         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 16, 2002

       STATE OF TENNESSEE v. PHILLIP CHARLES SAINDON, JR.
                      and JERRY SAILORS

                Direct Appeal from the Criminal Court for Davidson County
                           No. 96-B-727    Seth Norman, Judge



                  No. M2001-01860-CCA-R3-CD - Filed February 14, 2003


The defendants, Phillip Charles Saindon, Jr. and Jerry Sailors, were each convicted of one count of
theft over $10,000 and one count of theft over $60,000. In addition to challenging the sufficiency
of the evidence on appeal, they argue that there was a fatal variance between the indictment and the
proof and that the trial court erred in admitting hearsay evidence. We conclude there was no material
or prejudicial variance between the indictment, which alleged theft of United States currency, and
the proof as to each was sufficient to sustain the convictions of theft over $60,000. However, as to
the convictions for theft over $10,000, we conclude that, although the State presented sufficient
evidence to establish that the defendants committed theft of property, the evidence was insufficient
to establish the value of the thefts for these convictions. Accordingly, we modify the convictions
for theft over $10,000 to theft over $1000 and remand the case to the trial court for appropriate
sentencing for this offense. We affirm the judgments of conviction for theft over $60,000.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as
                 Modified and Remanded for a New Sentencing Hearing

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.

Kenneth Quillen and Michael Flanagan, Nashville, Tennessee, for the appellant, Phillip Charles
Saindon, Jr.; and David P. Byrne, Nashville, Tennessee, for the appellant, Jerry Sailors.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Paul DeWitt and James W. Milam, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS
        The thefts in this case were perpetrated by the defendants against an insurance company,
State Auto, which provided insurance coverage on a house that was damaged by fire and a
condominium complex damaged by water. Sailors was the independent insurance adjuster hired by
State Auto to handle the insurance claims on each property, and Saindon was the building contractor
hired to perform the repairs. The proof at trial established that Sailors grossly inflated the estimates
of the covered losses at the condominium complex, causing State Auto to issue checks to Saindon
for repairs that were neither needed nor performed. Saindon, in turn, gave Sailors a portion of each
payment he received from State Auto. The proof with respect to the property damaged by fire was
that Saindon accepted and deposited a check from State Auto to cover the full cost of the house’s
repairs, gave Sailors a portion of that payment, and then failed to complete the repairs, leaving the
house in an untenable state. The defendants were able to immediately receive the full amount of the
check, without oversight of the mortgagee, because the signature on behalf of the mortgagee was
forged.

         Gloria McCoy, the owner of the house, testified at the defendants’ September 25-27, 2000,
trial that the interior of her one-story home in Old Hickory was completely destroyed by a fire that
occurred on December 3, 1993. She was told when she contacted State Auto that an adjuster would
be sent to assess the damage. Shortly thereafter, Sailors telephoned to tell her that he would meet
her at the house and that he would bring several contractors with him. However, when Sailors
arrived to inspect the damage, Saindon was the only contractor with him. After the men had
inspected the property together, Saindon agreed to perform the repairs.

        McCoy and her live-in boyfriend, Jerry Nubell, whom Saindon hired to do some of the work
on her house, later met Sailors and Saindon at a Burger King restaurant. There, Sailors gave McCoy
a check from State Auto to cover the contents of her house and also handed her a separate check for
$45,570 to cover the dwelling itself, made payable to three parties: McCoy; the mortgagee, First
Tennessee Bank; and Saindon Enterprises. McCoy testified that her understanding was that the
$45,570 check was to cover the entire cost of rebuilding her house. She said that she endorsed the
check and gave it to Saindon. McCoy identified her signature on the back of the check and agreed
that the check also contained the signature of a “D.S. McCoy,” on behalf of First Tennessee Bank.
She testified that she did not recognize the name and that none of her relatives worked for First
Tennessee.

        McCoy testified that Saindon’s crew began the repairs on her home, but, after an initial flurry
of activity, the work slowed and then stopped completely, leaving the repairs unfinished. She said
that the kitchen lacked cupboards and light fixtures and that “[t]here were just different things that
needed to be done downstairs.” In addition, she said that Saindon “had built an upstairs . . . that
wasn’t completed at all.” McCoy later explained that she had used a portion of her contents check
to hire Saindon to build an upstairs addition on the home, which had originally been one-story.
When she contacted State Auto about the incomplete repairs, she learned that they were under the
impression that the job had been finished. She subsequently sued Saindon in civil court, obtaining




                                                  -2-
a judgment of over $8000.1 State Auto eventually hired another contractor to do further work on her
home, but the entire repairs were never completed. On cross-examination, McCoy testified that her
lawsuit had involved the entire house, including the work Saindon left unfinished on the second
floor. She acknowledged she had not named Sailors as a party in the civil suit and that she had been
satisfied initially with the services he performed.

