             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE                FILED
                            DECEMBER 1998 SESSION
                                                              March 2, 1999

                                                           Cecil W. Crowson
STATE OF TENNESSEE,            )                          Appellate Court Clerk
                               )
             Appellee,         )    No. 01C01-9804-CR-00151
                               )
                               )    Putnam County
v.                             )
                               )    Honorable John Turnbull, Judge
                               )
TRACY HAMILTON,                )    (Theft of property valued under $500)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

Randy Chaffin                       John Knox Walkup
100 S. Jefferson Ave.               Attorney General of Tennessee
P.O. Box 529                               and
Cookeville, TN 38503-0529           Daryl J. Brand
(AT TRIAL & ON APPEAL)              Assistant Attorney General of Tennessee
                                    425 Fifth Avenue North
Craig P. Fickling                   Nashville, TN 37243-0493
9 S. Jefferson, Suite 101
Cookeville, TN 38501                William Edward Gibson
(ON APPEAL)                         District Attorney General
                                            and
                                    Lillie Ann Sells
                                    Assistant District Attorney General
                                    145 S. Jefferson Ave.
                                    Cookeville, TN 38501-3424




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



             The defendant, Tracy Hamilton, appeals as of right following her

conviction by a jury in the Putnam County Criminal Court of theft of property valued

under five hundred dollars, a Class A misdemeanor. She was sentenced to eleven

months and twenty-nine days with forty-five days to be served in the county jail and the

remainder to be served on probation. She was fined one thousand dollars. The

defendant contends that the evidence is insufficient to support her conviction and that

the trial court erred in sentencing. We affirm the judgment of conviction.



             At the trial, Sharlene Lawson testified that in March 1996, she worked in

loss prevention for the Wal-Mart in Putnam County. She said that on March 27, 1996,

she saw the defendant and Alice Mertz, a codefendant, enter the store. She said the

defendant put her purse in the small part of a shopping cart, and she and Mertz went to

the Women’s Department. She said the defendant and Mertz picked up two dresses,

placed them over the purse in the cart, and went to the Electronics Department. She

said that electronics are in an enclosed department. She said the defendant and Mertz

picked up five videotapes and placed them in the small part of the cart on top of the

clothes. She said the women went to the end of the electronics aisle, then went up and

down the aisle three times. She said she lost sight of the videotapes and could see

only the clothes. She said the defendant and Mertz pushed the cart through the store,

and she followed them until they stopped in an aisle. She said she saw Mertz open her

jacket and drop the videotapes into the defendant’s purse.



             Ms. Lawson testified that she had called for members of management to

assist her. She said that when two members of management walked by the defendant

and Mertz, the defendant put her purse on her shoulder, Mertz closed her jacket, and

the women walked away from the cart. She said she told management that she had



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seen concealment and wanted to stop the defendant and Mertz. She said the

defendant and Mertz were walking fast at this point. She said she stopped the women

and told them to return the videotapes. She said the defendant told her she was going

to put the videotapes on layaway. She said the defendant started to cause a

commotion, and she took the women to the store office and called the police.



                 On cross-examination, Ms. Lawson testified that the dress that the

defendant picked up would have fit the defendant. She said that it is normal for

shoppers to put things in their carts, and there is nothing wrong with shoppers moving

between the departments. She said that it is not uncommon for people to put items in

their carts then leave the carts. She said that when she confronted the defendant, the

defendant was approximately one hundred feet from the layaway counter. She said

she remembered that during the preliminary hearing, she was asked to fit the

videotapes into the defendant’s purse, and she had a difficult time making them fit.



                 Tammy Dodson, a Wal-Mart employee, testified that Ms. Lawson asked

her to help watch the defendant and Mertz. She said she waited for the women to

come out of the Electronics Department and when they did, she saw clothes on top of

their cart, but she did not see any videotapes. She said she followed the women

through the store until they stopped in the Housewares Department. She said she saw

the defendant open her purse and Mertz open her coat. She said that when Mertz

opened her coat, the defendant began fumbling with the top part of the cart. She said

that when she and Lawson approached the women, the defendant walked briskly away

from the cart.



