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State v. Keese

Court of Criminal Appeals of Tennessee, Knoxville

March 15, 2018

STATE OF TENNESSE
v.
CHARLES KEESE

          Session December 19, 2017

         Appeal from the Criminal Court for Knox County No. 105631 Scott Green, Judge.

         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

          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.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         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 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 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 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.

         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 ...

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