        McCoy’s former boyfriend, Jerry Nubell, testified that Saindon hired him at the rate of
approximately $10.50 per hour to do some of the work on restoring McCoy’s house. Nubell said that
Saindon originally assigned a member of his crew to work with him, but “[t]hings kind of thinned
out after [they] got everything tore up and cleaned out, as far as help wise.” According to Nubell,
Saindon failed to pay him regularly for the 100 plus hours he estimated he spent working on the
house. He said he was present at the Burger King when McCoy endorsed the check for the repairs
to her house and saw her hand the check back to the defendants while still at the restaurant.

       George Duzane, the attorney who handled McCoy’s civil suit against Saindon, testified that
Saindon acknowledged in a deposition that he had deposited the $45,570 check from State Auto into
his checking account. The deposition, which was made an exhibit in the case at bar, also contains
Saindon’s acknowledgment that he had agreed to accept the insurance coverage of $45,570 as full
payment for restoring the home to its original condition. On cross-examination, Duzane testified that
Saindon stated in his deposition that he had given the check to Nubell, who had brought it back to
him the next day with the bank’s endorsement.

        Becky Bassett, a residential loan officer at First Tennessee Bank, testified that the bank’s
endorsement on the back of the check made payable to McCoy, Saindon, and First Tennessee was
not legitimate. The check was endorsed “D.J. McCoy, Assistant Vice President,”2 but the bank had
never had an employee by that name. Moreover, the endorsement on the check was printed, rather
than stamped in the customary manner of the bank. Bassett testified further that First Tennessee’s
established procedure would have been to deposit the funds into a “loss draft fund account” attached
to the loan and to pay out certain amounts from that account only as the work was completed and
inspected.

        Charles Larry Winters, the plant supervisor for State Auto Insurance Company, testified that
the company regularly hired independent adjusters, such as Sailors, when the company’s internal
adjusters were unable to handle a claim.3 He assigned Sailors to handle the McCoy claim after
receiving the loss accord on the property on December 6, 1993. Winters did not become involved


         1
             The attorney who handled McCoy’s civil suit against Saindon testified that the judgment was for $8,596.

         2
           W e note that Gloria McCoy testified that the bank’s endorsement on the check read “D.S. McCoy.” The copy
of the check included in the record on appeal is illegible; therefore, we are unable to ascertain whether the signature was
that of “D .J. M cCo y” or “D .S. M cCo y.”

         3
         W inters said that a severe winter storm that occurred about the time of the McCo y fire resulted in an unu sually
large numb er of claims.

                                                           -3-
in the case again until October of 1994 when he received a telephone call from either McCoy or her
attorney informing him that the repairs had not been completed. During his subsequent
investigation, Winters obtained a copy of the estimate Sailors had prepared on the McCoy property,
which included both the “scope,” i.e., a line itemized determination of the needed repairs, and the
pricing. The bottom line estimate of the cost of the repairs was $55,260. The estimate was signed
by Sailors and contained the notation, “Agreed: Saindon Enterprises by Mr. Phillip Saindon, Jr.”
Winters testified that State Auto, at Saindon’s request, issued a check in the amount of $45,570 to
cover the dwelling itself, which represented the limits of the policy.4 Winters testified that Sailors
was paid on a time and expense basis and identified a check for $1,135.10 that State Auto issued to
Sailors as payment for his services in handling the McCoy claim.

        Winters inspected McCoy’s house on November 10, 1994. At that time, he found the house
 “a mess” and “in a terrible state of disrepair,” both inside and out. Winters testified that the house
had no working heating system and lacked some of the shingles on the outside walls. Underneath
the house, he saw burned and charred floor joists that had been “sprayed with a silver paint as a
protective thing.” Because it was cold weather and Ms. McCoy had small children, Winters paid
another contractor $3000 to at least make the house tenable even though, in his opinion, State Auto
had already satisfied its obligations on the claim.

        Jeannie Venditto, the records custodian for SunTrust Bank,5 testified that on January 7, 1994,
a $45,570 check drawn on State Auto’s account was deposited into the checking account of Saindon
Enterprises, with $5500 immediately withdrawn in cash, leaving a net deposit of $40,070. On
January 8, 1994, a $5000 check drawn on Saindon Enterprises’ account was written to Jerry Sailors,
and on January 10, 1994, the funds from that check were deposited into Sailors’ account at the bank.
Veteran independent insurance adjuster John Braniff testified that insurance companies compensate
independent adjusters on either a fee schedule or time and expense basis. He said that an
independent adjuster does not normally receive compensation from any other source; during his ten
years as an independent adjuster, he had never received payment from a contractor for a claim he had
handled.