                 On cross-examination, Ms. Dodson testified that videotapes are not

supposed to be taken out of the Electronics Department, and there is a sign in the store

that states this policy. She said that videotapes should be paid for in the Electronics



                                              3
Department. On redirect examination, she said that when she and Ms. Lawson

confronted the defendant, the videotapes were in the process of coming out of the

defendant’s purse.



              Virginia Wilkerson, a Wal-Mart employee, testified that she saw the

defendant and Mertz come out of the Electronics Department pushing a cart with

clothes on top of the cart. She said she saw Mertz open her coat, and the defendant

was fumbling with her purse. She said that when Ms. Lawson and Ms. Dodson

approached the women, the defendant put her purse on her shoulder and acted like

she was going to run. On cross-examination, she said she never saw the defendant put

the videotapes in her purse, and the defendant walked away quickly when confronted

by Lawson and Dodson.



              Michael Hannah, an assistant manager at Wal-Mart, testified that he saw

the defendant and Mertz in the Housewares Department. He said that when he walked

by the women, he did not see any videotapes, and the women walked away in different

directions and looked anxious. He said that after Ms. Lawson confronted the

defendant, he saw the videotapes in the defendant’s purse. He said the purse was

open, and the tapes were sticking out of the purse.



              Sam Harris testified that he represented the defendant at the preliminary

hearing. He said that Ms. Lawson was the only witness to testify at the preliminary

hearing, and she identified a purse the defendant brought to the hearing as the purse

the defendant was carrying at Wal-Mart on the day of the incident. He said he asked

Ms. Lawson to put the videotapes in the defendant’s purse, and she had to struggle to

make them fit. He said it took Ms. Lawson between twenty seconds and a minute and

one-half to get the videotapes in the purse. He said that Ms. Lawson had to use both

hands, and it was a tight fit.



                                           4
              The defendant testified that she and Alice Mertz went to Wal-Mart, and

each picked out a dress in their respective sizes before going to the Electronics

Department. She said she had two children and collected Disney videotapes. She said

she was looking for the Pocahontas videotape that day. She stated she did not find the

videotapes in electronics but rather on a display near the checkout. She said she

picked up three videotapes and put them in the cart beside her purse, then she and

Mertz went to the Housewares Department. She said she decided to put the

videotapes on layaway because she did not have enough money to pay for everything.

She said she unzipped her purse to see how much money she had, and Mertz was

fumbling with her jacket pocket to see how much money Mertz had. She said Mertz

was eating a candy bar and kept taking the candy bar out and putting it back in her

jacket pocket. She said she and Mertz were suddenly bombarded by security, and she

picked up the videotapes and her purse. She said she left her cart sitting in the aisle

because she was checking to see if she had enough money. She said she did not

intend to steal the videotapes. She said Ms. Lawson ripped her purse at the preliminary

hearing by trying to make the videotapes fit in it.



              On cross-examination, the defendant testified that when she went to the

store office, she requested that the police be called. She said she refused to give the

store personnel any information because she had done nothing wrong.



              In rebuttal, the state called Sharlene Lawson. Ms. Lawson testified that

there were no videotapes located outside of the Electronics Department on the day the

defendant was in the store.



                          I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is insufficient to support her

conviction for theft. Specifically, she argues that the evidence presented is



                                              5
circumstantial, and there is no proof that the defendant intended to steal the

videotapes. The state contends that the evidence is sufficient to support the 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).



