State of Tennessee v. Charles Keese

03/15/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 19, 2017 Session
STATE OF TENNESSE v. CHARLES KEESE
Appeal from the Criminal Court for Knox County
No. 105631 Scott Green, Judge
No. E2016-02020-CCA-R3-CD
In this appeal, the State challenges the trial court’s decision to apply the amended version
of Code section 39-14-105, which provides the grading of theft offenses, when
calculating the defendant’s sentence. The defendant asserts that the State has no right to
appeal the ruling of the trial court and, in the alternative, that the trial court correctly
applied the amended statute in this case. The defendant also appeals the judgment of the
trial court, claiming that the evidence was insufficient to support his convictions because
the State failed to adequately establish the value of the stolen property. We agree with
the defendant that no appeal of right lies for the State pursuant to either Tennessee Rule
of Appellate Procedure 3 or Code section 40-35-402. Because we have concluded that
the trial court exceeded its authority by the application of the amended version of Code
section 39-14-105 before the effective date, we could treat the improperly-filed Rule 3
appeal as a common law petition for writ of certiorari. We need not do so, however,
because, pursuant to Tennessee Rule of Appellate Procedure 13, this court acquired
jurisdiction of the State’s claim when the defendant filed a timely notice of appeal.
Following our review of the issues presented, we hold that sufficient evidence supports
the defendant’s conviction but that the trial court erred by applying the amended version
of Code section 39-14-105. Accordingly, we affirm the defendant’s conviction but
vacate the six-year sentence imposed by the trial court and remand the case for the entry
of a modified judgment reflecting a 12-year sentence for a Class D felony conviction of
theft of property valued at $1,000 or more but less than $10,000.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Vacated in
Part; Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellant, State of Tennessee.
Brennan M. Wingerter, (on appeal); and Dustin Dunham (at trial), Knoxville, Tennessee,
for the appellee, Charles Keese.
OPINION
The Knox County Grand Jury charged the defendant with alternative counts
of theft of property valued at $1,000 or more but less than $10,000 for thefts occurring on
September 10 and 15, 2014; alternative counts of theft of property valued at more than
$500 but less than $1,000 for thefts occurring on September 10, 2014; and alternative
counts of theft of property valued at more than $500 but less than $1,000 for thefts
occurring on September 15, 2014.1
At the June 29, 2016 trial, Brandy Beene testified that in 2014 she was
romantically involved with the defendant. On September 10 of that year, Ms. Beene
accompanied the defendant to the East Town Walmart, where the defendant added
“several tool sets” to a shopping cart and left the store with the items despite that they
had not paid for them. Ms. Beene identified herself and the defendant on the store’s
video surveillance recording.
According to Ms. Beene, the couple returned to the East Town Walmart on
September 15, 2014, and again the defendant added “tool sets” to a shopping cart. The
couple then wheeled the cart full of items into the parking lot without paying for the
items. Ms. Beene again identified herself and the defendant on the store’s video
surveillance recording. Ms. Beene said that the defendant sold some of the tool sets “at a
flea market or something like that.”
Steven McCarter, who had worked as an asset protection manager at the
East Town Walmart, testified that on September 10, 2014, an associate in the Lawn and
Garden Department told him “that a man and woman had [gone] through the doors with a
1
Counts 1, 3, and 5 allege that the defendant “did unlawfully and knowingly obtain property”
while counts 2, 4, and 6 allege that the defendant “did unlawfully and knowingly exercise control over
property.” See T.C.A. § 39-14-103 (“A person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.”); State v. Byrd, 968 S.W.2d 290, 292 (Tenn. 1998) (“[T]heft of property may
be accomplished in one of two manners: (1) taking or obtaining property without consent and with an
intent to deprive; or (2) exercising control over property without consent and with the intent to deprive.”).
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buggy full of tools and refused to stop for a receipt check.” Mr. McCarter reviewed the
surveillance video, which showed the defendant and Ms. Beene entering the store at 1:00
p.m. and leaving at 1:03 p.m. Utilizing the video recording, Mr. McCarter identified the
items in the shopping cart and then went to the shelves where those items should have
been located. Using a piece of equipment designed to keep track of the number of items
on each shelf, Mr. McCarter determined that the items he observed inside the cart had
been taken from inside the store. He testified that the missing items included “two of the
Bostitch Power Tool sets that are valued at 189 each, and six drills that were valued at
89.99 each.” Mr. McCarter confirmed that the total value of the items he observed inside
the cart exceeded $500.
Matthew Schoenrock, who had also worked as an asset protection manager
at the East Town Walmart, testified that at approximately 2:10 p.m. on September 15,
2014, an associate in the Garden Center reported “that two subjects had pushed a buggy
full of merchandise out of the Garden Center doors bypassing the registers, failing to pay
for the merchandise.” He said that when another customer approached “the subjects out
at their vehicle while they were loading the merchandise into their car,” the couple
abandoned the shopping cart full of items. The unidentified customer returned the cart
full of items to the store. Mr. Schoenrock then “rung up the merchandise and got a total
for everything.” He described the resultant document as “a training receipt,” which was,
he said, a way for the store to track what had been taken without indicating a sale.
