State of Tennessee v. Marvin Devon Summers

02/05/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs in Knoxville November 28, 2017
STATE OF TENNESSEE v. MARVIN DEVON SUMMERS
Appeal from the Circuit Court for Bedford County
No. 18226 F. Lee Russell, Judge
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No. M2017-00033-CCA-R3-CD
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A Bedford County jury found the Defendant, Marvin Devon Summers, guilty of theft of
property valued between $10,000 and $60,000. The trial court sentenced the Defendant
to serve a ten-year sentence. On appeal, the Defendant asserts that the evidence is
insufficient, his sentence is excessive, and he requests plain error review of “all
objections” and “all issues regarding venue and jurisdiction.” After review, we affirm the
trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit 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.
Roger Clay Parker, Shelbyville, Tennessee, for the appellant, Marvin Devon Summers.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Robert J. Carter, District Attorney General; Michael David Randles
and Richard A. Cawley, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Facts
This case arises from the theft of two Cub Cadet utility terrain vehicles (“UTV”)
parked at Smith Equipment in Shelbyville, Tennessee. For his role in this theft, a
Bedford County grand jury indicted the Defendant for theft of property valued between
$10,000 and $60,000. At trial, the parties presented the following evidence: Roger Dale
Smith, the owner of Smith Equipment, testified that Smith Equipment largely built parts
for lawn mowers that were sold on Amazon. In 2009, however, Smith Equipment also
sold lawn mowers, lawn equipment, and UTVs. He recalled that in 2009, Smith
Equipment was an authorized dealer for Cub Cadet Utility Vehicles.
Mr. Smith testified that he came to work at around 7:30 a.m. on September 28,
2009. When he arrived, he noticed that one of the two UTVs, normally parked by the
front door of the store, was not there. Mr. Smith stated that the UTV had been parked by
the door the night before when he left at 10:30 p.m. The UTV was inventory owned by
Smith Equipment for sale, and Mr. Smith confirmed that it was “brand new.” He testified
that the “[d]ealer cost” for that UTV was $7,600 but that he sold that type of vehicle for
between $9,000 and $9,500.
Due to the fact that the UTV was missing, Mr. Smith “took inventory” to see if
anything else was stolen and found another UTV was missing. Mr. Smith testified that
the second utility vehicle missing was owned by a customer, Nathan Walker, and had
been parked on the back side of the building while “waiting to be serviced.” Mr. Smith
described Mr. Walker’s UTV as having been used “very little” and, thus, it was in very
good condition. He said that Mr. Walker’s UTV had all the possible “options” such as
“[g]un racks, chrome wheels, [a] hard top.” Mr. Smith said the invoice for this UTV was
$11,950. Mr. Smith stated that, because Mr. Walker was employed as a vice president
for Cub Cadet, it is likely he received a company discount because that particular UTV’s
retail value was between $14,000 and $15,000.
Mr. Smith testified that the fair market value of the UTVs combined was
approximately $23,000. Mr. Smith stated that the UTVs required a key to start, and
neither vehicle had the key in it when taken. As to Mr. Walker’s UTV, Mr. Smith
believed that Mr. Walker retained the key and left Smith Equipment to use a master key
to move or work on the UTV. Mr. Smith testified that he contacted Mr. Walker upon
learning that his UTV had been stolen, and that Mr. Walker was “not the happiest” and
gave no indication that he had given someone permission to take it. Ultimately, Smith
Equipment replaced Mr. Walker’s UTV for him.
Mr. Smith testified that the Cub Cadet vehicles that were stolen each weighed
approximately two thousand pounds and could not be pushed onto a trailer by one person
working alone. Mr. Smith identified photographs of the two stolen UTVs. He said that
both vehicles could be put into neutral without a key but were not easily pushed. He
explained that the “transmission drag is hard on them.”
Mr. Smith testified that he did not know Ricardo Demling or the Defendant and
that he had not given either man, or any other person, permission to take the vehicles on
the night of September 27 or the early morning hours of September 28, 2009.
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Benjamin Burris, a Bedford County Sheriff’s Office (“BCSO”) deputy, testified
that he reported to Smith Equipment on September 28, 2009, to investigate a theft report.
Deputy Burris spoke with Mr. Smith and began his report; however, Mr. Smith could not
provide the serial numbers for both of the vehicles at that time, so Deputy Burris did not
finish his report until October 1, 2009. After receiving the serial numbers for the UTVs,
the numbers were entered into a data base, NCIC, that records and tracks stolen items.