             Viewing the evidence in this light, we hold that it is sufficient. The crime of

theft of property requires proof that the defendant knowingly obtained or exercised

control of property without the owner’s consent and with the intent to deprive the owner

of the property. T.C.A. § 39-14-103. The proof showed that the defendant and Mertz

picked up videotapes and placed them in their cart on top of the clothing they had

previously selected. They stopped the cart in the Housewares Department, and Mertz

opened her jacket and deposited the videotapes into the defendant’s purse. When

Wal-Mart employees walked by the defendant and Mertz, the women left the cart in the

aisle, and the defendant took her purse and quickly began to walk away before she was

apprehended. Although the defendant claims she did not intend to steal the videotapes

and was taking them to the layaway counter, the jury was entitled to discredit her

testimony and accredit the testimony of the state’s witnesses. The evidence is

sufficient to support a finding beyond a reasonable doubt that the defendant knowingly

obtained or exercised control over the videotapes with the intent to deprive Wal-Mart of

them.




                                            6
                                    II. SENTENCING

              The defendant contends that the trial court imposed an excessive

sentence and that she should have been granted full probation. The state responds

that the defendant was properly sentenced.



              At the sentencing hearing, Tim Cook testified that he prepared the

defendant’s presentence report. He said the defendant has a 1995 conviction for theft

and was on probation for that offense when she committed the offense in the present

case. He said the defendant told him that she does not work because she has asthma

and that she receives disability payments. Cook said the defendant has two children.



              Tammy Dodson testified that the year before the sentencing hearing, the

Wal-Mart in Putnam County lost approximately five hundred twenty-four thousand

dollars to theft. She said she was familiar with the defendant because management

had suspected the defendant of shoplifting from Wal-Mart on a previous occasion. She

recommended that the defendant receive the maximum sentence. On cross-

examination, she said that the value of the videotapes was around one hundred dollars.



              Michael Hannah testified that shoplifting affects every employee at Wal-

Mart because the employees receive a bonus based on the store’s profitability. He said

that shoplifting results in higher prices for consumers.



              The presentence report reflects that the then twenty-seven-year-old

defendant has a prior conviction for theft valued under five hundred dollars in 1995 and

that she was on probation for that offense when she committed the offense in the

present case. The report reflects that the defendant quit school in 1986 and has had

no other education or training. It states that the defendant said she has asthma and

draws disability, thus she has no work history.



                                             7
              In sentencing the defendant, the trial court applied the following

enhancement factors, as listed in T.C.A. § 40-35-114:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those necessary
              to establish the appropriate range;

                (2) The defendant was a leader in the commission of an
                offense involving two (2) or more criminal actors;

                (8) The defendant has a previous history of unwillingness to
                comply with the conditions of a sentence involving release in
                the community.

The trial court found the following mitigating factor, as listed in T.C.A. § 40-35-113:

                (1) The defendant’s criminal conduct neither caused nor
                threatened serious bodily injury.

The trial court also considered in mitigation the fact that the defendant has small

children at home and has health problems. See T.C.A. § 40-35-113(13). In denying full

probation, the record indicates that the trial court considered the need to avoid

depreciating the seriousness of the offense, the need for deterrence, and the

defendant’s untruthfulness at trial.



              Generally, appellate review of sentencing is de novo on the record with a

presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d),

-402(d). As the Sentencing Commission Comments to T.C.A. § 40-35-401(d) note, the

burden is now on the appealing party to show that the sentence is improper. We note

that there is no presumptive minimum sentence provided by law for misdemeanors.

See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However,

the sentence must comply with the misdemeanor sentencing requirements of the

Criminal Sentencing Reform Act of 1989. See State v. Palmer, 902 S.W.2d 391, 393

(Tenn. 1995).



              The defendant contends that her sentence is excessive and that she

should have received full probation. However, her only argument is that there is little



                                             8
evidence to support the trial court’s conclusion, while the evidence supports her position

that a period of incarceration would not serve the purposes of the 1989 Sentencing Act.

She does not explain how the trial court erred nor why her sentence does not serve the

purposes of the Sentencing Act. The record in this case reflects that the trial court

followed the requirements of the Sentencing Act. The applicable enhancement factors

more than justify the sentence imposed. The defendant has failed to show that the

sentence is improper.



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

judgment of conviction.



                                                ________________________________
                                                Joseph M. Tipton, Judge



CONCUR:

_______________________
John H. Peay, Judge



_______________________
Norma McGee Ogle, Judge




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