Mr. Schoenrock identified the defendant and Ms. Beene on the surveillance
video. He also identified the items taken by pointing them out inside the shopping cart.
Mr. Schoenrock described the items taken as “just a bunch of hammer drills,
reciprocating saws and some security devices on those saws.” He said that the total value
of the merchandise taken was $478.88 and that the value of the security devices was
$100. He described the security devices as “[s]pider wrap . . . those black wraps that are
around high priced items that go off if they’re tampered with or opened.” He said that
Walmart had made a policy decision to set the value of “the spider wraps as $50.00 each
solely because of the influx of theft that we have at our stores.” He added, “Our store
needs to have compensation because the spider wraps are not cheap. And the difficulty in
obtaining them is even more difficult.” He admitted, however, that he did not know the
replacement cost of the spider wrap and that Walmart did not offer the spider wraps for
sale.
Following a Momon colloquy, the defendant elected not to testify and chose
to present no proof. Based on the proof presented at trial, the jury convicted the
defendant of theft of property valued at $1,000 or more but less than $10,000 as charged
in counts one and two, theft of property valued at more than $500 but less than $1,000 as
charged in counts three and four, and the lesser included offense of theft of property
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valued at $500 or less in counts five and six. After dismissing the jury, the trial court
merged counts two through six into count one, resulting in a single conviction of theft of
property valued at $1,000 or more than but less than $10,000.2
At sentencing, the parties agreed that the defendant, a career offender,
should be sentenced at the top of the range for his class of offense. The parties did not
agree, however, as to the appropriate class of offense. The trial court observed that on
April 27, 2016, the governor signed into law an amendment to Code section 39-14-105
that modified the then-existing grading structure for theft offenses. Under the new law,
the defendant’s conviction for theft of property would be a Class E felony conviction
rather than a Class D felony conviction because the value of the property established at
trial was more than $1,000 but less than $2,500. See 2016 Pub. Acts, c. 906, § 5. The
court questioned whether the terms of the savings statute included in Code section 39-11-
112 would entitle the defendant to the benefit of the lesser sentence. The defendant
argued that it would. The State agreed that the defendant would be entitled to the lesser
sentence but only after the January 1, 2017 effective date of the amendment. The State
argued that because the defendant was being sentenced before that date, the amendment
had no application in his case. After taking the matter under advisement, the trial court
concluded that the defendant was entitled to the benefit of the new theft grading structure
despite that the act had not yet become effective and imposed a sentence of six years for
the resulting Class E felony theft conviction. The judgment was entered on September
29, 2016.
The State appealed the sentencing decision of the trial court, claiming that
the trial court erred by applying the amended version of Code section 39-14-105 to
determine the conviction class. The defendant also appealed, challenging the sufficiency
of the convicting evidence.
I. Jurisdiction
As in any other appeal before this court, our first concern is whether this
court is authorized to hear the case. The State initiated the appeal in this case by timely
filing a notice of appeal pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure on October 3, 2016. That rule provides a right of appeal to the State only in
limited circumstances:
In criminal actions an appeal as of right by the [S]tate lies
only from an order or judgment entered by a trial court from
2
“Aggregation of separate thefts is generally permissible where separate larcenous acts are: (1)
from the same owner[s]; (2) from the same location; and (3) pursuant to a continuing criminal impulse or
a single sustained larcenous scheme.” Byrd, 968 S.W.2d at 291 (brackets in original).
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which an appeal lies to the Supreme Court or Court of
Criminal Appeals: (1) the substantive effect of which results
in dismissing an indictment, information, or complaint; (2)
setting aside a verdict of guilty and entering a judgment of
acquittal; (3) arresting judgment; (4) granting or refusing to
revoke probation; or (5) remanding a child to the juvenile
court. The [S]tate may also appeal as of right from a final
judgment in a habeas corpus, extradition, or post-conviction
proceeding.
Tenn. R. App. P. 3(c). “When a statute affords a state or the United States the right to an
appeal in a criminal proceeding, the statute will be strictly construed to apply only to the
circumstances defined in the statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008)
(citing Carroll v. United States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397,
400 (Tenn. 2002)). As our supreme court explained, at common law the State had no
right to appeal in a criminal case under any circumstances. Meeks, 262 S.W.3d at 718.
Later, many state legislatures and Congress granted to the prosecution limited rights of
appeal via specific constitutional or statutory provisions. See United States v. Sanges,
144 U.S. 310, 312 (1892) (“[T]he [s]tate has no right to sue out a writ of error upon a
judgment in favor of the defendant in a criminal case, except under and in accordance
with express statutes, whether that judgment was rendered upon a verdict of acquittal, or
upon the determination by the court of a question of law.”); see also United States v.
Martin Linen Supply Co., 430 U.S. 564, 568 (1977); United States v. Wilson, 420 U.S.
