State v. Jason Kennedy Frazier ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1999 SESSION
October 12, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9812-CC-00484
Appellee, )
) BEDFORD COUNTY
VS. )
) HON. CHARLES LEE,
JASON KENNEDY FRAZIER, ) JUDGE
)
Appellant. ) (Theft)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS E. NANCE PAUL G. SUMMERS
200 East Depot Street Attorney General and Reporter
P.O. Box 103
Shelbyville, TN 37162 ELIZABETH B. MARNEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM MICHAEL McCOWN
District Attorney General
MICHAEL D. RANDLES
Assistant District Attorney General
Bedford County Courthouse
One Public Square, Suite 100
Shelbyville, TN 37160- 3953
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
A Bedford County jury found defendant guilty of theft of property over $1,000,
a Class D felony. In this appeal as of right, defendant claims the evidence was
insufficient to sustain the conviction. We find the evidence is sufficient to support
the verdict and AFFIRM the judgment below.
FACTS
The defendant was a route salesperson for the Anderson Austin News
Company (hereinafter “Anderson”), a magazine distributorship. His commission
was based upon the value of his deliveries, reduced by the magazines returned
to the distributorship. The fewer magazines returned, the more commission
defendant would make.
Anderson became suspicious of defendant upon discovering a 100%
increase in Kroger’s sales. A sales manager followed defendant on April 10,
1998, and observed him throwing magazines in a dumpster near the Kroger
store. The vice-president and two sales managers from Anderson retrieved the
magazines from the dumpster and took them to the warehouse. They
determined that the retail value of the magazines was $1,606.13. Kroger was
credited $1,171.69, the amount they were charged for the discarded magazines.
The men confronted the defendant, and he admitted dumping the magazines.
Defendant was subsequently charged with theft of property over $1,000.
The jury charge included definitions for theft over $1,000, theft between
$500 and $1,000, and theft under $500. The jury returned a guilty verdict of theft
over $1,000.
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DEFENDANT’S CONTENTIONS
The defendant alleges the state failed to put forth sufficient evidence to prove
the statutory elements of the offense. Defendant argues: (1) the property was
taken with the consent of the owner, and (2) due to Anderson’s 40-50% markup on
the magazines, the value of the property was actually $900 or less and not the retail
amount of $1,606.13.
SUFFICIENCY OF THE EVIDENCE
When an appellant challenges the sufficiency of the evidence, the standard
of review is whether, after viewing 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, 318, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.
1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
This Court will not reweigh the evidence, reevaluate the evidence, or substitute its
evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d
93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is
given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899
(Tenn. Crim. App. 1995).
ANALYSIS
A. Consent
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Defendant claims the state failed to prove the property was taken without the
owner's consent. At trial, the State presented testimony from the vice-president of
Anderson and both of defendant's supervisors. All three testified they never gave
defendant permission to discard the magazines. It is also apparent that Kroger did
not give its consent to discard the magazines, since Kroger would suffer a loss of
credit in excess of $1,000.
Prior law contained numerous separate offenses involving theft. See Tenn.
Code Ann. §§39-3-1103 (1982) (grand and petit larceny); 39-3-1106 (1982) (larceny
from the person); 39-3-1112,1113 (1982) (receiving and concealing stolen property);
39-3-1118 (1982) (fradulent appropriation by one having custody); and 39-3-1121
(1982) (embezzlement). The 1989 Criminal Code abolished the distinctions among
these various offenses and denominated them as the single offense of “theft”.
Tenn. Code. Ann. §39-14-101 (1997). The actions of the defendant clearly
constituted a theft under Tenn. Code Ann. §39-14-103 (1997).
B. Value of Property
Defendant also claims the value of the magazines, for purposes of the theft
statute, should be the cost attributed to Anderson and not the retail value of the
magazines. Defendant elicited testimony from the company's office manager that
there was a 40-50% markup on magazines over the company's cost. The
defendant claims this puts the value of the magazines at $900 or less, below that
necessary to prove the charged offense.
The statutory definition of value is fair market value at the time and place of
the offense. See Tenn. Code Ann. §39-11-106(a)(36)(A)(i). The statute states that
when the fair market value cannot be ascertained, the value is the cost of
replacement. See Tenn. Code Ann. §39-11-106(a)(36)(A)(ii). The defendant
maintains there is no way to determine the fair market value of the magazines. He
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argues that the magazines were not going to be resold, and even if they were,
Anderson would only lose the amount they paid to purchase the magazines from the
publisher.
Valuation is an issue for the jury, and there was sufficient evidence for the
jury to determine the value of the property. Testimony indicated the retail value of
the magazines was $1,606.13. If the defendant’s crime had gone undetected,
Kroger would have lost $1,171.69, since the discarded magazines would not be
returned for proper credit. Furthermore, upon receiving the discarded magazines,
Anderson issued Kroger a credit for this amount. Therefore, the jury heard
sufficient evidence to conclude the defendant was guilty of theft of property over
$1,000.
We further conclude that it is insignificant in this case whether Kroger or
Anderson was actually the “owner” of the magazines. In any event there was clearly
a theft over $1,000 in value. In addition, the allegation in the indictment that the
property belonged to Anderson would not be a fatal variance even if Kroger were
determined to be the “owner”. See Stafford v. State, 489 S.W.2d 46, 47 (Tenn.
Crim. App. 1972) (finding no fatal variance where owner named in indictment was
agent, bailee or trustee of actual owner); see generally State v. Moss, 662 S.W.2d
590, 592 (Tenn. 1984).
We find no reason to disturb the verdict. The evidence was sufficient to
sustain the conviction. Thus, we AFFIRM the judgment of the trial court.
_________________________
JOE G. RILEY, JUDGE
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CONCUR:
____________________________
DAVID G. HAYES, JUDGE
____________________________
L.T. LAFFERTY, SENIOR JUDGE
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