn Pearson was the comptroller for the hotel. His duties included reconciling the hotel’s
bank statements with the hotel’s internally-generated computer records. In late August 2000, he
noticed a discrepancy in the hotel’s August bank statement. The hotel’s internal records indicated
cash receipts of $2,195.71 during the first several days of August. The bank statement did not reflect
a deposit of this amount. Mr. Pearson called the Bank and spoke with Deborah Garland. Mr.
Pearson testified that Ms. Garland told him that she could not find a deposit for that amount and
would need to see a copy of the deposit slip. The matter was then turned over to Ronald Rayburn,
the director of operations for the hotel.

        Mr. Rayburn testified that the hotel’s records included a handwritten receipt for a $2,195.71
deposit made on August 8, 2000. He further testified that, when he questioned the Defendant about
this receipt, she explained that she had made the deposit late in the afternoon that day, that the
computers had been down, and that a female teller had given her the handwritten receipt as a result.
Mr. Rayburn presented the handwritten receipt to Preston Eldred of First Tennessee Bank, who
agreed to research the matter. Mr. Rayburn testified that Mr. Eldred called him a few days later and
stated that the Bank could not honor the alleged deposit because the Bank had not received that cash.


        On the basis of this discrepancy, Mr. Rayburn researched more of the hotel’s records. He
discovered a deposit receipt for a deposit made in June that looked as though the bottom portion had
been torn off along some perforations. When he placed the top edge of the handwritten receipt along
the bottom edge of the June receipt, the two edges appeared to match. Mr. Rayburn testified, “when
you kind of put them together then that was the whole receipt, you know, like somebody had torn
the receipt and hand wrote the lower portion.”

        Deborah Garland with the First Tennessee Bank, commercial division, testified that she
reviewed the handwritten receipt allegedly representing the August 8 deposit of $2,195.72. Upon
reviewing the document, she searched the Bank’s computer system but found no record of the
deposit. Ms. Garland testified that she called the Defendant to gather some more information
about the missing deposit. The Defendant told her that she had made the deposit at the branch
located at “the Mall,” that the teller had been a young white woman, that it was late in the day, and
that the computers had been down. Ms. Garland testified that she had never seen a receipt written
in that manner at First Tennessee Bank.

        The contested receipt, which was introduced as an exhibit at the trial, is about two inches by
three and one-quarter inches in size. The slip of paper has a portion of the name “First Tennessee”
running along each short edge. Handwritten in black ink near the bottom appears “8/8/00 2195.71”
followed by the handwritten and circled initials “LW.” Across the bottom of the slip of paper is
purple computer printing, stating “Account questions? Call 461-1237 for help.” The face of the
document contains no other information.

       Ladonna White testified that she was employed as a teller by the Bank at the time in question.
She stated that she occasionally worked at the Mall branch, but she did not remember ever seeing


                                                 -2-
the Defendant at her window. She reviewed the alleged receipt and testified that the handwriting
was not hers. She further testified that she had never provided a customer with a receipt like the one
proffered, even while the computers were down.

         Karen Bowers also testified that she had been a teller for the Bank at the time in question.
She explained that, when the computers were down, the procedure for providing a customer with a
deposit receipt was to “hand write a receipt, but, you would stamp it with a bank stamp that has your
teller number at the office and the date.” She stated that she had not provided the receipt at issue and
had never written one in that manner.

        Preston Eldred, also employed by the Bank, testified that he knew the Defendant well enough
to identify her on sight. He reviewed the video tapes recorded by the Bank’s security system for the
Mall branch on the afternoon of August 8, 2000. He testified that the Defendant did not appear on
those tapes. She did, however, appear at the main office branch at about ten a.m. on that date. The
Defendant was transacting some business with a teller, but Mr. Eldred could not discern the nature
of the transaction from viewing the tapes. He also could not identify the teller with whom the
Defendant was doing business.

         Matt Sirois, employed by the Bank as regional bank operations manager, testified that he
reviewed the contested receipt as well as the June receipt from which it may have been torn. Mr.
Sirois testified that the computer printing at the bottom of receipts was a marketing statement that
was generally changed on a monthly basis. He further testified that the June marketing statement
for the Mall branch was “account questions call 461-1237 for help.” The August marketing
statement for the Mall branch was “bank online at www.FirstTennessee.com.” Mr. Sirois also
testified that he checked the Bank’s records and found no record of the computers being down
between the hours of 1:30 and 4:00 in the afternoon on August 8, 2000, at the Mall branch. Mr.
Sirois further explained that, if a manual receipt had been necessary, it would have been validated
by a teller stamp. He testified that he had never seen a First Tennessee Bank receipt given in the
manner of the one at issue.