         The second property involved in this case was Montclair Condominiums in Nashville, where
burst water pipes caused flooding in several condominiums. Steve Ghertner, the managing agent
for the complex, testified that in early January 1994, a sprinkler head burst at the complex, damaging
six of the units, and an additional two units were damaged by an unrelated plumbing problem.
Through Ghertner’s testimony, the State introduced a number of checks State Auto had issued to
cover the repairs. Ghertner testified he endorsed three of the checks that were made jointly payable
to the condominium association and different contractors. Five others, in the amounts of $24,541.20,
$47,458.79, $39,547.40, $42,495.86, and $27,434.16, each of which was made payable to the

         4
           As stated previously, Saindon acknowledged in the deposition he provided in the civil suit that he had agreed
to accept the insurance coverage on the property as full payment for performing the repairs listed in the estimate.

         5
         Venditto testified that SunTrust had several years earlier acquired the assets and records of Third National
Bank, whe re Saindon and Sailors held accounts.

                                                          -4-
condominium association and Saindon Enterprises, had been endorsed by a “Brad Johnson” on
behalf of the condominium association. No one by that name was connected with the condominium
association, and Ghertner had no memory of having ever seen those checks. However, he thought
he remembered Sailors having explained that he had arranged with State Auto to handle the
payments to Saindon himself, so that Ghertner would not need to be involved.

        Ghertner acknowledged having signed five proof of loss statements corresponding to each
of the five checks State Auto had issued to Saindon Enterprises and the condominium association.
He explained, however, that the statements were filled out prior to his signature, covered damage
to multiple units, and did not list each specific unit covered. He said that the insurance adjuster
handled the claims, and he had not gotten involved in the details of the repairs. He did not go into
the units after his inspection of the initial damage. The only work he recalled having been done on
the exterior of the building was some painting on the breezeway ceilings; he did not see any masonry
work done to the outside of the building.

         The owners of five of the condominium units State Auto paid Saindon Enterprises to repair
testified on behalf of the State. Each confirmed having spoken to the investigator hired by State
Auto and having informed him of the repair work that was not done. Each was also asked to
compare the repairs listed on the “Sailors and Company” estimates with the work that actually had
been performed. Peggy Flynn, who owned unit 207, testified that although an insurance adjuster
came to inspect the premises, no damage occurred to her condominium and no repairs were ever
performed.6 Dr. Mark Levitch, owner of unit 307, testified that two men came to inspect his unit,
one introducing himself as an insurance adjuster and the other saying that he was the head of a
construction company. Dr. Levitch testified that the damage to his condominium was confined to
the parquet floor, baseboards, and wall in his foyer. The following repairs, listed on the estimate,
were not performed: sheetrock was not replaced in the living room; crown molding and baseboards
were not replaced; wallpaper was not replaced; vinyl kitchen flooring was not replaced; and the
living room ceiling was not reinsulated or replaced. Collins Hooper, who lived in unit 107, testified
that an insurance adjuster came to inspect her unit, but very little damage had occurred. She did not
know if any crown or base molding was replaced in her condominium; she believed, however, that
none needed replacing. There was no parquet flooring in her unit, and no debris had needed to be
hauled away. No damage had occurred in the closet, and she was unaware of any work having been
performed there. Holly Conner, the owner of unit 201, testified that most of the damage to her
condominium occurred in the living room, third bedroom, and guest bath. Asked to compare the
repairs listed on the estimate to the work that had actually been performed, she testified that no
carpet was removed or replaced in her living room or powder room, and she had never had any
wallpaper in her condominium. Finally, Fleming Wilt, the owner of unit 308, which suffered the
most extensive damage, testified that his condominium had an open air balcony where very little
damage had occurred. Thus, none of the many repairs attributed to his “enclosed balcony,” with the
possible exception of replacing the carpet, had been performed. In addition, no repair work was


         6
          State Auto’s investigator, Allen Richards, later testified that the only work performed on Flynn’s condom inium
was painting of the front d oor.

                                                          -5-
needed or performed on the ceramic of his jacuzzi. He did not see any work performed on the
exterior of the building, either.

