02/27/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville November 28, 2017
STATE OF TENNESSEE v. ARTT TANNER HORNE
Appeal from the Criminal Court for Davidson County
No. 2015-B-871 Cheryl Blackburn, Judge
No. M2017-00752-CCA-R3-CD
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After a bench trial, a judge found the Defendant, Artt Tanner Horne, guilty of theft of
property valued less than $500 and sentenced him to eleven months and twenty-nine days
of unsupervised probation. The trial court also ordered that he stay away from Walmart,
where the theft occurred, and continue with his mental health treatment. On appeal, the
Defendant contends that the evidence is insufficient to sustain his conviction. After
review, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J. and J. ROSS DYER, J. joined.
Newton S. Holiday, III, (at trial) and Nicholas Tuck McGregor (on appeal), Nashville,
Tennessee, for the appellant, Artt Tanner Horne.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Nathan Kristin McGregor,
for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from an incident at Walmart wherein the Defendant was accused
of stealing a toaster oven. The Davidson County grand jury indicted the Defendant for
theft of property valued less than $500. The Defendant waived a right to a trial by jury
and proceeded to a bench trial.
During the Defendant’s bench trial, the parties presented the following evidence:
Amber Martin testified that she worked at Walmart in the loss prevention department at
the time of this incident. When she was working on October 9, 2014, the Defendant
came into the store, as could be seen in the surveillance video from the store that day.
The video was entered into evidence. Ms. Martin said that she noticed the Defendant on
the surveillance videos because he was looking around for cameras, so she began
following him by camera through the store.
Ms. Martin testified that the Defendant placed a toaster oven in his cart and paid
for it. He left the store and then came back into the store a few minutes later. The
Defendant then placed the same make and model toaster oven in his cart, along with
some bananas. Ms. Martin said that the video surveillance showed the Defendant getting
into a line, then putting the bananas in a random place on a shelf, and then exiting the
store with the toaster oven in his cart. He was not seen paying for the toaster oven.
Ms. Martin said that she watched the Defendant on surveillance video exit the first
set of doors and then went to the front of the store to stop him. She approached him with
another loss prevention associate. The Defendant was cooperative and returned to the
store with her. The Defendant gave Ms. Martin his identification, and Ms. Martin copied
some of the Defendant’s information onto a reporting sheet. The Defendant asked her
why she apprehended him, and she said for his unpaid toaster oven. The Defendant then
pulled out a receipt for a toaster oven and said that he had paid for it. Ms. Martin said
that she told the Defendant that his receipt was for the toaster oven he purchased earlier,
and the Defendant said that he did not have to stay in the office and left with the toaster
oven. Ms. Martin said that she was not “allowed” to stop the Defendant from leaving,
but she had already called the police department and was hoping they would respond
before he left. As the Defendant left, he expressed anger that Ms. Martin had made him
“miss [his] bus.” Ms. Martin said that the video footage showed the Defendant leave the
store and get into a car.
Ms. Martin said that when she saw the Defendant get into his car on the
surveillance camera, she ran out to the car. She saw two toaster ovens in the backseat of
his car. The Defendant drove away.
Ms. Martin identified the Defendant’s receipt, which indicated a time of 3:39 p.m.
and showed the purchase price of $49.96. The receipt indicated that it was from register
number twelve. Ms. Martin testified that the surveillance video from the Defendant’s
second return trip into the store was from 4:00 p.m. until 4:10 p.m. Accordingly, the
video was for a time frame after the Defendant had purchased the first toaster oven. Ms.
Martin said that she had previously seen other customers use this tactic to steal from
Walmart.
During cross-examination, Ms. Martin identified a receipt with the date of the
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incident, October 9, 2014, and time stamped 3:58:45 p.m. showing the purchase of a
toaster oven.
During redirect examination, Ms. Martin testified that the surveillance video,
which is synchronized with the registers, showed that the Defendant did not make a
purchase at 3:58 p.m. At that time, he was on the video in the grocery section headed
toward the front registers.
