State v. Harry Clardy

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
December 22, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) No. 01C01-9710-CC-00457
)
Appellee )
) Montgomery County
vs. )
) Honorable John H. Gasaway, Judge
HARRY D. CLARDY, )
) (Theft of property)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY SMITH JOHN KNOX WALKUP
(On Appeal Only) Attorney General & Reporter
Assistant Public Defender
One Public Square KAREN M. YACUZZO
Suite 321 Assistant Attorney General
Clarksville, TN 37040 Criminal Justice Division
425 Fifth Ave. North
N. REESE BAGWELL 2d Floor, Cordell Hull Bldg.
(At Trial) Nashville, TN 37243-0493
Attorney at Law
116 S. Second St. JOHN WESLEY CARNEY, JR.
Clarksville, TN 37040 District Attorney General
ARTHUR BIEBER
Assistant District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37040
OPINION FILED: ____________________
AFFIRMED
JAMES CURWOOD WITT, JR.
JUDGE
OPINION
The defendant, Harry D. Clardy, appeals pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from his judgment of conviction in the
Criminal Court of Montgomery County for exercising control over stolen property
valued at more than $10,000, a Class C felony. He was sentenced to serve fifteen
years in the Department of Correction as a Range III, persistent offender. In this
appeal, the defendant contends that the evidence is insufficient to establish that the
goods stolen were worth more than $10,000 and that the trial in Montgomery
County Circuit Court violated due process because the theft occurred in Davidson
County. We affirm the judgment of the trial court.1
The proof introduced at trial shows that on October 25, 1994 Bobby
Gray, an ex-police officer, became suspicious when he saw the driver of a tractor-
trailer truck attempt to back into a parking lot at Bellamy Auction in Clarksville. The
truck missed the turn and went into a ditch. The back doors came open and several
boxes fell out. He recognized the defendant who was standing alongside the
vehicle trying to guide it into the lot. Gray called the police on his cellular phone.
He continued to watch as the driver jockeyed the truck back and forth in his
unsuccessful attempt to back into the lot. Just as the police arrived, the driver
pulled the truck into the street near the curb. When the officers ran the VIN
numbers they discovered that the tractor belonged to L & M Enterprises in
Mississippi, that the trailer was owned by Dollar General Stores Inc., and that L &
M did not deliver for Dollar General Stores. At that time, neither business was
aware of the theft of its property. The police arrested the defendant and Bobby Joe
Hobson, the truck driver.
1
This case is before us on a grant of a delayed appeal. The
defendant was sentenced on August 18, 1995. No motion for new trial was filed.
On September 14, 1997, the trial court found that the defendant had received
ineffective assistance of counsel and was entitled to a delayed appeal.
Appointed counsel filed a motion for new trial and an amended motion for new
trial. The trial court denied the motions on August 22, 1997, and the notice of
appeal was filed four days later.
2
The resulting police investigation discovered that Hobson, an
employee of L & M, left Mississippi on Oct. 23 with a load of furniture to be delivered
in Detroit. Hobson had become seriously addicted to crack cocaine, and instead of
proceeding to Detroit, he stopped in Nashville and sold the contents of the trailer for
$1,400. He abandoned the empty trailer in a lot and spent the money on crack.
During the course of the evening, he encountered the defendant and a woman
named Mary Bowlin. When the money ran out, Clardy suggested that they pick up
a loaded trailer from the lot at RAM-3 Distribution Services. Hobson followed
Clardy’s directions to the lot and selected a loaded, sealed trailer. Hobson attached
the trailer to the “bobtail,” and the threesome drove to Clarksville where they
attempted to sell the contents of the trailer at Bellamy Auction.2 Hobson and Bowlin
both testified that, at one point, they decided to abandon the trailer. They emptied
some of the cartons and packed the goods in the sleeper. Hobson, however, had
broken a pin in the “fifth wheel” when he attached the trailer, and he was unable to
release the mechanism. Clardy managed to sell a few of the loose items along the
road.