        State Auto Senior Claims Representative Harold Warner testified that Sailors appraised the
damage to the condominiums and requested the following amounts to pay for repairs: $6,539.94 for
unit 307; $3,801.50 for unit 207; $7,468.58 for unit 301; $6,967.18 for unit 201; $15,681.08 for unit
107; $34,028.90 for unit 108; $37,811.24 for unit 208; and $42,495.86 for unit 308. Sailors
requested a check in the amount of $27,434.16 to pay for the damage to the exterior and common
areas of the condominiums. Warner testified that he had relied on Sailors to perform an accurate and
honest appraisal of the damage and had not inspected the building himself. He conceded on cross-
examination that he had sworn proof of loss statements for each claim, that Sailors provided
photographs to substantiate the estimate appraisals, and that a claims adjuster and the home office
had reviewed and approved the claims before State Auto issued the checks covering the repairs.

         Subsequently, State Auto assigned Allen Richards, a former claims supervisor for the
company, to investigate whether Sailors inflated the estimates for the repairs to Montclair
Condominiums. Richards testified that he spoke with all eight condominium owners and the
managing agent during the course of his investigation. By “reverse calculat[ing],” or adding up the
prices listed on the detailed estimates for work that the owners and agent said was not performed,
he arrived at $98,930.47 as the total amount State Auto paid for repairs that were not done. Richards
testified that he did not question the price charged for completed work, and he did not include the
cost of repairs for those situations in which the owners expressed uncertainty about whether the work
had been performed.

       Richards’ subtotals for the undone repairs in each individual unit and in the common areas
and facade were as follows: $15,976.10 for unit 308 (Fleming Wilt); $18,592.65 for unit 108;
$10,716.59 for unit 107 (Collins Hooper); $4,501.55 for unit 307 (Dr. Mark Levitch); $3,651.50 for
unit 207; $2,736.74 for unit 201 (Holly Conner); $17,539.11 for unit 208; $4,289.91 for unit 301;
and $20,926.32 for the common areas and facade of the building.7 Richards testified that the total
amount State Auto paid for repairs at the condominiums was approximately $198,000.8

      Richards stated that he held face-to-face interviews with all but three of the condominium
owners – Ms. Day, who did not testify at trial, of unit 301, as well as Ms. Flynn and Ms. Conner,


         7
            Saindon asserts in his brief that the total amount charged for the allegedly undone repairs was only $94,841.33.
To arrive at this figure, Saindon uses $15,493.87 as the amount overcharged for unit 108. However, although Richards
initially testified that the undone repairs for unit 108 totaled $15,493.87, he immediately offered a correction, testifying
that the total, including the overhead and profit factor charged, was actually $18,592.65.

         8
            By our calculation, the five checks State Auto issued to Saindon and the con dom inium association total only
$181,477.41. Therefore, we think it likely that the $198,000 figure Richards quoted as the amount State Auto paid for
repairs at the condominium included the cost of work p erformed by other contractors. However, since Richards arrived
at the value of the unperformed repairs charged by Saindon by, as he termed it, “reverse calculation,” the total amount
State A uto paid for repairs at the co ndominium is irrelevant.

                                                            -6-
both of whom did testify. He met Fleming Wilt, Greg Chappell, Mark Levitch, and Collins Hooper
in person at their respective condominiums, where they each pointed out to him the repairs that had
been performed. He saw nothing in their units to contradict the accounts they provided of the work
that had not been done. Richards agreed on cross-examination, however, that his direct examination
testimony was “all based entirely upon what other people had told [him],” and he had no personal
knowledge of which repairs had not been performed.

        As its final witness, the State recalled Jeannie Venditto, the records custodian for SunTrust
Bank. Through her testimony, the State introduced evidence that the following checks from State
Auto were deposited into Saindon’s account at SunTrust Bank on the following dates: a check for
$24,541.20 written on February 8, 1994, and deposited on February 9, 1994; a check for $47,458.79,
written and deposited on February 18, 1994; a check for $39,547.40 deposited on March 11, 1994;
a check for $42,495.86 deposited on March 31, 1994; and a check for $27,434.16 deposited on May
4, 1994. The following eight checks, drawn on Saindon’s account, were deposited into Sailors’
accounts at the bank: a $3000 check dated and deposited on February 9, 1994; a $9000 check dated
and deposited on February 18, 1994; a $6000 check dated February 21, 1994, although apparently
deposited on February 18, 1994; a $400 check dated and deposited on March 2, 1994; a $3000 check
dated March 30, 1994; a $5000 check dated and deposited on March 11, 1994; a $5000 check dated
May 23 and deposited on May 21, 1994; and a $3500 check dated May 24 and deposited on May 23,
1994, for a net deposit to Sailors’ accounts of $34,900. Several of the deposits to Sailors’ accounts
at the bank occurred on the same day that State Auto’s checks were deposited into Saindon’s
account, with at least one of the deposits into Sailors’ account having been made within minutes of
the deposit of a State Auto check into Saindon’s account.