Willie Allison, a Tennessee Highway Patrol (“THP”) state trooper, testified that
on September 28, 2009, he conducted a traffic stop at 4:45 p.m. just inside Clay County
on Highway 53. He stated that this location was approximately three hours and fifteen
minutes away from Shelbyville. The vehicle was a grey and pink Suburban pulling a
trailer with two UTVs; a “greenish one” and a yellow UTV. Trooper Allison conducted
the traffic stop because the trailer lights were not illuminating when the brakes were
employed. The Defendant was driving the vehicle and Mr. Demling was the only
passenger. Both men appeared to be “a little nervous;” however, Trooper Allison said
that was common for individuals stopped by law enforcement.
Trooper Allison testified that during the stop he began inquiring about the UTVs
because it struck him as odd that the UTVs were brand new while the Suburban was in
“rough shape.” Both men, separately, told him that they were hired in Shelbyville to
transport the two UTVs to Kentucky, but neither man could name the person who had
hired them. They indicated to the state trooper that this type of work was common for
them. Trooper Allison thought this was suspicious because this type of work would
require an “H tag” for the trailer and there was not one. Trooper Allison checked the
dealer tag on the trailer to confirm that the trailer was registered to the Suburban owner
and found that it was not. Upon questioning, neither the Defendant nor Mr. Demling
could tell the state trooper exactly where they were delivering the UTVs to in Kentucky
nor could they produce keys for the UTVs. Ultimately, because the two men could not
show proof of ownership, Trooper Allison had the trailer and UTVs towed and held for
someone with proof of ownership to retrieve.
Trooper Allison testified that he was unable to find the serial numbers on the
UTVs and thus could not check NCIC to see if they had been reported stolen.
Brian Ferris, a BCSO deputy, testified that he was assigned as the investigator for
this case. He could not recall the specifics of this investigation but said that, in cases of
this nature, he would generally start contacting investigators in several counties looking
for the stolen items. In early November 2009, Deputy Ferris was notified that there was a
“hit confirmation,” meaning that someone had entered the VIN numbers from the stolen
UTVs in a search on NCIC. Based upon this, Deputy Ferris contacted Trooper Allison
who had conducted the stop involving the stolen UTVs. Deputy Ferris also was in
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contact with a “CID officer” who emailed Deputy Ferris photographs of the UTVs for
confirmation. Deputy Ferris identified the photographs that the CID officer sent him.
Deputy Ferris then attempted to locate the Defendant and Mr. Demling, the men driving
the trailer with the UTVs. Deputy Ferris was unsuccessful in locating either man but, in
January 14, 2010, obtained warrants for theft of property valued over $10,000 against
both the Defendant and Mr. Demling. These warrants were also entered into NCIC and,
in May or June of 2015, Deputy Ferris was notified of their arrests.
After hearing the evidence, the jury convicted the Defendant of theft of property
valued over $10,000. At a subsequent hearing, the trial court sentenced the Defendant, as
a multiple offender, to serve ten years in the Tennessee Department of Correction. It is
from this judgment that the Defendant appeals.
II. Analysis
On appeal, the Defendant asserts that the evidence supporting his theft conviction
is insufficient, his sentence is excessive, and the Defendant requests that plain error
review of “all objections” and “all issues regarding venue and jurisdiction.”
A. Sufficiency of the Evidence
The Defendant argues that the evidence supporting his conviction is insufficient.
Specifically, he challenges his identification and “the description of the property” as
insufficient. The State responds that the evidence at trial supports that the Defendant
stole the UTVs beyond a reasonable doubt. 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
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(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)).
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 jury, approved by the trial judge, 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).
The jury convicted the Defendant of theft of property valued over $10,000 and less
than $60,000. This crime requires a jury to find the following elements beyond a
reasonable doubt: (1) that the defendant knowingly obtained or exercised control over
property owned by another; (2) that the defendant did not have the owner’s effective
consent; and (3) that the defendant intended to deprive the owner of the property. T.C.A
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§ 39-14-109 (2014). Theft of property is a Class C felony if the value of the property
obtained is between $10,000 and $60,000. T.C.A. § 39-14-105(3) (2014).
