IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1999 FILED
June 9, 1999
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9805-CR-00224
Appellee )
) DAVIDSON COUNTY
vs. )
) Hon. Seth Norman, Judge
DAVID E. SMITH, JR., )
) (Theft of Property over $1000)
Appellant )
For the Appellant: For the Appellee:
Jeffrey A. DeVasher Paul G. Summers
Asst. Public Defender Attorney General and Reporter
1202 Stahlman Building
Nashville, TN 37201 Marvin E. Clements, Jr.
Assistant Attorney General
(ON APPEAL) Criminal Justice Division
425 Fifth Avenue North
Karl Dean 2d Floor, Cordell Hull Building
Public Defender Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
Stephen G. Young District Attorney General
Joseph E. Clifton
Asst. Public Defenders Pamela Anderson
1202 Stahlman Building Asst. District Attorney General
Nashville, TN 37201 Washington Sq., Suite 500
222-2nd Avenue North
(AT TRIAL) Nashville, TN 37201
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, David E. Smith, Jr., appeals the verdict of a Davidson County
jury finding him guilty of one count of theft of property over $1,000, a class D felony.
For this offense, the appellant received a two year suspended sentence. On
appeal, the appellant challenges the sufficiency of the convicting evidence and
contends that the trial court erred by denying his request for judicial diversion.
Finding no errors of law requiring reversal, we affirm.
Background
During the early morning hours of September 16, 1996, Metro Police Officer
Michael Eva responded to a reported robbery at the Hardee’s Restaurant located at
5775 Old Hickory Boulevard, Nashville. Upon his arrival, he was met at the door by
employee David E. Smith, the appellant in this case.1 The appellant reported that
he had been robbed.
When questioned by Officer Eva, the appellant related that the perpetrator
forced his way through a side door on the south side of the building. He stated that
the perpetrator ordered him to get underneath a desk in the manager’s office. The
appellant remained beneath the desk while the perpetrator opened the combination
safe and took one deposit bag. Additionally, he described the perpetrator as a white
male, wearing gloves, a black ski mask, shorts, and a red and blue light weight
jacket. When Officer Eva inspected the alleged door of entry, he observed that the
door was still locked and he detected no signs of forcible entry. Additionally, Officer
Eva did not observe any indication that the safe had been forcibly entered. Because
1
The appellant was the “clean-up” person at the Hardee’s location. The proof was
undispu ted that he would be the only pers on in the re stauran t from c losing tim e at 10:00 p.m.
until he finishe d cleanin g the fac ility.
2
the safe was closed, Officer Eva contacted W anda Keith, the store manager,
requesting that she come to the store to open the safe. The proof established that
only a store manager had knowledge of the safe’s combination. When the safe was
opened, it was determined that one deposit bag was stolen containing $2526.
Moreover, Officer Eva discovered that “there were two other deposit bags in the safe
that [weren’t] taken. . . ,” containing approximately $ 1200. The appellant reported
that the incident occurred at approximately 1:10 a.m. The incident was not reported
to law enforcement authorities until 1:50 a.m., a forty minute lapse from the reported
time of occurrence. In an attempt to explain the time lapse, the appellant told
Officer Eva that “he didn’t know what to do.” Officer Eva then instructed dispatch to
release information regarding the robbery and the description of the alleged
perpetrator to all patrol cars in the area.
Due to various inconsistencies between the appellant’s statements and the
contradictory physical evidence at the scene, he became a suspect in the
investigation. After Officer Eva informed the appellant of his rights, the appellant
responded, “Okay. Now, I’m going to tell you the truth.” The appellant abandoned
his original version of events and related that, approximately four days prior to the
incident, Mark Henley, a recently fired manager at Hardee’s, contacted him “to help
him steal some money from the business.” The appellant reported that, despite his
unwillingness to cooperate with Henley, Henley continued to contact the appellant
regarding his plan. The appellant stated that Henley came to Hardee’s on the night
of the incident. Henley beat on the door until the appellant, out of his fear of Henley,
let him inside. Henley then went to the safe, opened it, and took the deposit bag. 2
Notwithstanding his prior affirmation that he was going to “tell the truth,” he again
changed his story. He stated that “he did agree to let Mark Henley in the business
2
The appellant later admitted and independent police investigation confirmed the
similarities between the appellant’s initial description of an anonymous p erpetrator and Mark
Hen ley.
3
to take the money, and that Mark Henley told him to come to his house when he got
off work to get his half of the money.”