        The trial court denied the defendants’ motions for judgment of acquittal, and both rested
without presenting any proof. Following deliberations, the jury found the defendants guilty of one
count of theft over $10,000, a Class C felony, and one count of theft over $60,000, a Class B felony.
The trial court sentenced each defendant as a Range I, standard offender to concurrent terms of eight
years for the theft over $60,000 conviction and three years for the theft over $10,000 conviction, with
the sentences to be suspended and the defendants placed on probation after service of fifty-two
consecutive weekends.

                                            ANALYSIS

                           I. Variance between Indictment and Proof

         The defendants contend there was a fatal variance between the indictment, charging them
with theft of “United States currency,” and the proof, which showed theft of checks. Saindon asserts
that the generic theft statute he was charged with violating “fails to give a defendant adequate notice
of the charges against him and, in conjunction with a material variance in the description of the
alleged stolen property, may well be deceptive.” Sailors adopts the same argument and asserts that
by specifically charging theft of United States currency, the State adopted the burden, which it failed
to meet, of proving theft of currency. The State asserts that theft of currency was shown by proof


                                                 -7-
that the defendants deposited State Auto’s checks into their bank accounts. The State argues, further,
that any variance that may exist was not material, pointing out that the defendants were provided
with copies of the checks in discovery and thus could not have been surprised by their introduction
at trial.

        Before a variance will be deemed fatal to a prosecution, it must be both material and
prejudicial. State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). In Moss, our supreme court set forth
the following test for determining when a variance will be deemed fatal:

               Unless substantial rights of the defendant are affected by a variance,
               he has suffered no harm, and a variance does not prejudice the
               defendant’s substantial rights (1) if the indictment sufficiently
               informs the defendant of the charges against him so that he may
               prepare his defense and not be misled or surprised at trial, and (2) if
               the variance is not such that it will present a danger that the defendant
               may be prosecuted a second time for the same offense; all other
               variances must be considered to be harmless error.

Id.

       Applying the Moss test, we conclude that any variance that may be said to exist in this case
was not fatal and, therefore, constitutes harmless error. The indictment informed the defendants that
they were charged with a theft in Davidson County beginning on or about December 9, 1993, of
property belonging to State Auto consisting of United States currency of the value of more than
$10,000 but less than $60,000; and of a theft in Davidson County beginning on or about January 6,
1994, of property belonging to State Auto consisting of United States currency of the value of more
than $60,000. At trial, the State showed that Saindon deposited checks from State Auto into his
account at SunTrust Bank, thereby converting them into United States currency. From that same
account, Saindon then wrote checks to Sailors, which Sailors in turn deposited into his accounts at
the bank. Although Saindon asserts that there was a material variance between the indictment and
the proof and that such variance “may well [have] be[en] deceptive,” neither defendant alleges that
they were actually surprised or prejudiced by the proof at trial, or that the wording of the indictment
prevented them from preparing an adequate defense. Moreover, the indictment, combined with the
record in this case, is sufficient to prevent the defendants from further prosecution for the same
offenses.

        As supplemental authority on this issue, Saindon submitted a recently published opinion,
State v. Goodson, 77 S.W.3d 240 (Tenn. Crim. App. 2001), in which this court concluded that an
indictment charging a defendant with driving on a revoked license impermissibly varied from the
proof, which showed that he drove on a suspended license. Id. at 241. The variance in that case was
found to be fatal because driving on a revoked license is a separate and distinct offense from driving
on a suspended license, the offense that was proved at trial. Id. at 245-46. Such is not the case here.
The indictment, alleging theft of United States currency belonging to State Auto, is essentially the


                                                 -8-
same as the proof that was presented at trial. “A variance between an indictment and the proof in
a criminal case is not material where the allegations and proof substantially correspond, the variance
is not of a character which could have misled the defendant at trial and is not such as to deprive the
accused of his right to be protected against another prosecution for the same offense.” Moss, 662
S.W.2d at 592. In the present appeal, there is no claim that the assailed language of the indictments
misled the defendants as to the charges against them or subjected them to double jeopardy. We
therefore conclude that this issue is without merit.