       The State also introduced proof of several other discrepancies in the hotel’s financial
documents, including an alleged missing deposit for the cash receipts of June 1, 2000, in the amount
of $340.52; another missing deposit for June 12, 2000, in the amount of $224.75; a missing
September deposit in the amount of $697.48; an IOU signed by the Defendant indicating that she
owed the petit cash fund $20; and an additional sum of $136.98 missing from the petit cash fund.

        The Defendant testified in her defense. She adamantly denied having stolen any money from
the hotel. She explained that the cash receipts from June 1 had been included with a deposit of cash
receipts made on June 2. She could not fully explain the June 12 deposit discrepancy but testified
that Mr. Rayburn’s accounting for the vending machine cash that day might have caused the
problem. She explained that the missing September deposit had not been made because the money
had disappeared, either from being accidentally swept off her desk into the trash, or from another
person taking it while it sat unattended on her desk. She acknowledged owing the petit cash fund


                                                  -3-
money, but explained that her actions in using money from that fund were within the standard
practices of the hotel. The twenty dollars represented by the IOU she acknowledged having
borrowed and owing; that is, she testified that she did not take that money with the intent to
permanently deprive the owner of it. The other missing money from the fund she had used for hotel
expenses, but acknowledged that she had not provided the hotel with receipts for those purchases.

         With respect to the August 8, 2000, deposit, she explained that she had been in “a
tremendous hurry” that day because she needed to pick her daughter up. She testified that she
recognized Karen Bowers at trial as the teller who had accepted the deposit. Because she was in
such a hurry, she testified, she “was probably a little rude to the teller.” The Defendant stated that
the teller tore off the original copy of the deposit slip and was attempting to stamp something on it,
but the machine used for the stamping was not working. The Defendant stated that, while the teller
was trying to stamp the receipt, she was pacing, frustrated, and “probably not the most polite person
in the world.” The Defendant testified that her behavior made the teller “flustered” and that the teller
“finally said, let me just write you up a receipt.” The Defendant stated that the teller stapled the
receipt to the deposit book, and the Defendant glanced at it only long enough to verify the amount.
The Defendant paid no further attention to the receipt until she was questioned about the deposit
about a month later.

       When initially questioned, the Defendant went back to the deposit book and retrieved the slip
of paper she claimed to have been given by Ms. Bowers. She visited both the Mall branch and the
Main branch, seeking the Bank’s assistance in tracking the deposit down. Her efforts were
unsuccessful, and she was fired a short time later.

       The jury returned a verdict of guilt on one count of theft over $1,000 and assessed a fine in
the amount of $2,195.71.

         Initially, the Defendant contends that the evidence is not sufficient to support her conviction.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of
guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-


                                                  -4-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        “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 without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103. In this case, the State established that the hotel’s cash
receipts for August 2, 2000, through August 5, 2000, totaled $2,195.71. The Defendant claimed,
both as an employee and while testifying at trial, that she took these cash receipts and deposited them
in the hotel’s bank account on August 8, 2000. In support of her claim, she proffered to her
supervisor a document purporting to be a handwritten receipt from the Bank for the deposit.
However, numerous Bank employees testified that the purported receipt did not meet the Bank’s
requirements for a manual receipt. Karen Bowers, the teller whom the Defendant testified accepted
the deposit, flatly denied having issued the purported receipt. The Bank’s employees testified that
the Bank’s records reflected no such deposit and that the Bank’s surveillance tapes did not show the
Defendant transacting any business at the time and place that she claimed to have made the deposit.
This proof is sufficient to support a finding beyond a reasonable doubt that the Defendant took the
$2,195.71 in hotel cash receipts, with the intent to deprive the owner of them and without the
owner’s effective consent. Accordingly, the evidence is sufficient to support the jury’s verdict and
this issue is therefore without merit.1

        The Defendant next contends that she is entitled to a new trial because the trial court did not
require the State to elect a single instance of theft upon which to rely for conviction, and because the
trial court did not provide the jury with an enhanced unanimity instruction requiring the jurors to be
unanimous as to which instance(s) of theft it found her guilty. The Defendant’s argument is
misplaced.

        We acknowledge, of course, that “the prosecution must elect the facts upon which it is
relying to establish the charged offense if evidence is introduced at trial indicating that the defendant
has committed multiple offenses against the victim.” State v. Johnson, 53 S.W.3d 628, 630 (Tenn.
2001). Here, the Defendant was charged with only one count of theft; however, the State introduced
evidence of nine specific instances of theft. Nevertheless, the State was not required to elect from
among these nine instances under the circumstances of this case. Where an accused is alleged to
have stolen property in separate acts but from the same owner, from the same location, and pursuant
to a continuing criminal impulse or a single sustained larcenous scheme, the State is permitted to
aggregate the value of the stolen property and prosecute the thefts as a single offense. See State v.


