         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE          FILED
                        AUGUST 1999 SESSION
                                                  October 12, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 01C01-9812-CC-00484
      Appellee,                  )
                                 )    BEDFORD COUNTY
VS.                              )
                                 )    HON. CHARLES LEE,
JASON KENNEDY FRAZIER,           )    JUDGE
                                 )
      Appellant.                 )    (Theft)



FOR THE APPELLANT:                    FOR THE APPELLEE:

THOMAS E. NANCE                       PAUL G. SUMMERS
200 East Depot Street                 Attorney General and Reporter
P.O. Box 103
Shelbyville, TN 37162                 ELIZABETH B. MARNEY
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      WILLIAM MICHAEL McCOWN
                                      District Attorney General

                                      MICHAEL D. RANDLES
                                      Assistant District Attorney General
                                      Bedford County Courthouse
                                      One Public Square, Suite 100
                                      Shelbyville, TN 37160- 3953




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                     OPINION




       A Bedford County jury found defendant guilty of theft of property over $1,000,

a Class D felony. In this appeal as of right, defendant claims the evidence was

insufficient to sustain the conviction. We find the evidence is sufficient to support

the verdict and AFFIRM the judgment below.




                                      FACTS



       The defendant was a route salesperson for the Anderson Austin News

Company (hereinafter “Anderson”), a magazine distributorship. His commission

was based upon the value of his deliveries, reduced by the magazines returned

to the distributorship. The fewer magazines returned, the more commission

defendant would make.



       Anderson became suspicious of defendant upon discovering a 100%

increase in Kroger’s sales. A sales manager followed defendant on April 10,

1998, and observed him throwing magazines in a dumpster near the Kroger

store. The vice-president and two sales managers from Anderson retrieved the

magazines from the dumpster and took them to the warehouse. They

determined that the retail value of the magazines was $1,606.13. Kroger was

credited $1,171.69, the amount they were charged for the discarded magazines.

The men confronted the defendant, and he admitted dumping the magazines.

Defendant was subsequently charged with theft of property over $1,000.



       The jury charge included definitions for theft over $1,000, theft between

$500 and $1,000, and theft under $500. The jury returned a guilty verdict of theft

over $1,000.




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                         DEFENDANT’S CONTENTIONS



       The defendant alleges the state failed to put forth sufficient evidence to prove

the statutory elements of the offense. Defendant argues: (1) the property was

taken with the consent of the owner, and (2) due to Anderson’s 40-50% markup on

the magazines, the value of the property was actually $900 or less and not the retail

amount of $1,606.13.




                        SUFFICIENCY OF THE EVIDENCE



       When an appellant challenges the sufficiency of the evidence, the standard

of review is whether, after viewing the evidence in the light most favorable to the

state, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.

1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

This Court will not reweigh the evidence, reevaluate the evidence, or substitute its

evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d

93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is

given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899

(Tenn. Crim. App. 1995).




                                     ANALYSIS

                                    A. Consent




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      Defendant claims the state failed to prove the property was taken without the

owner's consent. At trial, the State presented testimony from the vice-president of

Anderson and both of defendant's supervisors. All three testified they never gave

defendant permission to discard the magazines. It is also apparent that Kroger did

not give its consent to discard the magazines, since Kroger would suffer a loss of

credit in excess of $1,000.



      Prior law contained numerous separate offenses involving theft. See Tenn.

Code Ann. §§39-3-1103 (1982) (grand and petit larceny); 39-3-1106 (1982) (larceny

from the person); 39-3-1112,1113 (1982) (receiving and concealing stolen property);

39-3-1118 (1982) (fradulent appropriation by one having custody); and 39-3-1121

(1982) (embezzlement). The 1989 Criminal Code abolished the distinctions among

these various offenses and denominated them as the single offense of “theft”.

Tenn. Code. Ann. §39-14-101 (1997). The actions of the defendant clearly

constituted a theft under Tenn. Code Ann. §39-14-103 (1997).



                              B. Value of Property



      Defendant also claims the value of the magazines, for purposes of the theft

statute, should be the cost attributed to Anderson and not the retail value of the

magazines. Defendant elicited testimony from the company's office manager that

there was a 40-50% markup on magazines over the company's cost.                 The

defendant claims this puts the value of the magazines at $900 or less, below that

necessary to prove the charged offense.



      The statutory definition of value is fair market value at the time and place of

the offense. See Tenn. Code Ann. §39-11-106(a)(36)(A)(i). The statute states that

when the fair market value cannot be ascertained, the value is the cost of

replacement. See Tenn. Code Ann. §39-11-106(a)(36)(A)(ii). The defendant

maintains there is no way to determine the fair market value of the magazines. He



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argues that the magazines were not going to be resold, and even if they were,

Anderson would only lose the amount they paid to purchase the magazines from the

publisher.



       Valuation is an issue for the jury, and there was sufficient evidence for the

jury to determine the value of the property. Testimony indicated the retail value of

the magazines was $1,606.13. If the defendant’s crime had gone undetected,

Kroger would have lost $1,171.69, since the discarded magazines would not be

returned for proper credit. Furthermore, upon receiving the discarded magazines,

Anderson issued Kroger a credit for this amount.        Therefore, the jury heard

sufficient evidence to conclude the defendant was guilty of theft of property over

$1,000.



       We further conclude that it is insignificant in this case whether Kroger or

Anderson was actually the “owner” of the magazines. In any event there was clearly

a theft over $1,000 in value. In addition, the allegation in the indictment that the

property belonged to Anderson would not be a fatal variance even if Kroger were

determined to be the “owner”. See Stafford v. State, 489 S.W.2d 46, 47 (Tenn.

Crim. App. 1972) (finding no fatal variance where owner named in indictment was

agent, bailee or trustee of actual owner); see generally State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984).




      We find no reason to disturb the verdict. The evidence was sufficient to

sustain the conviction. Thus, we AFFIRM the judgment of the trial court.




                                                _________________________
                                                JOE G. RILEY, JUDGE




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CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




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