         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE          FILED
                            MARCH 1998 SESSION
                                                        June 25, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                     )     C.C.A. 03C01-9704-CC-00150
                                        )     ANDERSON COUNTY
                                        )
             Appellant,                 )     Hon. James B. Scott, Judge
                                        )
vs.                                     )     (Auto Burglary & Theft)
                                        )     No. 95CR0053
GORDON SCOTT KATZ,                      )
                                        )
              Appellee.                 )



FOR THE APPELLANT:                            FOR THE APPELLEE:


JOHN KNOX WALKUP                              J. THOMAS MARSHALL, JR.
Attorney General & Reporter                   District Public Defender

MICHAEL J. FAHEY, II                          NANCY MEYER
Assistant Attorney General                    Assistant Public Defender
Cordell Hull Building - 2nd Floor             101 South Main Street
425 Fifth Avenue North                        Suite 450
Nashville, TN 37243                           Clinton, TN 37716

JAMES N. RAMSEY
District Attorney General

JAN HICKS
Assistant District Attorney
127 Anderson County Courthouse
Clinton, TN 37716


OPINION FILED:_______________


REVERSED



CORNELIA A. CLARK
Special Judge




                                    OPINION
       The State of Tennessee appeals from the action of the trial court

granting defendant’s motion for judgment of acquittal after a jury convicted the

defendant of auto burglary and theft of property under $500.00. The judgment

of the trial court is reversed.

       The defendant, Gordon Scott Katz, and the victim, Alicia Miller, dated

off and on for several years prior to September 1994. During the course of

that stormy relationship defendant presented the victim with several gifts of

jewelry. A pattern developed between the two that when they would argue, the

defendant would request and the victim would return the items of jewelry.

When the parties reconciled, defendant would return the items to the victim.

On one prior occasion the defendant executed a receipt to the victim

confirming her ownership of the items in question.

       On September 2, 1994, the victim parked her car at the Oak Ridge Mall

and reported to work as usual at the County Seat apparel store. She locked

the car. Inside the car was a box containing gold bracelets and earrings. Later

that day defendant came into the store where the victim worked and began an

argument. He ultimately was required to leave the store. Because of that

altercation, when the victim got off work she asked a security guard to

accompany her to her car. She discovered the defendant curled up in the

back of her car. When he climbed out, he had some gold jewelry in his hand.

Defendant had used a coat hanger to gain entry to the car. However, the

victim asked the security guard not to take any action, and the defendant was

permitted to leave the area. He took some jewelry with him.

       Later that night the defendant appeared at the victim’s grandparents’

home, where she resided. The police were summoned at that time and the

defendant was arrested and charged with auto burglary and theft.

       On December 1, 1995, parties and counsel submitted a plea agreement

to the court. Under this agreement the defendant would have plead guilty to

                                       2

criminal trespass. The theft charge would have been dismissed. An agreed

sentence recommendation also was made. Because this agreement was
presented past the trial court’s plea deadline, the judge declined to accept it.

The State then attempted to enter a nolle prosequi, but the trial judge

apparently declined to accept that action as well.

       A jury trial was conducted December 5, 1995. At the close of the

State’s proof defendant moved for a judgment of acquittal. The trial court

denied the motion subject to renewal at the close of the defense proof. The

defendant elected not to put on proof. He rested and renewed his motion.

The court took the motion under advisement until after the jury returned a

verdict. The jury found the defendant guilty of both auto burglary and theft

under a value of $500.00. Defendant then renewed his motion for judgment of

acquittal.

       The court conducted a hearing on this motion on July 19, 1996. On

October 11, 1996, the court announced its ruling granting the motion for

judgment of acquittal. The State appeals this decision as of right.

       A motion for judgment of acquittal raises a question of law for the trial

court’s determination. State v. Hall, 656 S.W. 2d 60, 61 (Tenn. Crim. App.),

perm. app. denied (Tenn. 1983). In resolving this question, the trial court’s

only concern is the legal sufficiency of the evidence. Id. The trial court is not

permitted to weigh the evidence in reaching its determination. Id; see also

State v. Adams, 916 S.W. 2d 471, 473 (Tenn. Crim. App. 1995). In

determining whether the evidence is sufficient to sustain a conviction post-trial,

the trial court must consider the evidence in the light most favorable to the

State of Tennessee. State v. Thompson, 549 S.W. 2d 943, 946 (Tenn. 1977);

State v. Stowe, 634 S.W. 2d 674, 675 (Tenn. Crim. App. 1982). The trial court

must afford the State all reasonable and legitimate inferences that may be

drawn from the evidence adduced in favor of the State’s theory. Thompson,

549 S.W. 2d at 946; Stowe, 634 S.W. 2d at 675.

                                        3



       An appellate court must apply the same standard when resolving issues

predicated upon the grant of a motion for judgment of acquittal. State v.