332, 336 (1975). Even when the right of appeal was granted to the prosecution, courts
continued to emphasize that such provisions must be construed or applied narrowly to
avoid a general grant of jurisdiction for state appeals. Meeks, 262 S.W.3d at 718; see
also Arizona v. Manypenny, 451 U.S. 232, 246 (1981); State v. Reynolds, 5 Tenn. 110,
111 (1817) (“It is our duty as faithful expositors of the law, to preserve it from all
encroachment by implication or construction, for in so doing we guard the honor and the
peace of our countrymen.”). Indeed, “‘appeals by the Government in criminal cases are
something unusual, exceptional, not favored,’ at least in part because they always
threaten to offend the policies behind the double-jeopardy prohibition.” Will v. United
States, 389 U.S. 90, 96 (1967) (quoting Carroll, 354 U.S. at 400. “Both prudential and
constitutional interests contributed to this tradition. The need to restrict appeals by the
prosecutor reflected a prudential concern that individuals should be free from the
harassment and vexation of unbounded litigation by the sovereign.” Manypenny, 451
U.S. at 245. When construing the right of the State to appeal in a criminal case,
reviewing courts must do so with an understanding that the granting authority, the
legislature, “clearly contemplated . . . that [the prosecution] would be completely unable
to secure review of some orders having a substantial effect on its ability to secure
criminal convictions.” Will, 389 U.S. at 98 n.5.
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With these considerations in mind, we turn to the question whether any
portion of the State’s appeal in this case fits any of the bases for rightful appeal
enunciated in Tennessee Rule of Appellate Procedure 3(c).
The trial court’s ruling in this case did not have “the substantive effect of . .
. dismissing an indictment, information, or complaint,” did not set aside the verdict of the
jury, did not arrest the judgment, did not result in the defendant’s being granted
probation, and did not “remand[] a child to the juvenile court.” Additionally, this case
does not arise from “a final judgment in a habeas corpus, extradition, or post-conviction
proceeding.” Because the State’s claim on appeal does not fit any of the categories
provided in Rule 3(c), the State has no stand-alone appeal as of right pursuant to
Tennessee Rule of Appellate Procedure 3.
That being said, Code section 40-35-402 provides the State the right to
appeal certain sentencing decisions of the trial court “within the same time and in the
same manner as other appeals in criminal cases”:
(a) The district attorney general in a criminal case may appeal
from the length, range or manner of the service of the
sentence imposed by the sentencing court. The district
attorney general may also appeal the imposition of concurrent
sentences. In addition, the district attorney general may also
appeal the amount of fines and restitution imposed by the
sentencing court. An appeal pursuant to this section shall be
taken within the same time and in the same manner as other
appeals in criminal cases. The right of the appeal of the state
is independent of the defendant’s right of appeal.
(b) An appeal from a sentence is limited to one (1) or more of
the following conditions:
(1) The court improperly sentenced the defendant to the
wrong sentence range;
(2) The court granted all or part of the sentence on probation;
(3) The court ordered all or part of the sentences to run
concurrently;
(4) The court improperly found the defendant to be an
especially mitigated offender;
(5) The court failed to impose the fines recommended by the
jury;
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(6) The court failed to order the defendant to make reasonable
restitution; or
(7) The sentence is inconsistent with the purposes or
considerations of sentencing set out in §§ 40-35-102 and 40-
35-103.
T.C.A.§ 40-35-402(a)-(b). Construing this statutory grant of State appeal narrowly, as
we are compelled to do, we conclude that Code section 40-35-402 does not provide the
State a right to appeal the trial court’s decision in this case.
The State argues that the trial court’s erroneous application of amended
Code section 39-14-105 caused it to impose a sentence within the wrong sentencing
range, thus giving rise to an appeal as of right under Code section 40-35-402(b)(1). The
State’s reliance on Code section 40-35-402(b)(1), however, is inapt. The amendment to
Code section 39-14-105 altered only the relationship between the value of property taken
during a theft and offense classification, in some situations adjusting the class of offense
at issue. The amendment did not alter the law setting sentencing ranges. Sentencing
range and offense class are not the same. Both offenses, see T.C.A. § 40-35-110, and
offenders, see id. § 40-35-105 to -109, are classified by the legislature, and the Code then
provides a range of punishment for each combination of offense and offender class. See
id. § 40-35-112. “[W]hen interpreting statutes,” this court follows “the Latin maxim of
expressio unius est exclusio alterius, meaning ‘the expression of one thing implies the
exclusion of all things not mentioned.’” Adler, 92 S.W.3d at 400 (quoting Limbaugh v.
Coffee Med. Center, 59 S.W.3d 73, 84 (Tenn. 2001)). The question in this case is not the
appropriate range classification but whether the defendant’s conviction of theft of
property valued at $1,000 or more but less than $10,000 should be classified as a Class D
felony, pursuant to the law in effect at the time of the crime, or a Class E felony, pursuant
to amended Code section 39-14-105. Because Code section 40-35-402 does not provide
the State an appeal as of right of the trial court’s decision regarding offense classification,
the trial court’s resolution of this question, regardless whether it was correct, does not
avail the State of a statutory right to appeal under the terms of Code section 40-35-402.
Consequently, the State has no statutory right to appeal in this case.