                                      II. Hearsay Testimony

        The defendants contend that the trial court erred in allowing Allen Richards to testify
regarding the value of unperformed repairs at the condominium complex, arguing that his testimony
was based on inadmissable hearsay. The State responds by arguing that because five of the
condominium owners and the managing agent testified at trial, and Richards personally visited two
of the non-testifying owners’ units, the only portion of Richards’ testimony that was based on
inadmissable hearsay was that with respect to the undone repairs in Diane Day’s unit. The State
further argues that any error in admitting that testimony was harmless since the total cost of undone
repairs at the condominium, excluding those in Day’s unit, still exceeds $60,000.

       This issue first arose towards the beginning of Richards’ direct examination testimony, as
he was being questioned by the State:

               Q    And did you eventually talk to eight unit owners and Mr.
               Ghertner, the representative of the homeowners association?

               A     Yes.

               Q     And from talking to those individuals, those people, did you
               learn that there was a pattern . . .

                     MR. QUILLEN: Objection.

               Q     Okay, I’ll rephrase that. From talking to these people did you
               learn that there were items put forth on the estimates that were not
               repaired?

                     MR. QUILLEN: Objection, Your Honor. That obviously calls
               for hearsay.

                    GENERAL DEWITT: Your Honor, I would submit that it’s
               merely a prior consistent statement that the previous witnesses
               described.



                                                 -9-
                     THE COURT: I’ll overrule the objection.

               GENERAL DEWITT:

               Q     You may answer the question.

               A     Yes, sir, I did.

        Asked specifically to whom he had spoken, Richards identified the property manager by
name and the eight condominium owners by reference to the numbers of their condominium units.
He was then asked to explain the process he had followed to arrive at his calculations for undone
repairs, and the following exchange occurred:

               Q     All right. And did you calculate, by adding all the items that
               they said were not repaired, calculate a figure?

               A     Yes, on each unit.

               Q     And what did that figure represent?

               A     As we went through, or as I sat and spoke with the people, I
               went line by line down the estimate. And based on what they told
               me, whether it was or was not done, those items were marked. If they
               did not know whether it was done, or not, or if there was any question
               in their mind, I did not mark it. I wanted to know what they knew.
               Obviously, I had not seen it myself.

                     In doing so, that is how we added it up. There were no
               adjustments, if you will, made to any items that were done. We
               didn’t question unit prices. In other words, if they said they put up
               wallpaper at so much a roll, that wasn’t questioned, as long as the
               owner said yes, it was there. And that is how those figures were
               arrived at.

        Richards subsequently testified regarding his calculation of undone repairs not only in the
units belonging to the five testifying owners and in the common areas of the building, but also in the
three units belonging to condominium owners who did not testify at trial. The subsequent testimony
of Richards is set out in twenty-four pages of the trial transcript. There were no objections to any
of the questions or answers in these twenty-four pages, nor to the nine exhibits entered into evidence
during this testimony. At the conclusion of this portion of his testimony, however, the defendants
objected, moving that Richards’ entire testimony be stricken from the record:




                                                -10-
                      Your Honor, I move to strike the testimony of this witness
               because it’s based in part on hearsay from witnesses who have not
               testified, and Greg Campbell has not testified and Diana Day has not
               testified. Some of his testimony is based on what interviews that he
               says he had with those people. We’ve had no opportunity to cross
               examine them. My motion is to strike his testimony in its entirety.

The State responded that the defendants should have raised “a contemporaneous objection ” to this
testimony, and the trial court agreed, overruling the defendants’ motion to strike. As we understand
the defendants’ arguments on appeal, the trial court should not have allowed the witness to testify
as to calculations even of the five condominium owners who testified, because of the earlier hearsay
objection.

        In assessing these arguments, we will review first the hearsay objection which followed the
question, “From talking to these people[,] did you learn that there were items put forth on the
estimates that were not repaired?” We note that this question is a rephrased version of the previous
question, which referred to conversations of the witness with eight condominium owners and the
manager. Thus, “these people” in the State’s question appeared to refer to nine persons. The State,
in responding to the hearsay objection, reminded the court that the witness would be relating the
prior consistent statements of three of the condominium owners who had testified previously in the
trial. However, the other six of “these persons” had not. What the State was seeking from the
witness was indirect hearsay, the nature of which is explained in Neil P. Cohen et al., Tennessee Law
of Evidence, §8.01[11][b] (4th ed. 2000), utilizing an example:

               Sometimes witnesses, especially police, are tempted by lawyers to get
               in hearsay through the back door.

               Q. After talking to the informant–and don't tell the jury what the
               informant told you–what did you do?

               A. I went to the luggage room, found the red suitcase with the
               defendant's name on it, and found cocaine inside.