According to Nancy Bellamy, Clardy came to Bellamy Auction at about
3:00 p.m. on Oct. 25 and offered to sell her the contents of the trailer. He showed
her a blanket, a kerosene lamp, and a tea kettle. She asked him if he had a bill of
sale, and when he said that he did, she agreed to take a look at the merchandise.
Because of the difficulties Hobson encountered in trying to back into the parking lot
and the arrival of the police, she never actually saw any of the merchandise in the
vehicle.
At trial, Mark Spencer, Dollar General Corporation’s traffic manager,
testified that the trailer itself was worth approximately $7,000. He submitted a
2
Hobson and Bowlin testified to these events at trial. Hobson
pleaded guilty to exercising control over stolen property valued at more than
$10,000 and received three years on probation. At the time of Clardy’s trial, he
was awaiting trial in Mississippi on embezzlement charges. Bowlin was not
indicted.
3
detailed summary sheet which specified the exact contents of the trailer and their
value. According to the summary, the trailer contained 1,364 cartons valued at
$47,089.3 When he examined the trailer, approximately 30 or 40 of the cartons
were missing; however, the cab’s sleeper was packed full of blankets and other
items.
After hearing the testimony, the jury found the defendant guilty of theft
of property valued at more than $10,000. The defendant now complains that the
evidence at trial is legally insufficient to support his conviction. We disagree.
When an accused challenges the sufficiency of the evidence, an
appellate court’s standard of review is, whether after considering the evidence in
the light most favorable to the prosecution, 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, 317 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985); Tenn. R. App. P. 13(e). Because a jury conviction removes the presumption
of innocence with which a defendant is initially cloaked and replaces it with one of
guilt, a convicted defendant has the burden of demonstrating on appeal that the
evidence is insufficient. State v, Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). 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. Harris,
839 S.W.2d 54, 75 (Tenn. 1992).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 250, 253
(Tenn. Crim. App. Tenn. 1990). Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised
by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d
3
At trial, Spencer testified that the cartons numbered 1,381. Our
calculations based on the summary indicate that the number was 1,364. The
actual number is not of any particular significance in this instance.
4
833, 835 (Tenn. 1978). This court may not substitute its inferences for those drawn
by the trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 286 S.W.2d
856,859 (1956), cert. denied 325 U.S. 845, 77 S. Ct. 39 (1956); Farmer v. State,
574 S.W.2d 2d 49, 51 (Tenn. Crim. App. 1978). It is the appellate court’s duty to
affirm the conviction if the evidence, viewed under these standards, was sufficient
for any rational trier of fact to have found the essential elements of the offenses
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781,
2789; State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).
The defendant contends that the record does not prove that the value
of the stolen property exceeded $10,000. Our legislature has defined theft of
property as follows:
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.
Tenn. Code Ann. § 39-14-103 (1997). Another section grades the offense of theft
according to the value of the property involved. Theft is a Class D felony if the value
of the property obtained is more than $1,000 but less than $10,000. Tenn. Code
Ann. § 39-14-105(3) (1997). If the property is valued at more than $10,000 but less
than $60,000, theft is a Class C felony. Tenn. Code Ann. § 39-14-105(4).
Bobby Gray, Nancy Bellamy, and one other witness testified that the
defendant was with the stolen vehicle and that he attempted to sell at least some
of its contents. Bobby Hobson and Mary Bowlin testified that the defendant directed
them to the lot where the trailer was parked, that he was present when the trailer
was stolen, that he rode with them to Clarksville, and that he actively participated
in the attempts to dispose of the stolen merchandise. The representative of the
Dollar General Stores testified that the trailer itself was worth about $7,000. The
company records introduced at trial indicate the value of the merchandise was more
than $47,000.
5
Although it is true that there is no direct proof that the trailer was
actually loaded with the merchandise, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn.