This court may, under certain circumstances, treat an improperly-filed
appeal as an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure. See State v. Norris, 47 S.W.3d 457, 463 (Tenn. Crim. App. 2000);
State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). Rule 10 provides:
An extraordinary appeal may be sought on application and in
the discretion of the appellate court alone of interlocutory
orders of a lower court from which an appeal lies to the
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Supreme Court, Court of Appeals or Court of Criminal
Appeals: (1) if the lower court has so far departed from the
accepted and usual course of judicial proceedings as to
require immediate review, or (2) if necessary for complete
determination of the action on appeal as otherwise provided
in these rules. The appellate court may issue whatever order
is necessary to implement review under this rule.
Tenn. R. App. P. 10(a). Before this court will grant an extraordinary appeal, however,
the appellant must establish that: (a) “the ruling of the court below represents a
fundamental illegality,” (b) “the ruling constitutes a failure to proceed according to the
essential requirements of the law,” (c) “the ruling is tantamount to the denial of either
party of a day in court,” (d) “the action of the trial judge was without legal authority,” (e)
“the action of the trial judge constituted a plain and palpable abuse of discretion,” or (f)
“either party has lost a right or interest that may never be recaptured.” State v.
Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980) (finding that the principles required for
the common law writ of certiorari are applicable to applications for extraordinary appeal
under Rule 10). Application of Rule 10 in this case is inappropriate, however, because
the State appeals from the final judgment of the trial court. The plain language of Rule
10 limits its application to the “interlocutory orders” of the trial court.
Under circumstances similar to those presented here, this court in Leath
considered the State’s improperly-filed Rule 3 appeal as a petition for the common-law
writ of certiorari. “The common-law writ of certiorari is ‘of ancient origin and has been
characterized as extraordinary, remedial, revisory, supervisory, and prerogative.’” State
v. Lane, 254 S.W.3d 349, 354 (Tenn. 2008) (quoting State v. Johnson, 569 S.W.2d 808,
812 (Tenn. 1978); Tenn. Cent. R.R. v. Campbell, 75 S.W. 1012 (Tenn. 1903)). “A writ of
certiorari is an order from a superior court to an inferior tribunal to send up a complete
record for review, so that the reviewing court can ascertain whether the inferior tribunal
has exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.” Lane, 254
S.W.3d at 354 (citations omitted). An extremely limited avenue of relief, the writ of
certiorari is available “to correct ‘(1) fundamentally illegal rulings; (2) proceedings
inconsistent with essential legal requirements; (3) proceedings that effectively deny a
party his or her day in court; (4) decisions beyond the lower tribunal’s authority; and (5)
plain and palpable abuses of discretion.’” Lane, 254 S.W.3d at 355 (quoting Willis v.
Tenn. Dep’t Corr., 113 S.W.3d 706, 712 (Tenn. 2002)). The writ may also lie “‘[w]here
either party has lost a right or interest that may never be recaptured.’” Lane, 254 S.W.3d
at 355 (quoting Johnson, 569 S.W.2d at 815)). “[R]eviewing courts should not grant a
petition for a common-law writ of certiorari to ‘(1) inquire into the intrinsic correctness
of the lower tribunal’s decision, (2) reweigh the evidence, or (3) substitute their judgment
for that of the lower tribunal.’” Lane, 254 S.W.3d at 355 (quoting Robinson v. Clement,
-8-
65 S.W.3d 632, 635 (Tenn. Ct. App. 2001) (internal citations omitted)).
A statutory provision for review by the writ of certiorari is codified at
Tennessee Code Annotated section 27-8-101:
The writ of certiorari may be granted whenever authorized by
law, and also in all cases where an inferior tribunal, board, or
officer exercising judicial functions has exceeded the
jurisdiction conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain, speedy, or
adequate remedy. This section does not apply to actions
governed by the Tennessee Rules of Appellate Procedure.
T.C.A. § 27-8-101. Although a provision for a writ of certiorari has been codified, our
case law is clear that “[t]he writ of certiorari does not owe its existence to constitutional
provision or statutory enactment. It is a common-law writ, of ancient origin, and one of
the most valuable and efficient remedies which come to us with that admirable system of
jurisprudence.” Campbell, 75 S.W. at 1012; see also State v. L.W., 350 S.W.3d 911, 915
(Tenn. 2011). “The inclusion of a provision in our original constitution for writs of
certiorari, Tenn. Const. art. VI, §§ 6-7 (1796), was to guarantee the availability of the
writ in civil cases, as opposed to the previously exclusive use of the writ in criminal
cases.” L.W., 350 S.W.3d at 915 (citing Campbell, 75 S.W. at 1012–13). Thus, the
procedural requirements for filing a petition for writ of certiorari in a civil case are
inapplicable “on petitions for writs of certiorari in criminal cases.” L.W., 350 S.W.3d at
916.
