            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE


                STATE OF TENNESSEE v. LISA MARIE GARREN

                   Direct Appeal from the Circuit Court for Blount County
                         No. C-10185    D. Kelly Thomas, Jr., Judge



                            No. E1999-02420-CCA-R3-CD - Decided
                                       April 25, 2000

A jury found the defendant, Lisa Marie Garren, guilty of misdemeanor theft of property. The proof
established that the defendant stole a red Mickey Mouse sweatshirt from Proffitts Department Store.
The defendant contends that the evidence is insufficient and that the trial court erred by imposing
a one-thousand-dollar fine. We hold that the evidence is sufficient and that the fine is not excessive.

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

TIPTON, J., delivered the opinion of the court, in which WADE, P.J., and OGLE , J., joined.

Raymond Mack Garner, District Public Defender, Maryville, Tennessee (At Trial); Julie A. Rice,
Knoxville, Tennessee (On Appeal), for the appellant, Lisa Marie Garren.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney,
for the appellee, State of Tennessee.

                                             OPINION

       The defendant, Lisa Marie Garren, appeals as of right from her conviction by a jury in the
Blount County Circuit Court for theft of property valued under five hundred dollars, a Class A
misdemeanor. The defendant received a suspended sentence of eleven months, twenty-nine days,
on probation and was fined one thousand dollars. She contends that the evidence is insufficient to
support her conviction and that the trial court erred by approving the jury’s fine. We affirm the
judgment of conviction.

        At trial, Terry Askin testified that he is the Loss Prevention Manager for Proffitts Department
Store in Foothills Mall. On January 21, 1997, he was patrolling the store dressed in plain clothes
when he noticed the defendant acting suspiciously. The defendant made a lot of eye movement and
was watching Liz Best, the sales associate in the Juniors Department. The defendant looked at Mr.
Askin a couple of times as well. She was accompanied by her teenage niece, Sarah, and was pushing
a baby in a stroller. Two large Sears bags were hanging on the stroller. Mr. Askin testified that the
bags were “fairly empty” and slightly translucent, revealing the color of items inside.

        Mr. Askin testified that the defendant selected two black sweatshirts, one red Mickey Mouse
sweatshirt, and two pair of Bongo jeans and laid them on the stroller. All items were on hangers,
and the defendant and her niece took the stroller with the items on top into the fitting room. Several
minutes later, the defendant’s niece left the fitting room, picked up a gray top on a hanger, and
carried the top into the fitting room. The defendant was in the fitting room for a total of fifteen
minutes. When she and her niece exited, Mr. Askin saw the defendant shove a red item into one of
the Sears bags. The defendant handed her niece two black sweatshirts, a gray top, and one pair of
jeans, which the niece then placed on the rack. The defendant went to the counter and exchanged
the remaining pair of jeans with a pair she had in her bag. The defendant and her niece then went
into the mall.

         Mr. Askin testified that he had his detective check the fitting room for the red sweatshirt but
that it was not found. Mr. Askin followed the defendant into the mall, and the defendant turned
around and asked Mr. Askin why he was following her. Mr. Askin explained to the defendant that
he needed to get the sweatshirt she had in her bag. Mr. Askin said that a mall security guard then
approached them and witnessed what happened. Mr. Askin said the defendant replied that she did
not know what he was talking about. The defendant became irate and stated that she was not a thief
and did not have a red sweatshirt. Mr. Askin testified that he had not previously mentioned that the
sweatshirt was red. He said that he could see the sweatshirt through the bag. He took the bag off
the stroller and pulled out the Mickey Mouse sweatshirt. Mr. Askin said that the shirt had a price
tag on it when the defendant took it into the fitting room but that the price tag was missing when he
pulled it out of the bag.

