Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs in Knoxville November 28, 2017
from the Circuit Court for Bedford County No. 18226 F. Lee
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.
W. WEDEMEYER, JUDGE.
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
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.
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.
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.
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