In this case, the trial court’s ruling is not fundamentally illegal and does not
amount to a “plain and palpable” abuse of the court’s discretion. Additionally, because
the trial court held more than one hearing on the issue at which both parties were allowed
to fully participate, the proceedings were not “inconsistent with essential legal
requirements” and did not deny either party a “day in court,” and neither party “lost a
right or interest that may never be recaptured.” Because the trial court’s application of
amended Code section 39-14-105 to the defendant’s case exceeded the court’s authority,
as will be discussed more fully below, we could treat the State’s improperly-filed appeal
as of right as a petition for the common law writ of certiorari. Nevertheless, we need not
resort to this extraordinary avenue to consider the State’s claim because the defendant
filed a timely notice of appeal in this case on January 13, 2017, following the December
16, 2016 denial of his motion for new trial.
Rule 13 of the Tennessee Rules of Appellate Procedure provides:
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Except as otherwise provided in Rule 3(e), any question of
law may be brought up for review and relief by any party.
Cross-appeals, separate appeals, and separate applications for
permission to appeal are not required. Dismissal of the
original appeal shall not preclude issues raised by another
party from being considered by an appellate court.
Tenn. R. App. P. 13(a). Once the defendant, who possessed a plenary right to appeal any
properly-preserved issue, filed a timely notice of appeal, this court acquired jurisdiction
of the entire case and any properly-preserved, cognizable claims raised by either party.3
See State v. Russell, 800 S.W.2d 169, 171 (Tenn. 1990) (“The filing of an appeal by one
party removes the entire case to the Appellate Court where both parties may present
issues in accordance with the rules.”). Because our determination of the appropriate
version of Code section 39-14-105 to be applied in this case is an issue of statutory
interpretation, it qualifies as a question of law, see State v. Henderson, 531 S.W.3d 687,
692 (Tenn. 2017) (“Issues of statutory construction present questions of law which we
review de novo, with no presumption of correctness.”), and, in consequence, it may be
raised by either party, regardless of which party initiated the appeal.
II. Applicability of Amended Code section 39-14-105
The State contends that the trial court erred by using the terms of Code
section 39-11-112, commonly referred to as the criminal saving’s statute, to determine
that the defendant was entitled to the lesser sentence provided for by the 2016
amendment to Code section 39-14-105 because (1) the amendment had not yet become
effective at the time of the defendant’s sentencing hearing and (2) Code section 39-11-
112 did not apply to the amendment because it was not a sentencing provision. The
defendant asserts that the trial court did not err.
Because our determination of the propriety of the trial court’s ruling
depends upon our interpretation of the amendment to Code section 39-14-105 through the
lens of Code section 39-11-112, our review is de novo with no presumption of
correctness afforded to the ruling of the trial court. See, e.g., State v. Howard, 504
S.W.3d 260, 267 (Tenn. 2016).
The most basic principle of statutory construction is “‘to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
3
As discussed above, under certain circumstances, constitutional principles limit the character of
claims that may be raised by the State on appeal.
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(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined ‘from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that
would extend or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740
(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the
statutory language is clear and unambiguous, we apply the plain language in its normal
and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State
v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous
that we may reference the broader statutory scheme, the history of the legislation, or other
sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).
On April 27, 2016, the governor signed into law a bill designated by the
legislature as the Public Safety Act of 2016 (“the Act”). The Act amends the law for the
issuance of orders of protection; alters the penalty for a third or subsequent conviction of
domestic assault; adds “the results of an offender’s validated risk and needs assessment”
to the list of factors that the trial court must consider during sentencing; adds a new
category of offenses that come with an 85 percent release eligibility percentage; adds a
new section to Title 40, Chapter 28 that creates a graduated system of sanctions for
violating a sentence involving release into the community; and amends Code section 39-
14-105 by modifying the grading of theft offenses. See 2016 Pub. Acts, c. 906. As is
relevant to this case, the Act provides:
Tennessee Code Annotated, Section 39-14-105(a), is
amended by deleting the subsection in its entirety and
substituting instead the following language:
(a) Theft of property or services is:
(1) A Class A misdemeanor if the value of the property or
services obtained is one thousand dollars ($1,000) or less;
(2) A Class E felony if the value of the property or services
obtained is more than one thousand dollars ($1,000) but less
than two thousand five hundred dollars ($2,500);
(3) A Class D felony if the value of the property or services
obtained is two thousand five hundred dollars ($2,500) or
more but less than ten thousand dollars ($10,000);
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(4) A Class C felony if the value of the property or services
obtained is ten thousand dollars ($10,000) or more but less
than sixty thousand dollars ($60,000);
(5) A Class B felony if the value of the property or services
obtained is sixty thousand dollars ($60,000) or more but less
than two hundred fifty thousand dollars ($250,000); and
(6) A Class A felony if the value of the property or services
obtained is two hundred fifty thousand dollars ($250,000) or
more.
2016 Pub. Acts, c. 906, § 5. The Act provides two different effective dates:
For the purpose of promulgating rules, policies, forms, and
procedures and making necessary provisions for the
implementation of this act, this act shall take effect upon
becoming a law, the public welfare requiring it. For all other
purposes, this act shall take effect January 1, 2017, the public
welfare requiring it.
Id., § 17. Because the amendment to Code section 39-14-105 does not affect the
“promulgating [of] rules, policies, forms, and procedures and making necessary
provisions for the implementation of this act,” the January 1, 2017 effective date applies
to the issues raised in the present case.