        Mr. Askin testified that he took the defendant and her niece to his office at Proffitts and
instructed another employee to call the police. He found children’s jeans in one of the Sears bags,
and the defendant told him she had exchanged the jeans earlier at Sears. After speaking with a Sears
employee, he determined that the jeans were not stolen. The defendant was very uncooperative and
would not sign a statement. She claimed to have purchased the sweatshirt at another store but could
not produce a receipt. Mr. Askin testified that the defendant’s niece stated that her family had a
lawyer in Florida who would “sue the pants off” him. Mr. Askin testified that although shoplifting
suspects are usually arrested at the store, the defendant was not arrested because they could not find
anyone to pick up the defendant’s baby. He said the police officer suggested that the defendant be
released and that a warrant would be taken out against her the next day. Mr. Askin stated that
although he could not technically tell the jury that the defendant did not have a red sweatshirt in her
bag upon entering the store, he saw the defendant enter the fitting room with a red sweatshirt and
leave without it being placed on a rack.

        Liz Best testified that she was working as a sales associate in the Juniors Department at the
time of the incident. She did not see the items that the defendant took into the fitting room. When
the defendant left the fitting room, the defendant’s niece placed jeans and tops on a rack. Ms. Best
exchanged Bongo jeans for the defendant, and the defendant had a receipt for the jeans. After the
defendant left the area, Ms. Best checked the jeans the defendant’s niece had placed on the rack and

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found two top hangers stuffed down the leg of one pair of jeans.

         The defendant testified that she purchased a red Mickey Mouse sweatshirt from Proffitts in
Athens about two weeks before the incident. She said that she purchased the sweatshirt with her
Proffitts charge card. She went to Foothills Mall on January 21 to exchange children’s jeans at Sears
and to exchange her Bongo jeans at Proffitts because they had a hole in them. She said that she
brought the Mickey Mouse sweatshirt with her because she thought she might exchange it for
something better. She tried on two or three pair of jeans and several tops, but she did not find
anything for which she wanted to exchange the sweatshirt. Her niece, Sarah, had gone into the
fitting room with her to try on clothes. The defendant testified that before Sarah left, she gave Sarah
all the clothing she had tried on to return to the racks, except one pair of Bongo jeans. She then left
the fitting room after Sarah, went to the cash register, and exchanged her jeans.

        The defendant testified that as she was walking through the mall, someone said something
from behind her. She turned around and saw Mr. Askin. She testified that when she asked him what
he had said, he replied, “yes, it’s too late to ditch it.” She said that when she asked him what he
meant, he told her it was too late to ditch the merchandise. She said she asked him why she would
do such a thing, and he replied, “Because it’s not yours.” She said that she asked him who he was
and that he told her he was a manager at Proffitts. She testified that she then pulled everything out
of her bag and told him that it was all paid for but that Mr. Askin grabbed all the merchandise and
claimed that it was his. The defendant said that she showed Mr. Askin her receipt but that he told
her receipts meant nothing. She said he started to crumble up the receipt, but she grabbed it from
him. The defendant admitted that she did not have her Proffitts charge card statement nor the
cancelled check showing payment of the bill.

        The defendant testified that she went with Mr. Askin to the Proffitts office and that Mr. Askin
cursed at her. She said that she denied stealing anything and that she finally got Mr. Askin to call
Sears to verify that the children’s jeans were not stolen. She said that Mr. Askin accused her of
stealing the Bongo jeans as well until the sales clerk verified that she had exchanged them. She said
that an officer was called in to arrest her but that when Mr. Askin was out of the room, she showed
the officer the sweatshirt and her receipt. She said that the sweatshirt still had the price tag on it.
She said that the officer told her he was going to let her go. The defendant said that when the officer
escorted her out of the room, she looked for her niece and baby, who were in the restroom. She said
that Mr. Askin clapped his hands and said, “We’ve got them now.” She said that he stated that he
knew it was Sarah all along and that he had four women check the bathroom, but nothing was found.
She testified that she went to Proffitts the next day to speak with Vice President Jim Pratt because
she wanted her sweatshirt returned. She testified that her niece has since moved to Virginia and that
she is unable to contact her.



         The defendant’s mother, Marie Bivens, testified that in January 1997, before the defendant’s
arrest, she accompanied the defendant to Proffitts in Athens. She said that the defendant bought a
red Mickey Mouse sweatshirt and used a credit card for the purchase.

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                           I. SUFFICIENCY OF THE EVIDENCE
        The defendant contends that the evidence is insufficient to support her conviction. She
argues that the evidence does not show that she is the person who took the sweatshirt but instead
points to her niece. She further argues that the state failed to prove that the sweatshirt was stolen.
The state contends that the evidence supports the defendant’s conviction.

        Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the
evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        Mr. Askin testified that he saw the defendant enter the fitting room with a red sweatshirt and
that as she was leaving, he saw her stuff a red item into her shopping bag. The defendant did not
return the red sweatshirt to a clothes rack when she left nor was it found in the fitting room. Instead,
it was found in the defendant’s shopping bag after she left the store. The defendant could produce
no receipt or credit card statement to support her claim that she purchased the sweatshirt at another
Proffitts. We hold that the evidence is sufficient to support the defendant’s conviction.

                                             II. FINE
        The defendant contends that the trial court erred by imposing a one-thousand-dollar fine.
She argues that the jury was confused about the fine amount and that the trial court imposed the
fine without considering the facts of the case or the principles of sentencing. The state contends
that the fine was properly imposed.

       The record reflects that when the jury returned a guilty verdict, the following colloquy
occurred between the jury foreperson and the trial court:
       THE COURT: And did the jury impose a fine?
       FOREPERSON: Minimum fine.
       THE COURT: Well, zero is the minimum fine.
       FOREPERSON: Zero is the minimum? A thousand dollars.
The record reflects that the trial court then asked each juror to raise his or her hand to verify that they
had agreed to a guilty verdict and a one-thousand-dollar fine and that all jurors raised their hands.
The defendant’s attorney then told the trial court that he was unsure whether the jurors had agreed
upon a one-thousand-dollar fine, and the trial court again asked them to raise their hands if they had
so agreed. The record shows that all the jurors raised their hands.

        The defendant first contends that the record is unclear whether each juror approved of the
fine. She argues that the record shows that the jury foreperson simply created the fine on his own,
without consulting the other jurors. However, our reading of the record leads us to conclude that
although the jury may have been confused about the minimum fine, the jurors all agreed upon a fine
of one-thousand dollars. The trial court ensured that the jurors had agreed upon that fine by asking

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them twice to verify it. We do not believe that the jury’s setting of the fine was improper.

        Next, the defendant contends that the trial court imposed the jury’s recommended fine
without considering the facts of the case and the principles of sentencing. She argues that this was
her first offense in over eight years, the item stolen was worth only thirty-six dollars, and her
potential for rehabilitation is great.

        Although the jury is to “fix” the amount of the fine and report it with the guilty verdict, it is
the trial court’s obligation to impose a fine not to exceed that fixed by the jury as part of the
sentence. See Tenn. Code Ann. § 40-35-301(b); State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim.
App. 1997). The trial court’s imposition of a fine should be based upon the factors and principles
of the 1989 Sentencing Act, such as prior history, potential for rehabilitation, financial means, and
mitigating and enhancing factors relevant to an appropriate, total sentence. See Bryant, 805 S.W.2d
at 766.

         Although the trial court did not place its findings on the record, we do not necessarily view
this to require a de novo review with no presumption of correctness. See generally State v.
Troutman, 979 S.W.2d 271, 274 (Tenn. 1998) (noting that for misdemeanor sentencing, a trial court
need not place its findings on the record but need only “consider the principles of sentencing and
enhancement and mitigating factors . . . .”). We believe that the record supports the trial court’s
imposition of the fine. The record shows that although the defendant does not have a lengthy
criminal history, she does have one prior conviction for driving under the influence. In addition,
although the defendant claims that her potential for rehabilitation is great, we note that at no time
has the defendant accepted responsibility for stealing the sweatshirt. See State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994) (holding that a defendant’s lack of truthfulness and failure
to accept responsibility for his crimes are circumstances germane to his rehabilitation potential).
With regard to the defendant’s ability to pay, the record does show that the defendant was declared
indigent. However, this does not preclude the imposition of a fine. This court has previously noted
that although “indigency may in certain cases justify no fine . . ., it must be considered with the other
relevant factors.” Blevins, 968 S.W.2d at 895. The record shows that the defendant earns
approximately one thousand dollars per month in wages and receives four hundred dollars per month
for child support. We do not believe that the defendant has shown the fine, well below the maximum
allowed, to be excessive.

       In consideration of the foregoing and the record as a whole, we affirm the judgment of
conviction.




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