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State v. Harvey

Court of Criminal Appeals of Tennessee, Nashville

October 21, 2014

STATE OF TENNESSEE
v.
CYNTHIA GAIL HARVEY

August 12, 2014 Session

Appeal from the Circuit Court for Humphreys County No. 11430 George C. Sexton, Judge

Olin J. Baker, Charlotte, Tennessee, for the appellant, Cynthia Gail Harvey.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Craig Monsue, Assistant District Attorney General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

The Defendant was indicted on August 6, 2007, for theft of property valued at $10, 000 or more, a Class C felony. The indictment alleged that the offense at issue occurred between January 21, 2005, and June 2, 2006. The Defendant then filed a motion to dismiss for failure to conduct a speedy trial on September 21, 2012. That motion was denied, and a trial was held on October 11, 2012. The following evidence was presented at the Defendant's trial.

Michael Scott Patton, the victim, testified that he owned Waverly Discount Tobacco store where he employed the Defendant. Mr. Patton explained that the Defendant had worked for him for a number of years, that she had keys to the store, and that he trusted her. Mr. Patton further explained that the Defendant "most always" worked on Fridays, that she primarily waited on customers, that she both opened and closed the store, and that she always worked alone. Mr. Patton testified that he contacted the Waverly Police Department (WPD) on June 2, 2006, after discovering that the Defendant had been stealing money from the cash register. This discovery was made several days prior when Mr. Patton, during his routine accounting, noticed that the cash register had too many "Z" reports. Mr. Patton explained that there were two reports that could be requested from the cash register, an "X" or "Z" report. He further explained that the "X" report reflected the daily profits in the cash register over $300, which was the amount that should always remain in the register at the end of the day to provide change for customers; an "X" report could be requested at any time until a "Z" report was conducted. Mr. Patton explained that the "Z" report "zeros out" the grand total of sales, returning it to zero, and that there should be one "Z" report printed per day. He further explained that each "Z" report had a corresponding number, and that after he noticed an extra "Z" report, he began looking at the reports more closely and discovered that some of the "Z" report numbers were missing and that this seemed to occur only on Fridays. Mr. Patton further testified that a "Z" report could be run accidentally but that the clerks would usually call and tell him such because they knew doing so was a "bad mistake." However, he did explain that you would have to turn the key from "X" to "Z" before running a "Z" report.

Because the Defendant worked on Fridays, he began watching her. Mr. Patton saw the Defendant run a report one morning and then take money out of the register to get the total close to $300. He allowed her to do it a few more times to get it on the surveillance video and then confronted her on June 2, 2012. The Defendant denied any wrongdoing, and Mr. Patton informed her that he was calling the police. Mr. Patton testified that, after examining his finances and reports, he discovered that the Defendant had been stealing money from the cash register since January 21, 2004, and that she had stolen over $10, 000.

On cross-examination, Mr. Patton admitted that machines could make mistakes but insisted that he never had one of his cash registers make a mistake. He also admitted that the Defendant sometimes worked half of a day, that he had not inspected the cash register for defects, and that employees sometimes removed large bills or large sums of money from the register for safety reasons.

Devin Elliott, an officer with WPD, testified that he assisted Officer Greg Triplett with the call regarding a theft at Waverly Discount Tobacco and that Officer Triplett did most of the talking and investigating. Officer Elliott also testified that the Defendant voluntarily went to the WPD with him and Officer Triplett and that she was not under arrest at that time. Officer Triplett conducted a short interview of the Defendant, and he observed. The Defendant became ill at some point and was taken to the hospital. He admitted that he did not take any notes, that he consulted the case file for trial purposes, and that the information would have been difficult to remember if he had not viewed the case file prior to trial.

Officer Triplett testified that he was dispatched to Waverly Discount Tobacco regarding an employee theft. He spoke with Mr. Patton, took notes, talked to the Defendant, and asked if she would accompany them to WPD. She complied. Officer Triplett interviewed the Defendant, which was recorded, but the interview was cut short because the Defendant had a medical issue. On cross-examination, he agreed that the Defendant was taken to the hospital after a short interview and that he was ultimately informed that she had a coronary seizure.

The State rested its case, and the Defendant made a motion for judgment of acquittal, which the trial court denied. After a brief conference with the Defendant, trial counsel informed the trial court that the Defendant did not want to testify and stood on her motion. After brief deliberations, the jury convicted the Defendant as charged. A sentencing hearing was scheduled, but prior to the commencement of the hearing, the parties reached an agreement in which ...


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