“Generally, a criminal offender must be sentenced pursuant to the statute in
effect at the time of the offense.” State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994)
(citing State v. Reed, 689 S.W.2d 190, 196 (Tenn. Crim. App. 1984); 24 C.J.S. Criminal
Law, § 1462 (1989)). Code section 39-11-112, however, provides an exception to this
general rule:
When a penal statute or penal legislative act of the state is
repealed or amended by a subsequent legislative act, the
offense, as defined by the statute or act being repealed or
amended, committed while the statute or act was in full force
and effect shall be prosecuted under the act or statute in effect
at the time of the commission of the offense. Except as
provided under § 40-35-117, in the event the subsequent act
provides for a lesser penalty, any punishment imposed shall
be in accordance with the subsequent act.
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T.C.A. § 39-11-112 (emphasis added). As our supreme court has explained, “the general
provisions of § 39-11-112 and the principles against retroactive application of statutes
mandate that an offense committed under a repealed or amended law shall be prosecuted
under that law, unless the new law provides for a lesser penalty.” State v. Cauthern, 967
S.W.2d 726, 747 (Tenn. 1998) (citing State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994);
State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994)).
Against this backdrop, we must determine whether the exception embodied
in the criminal saving’s statute, Code section 39-11-112, applies to amended Code
section 39-14-105 and whether, if it does apply, Code section 39-11-112 entitles the
defendant to the lesser sentence provided by the statutory amendment even though the
crime was committed and the defendant was sentenced before the effective date.
The State first argues that the exception in Code section 39-11-112 has no
application in this case because Code section 39-14-105, in any form, is not a sentencing
statute. We disagree. Code section 39-14-105 “provides the punishment for the offenses
of theft. These offenses are punished according to the value of the property or services
obtained.” T.C.A. § 39-14-105, Sentencing Comm’n Comm’t (emphasis added). In
1989, the legislature replaced the common law offenses of “embezzlement, false
pretense, fraudulent conversion, larceny, receiving or concealing stolen property, and
other similar offenses,” id. § 39-14-101, into a “new generic offense of theft,” id. § 39-
14-101, Sentencing Comm’n Comm’t; see also id. § 39-14-101 (“Conduct denominated
as theft in this part constitutes a single offense . . . .”). Code section 39-14-103 provides
the elements of the generic theft offense: “A person commits theft of property if, with
intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.” Id. § 39-14-103(a). Property is
defined as “anything of value, including, but not limited to, money, real estate, tangible
or intangible personal property, including anything severed from land, library material,
contract rights, choses-in-action, interests in or claims to wealth, credit, admission or
transportation tickets, captured or domestic animals, food and drink, electric or other
power.” Id. § 39-11-106. In most theft cases,
“Value”:
(A) Subject to the additional criteria of subdivisions
(a)(36)(B)-(D), “value” under this title means:
(i) The fair market value of the property or service at the
time and place of the offense; or
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(ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a
reasonable time after the offense;
....
(C) If property or service has value that cannot be ascertained
by the criteria set forth in subdivisions (a)(36)(A) and (B), the
property or service is deemed to have a value of less than fifty
dollars ($50.00);
Id. § 39-11-106(36)(A),(C). By applying these statutes, we see that so long as the State
establishes that the defendant deprived the owner of “property,” it will necessarily have
established that the defendant took a thing of value and vice versa. “Nothing in [Code
section] § 39-14-103 which defines the offense of theft requires the [S]tate to prove the
specific value of the property taken. Rather, the [S]tate merely has to introduce evidence
from which a jury could conclude that the property has some value.” State v. Hill, 856
S.W.2d 155, 156 (Tenn. Crim. App. 1993) (Baldwin v. State, 33 Tenn. (1 Sneed) 411
(1853)); see also State v. Charles Cox, No. W2010-00129-CCA-R3-CD, slip op. at 5
(Tenn. Crim. App., Jackson, Dec. 13, 2010) (“While the [S]tate did not present evidence
regarding the value of the items, the jury was free to infer that the items had some value,
which is sufficient to sustain the misdemeanor theft of property conviction.”).
When the State establishes a specific value of property taken, Code section
39-14-105 supplies a penalty to be imposed that is commensurate with the value as
established by the evidence. When the State fails, or elects not, to present proof of
specific value, the Code provides a default value of less than $50. Consequently, the
specific value of the property taken is not an element of the generic theft offense.4
Because Code section 39-14-105 provides the penalty for theft based upon
the value of the property taken, any amendment to that statute that lessens the penalty
falls squarely within the “exception” to Code section 39-11-112. The amendment at issue
in this case does exactly that. As is applicable in this case, the amendment provides that
4
We also observe that the gravamen of the Public Safety Act of 2016 is the amendment of various
sentencing provisions and that the legislature identifies the subject of HB2576, which became the Public
Safety Act of 2016, as “sentencing.” See Tennessee House Journal, 2016 Reg. Sess. No. 33 (“*House
Bill No. 2576 -- Sentencing - As introduced, enacts the ‘Public Safety Act of 2016.’ - Amends TCA Title
36, Chapter 3, Part 6; Title 39, Chapter 13, Part 1; Title 39, Chapter 14, Part 1; Title 40, Chapter 28; Title
40, Chapter 35 and Title 41, Chapter 1, Part 4. by *McCormick, *Brooks K, * Lamberth.”).