After the appellant’s implication of Henley in the crime, Officer Mark Webb
proceeded to the residence of Henley. A search of Henley’s home did not reveal
the stolen deposit bag from Hardee’s. Moreover, officers also determined that
Henley’s vehicle was not in operating condition and observed that a heavy dew had
formed on the car indicating that it had not been moved recently.
At trial, the appellant offered a somewhat modified version of his previous
statements to the police. He again related that Henley had pestered him about
“helping [Henley] rob the store.” On the night of the theft, Henley appeared at the
restaurant and the appellant testified that he permitted Henley to enter only because
he feared Henley would somehow harm his family.
It is undisputed that the appellant did not have a key to the Hardee’s building
and that he did not know the combination to the safe. It is also uncontested that
Mark Henley, a former manager at Hardee’s did know the combination to the safe,
although he did not have a key to the building. The deposit bag containing
approximately $2526 was never recovered.
Based upon this evidence, the jury found the appellant guilty of theft of
property over $1000.
I. Sufficiency of Evidence
The appellant first contends that the evidence introduced against him at trial
is insufficient as a matter of law to support a conviction for theft of property over
4
$1000. The appellant’s argument is two-fold: (1) “the State’s evidence is entirely
circumstantial and does not exclude every reasonable hypothesis except that of his
guilt;” and (2) “the evidence does not prove beyond a reasonable doubt that he was
criminally responsible for the conduct of Mark Henley, the person who, according to
the uncontroverted proof in this case, took the money from the safe at the
restaurant.”3
Initially, a defendant is cloaked with the presumption of innocence. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). However, a jury conviction removes this
presumption of innocence and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is
insufficient. Id. In determining the sufficiency of the evidence, this court does not
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn.1978). On appeal, the State is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which may be drawn therefrom.
State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). It is the appellate court's duty to
affirm the conviction if the evidence viewed under these standards was sufficient for
any rational trier of fact to have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994); Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990).
Circumstantial evidence alone may be sufficient to support a conviction. See
State v. Buttrey, 756 S.W.2d 718, 821 (Tenn.Crim.App.1988); State v. Cooper, 736
S.W.2d 125, 129 (Tenn.Crim.App.1987); State v. Gilliam, No. 01C01-9603-
3
The appellant has failed to include a transcript of the jury instructions given in the present
case. As such, we assume that the trial court properly instructed the jury on the theory of criminal
respon sibility.
5
CC-00105 (Tenn.Crim.App. at Nashville, May 7, 1997) (for publication). However, if
a conviction is based purely on circumstantial evidence, the facts and circumstances
must be so overwhelming as to exclude any other explanation except for the
defendant's guilt. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn.1987); Cooper, 736
S.W.2d at 129. In addition, "it must establish such a certainty of guilt of the
accused as to convince the mind beyond a reasonable doubt that the [appellant] is
the one who committed the crime." Tharpe, 726 S.W.2d at 896. When reviewing
the sufficiency of circumstantial evidence, this court must remember that the jury
decides the weight to be given to circumstantial evidence and that "[t]he inferences
to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence are questions primarily for the
jury." Gilliam, No. 01C01-9603-CC-00105 (citations omitted).
In order to obtain a conviction for theft of property over $1000, the State must
show, beyond a reasonable doubt, that "a person ..., with intent to deprive the owner
of property, ... knowingly obtains or exercises control over the property without the
owner's effective consent." Tenn. Code Ann. § 39-14-103 (1991); Tenn. Code Ann.
§ 39-14-105(3) (1991). Additionally, Tenn. Code Ann. § 39-11-401(a) (1991)
provides that: “A person is criminally responsible as a party to an offense if the
offense is committed by the person’s own conduct, by the conduct of another for
which the person is criminally responsible, or by both.” “A person is criminally
responsible for an offense committed by the conduct of another if: (2) Acting with
intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, the person solicits, directs, aids, or attempts to
aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (1991).
In other words, the jury must find that the appellant somehow associated himself
with the commission of the crime, acted with knowledge that an offense was being
committed, and shared in the criminal intent of the principal. See State v. Maxey,
898 S.W.2d 756, 757 (Tenn.Crim.App.1994).
6
The State’s proof demonstrated that the appellant was the sole occupant in
the Hardee’s restaurant at the time of the theft. The proof was undisputed that,
during the appellant’s shift, no other person could enter the building except through
the use of a key, by force, or with the appellant’s assistance. The appellant reported
the theft forty minutes after its occurrence. When police officers arrived, they
discovered no signs of forcible entry into the restaurant. After changing his story
several times, the appellant finally admitted that he let Mark Henley into the
restaurant and that he knew that Mark Henley planned to open the safe and take
one deposit bag. He stated that he was instructed to go to Henley’s residence after
the theft to obtain his half of the money. From these facts and circumstances, a jury
could have rationally inferred the guilt of the appellant. See State v. Crawford, 470
S.W.2d 610, 613 (Tenn.1971). Accordingly, we conclude that, when viewed in the
light most favorable to the State, the evidence presented at trial was sufficient to
support the findings by the trier of fact that the appellant committed the offense of
theft of property under either a direct liability or criminal responsibility theory. 4 Tenn.
