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
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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.
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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
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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.
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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.
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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
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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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