1973); State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v.
Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1987). The circumstantial evidence in
the record is more than sufficient for a rational jury to conclude that the cartons
listed on the summary sheet were actually loaded onto the trailer.
First, Hobson testified that he and the defendant looked for a trailer
with a seal because they knew that a seal indicated that the trailer was full. He also
testified that he removed the seal from the trailer and threw it away. Hobson
described the trailer as being filled with cartons “from top to bottom and front to
back.” Nancy Bellamy and Bobby Gray saw cartons fall out of the truck when it
backed into the ditch. Charles William Poff testified that the defendant approached
him with a blanket and a kerosene lamp and asked him where he could sell a
truckload of such merchandise. Moreover, the summary provided by Dollar General
Stores indicates that the cartons contained a variety of merchandise including
blankets, kerosene lamps, and tea kettles. Piles of blankets and other items were
found in the cab of the truck.
The defendant contends that both Hobson and Bowlin are liars and
that their testimony is incredible. This court, however, does not determine the
credibility of the witnesses or the weight and value of the evidence State v.
Cabbage, 571 S.W.2d 833, 835 (Tenn. 1978). The jury as the trier of fact resolves
any conflicts in the testimony as well as issues of credibility and weight. Id. In this
instance, the jury accredited the evidence presented by the state’s witnesses and
resolved the conflicting testimony in favor of the state.
The evidence is more than sufficient to prove beyond a reasonable
doubt that the goods described in the Dollar General Stores’ paperwork was in the
6
trailer when Hobson and the defendant removed it from the RAM-3 lot in Nashville
without the consent of its owner. The evidence is also legally sufficient to show that
the defendant unlawfully and knowingly exercised control over the stolen property
in Clarksville. According to Dollar General’s invoices, the value of the load was in
excess of $47,000. The trailer was valued at $7,000. We find that the state
established beyond a reasonable doubt that the value of the stolen property was
greater than $10,000. The defendant’s challenge to the sufficiency of the evidence
is without merit.
In his amended motion for new trial, the defendant contended that the
trial court lacked jurisdiction to try him in Montgomery County as the theft occurred
in Davidson County. On appeal, he argues that Rule 18 of the Tennessee Rules
of Criminal Procedure violates due process because it allows a case to be tried in
multiple venues. It is well established in this state that a party may not take one
position regarding an issue in the trial court, change its strategy or theory in
midstream, and advocate a different ground or reason in this Court. See State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988), State v. Dobbins, 754
S.W.2d 637, 641 (Tenn. Crim. App. 1988). Therefore, the issue is waived. See
Tenn. R. App. P. 36(a).
Moreover, the general rule is that an offense shall be prosecuted in
the county where the offense was committed. Tenn. R. Crim. P. 17(a). In this
instance, the defendant was charged with theft by exercising control over the
loaded Dollar General box trailer in Montgomery County with the intent to deprive
7
the Dollar General Stores of that property. The proof at trial overwhelmingly
demonstrates that he was in possession of the property and that he exercised
control over that property. He showed the merchandise which he and his co-
defendant removed from the cartons to at least two persons in an attempt to sell it,
and, in fact, he sold a few of the items for twenty dollars. Without question, these
actions took place in Montgomery County. Even though the trailer was stolen from
a lot in Davidson County, the defendant committed the offense for which he was
indicted in Montgomery County. On these facts, no viable issue exists concerning
either the trial court’s jurisdiction or the constitutionality of Rule 18(b). 4
For the reasons discussed above, we affirm the judgment of the trial
court.
______________________________
JAMES CURWOOD WITT, JR., Judge
CONCUR:
______________________________
GARY R. WADE, Presiding Judge
______________________________
THOMAS T. W OODALL, Judge
4
The rule provides that if one or more elements of an offense are
committed in one county and other elements are committed in a second county,
the state may prosecute the offense in either county. Tenn. R. Crim. P. 18(b).
8