R. App. P. 13(e). This issue is without merit.
II. Judicial Diversion
The appellant contends that the trial court erred by denying his request for
judicial diversion. Initially, we note that the appellant never formally requested that
the trial court consider or grant judicial diversion. Indeed, the record is absent any
mention of judicial diversion except for one statement in the appellant’s closing
argument at the sentencing hearing wherein defense counsel stated, “And he is
4
The appe llant’s ass ertion that th e pro of wa s unc ontro verte d as t o Ma rk H enley’s
participation as the principal actor in the theft is not supported, beyond a reasonable doubt, by the
record . The re cord co ntains no proof oth er than the appellant’s statem ents an d testim ony to
indicate that Mark Henley was a participant in the crime. Thus, we conclude that it was not
necessary for the State to rely solely upon a theory of criminal responsibility in order to obtain a
conviction.
7
eligible for 40-35-313, expungeable supervised probation.”5 This passing comment
can hardly be considered an adequate request to properly bring the issue of judicial
diversion before the trial court.6 See, e.g., State v. Starks, No. 02C01-9704-CR-
00133 (Tenn. Crim. App. at Jackson, Jun. 11, 1998), perm. to appeal denied, (Tenn.
Dec. 28, 1998); State v. Tidwell, No. 01C01-9610-CR-00445 (Tenn. Crim. App. at
Nashville, Mar. 4, 1998), perm. to appeal denied, (Tenn. Nov. 9, 1998).
Notwithstanding, we proceed to address the issue on its merits.
The decision of whether to place an appellant on judicial diversion is within
the sound discretion of the trial court. See State v. Harris, 953 S.W.2d 701, 705
(Tenn. Crim. App. 1996). Thus, upon review by an appellate court, if “any
substantial evidence [exists in the record] to support the refusal,” the decision of the
trial court will be upheld. See State v. Hammersley, 650 S.W.2d 352, 356 (Tenn.
1983).
In making the determination of whether to grant judicial diversion, the trial
court must consider the following factors:
(a) the accused’s amenability to correction, (b) the circumstances of
the offense, (c) the accused’s criminal record, (d) the accused’s social
history, (e) the status of the accused’s physical and mental health, and
(f) the deterrence value to the accused as well as others. The trial
court should also consider whether judicial diversion will serve the
ends of justice -- the interests of the public as well as the accused.
State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997), perm. to appeal
denied, (Tenn. 1998) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim.
App. 1993) (citation omitted)). Additional factors which may be considered include
the appellant’s attitude, his behavior since his arrest, his home environment, current
drug usage, emotional stability, past employment, general reputation, family
5
We note, however, that trial counsel expressly asked the court to impose a two year
sentence on supervised probation. The court imposed such a sentence.
6
Because the appellant failed to make a definite request for judicial diversion, we find no
merit to his claim that his case should be rem anded for resentencing due to the trial court’s failure
to expressly state its reasons for denying judicial diversion.
8
responsibilities, and the attitude of law enforcement. Id, (citing State v. Washington,
866 S.W.2d 950, 951 (Tenn. 1993)).
The record in the present case reveals that the appellant has maintained
consistent employment, has exhibited good behavior since his arrest, is emotionally
stable, does not abuse either alcohol or illegal drugs, and contributes to the support
of his fiancee and child. Notwithstanding these factors favoring judicial diversion,
the circumstances of the offense itself support a denial of judicial diversion, i.e., the
appellant’s crime was committed against his employer, he repeatedly misled law
enforcement officers in his initial report of the incident, and the stolen money was
never recovered. The appellant’s actions indicate a violation of a position of trust, a
sustained intent to violate the law, and lack of candor with authorities. Accordingly,
we conclude that the trial court did not abuse its discretion in refusing to grant the
appellant judicial diversion. This issue is without merit.
The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________
JERRY L. SMITH, Judge
______________________________
NORMA MCGEE OGLE, Judge
9