               Most jurors will get the message intended from this indirect hearsay.
               They will have learned what the informant said, even though no
               words from the informant were actually repeated. The testimony is
               hearsay and inadmissible; courts should close such back doors. This
               testimony should be permitted only if the effect on the listener is
               somehow relevant. For example, in the above hypothetical if the
               issue is whether the officer had probable cause to search the suitcase
               in the luggage room, the evidence would not be hearsay. It would be
               used to prove the effect on the listener, not the truth of the informant's
               statement.


                                                 -11-
          At trial, the apparent intended, but unstated, purpose for the State’s question was to explain
why Richards continued with his investigation. We respectfully disagree with the State’s rationale
at trial that the statement was admissible because Richards was testifying as to hearsay statements
made by previous trial witnesses. In fact, as we have stated, by the point in the trial when this
question was asked, only three of the condominium owners had testified, while the statement appears
to encompass statements of all of the eight owners. However, applying the rationale explained by
Tennessee Law of Evidence, we believe that the statement arguably was intended to prove its effect
on Richards, that he continued with the investigation. As such, we conclude that the statement was
not hearsay.

        As to Richards’ testimony, the defendants assert on appeal that this unsuccessful objection
as to indirect hearsay remained vital through the ensuing twenty-four trial transcript pages of his
testimony, during which nine exhibits were introduced, enabling the defendants, by their view, then
to move to strike his testimony, and presumably the exhibits, in their entirety. As we will explain,
we respectfully disagree with this argument.

         First, we note Richards’ hearsay detailing of repairs neither needed nor performed at the
condominium units was testified to by six of the declarants themselves, consisting of five owners
plus the manager. The fact that six of the hearsay declarants testified does not mean that Richards
was not testifying to hearsay in recounting his conversations with them. See Neil P. Cohen et al.,
Tennessee Law of Evidence § 8.01[11][c] (Supp. 2002) (explaining “that the normal hearsay rules
still apply to the witness’s earlier statement” even though the witness-declarant subsequently
testifies). However, we would elevate form over substance if we concluded that reversible error
resulted from Richards’ testifying as to his conversations with witnesses who, themselves, testified
at trial as to the same information. See Hitt v. State, 53 S.W.3d 697, 708 (Tex. Ct. App. 2001)
(“Overruling an objection to evidence will not generally result in reversal where other evidence of
that same fact was received without objection[.]”).

        We next will consider the defendants’ claims as to Richards’ relating what the three non-
testifying condominium owners told him about undone repairs. As we have stated, the defendants
made no subsequent objections to any of Richards’ testimony, following the initial indirect hearsay
objection, nor to the exhibits introduced through him. Although the trial court overruled the initial
hearsay objection, the court was not given the opportunity to consider objections to any of the
ensuing testimony or exhibits, for none were made. While we agree that a motion to strike may be
made at the conclusion of a witness’s testimony, as occurred when the direct examination of
Richards had been concluded, we agree with the trial court’s ruling that the motion, under these
circumstances, was untimely. The function of a motion to strike is explained in Neil P. Cohen et al.,
Tennessee Law of Evidence, §1.03[4][c] (4th ed. 2000):

                     Although on most occasions an objection rather than a motion
               to strike is used, Rule 103(a)(1) sometimes dictates the latter
               procedure. A motion to strike, which is essentially a delayed


                                                 -12-
                objection, is used frequently when evidence has been conditionally
                admitted, and the condition is not later fulfilled. This motion should
                be made by counsel opposing the evidence. A motion to strike is also
                appropriate any time inadmissible evidence has been heard by the
                trier of fact. It may be accompanied by a request for a jury instruction
                to ignore the evidence.

         Thus, it is appropriate to utilize a motion to strike when, for example, the State has not
sufficiently established the chain of custody by the time the last witness as to that issue has testified.
See State v. Dean, 76 S.W.3d 352, 367-68 (Tenn. Crim. App. 2001), perm. to appeal denied (Tenn.
2002). By contrast, in the present appeal, the complaint was not as to evidence conditionally
admitted but presented, instead, after the witness had testified at length as to hearsay conversations
with nine persons. In fact, at least three categories of hearsay evidence came into the record during
the testimony of Richards: (1) hearsay testimony regarding conversations with six witnesses who,
themselves, testified at the trial; (2) hearsay testimony regarding conversations with three witnesses
who did not testify; and (3) records prepared by one of the defendants, the use of the records based,
in part, upon the hearsay conversations. By relying upon their initial objection to hearsay testimony
by Richards, which we have determined was not well taken, and allowing twenty-four transcript
pages of testimony and nine exhibits to come into evidence before making a second objection to
hearsay and then asking that all of the testimony be stricken, the defendants have given us the
impossible task of sorting through each question, answer, and exhibit to identify the hearsay arguably
encompassed by the objection and determining, then, whether it might have been admissible through
an exception to the hearsay rule. However, we respectfully decline to do so, instead concurring with
the ruling of the trial court that the defendants’ second hearsay objection was untimely.

