        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 7, 2010

               STATE OF TENNESSEE v. EDDIE H. PITTMAN

              Direct Appeal from the Circuit Court for Madison County
                        No. 09-152     Roger A. Page, Judge


                No. W2009-02316-CCA-R3-CD - Filed March 10, 2011


The defendant, Eddie H. Pittman, was convicted by a Madison County Circuit Court jury
of theft of property valued between $500-$1000, a Class E felony, and was sentenced as a
career offender to six years in the Department of Correction. On appeal, he challenges the
sufficiency of the evidence regarding the value of the stolen goods. After review, we affirm
the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

J. Colin Morris, Jackson, Tennessee (at trial); and Paul E. Meyers, Assistant Public Defender
(on appeal), for the appellant, Eddie H. Pittman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

      This case is the result of the defendant’s taking merchandise from a Kohl’s
department store for which he was indicted on one count of theft of property valued over
$1000.

      At trial, Daniel Brock, loss prevention supervisor for a Kohl’s department store in
Jackson, Tennessee, testified that on November 21, 2008, he initiated a floor surveillance
of a possible shoplifting case. Thereafter, he went to his office and observed the possible
shoplifter on the video surveillance system. In total, Brock observed the defendant for thirty
to thirty-five minutes. He watched as the defendant rapidly selected several fragrance items
and then proceeded to the men’s department where he unpackaged the items and placed
them on his body. Along with the items of men’s and women’s fragrances, the defendant
was observed concealing four pairs of black gloves and a watch on his body.

        Brock testified that he returned to the store floor and waited to see if the defendant
attempted to bypass the cash registers. When the defendant attempted to exit the store
without paying, Brock identified himself and verbally requested that the defendant return
to the store. The defendant refused to comply, and the two men “ended up struggling first
inside and then outside of the store” until members of the Jackson Police Department
arrived. Brock recovered “[a] number” of stolen items from the defendant outside, and then
he, the defendant, and two officers went back inside the store. The items found on the
defendant’s person included the fragrances, the gloves, a box cutter, and a handwritten
shopping list that matched the exact items stolen. The defendant admitted to Brock and the
officers that he had come to the store to steal those specific items so he could sell them for
money to support his heroin habit.

        Brock testified that he retrieved the empty fragrance boxes found in the store that
matched the items found on the defendant. He noted that an empty watch box was found
in the store, although he did not personally recover a watch from the defendant. Brock
calculated the value of the stolen items, not including the watch, at $1062.49. He said that
amount took into account the discounted price of the fragrances that were packaged in gift
sets. At the time of the incident, the price of the watch was $29.99. Brock later determined
that the value of the items stolen, not taking into account any reductions for items packaged
in gift sets, was almost $1200 and that estimate also included the watch. A video recording
of the surveillance footage was played for the jury.

       On cross-examination, Brock stated that the Jackson Police Department was never
asked to assess a value to the stolen property, but he did not think that was pertinent because
the value was established by what Kohl’s paid for the items. When asked, Brock did not
know if the gloves were on sale the day of the incident.

       On redirect examination, Brock testified that the stolen items were a total loss to the
store because the packages were opened and could no longer be sold, yet Kohl’s was still
billed by the manufacturer for the items. On recross examination, Brock explained that
when an item comes into the store, the price is initially set based on the cost of bringing the
item in, i.e., the “base price” or “white ticket price,” which he used to determine value.
However, he noted that as time passes and seasons change, Kohl’s reduces the price of

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products not sold, even to the point that some items are eventually sold at a loss. He said
that he did not take the sales price of any items into account even though there was the
possibility that some of the stolen items might have been located on sales tables.

       Jeffrey Smith, Supervisor Specialist at Kohl’s Department Store, testified that he was
summoned to the loss prevention office on November 21, 2008, because a theft was in
progress. On the surveillance video monitor, Smith observed the defendant stealing items,
and then he assisted Brock in trying to apprehend the defendant. Smith said that he was
trying to direct the responding police officer to the defendant’s whereabouts when he
received a page to report to the other end of the store where Brock and the defendant were
“scuffling.” Smith stated that after the police officers handcuffed the defendant, the officers
removed the stolen merchandise from the defendant’s pants and socks. The officers took
the defendant into custody, and a stolen watch was later found on the defendant’s arm by the
police officers.

      Officers Adam Massey and James Avery with the Jackson Police Department
responded to the Kohl’s Department Store the evening of November 21, 2008. The officers
recovered the stolen items concealed on the defendant and took him into custody. When the
defendant was booked at the jail, a watch was found on his person and he admitted it
belonged to Kohl’s.

      After the conclusion of the proof, the jury convicted the defendant of theft of property
valued between $500-$1000.

                                          ANALYSIS

       On appeal, the defendant challenges the sufficiency of the evidence regarding the
value of the goods stolen. In considering this issue, we apply the rule that where sufficiency
of the convicting evidence is challenged, the relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e)
(“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). 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. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “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

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v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our 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
       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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       To sustain the theft conviction in this case, the State had to prove beyond a reasonable
doubt that the defendant, with the intent to deprive the owner of property, knowingly
obtained or exercised control over property without the owner’s effective consent and that
the value of the property was between $500 and $1000. Tenn. Code Ann. §§ 39-14-103,
-105(2) (2006).

        Here, the defendant does not dispute that he stole the items from Kohl’s; he only
challenges the value of the goods stolen. Tennessee Code Annotated section 39-11-106
defines “value” as “(i) [t]he fair market value of the property or service at the time and place
of the offense; or (ii) [i]f the fair market value of the property cannot be ascertained, the cost
of replacing the property within a reasonable time after the offense[.]”                      Id. §
39-11-106(a)(36)(A). If the value of the property cannot be ascertained by the
aforementioned criteria, the property is deemed to have a value of less than fifty dollars. Id.
§ 39-11-106(a)(36)(C). The fair market value of property is a question of fact for the jury.
See State v. Hamm, 611 S.W.2d 826, 828-29 (Tenn. 1981). “The 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[.]” Id. at 829.

       The record shows that the jury was properly instructed on how to assess the value of
the stolen property – that the value of the stolen property was the fair market value at the
time of the offense. Brock testified that he determined the value of the goods by using the
“base price” or “white ticket price,” which was the cost to Kohl’s of bringing the item in to
the store. Using this method, Brock determined that the value of the stolen items was

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$1092.48, which took into account reductions for items that were packaged in gift sets. He
concluded that the value of the stolen items was almost $1200 if he priced the items stolen
from gift sets individually without taking into account any discounts for having been
packaged in a gift set. Brock did not take into account whether any of the stolen items were
on sale in the store the day of the theft. The jury heard Brock’s testimony concerning his
methodology for ascertaining value and determined that the fair market value was more than
$500 but less than $1000. We conclude that the jury had before it sufficient evidence to
reach this determination.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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