Brian Hicks, a Walmart employee, identified the receipt for a toaster oven the
Defendant said that showed he purchased a second toaster oven in the electronics
department on October 9, 2014, at 3:58 p.m. The face of the receipt appeared to indicate
that the purchase was made at that date and time. Mr. Hicks testified that the Walmart
store used technology that allowed him to scan the bar code on receipts and ascertain the
history of any particular item. The receipt produced by the defense showed that the item
was purchased on register 67, which was located in the electronics department. The item
was purchased at 3:58 p.m. Mr. Hicks said that he cross-referenced this receipt with
Walmart’s computer system, and it appeared that there was no such purchase at register
67 at that date and time.
Mr. Hicks said that, armed with this information, he asked the customer service
department and asked them to scan the receipt’s barcode. The bar code indicated that the
transaction had occurred on register 67 but that the item was purchased November 2,
2014 at 2:49 p.m., almost a month after this incident. Everything on the face of the
receipt was correct except the date and time. The receipt number also did not match the
sequence for register 67 on October 9, 2014, but did match for November 2, 2014. Mr.
Hicks opined that the receipt had been forged. He said he could only base this upon the
fact that the surveillance and internal records proved the receipt was false.
Mr. Hicks testified that the store’s records indicated that, after the Defendant’s
initial purchase of a toaster oven on October 9, 2014, no one bought a toaster oven from
the store that day until 6:11 p.m.
During cross-examination, Mr. Hicks testified that when he reviewed Walmart’s
register system, he found no anomalies or errors for October 9, 2014. During redirect
examination, Mr. Hicks said that the toaster oven purchase on November 2, 2014, was a
cash purchase, meaning there would be no way to confirm the date with a credit or debit
card.
The Defendant testified that he had viewed the videotape of the Walmart
transaction. He explained that he went to the kitchen department, got the toaster oven,
and put it in his basket. He purchased the toaster oven with his credit card. When he left
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the store, he spoke with a friend, “Meko,” who wanted to purchase a housewarming gift
for a friend. He told her that he was at Walmart and could pick it up for her. He noted
that the video did not show him with a receipt in his hand when he returned to the store.
He put another toaster oven in his basket and saw a white man standing at the electronics
department. The man immediately checked him out, and he purchased the toaster oven.
The Defendant described his actions in going other places in the store, and he
noted that there were four or five minutes where there is no surveillance video of him.
The Defendant’s account then comported with the other witnesses until he was stopped
by security. He testified that, after showing security his receipt, they apologized to him,
returned his driver’s license, and told him that he was free to leave. The Defendant said
that, as he was leaving, he said “[H]ey, you all might hear [from] my attorney about this.”
He said that, when he said this, everyone in the loss prevention department looked at him
and did not say anything.
The Defendant said he left and went to his car. The Defendant said that he
cooperated with the loss prevention officers and that he was “victimized” by this incident.
The Defendant said that he paid for both toaster ovens, and he expressed his belief that
his prosecution was based on the fact that the prosecutor had a problem with the fact that
“some people just don’t have enough money on their credit card if they got money in
their pocket.” The Defendant identified his bank statement that showed that he made a
purchase at Walmart on the day in question for $54.48. He said that he made the second
purchase in cash and that he received a receipt for both transactions. He said that he
showed the receipt that showed he paid in cash in the electronics department to the loss
prevention employees, who then apologized to him and returned his license. The
Defendant said that he thought that this was the end of the incident until police officers
came to his home at 2:30 a.m., telling him that there was a warrant for his arrest.
During cross-examination, the State asked the Defendant if the second receipt that
he had produced was from a transaction that occurred on October 9, 2014. The
Defendant said that he purchased the toasters on the same day and that the store must
have given him a receipt that had the incorrect transaction number listed. The Defendant
reminded the State that he was, in fact, the victim in this case. The Defendant agreed that
he was out on bond on November 2, 2014, but he said he did not purchase a second
toaster oven at Walmart on that date.
