State v. Charles Hames ( 1999 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
July 20, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate C ourt
MAY 1999 SESSION Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9806-CC-00207
)
vs. ) Bradley County
)
CHARLES HAMES, ) Hon. R. Steven Bebb, Judge
)
Appellant. ) (Theft over $10,000)
FOR THE APPELLANT: FOR THE APPELLEE:
ARVIN H. REINGOLD PAUL G. SUMMERS
Attorney at Law Attorney General & Reporter
Suite 401, Park Plaza Building
1010 Market Street ELLEN H. POLLACK
Chattanooga, TN 37402 Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
SANDRA N. C. DONAGHY
Assistant District Attorney General
P.O. Box 1351
Cleveland, TN 37364
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Charles Hames, appeals from his jury conviction for
theft over $10,000 but less than $60,0001 in the Bradley County Criminal Court.
The trial court imposed a three year sentence in the Tennessee Department of
Correction. In this direct appeal, the defendant challenges the admission of
testimony by the state’s expert, Buddy Kimsey, regarding the amount of theft. After
a review of the record, the briefs of the parties, and the applicable law, we affirm.
The following facts were gleaned from the record supplied by the
defendant. The defendant was an employee of Beaty’s Feed and Farm Supply in
Bradley County, Tennessee. Mr. Beaty suspected that the defendant was stealing
money from his business through his position as a cashier. Mr. Beaty contacted
Buddy Kimsey, a certified public accountant, to determine the amount of theft.
Kimsey testified at trial regarding a 53 day period of time for which Kimsey
calculated the amount of loss by the business. The defendant objected to Kimsey’s
testimony as misleading and speculative. The trial court allowed Kimsey to testify
to certain findings. After hearing all the evidence, the jury found the defendant
guilty of theft over $10,000 but less than $60,000.
Before Kimsey testified in front of the jury, the trial judge listened to
his proposed testimony. Kimsey testified how he calculated the amount of theft.
He reviewed daily reports over a 53 day period which showed the number of times
the defendant voided transactions on his register. Kimsey assessed a dollar value
to the voided transactions, which he maintained was the amount of theft committed
by the defendant. Kimsey did concede that the void button can be used for
legitimate reasons, but he assumed a theft occurred every time the void button was
used by the defendant. The trial judge overruled the defendant’s objection to
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Tenn. Code Ann. § 39-14-103, -14-105(4) (1997).
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Kimsey’s testimony by finding the testimony was not misleading, and by noting that
a full cross examination would be allowed. Kimsey’s testimony at the jury-out
hearing was essentially the same in the jury’s presence.
Additionally, during the jury-out hearing, Kimsey calculated the total
sales during the 53 day period on the defendant’s register, then calculated the
percentage of the total that constituted voided transactions. He applied this
percentage to total sales during the period from 1991 through August 1996.
Applying the percentage, he assessed a total amount of theft for that time frame.
The defendant objected to this five and a half year projection, and the court
sustained the objection. Kimsey did not testify to the jury regarding this projection.
The defendant contends Kimsey’s testimony was confusing and
unfairly prejudicial, and that the trial court should have excluded the testimony
pursuant to Tennessee Rule of Evidence 403. Relevant evidence is generally
admissible, unless “its probative value is substantially outweighed by the danger of
unfair prejudice.” Tenn. R. Evid. 402, 403. In deciding whether evidence is more
probative than prejudicial, the trial court must consider “the questions of fact that the
jury will have to consider in determining the accused’s guilt as well as other
evidence that has been introduced during the course of the trial.” State v.
Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995) (citing State v. Dulsworth,
781 S.W.2d 277, 287 (Tenn. Crim. App. 1989)). The standard of review applicable
to the decision to admit evidence is abuse of discretion. See State v. Dubose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim.
App. 1980).
The appellate record only contains the transcript of Kimsey’s
testimony. The appellant must prepare a record which conveys a fair, accurate and
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complete account of the proceedings below regarding the issues on appeal. See
Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the
appellant fails to file an adequate record, this court must presume the trial court’s
ruling was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim.
App. 1993).
We are unable to determine the prejudice, or lack thereof, caused by
Kimsey’s testimony without reviewing all the evidence adduced at trial. We do not
know if this was the only evidence introduced at trial which indicated to the jury the
amount of theft. The trial judge assessed Kimsey’s testimony at a jury-out hearing
and found it was not misleading. We must presume the trial court did not abuse its
discretion in allowing Kimsey to testify.
The judgment of the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
JOHN EVERETT WILLIAMS, JUDGE
_______________________________
ALAN E. GLENN, JUDGE
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