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the theft of property valued at just over $1,000, the value as alleged by the State, became
a Class E felony rather than a Class D felony. Clearly, the new act provides for a lesser
penalty than the previous act.
Having determined that Code section 39-11-112 is generally applicable to
amended Code section 39-14-105, we must next determine whether the Act can be
applied in the defendant’s case even though he was sentenced before the effective date of
the Act. The State argues that it cannot. The defendant, of course, contends that it can.
We agree with the State.
Our State constitution provides that “[n]o law of a general nature shall take
effect until forty days after its passage unless the same or the caption thereof shall state
that the public welfare requires that it should take effect sooner.” Tenn. Const. art. II, §
20. The law is clear, however, “that the Legislature may, by the terms of the act itself,
postpone its taking effect to a period beyond the 40 days even.” Wright v. Cunningham,
91 S.W. 293, 295 (Tenn. 1905) (citing State ex rel. v. Trewhitt, 82 S.W. 480, 483 (Tenn.
1904)). As our supreme court explained in Trewhitt, the purpose behind the 40-day
provision in article II, section 20 “was to secure a sufficient interval between the date of
the passage of an act and its going into effect, to enable the public to become acquainted
with its terms and to conform thereto with the saving that, if the public should require it,
the Legislature, by special direction to that effect, might cause it to become operative at
once.” Trewhitt, 82 S.W. at 483; Cf. Dyer v. State, 19 Tenn. 237, 255-56 (1838)
(observing that the requirement that “[s]tatutes take effect upon the most remote and
secluded portions of the State, from the time of their passage, not allowing a single
moment for gaining intelligence of their passage” was “a principle of law destitute of
every semblance of reason, and fraught with hardship and severity.”). Given this
purpose, the high court observed that “[t]here is nothing in the provision referred to, or in
any other provision of the Constitution, to forbid the Legislature making even a longer
interval than the one that was specially designated as a safeguard.” Trewhitt, 82 S.W. at
483.
In Wright v. Cunningham, our supreme court explained the effect of the
legislature’s including a delayed effective date:
In such cases the instrument has, by the authority of the
Legislature, become an expression of the legislative will in
the form of a rule of action prescribed for the regulation of
the conduct and affairs of the people; but it is a part of the
same expression that the people shall not be compelled or
permitted to act thereunder until the expiration of a time
fixed. It is tantamount to saying that on and after so many
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days from the passage of this act the rule of action shall be
thus and thus. The statute is vitalized immediately upon full
compliance by the Legislature with the requirements of the
Constitution for the enacting of laws. This is one thing. The
time when it shall be the duty of the people to comply with its
provisions is another; the latter depending upon the terms of
the act itself.
Wright, 91 S.W. at 295 (emphasis added); see also Key v. State, 591 S.W.2d 793, 795
(Tenn. Crim. App. 1979) (observing that “there is nothing in the Constitution to forbid
the Legislature postponing the operation of an Act for an extended interval beyond the
date of its passage”). In addition to a general postponing of the effective date, the
legislature may, as it did in the case of the Public Safety Act of 2016, “provide that part
or parts of an Act take effect before the remainder of the Act.” State ex rel. Banks v.
Taylor, 287 S.W.2d 83, 86 (Tenn. 1955); Am. Network Grp., Inc. v. Kostyk, 804 S.W.2d
447, 450 (Tenn. Ct. App. 1990) (“The delayed effective date is not an expression of
intent that any part of the act should take effect prior to its expressly stated effective
date.”).
Citing Combustion Engineering, Inc. v. Jackson, and Diana Morris v. State,
the defendant insists that “[a] legislative act of ‘amendment’ is distinct from a statutory
‘effective’ date.” In our view, neither case supports the defendant’s position. In
Combustion, “the single issue presented [was] the proper rate of interest payable upon a
deficiency assessment of excise taxes,” which required the court of appeals to interpret
the various amendments to Code section 67-1-801(a)(2). Combustion Eng’g, Inc. v.
Jackson, 705 S.W.2d 655, 655 (Tenn. 1986). In Diana Morris, an unpublished case from
the court of appeals, the court discussed the impact of an effective date that predates the
passage of an act:
The General Assembly may determine an Act’s effective
date. However, an effective date provision stating that an Act
becomes effective before it is actually passed is a nullity. A
bill is not deemed enacted until all the actions required by
Tenn. Const. art. II, § 18 have occurred. The 1999
amendment provided that it would apply to “all cases filed
with the . . . Commission on or after July 1, 1992, pending or
on appeal at the time of passage of this act . . . .” The General
Assembly completed action on the bill on March 22, 1999,
but the bill could not take effect until April 7, 1999, when the
Governor signed it. Accordingly, we construe the 1999
amendment to apply to cases pending or on appeal when the
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amendment became effective.
