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State v. Summers

Court of Criminal Appeals of Tennessee, Nashville

February 5, 2018

STATE OF TENNESSEE
v.
MARVIN DEVON SUMMERS

          Assigned on Briefs in Knoxville November 28, 2017

         Appeal from the Circuit Court for Bedford County No. 18226 F. Lee Russell, Judge

         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

          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.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         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 ...


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