                                  III. Sufficiency of the Evidence

       Both defendants argue that the evidence was insufficient to sustain the conviction as to either
count. As to count one, Sailors argues that “the most Jerry Sailors could be guilty of is poor
judgment and perhaps ethical impropriety in taking $5,000.00 from the contractor in this case.”
Saindon argues that this count “is based on nothing more that [sic] a business deal gone bad. It was
doomed from the start.”

        In considering this issue, we apply the familiar 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also 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); 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.”). 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


                                                  -13-
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 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. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        The defendants were alleged to have violated Tennessee Code Annotated section 39-14-103,
which provides that “[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.” The broad reach of this statute was explained in State v. Amanns, 2 S.W.3d 241,
243-44 (Tenn. Crim. App. 1999) (footnote omitted):

               In enacting a consolidated theft statute, "the objective is to define the
               crime broadly enough to include all vaguely separated theft offenses
               so that evidence of appropriation by any of the forbidden methods
               will support the charge." State v. Saylor, 228 Kan. 498, 618 P.2d
               1166, 1170 (1980); see also MODEL PENAL CODE § 223.1 (1980).
               Like charity, Tennessee's definition of theft covers a multitude of
               sins. The distinction between the various theft offenses is
               unimportant; the crime is complete when a person takes property,
               without the owner's consent with the intent to deprive the owner of
               the property. Thus, the charge of theft may be supported by proof of
               embezzlement, false pretense, fraudulent conversion and other
               statutory forms of larceny existing prior to the enactment of our
               current offense of theft. See Tenn. Code Ann. § 39-14-101 (1991).

        The defendants’ claims of insufficiency of proof for count one, the allegations of which were
based upon payments made by State Auto Insurance for repairs to McCoy’s residence, overlook
several important facts. First, the $45,570 check from State Auto Insurance dated January 7, 1994,
payable jointly to McCoy, First Tennessee Bank, and Saindon, and bearing a forged endorsement


                                                 -14-
of First Tennessee Bank was deposited into Saindon’s account on January 7, which was a Friday.
Three days later, on Monday, January 10, a $5000 check from Saindon Enterprises dated January 8,
1994, and payable to Sailors, was deposited into Sailors’ account. The forged endorsement of First
Tennessee Bank, the mortgagee, on the State Auto check enabled Saindon to receive immediately
the full amount of the check rather than having it disbursed by the mortgagee only as work was done.
From this proof, a reasonable jury could have concluded that the defendants committed theft against
State Auto Insurance. However, we agree with the defendants that the State failed to prove that the
amount stolen exceeded $10,000, as had been charged. Although the descriptions of the house as
abandoned by Saindon was that much work was undone, we cannot equate that fact with a specific
amount. Likewise, we cannot assume that the amount of the civil judgment obtained by McCoy
against Saindon necessarily translates into the amount of the theft from State Auto. However, we
agree with the State that the $5000 sum received by Sailors from Saindon from the proceeds of the
State Auto check for repairs to McCoy’s house establishes that the amount of the theft was at least
this sum. Accordingly, we modify both defendants’ convictions of theft over $10,000, a Class C
felony, as charged in count one, to theft over $1000, a Class D felony. We remand for a new
sentencing hearing as to count one.

         As to count two of the indictment, the defendants argue also that the State did not prove that
the amount of the theft exceeded $60,000. Their argument is bottomed upon the fact that if the
amount of the undone repairs to units 108, 208, and 301, the units belonging to owners who did not
testify at trial, is subtracted from the total, the total amount State Auto paid for undone repairs is less
than $60,000. While we agree with the defendants’ calculation, we disagree with their argument.
As we have previously determined, the trial court did not err in allowing the testimony of Richards
as to the repairs paid for but undone as to the units because a timely objection was not made to this
testimony. Thus, the evidence was sufficient as to the conviction of each defendant for theft over
$60,000, as alleged in count two of the indictment.

                                            CONCLUSION

       Based upon the foregoing authorities and reasoning, we modify the judgments of conviction
for count one as to both defendants, reducing the convictions to Class D felonies, and remand for
a new sentencing hearing. As to count two, we affirm the judgments of conviction as to both
defendants.


                                                          ___________________________________
                                                          ALAN E. GLENN, JUDGE




                                                   -15-