The evidence, viewed in the light most favorable to the State, established that in
the late night hours of September 27, 2009, or the early morning hours of September 28,
2009, two UTVs were taken from the Smith Equipment property without Mr. Smith’s
knowledge or consent. According to Mr. Smith’s testimony, the collective value of the
two vehicles was approximately $23,000. The same day that Mr. Smith found the UTVs
missing from Smith Equipment, the Defendant was stopped approximately three hours
away, driving a Suburban pulling a trailer with two UTVs. The Defendant could provide
no proof of ownership of the UTVs, could not identify the owner of the UTVS, and could
not provide a specific location to which he was taking the UTVs. It was later established
that the vehicle identification numbers on the UTVs found on the trailer the Defendant
was hauling matched the vehicle identification numbers of the stolen vehicles.
We conclude that the evidence is sufficient to support the jury’s finding that the
Defendant committed theft. Shortly after the vehicles went missing, the Defendant was
in possession of the vehicles and allegedly taking them to Kentucky. His explanation as
to why he possessed the stolen vehicles was not credited by the jury. Thus, we find the
evidence sufficient to support the jury’s finding beyond a reasonable doubt that the
Defendant knowingly obtained or exercised control over property owned by Smith
Equipment and Mr. Walker, that the property had a value greater than $10,000, that the
Defendant did not have the owners’ consent, and that the Defendant intended to deprive
the owners of the property. See T.C.A. § 39-14-103 and § 39-14-105(3) (2014). He is
not entitled to relief on this issue.
B. Sentencing
The Defendant argues that his sentence is excessive and “contrary to law.” The
State responds that the trial court acted within its discretion in ordering a ten-year
sentence. We agree with the State.
Appellate review of sentences is under the abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (2012); see also State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A finding of abuse of discretion
“‘reflects that the trial court’s logic and reasoning was improper when viewed in light of
the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d
235, 242 (Tenn. 1999)).
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To find an abuse of discretion, the record must be void of any substantial evidence
that would support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In the
context of sentencing, as long as the trial court places the sentence within the appropriate
range and properly applies the purposes and principles of the Sentencing Act, this Court
must presume the sentence to be reasonable. Bise, at 704-07. As the Bise Court stated,
“[a] sentence should be upheld so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 708. We are also to recognize that the defendant bears
“the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001).
At the sentencing hearing, the trial court applied two enhancement factors, that the
Defendant had felonies in addition to those needed to establish his status as a Range II
offender, and the Defendant’s previous failure to follow the condition of a sentence
involving release into the community. The presentence report shows that the Defendant
had, in addition to those used to establish his range, three felony convictions and multiple
misdemeanor convictions in support of factor (1). T.C.A. § 40-35-114 (2014). As to
enhancement factor (8), that the Defendant had previously failed to follow the conditions
of a sentence involving release into the community, the trial court noted that the
Defendant’s record indicated seven probation revocations. T.C.A. § 40-35-114.
Additionally, the trial court applied one mitigating factor, finding that the theft did not
cause or threaten bodily injury. T.C.A. § 40-35-113(1) (2014). The trial court then
considered consecutive sentencing. In ordering the Defendant’s ten-year sentence to run
consecutive to a twelve-year sentence the Defendant was already serving, the trial court
found that the Defendant had an extensive history of criminal activity. T.C.A. § 40-35-
115(b)(2) (2014).
Based upon this evidence, the trial court did not err in ordering the Defendant to
serve a ten-year sentence or in ordering the sentence to run consecutively to his prior
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sentence. There was ample evidence in the record supporting each of the two factors
relied upon by the trial court to enhance the sentence and the factor relied upon to order
consecutive sentencing in this case. The trial court complied with the purposes and
principle of the Sentencing Act and imposed a within-range sentence. Thus, the
Defendant is not entitled to relief on this issue.
C. Plain Error Review
In his final issue, the Defendant asks this court to conduct “plain error review.”
The entirety of this issue within his brief states, “Namely it is requested that all objections
be reviewed. Also it is requested that all issues regarding venue and jurisdiction be
reviewed.”
Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure provides in part that
a brief shall contain “[a]n argument . . . setting forth the contentions of the appellant with
respect to the issues presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on.” Rule 10(b) of this court provides that “[i]ssues
which are not supported by argument, citation to authorities, or appropriate references to
the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). The
Defendant’s brief does not conform to Tennessee Rule of Appellate Procedure 27(a)(7),
and consequently, the issue of “plain error review” is waived, pursuant to Tennessee
Court of Criminal Appeals Rule 10(b).
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.
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ROBERT W. WEDEMEYER, JUDGE
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