On redirect examination, the Defendant testified that he had no control over the
receipt that he was given by the cashier, or the computer system, or the registers. He was
just a customer there to make a purchase.
After the conclusion of the evidence and the arguments of the parties, the trial
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court found the Defendant guilty of theft of property valued at less than $500. The trial
court sentenced the Defendant to eleven months and twenty-nine days of unsupervised
probation and ordered him to stay away from Walmart. It is from this judgment that the
Defendant now appeals.
II. Analysis
On appeal, the Defendant contends that the evidence is insufficient to sustain his
conviction for theft because the evidence did not show that he intended to deprive
Walmart of their property. He contends that he produced an “authentic receipt” that
showed a “real purchase” and that a “real purchase proves no intent to deprive the receipt
issuer of their property.” The Defendant asserts that Ms. Martin testified that the
“3:58pm receipt [wa]s valid” and that she should be believed. If that receipt was valid,
he asserts, then there is no proof that he deprived Walmart of the toaster oven. He further
asserts that the evidence is insufficient because the State did not offer video surveillance
footage from the electronics cash register where the “3:58pm” transaction occurred.
Finally, he asserts that the State did not prove that the Walmart cameras were in sync
with the cash registers on the day in question. The State counters that it offered proof
that the “3:58pm” receipt was forged and invalid. The State further counters that the
Defendant’s other two contentions go to the weight of the evidence not to whether the
evidence is insufficient to sustain his conviction. We agree with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[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.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
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In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by [the trier of fact] . . . accredits the testimony of
the witnesses for the State and resolves all conflicts in favor of the theory of the State.”
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated
the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge
and the jury see the witnesses face to face, hear their testimony and observe
their demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).
A person commits theft of property if that person: (1) “knowingly obtains or
exercises control over the property,” (2) “with intent to deprive the owner” of the
property, and (3) “without the owner’s effective consent.” T.C.A. § 39-14-103 (2014).
In addition to these three elements, the fact-finder must also determine the classification
of the theft, based on the value of the property stolen. At the time of this offense, theft of
property valued under $500 was a Class A misdemeanor. T.C.A. 39-14-105(a)(1).
In the case under submission, the evidence, viewed in the light most favorable to
the State, proved that the Defendant entered Walmart and looked around suspiciously,
drawing Ms. Martin’s attention. She followed the Defendant through the store by
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camera, watched him legally purchase a toaster oven, and then watched him exit the
store. She then saw the Defendant re-enter the store, again looking around suspiciously,
so she again followed him by camera. Ms. Martin watched him get another toaster oven
and place it in his basket. She saw him on camera, the footage of which was entered at
trial, walking toward the front of the store at 3:58 p.m. The Defendant added bananas to
his basket, got into a checkout line, and then removed the bananas from his cart and
proceeded to exit the store. Ms. Martin stopped the Defendant, who produced the receipt
from the first transaction as proof that he had purchased the subsequent toaster oven.
Before trial, the Defendant produced a receipt for a second toaster oven, dated at
3:58 p.m. on the same day as the purchase of the first toaster oven, October 9, 2014.
Walmart’s loss prevention witness testified that this receipt appeared to be forged in that
the date and the time listed on the receipt did not correspond with the date and time of the
transaction number. The transaction number indicated that the toaster oven was not
purchased until November. Further, he testified that Walmart’s records indicated that no
one purchased a toaster oven from the cash register in the electronics department on
October 9, 2014, around the time the Defendant was in the store.
The trial court did not err when it determined that the evidence proved that the
Defendant did not purchase the second toaster oven on October 9, 2014. Therefore, it is
sufficient to prove that he knowingly, with intent to deprive Walmart, obtained or
exercised control over Walmart’s property without Walmart’s effective consent. He is
not entitled to relief on this issue.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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