Adams, 916 S.W. 2d 471, 473 (Tenn. Crim. App. 1995). If there is any dispute

as to material determinative evidence or any doubt as to the conclusion to be
drawn from the evidence of the State, the motion for judgment of acquittal

should be overruled. State v. Hall, 656 S.W. 2d 60, 61 (Tenn. Crim. App.

1983).

         The indictment in this case charged the defendant with theft as follows:

                                     COUNT 2

        Gordon Scott Katz heretofore, to wit, on or about the 2nd day of
September, 1994 before the finding of this indictment, in the County aforesaid,
did then and there unlawfully and knowingly obtain property, to wit: two
bracelets and three pairs of earrings, valued at less than $500.00, of Alicia
Miller, without her effective consent, with intent to deprive the said Alicia Miller
thereof, in violation of TCA 39-14-103.


Before an accused can be convicted of theft under a value of $500.00 the

State of Tennessee must prove beyond a reasonable doubt that (1) he

knowingly obtained property owned by the victim, (2) he did not have the

owner’s effective consent, (3) he intended to deprive the owner of the

property, and (4) the value of the property did not exceed $500.00. Reviewing

the evidence in the light most favorable to the State, it is clear that the

defendant knowingly entered the victim’s automobile and took property

belonging to her without her prior knowledge or effective consent. Certain of

the jewelry items were never recovered, so the victim has permanently been

deprived of them. While some dispute exists about the total value of the

various pieces of jewelry, the state is not contending that defendant should be

convicted of any higher grade of theft.

        The indictment in this case charged the defendant with auto burglary as
follows:
                                    COUNT 1
        Gordon Scott Katz heretofore, to wit, on or about the 2nd day of
September, 1994 before the finding of this indictment, in the County aforesaid,
did then and there unlawfully enter the automobile of Alicia Miller, without her
effective consent, with intent to commit a felony to wit: theft, all in violation of
TCA 39-14-402.



                                          4

Before this defendant can be convicted of auto burglary, the State of

Tennessee must prove beyond a reasonable doubt that (1) he entered an

automobile, (2) with” the intent to commit a felony, to wit: theft,” (3) without the

effective consent of the owner, and (4) that he acted either intentionally,

knowingly, or recklessly. The primary issues as to this count turn on whether
(1) the victim was the “owner” of the vehicle, (2) the defendant had the victim’s

effective consent when he entered her car and took her property, and/or (3) he

intended to commit a felony theft.

       Defendant contends that a conviction for auto burglary cannot be

sustained because the vehicle in question belonged not to the victim, Alicia

Miller, but to her mother. The victim testified that although her mother was the

title owner of the vehicle in question, she “used it all the time” with her mother’s

permission. She actually testified “It’s my vehicle.” Her mother agreed that her

daughter used the car “pretty much all the time.” Tenn. Code Ann. §39-14-401

(3) defines “owner” to mean a “person in lawful possession of property,

whether the possession is actual or constructive.” In this case Alicia Miller

clearly falls within that definition of “owner”. This issue is without merit.

       Defendant next contends that the proof is insufficient that he committed

the burglary with “intent to commit a felony, to wit: theft”. He ultimately was

charged only with the misdemeanor offense of theft under $500.00 and the

evidence admitted at trial supported a valuation below $500.00. Criminal intent

is a matter to be determined by the jury after a consideration of all the facts

and circumstances. State v. Holland, 860 S.W. 2d 53, 59 (Tenn. Crim. App.

1993). The jury ultimately found that defendant committed a theft after

entering the automobile. The only distinction between felony theft and

misdemeanor theft is the value of the property taken. Here the jury apparently

concluded that the defendant did enter the car for the purpose of committing a

theft of property valued over $500.00. There were items and pieces of jewelry

                                          5




available there in addition to the ones that were taken. The fact that the actual

amount of property with which the defendant left may have been valued at

less than $500.00 does not affect the jury’s right to make this determination.