Diana Morris v. State, No. M1999-02714-COA-RM-CV, slip op. at 5 n.10 (Tenn. Ct.
App., Nashville, Oct. 8, 2002). Nothing in either case suggests that any act of the
legislature can have any effect before its effective date.
In this case, the Public Safety Act of 2016 was passed by both houses of the
legislature and signed into law by the governor on April 27, 2016. See 2016 Pub. Acts
906. At that point, having fully complied “with the requirements of the Constitution for
the enacting of laws,” the act was “vitalized.” Wright, 91 S.W. at 295. Because, as is
relevant in this case, the Act specified an effective date of January 1, 2017, “the people”
could “not be compelled or permitted to act thereunder until” that date based upon “the
terms of the act itself.” Id. Nothing in the language of Code section 39-11-112 alters the
rule that an act of the legislature cannot be applied until the effective date, which is
anchored in the state constitution. In consequence, the trial court exceeded its authority
by applying amended Code section 39-14-105 before its effective date.
We pause here to emphasize that, although we have rejected what we
discern as an over-extension of Code section 39-11-112, the statute remains naturally
efficacious and viable within its proper realm. To understand the statute’s limited
availability, one must understand first that the fundamental date for defining and
sanctioning criminal activity is the date of the offense. The date of the offense typically
informs the application of the proper proscriptive and punishment statutes. Because this
is true, not even the date of sentencing supplants the date of the offense as the controlling
date for purposes of criminal sanctioning – but for exception in Code section 39-11-112,
the criminal saving’s statute. Seen in this light, it is clear that the saving’s statute
becomes remedial only when the sentencing occurs after the effective date of any
statutory change. In the present case, the conviction offense was committed before the
effective date of the amendment to Code section 39-14-105 (and, in actuality, before the
governor signed the amendment into law), and the sentencing occurred before the
effective date of the statute. Thus, not even the date of the sentencing supplanted the date
of the offenses as the controlling date in this case.
Therefore, we vacate the sentence. Because the parties agreed that the
defendant was a career offender, a remand for resentencing is not necessary. The
judgment is modified to reflect a Class D felony conviction of theft of property valued at
$1,000 or more but less than $10,000 and a sentence of 12 years. See T.C.A. § 40-35-
108(c) (“A defendant who is found by the court beyond a reasonable doubt to be a career
offender shall receive the maximum sentence within the applicable Range III.”); id. § 40-
35-112(c)(4) (“A Range III sentence is . . . [f]or a Class D felony, not less than eight (8)
nor more than twelve (12) years[.]”).
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III. Sufficiency
The defendant challenges the sufficiency of the convicting evidence,
claiming that the State failed to establish that the value of the property taken exceeded
$1,000. Specifically, the defendant asserts that Mr. McCarter failed to give specific
testimony regarding the items taken during the September 10 incident before concluding
in a general manner that the value of the items exceeded $500 and that Mr. Schoenrock
erroneously included a value of $100 for the two spiderwraps to reach the $500
threshhold in relation to the September 15 incident despite testifying that that was neither
the fair market value nor the replacement cost for those items. The State asserts that the
evidence was sufficient.
As is relevant in this case, value means either “[t]he fair market value of the
property or service at the time and place of the offense” or “[i]f the fair market value of
the property cannot be ascertained, the cost of replacing the property within a reasonable
time after the offense.” T.C.A. § 39-11-106(a)(36)(A)(i)-(ii). Mr. Schoenrock, who
provided the value of the items taken from the Walmart on September 15, candidly
admitted that he did not know whether the $100 value he assigned to the spiderwraps was
either the fair market value or the replacement cost for those items. He acknowledged
that he did not know the replacement cost because it was not his job to order them and
that Walmart did not offer the spiderwraps for sale such that their fair market value could
be ascertained by checking the price in the store. That being said, the defendant was
convicted of the lesser included offense of theft of property valued at $500 or less in
those counts, and the “training receipt” created by scanning the items in the defendant’s
shopping cart supported that conviction even without the $100 attributed to the security
devices. Mr. McCarter identified the items taken by the defendant from the Walmart on
September 10 as Bostitch tool sets, two of which were priced at $189.99 and six of which
were priced at $89.99. Although Mr. McCarter did not prepare a “training receipt” and
his testimony was, at times, less than specific, the aggregate total of the items he
identified in the defendant’s shopping cart exceeded $900. Thus, the evidence adduced at
trial was sufficient to support a conviction of theft of property valued at more than $500
in counts three and four. Additionally, the evidence sufficiently established that the
aggregate value of the items taken during the two incidents was $1,000 or more but less
than $10,000 as alleged in counts one and two.
Conclusion
The evidence was sufficient to support the defendant’s convictions in this
case. Because the trial court erred by applying the amended version of Code section 39-
14-105 prior to the amendment’s effective date, we vacate the six-year sentence imposed
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by the trial court and remand the case for the entry of a modified judgment reflecting a
12-year sentence for a Class D felony conviction of theft of property valued at $1,000 or
more but less than $10,000.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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