         1
          Because the proof of this single theft is sufficient to support the conviction, we deem it unnecessary to review
the remaining evid ence of the other alleged thefts.

                                                           -5-
Cattone, 968 S.W.2d 277, 279 (Tenn. 1998). Accordingly, the trial court did not err in not requiring
the State to elect among the nine thefts. Furthermore, the trial court did not err in not issuing an
enhanced unanimity instruction. See State v. Black, 75 S.W.3d 422, 425-26 (Tenn. Crim. App.
2001) (no enhanced unanimity instruction required where State aggregated over 150 separate acts
of embezzlement into a single theft offense). This issue is without merit.

         Finally, the Defendant contends that the trial court erred in ordering the Defendant’s sentence
in this case to run consecutively to her sentence for a prior conviction. The State concedes that the
trial court erred in this regard.

       In March 1997, the Defendant pled guilty to one count of theft over $60,000. The trial court
sentenced the Defendant to eight years, to be served by six months in jail and fifteen years in
community corrections. On June 26, 1998, the Defendant’s supervision was ordered “transferred
from the Alternative Community Corrections Program to be placed under the supervision of the State
of Tennessee Department of Correction probation division.” The order transferring the Defendant’s
supervision also provides that the Defendant remained bound by her community corrections
agreements, “to include sentence increase, as outlined in TCA 40-3[6]-106[e](4).” This order was
apparently entered in response to the recommendation of the Alternative Community Corrections
Program following the Defendant’s successful completion of the Moral Recognition Therapy
program and her satisfaction of other sentencing requirements.

        Upon the Defendant’s conviction of the instant offense, the trial court revoked the
Defendant’s alternative sentence and increased her original eight-year sentence to twelve years in
the Department of Correction. The trial court sentenced the Defendant on the instant offense to four
years in the Department of Correction. The Defendant’s four-year sentence in the instant case was
ordered to be served consecutively to the prior sentence on the basis that the Defendant was being
sentenced “for an offense committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(6). The
Defendant points out, and the State concedes, that the Defendant was serving her prior sentence on
community corrections, not on probation. Thus, the Defendant contends and the State concedes, the
trial court erred in relying upon factor (b)(6) for the imposition of consecutive sentences.

        Apparently, the trial court considered the Defendant to be “on probation” because she was
being supervised by the Department of Correction probation division.2 However, the Defendant’s
community corrections sentence was not revoked in conjunction with the transfer; rather, it remained
intact. Thus, the Defendant was not “on probation” when she committed the instant offense.

       Community corrections and probation are not fungible methods of serving an alternative
sentence. See State v. Pettus, 986 S.W.2d 540, 544 (Tenn. 1999) (“A review of the language of the
relevant statutes reveals a clear distinction between community corrections and probation.”)


         2
           Immediately prior to imposing se ntence for the instant crime , however, the trial co urt increased the Defendant’s
prior sentence, which is permissible upon the revocation of a community corrections sentence but not upon the revocation
of pro bation. See Tenn. Cod e Ann. §§ 40-36-10 6(e)(4), 40-35-311(d).

                                                             -6-
Moreover, our supreme court has specifically found that “the legislature did not intend a community
corrections sentence and a probation sentence to be equivalents for purposes of consecutive
sentencing under [factor (b)(6)].” Id. Thus, the trial court in this case erred in ordering the
Defendant’s sentences to be served consecutively on the basis that she was “on probation” at the time
she committed the instant offense. Accordingly, we reverse that portion of the trial court’s judgment
ordering the Defendant’s sentences to be served consecutively.

         In its brief, the State “requests that this case be remanded to allow it to put on proof of other
facts which would support the imposition of consecutive sentences.” The State cites no authority
for this requested second bite at the apple, and this issue is therefore waived. See Tenn. Ct. Crim.
App. R. 10(b). The State was given ample opportunity to present any proof relevant to the trial
court’s sentencing decision at the Defendant’s sentencing hearing. Furthermore, the trial court
considered five other possible grounds for imposition of consecutive sentences and rejected them.3
The State is not entitled to a second hearing.

       We reverse that portion of the trial court’s judgment which imposes consecutive sentences.
The Defendant’s sentences are ordered to be served concurrently and we remand this matter for a
corresponding modification of the judgment. In all other respects we affirm the judgment of the trial
court.

                                                                     ___________________________________
                                                                     DAVID H. WELLES, JUDGE




         3
           There is an additional factor set forth in the relevant statute which the trial court did not mention, but it applies
only to se ntence s for crim inal contemp t. See Tenn. Cod e Ann. § 40-35-115 (b)(7).

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