Even if other reasonable inferences could be drawn from the surrounding facts

and circumstances, this would not be a proper inquiry for this court. The

adoption or exclusion of potential inferences based on the circumstantial

evidence is a question within the jury’s prerogative. State v. Boling, 840 S.W.
2d 944, 947 (Tenn. Crim. App. 1992). This issue is without merit.

       Defendant also contends that he had the effective consent of the victim

to enter her car and take her jewelry. Effective consent is “assent in fact,

whether express or apparent . . . “ This case represents one of those all-too-

familiar fact scenarios where romantic entanglements overcome judgment.

The evidence in this case turns mostly on the testimony of the alleged victim,

Alicia Miller, and the original investigating police officer, Dan Freytag. Certain

facts are undisputed. The defendant and victim had an encounter at the

victim’s place of employment several hours before the alleged burglary took

place. A disagreement of some kind ensued, and the defendant was

requested to leave the premises. Thereafter, without the prior knowledge or

consent of the victim, he used a coat hanger to gain access to her vehicle,

secreted himself in the vehicle, and took into his possession certain items of

her jewelry that were in the vehicle. The victim was concerned enough about

the prior incident that she asked a security guard to accompany her to her car

when she finished work several hours later. When the victim and guard

discovered the defendant in her car, the victim was concerned about his

presence and the smell of alcohol that surrounded him, but she did not wish to

press charges. At that time, however, she had not become aware of the use of

the coat hanger or that he had taken the jewelry items with him when he left

the car. Several hours later the defendant appeared at the victim’s

grandparents’ home and another altercation ensued. While the victim testified

that even at this point she did not seek the assistance of the police, nor want

the defendant prosecuted, Officer Freytag testified unequivocally that the

victim did want the victim arrested. He also testified that she called him

                                         6

numerous times after that to inquire about the status of the case, and that she

indicated each time her desire that he be prosecuted. The victim testified that

she did not recall ever asking that the defendant be prosecuted. She

acknowledged that she had dated the defendant again since the original

events in question. As of the day of trial, she stated that she did not wish him

to be convicted of any offense.

       The jury had the right to accept Officer Freytag’s testimony that it was

the victim herself who initially requested that defendant be arrested, and that
she persisted in that desire for some period of time. He said she called him

eight or ten times to check on the case, even asking to have the defendant

arrested again. The proof of her lack of consent is sufficient to support the

jury’s conviction of both offenses in this case.

       Defendant also contends that the absence of a transcript of the hearing

on the motion for judgment of acquittal requires this court to presume that the

ruling of the trial court was correct. It is the duty of the appellant to prepare a

record which “conveys a fair, accurate, and complete account of what

transpired in the trial court with the respect the issues which form the basis of

his appeal.” Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W. 2d 557, 560

(Tenn. 1993)(citation omitted). An appellate court is precluded from

considering the merits of an issue where relevant material is absent from the

record. Id. However, nothing that transpired in oral argument at the hearing on

July 19 is determinative of the issues concerning sufficiency of the evidence

presented at trial. Therefore, this defect is not fatal to the state’s case.

       The judgment of the trial court is reversed. This case is remanded for

further proceedings in accordance with this opinion.



                                    __________________________
                                    CORNELIA A. CLARK
                                    SPECIAL JUDGE
CONCUR:

____________________________
JOHN H. PEAY
JUDGE

____________________________
PAUL G. SUMMERS
JUDGE
                                7
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE

                             MARCH 1998 SESSION




STATE OF TENNESSEE,                        )       C.C.A. 03C01-9704-CC-00150
                                           )       ANDERSON COUNTY
                                           )
              Appellant,                   )       Hon. James B. Scott, Judge
                                           )
vs.                                        )       (Auto Burglary & Theft)
                                           )       No. 95CR0053
GORDON SCOTT KATZ,                         )
                                           )
              Appellee.                   )




                                   JUDGMENT


        Came the appellant, the State of Tennessee and also came the attorney
on behalf of Gordon Scott Katz, and this case was heard on the record on
appeal from the Criminal Court of Anderson County; and upon consideration
thereof, this court is of the opinion that there is reversible error in the judgment
of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is REVERSED, and the case is remanded to the Criminal Court
of Anderson County for further proceedings in accordance with this opinion.

       Costs of this appeal will be paid by the State of Tennessee.

                                           PER CURIAM

                                           John H. Peay, Judge
                                           Paul G. Summers, Judge
                                           Cornelia A. Clark, Special Judge
