Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 9, 2014
Appeal from the Criminal Court for Davidson County No. 2013-A-189 Mark J. Fishburn, Judge
Richard C. Strong (on appeal), Nashville, Tennessee; and Robert Vaughn (at trial), Nashville, Tennessee, for the appellant, Renita Elaine McDonald.
Robert E. Cooper, Jr., Attorney General and Reporter; David Findley, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Dina Shabayek, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
The proof at trial consisted of one witness, Dillard's Loss Prevention supervisor, Travis Smith. On March 5, 2011, Mr. Smith was working at the Dillard's department store in the Green Hills Mall. At the time, the store's second floor was undergoing renovation. The store was equipped with approximately twenty-five surveillance cameras. The cameras could be tilted, panned, zoomed and could move 360 degrees. There were no cameras outside the store.
Mr. Smith testified that there are approximately fifteen ways to exit the store. He stated that in his experience, two people working together as a team to steal merchandise usually had "someone who is walking [and] looking out." The lookout also helps select merchandise, and sometimes they split up "hoping that you [will] go for one and not the other, so you don't get both [of] them." He stated there are "little stairwells, emergency exit [and] stuff like that you can [use] if say one person leaves with the merchandise [and] the other person can go away and get a car and pull around to where the other person [is] left. They do that, or meet up elsewhere."
At the time Defendant entered Dillard's, Mr. Smith was in the control room monitoring the surveillance cameras when he observed Defendant with a black male walking in the store via the second level garage entrance near the lingerie department. He recognized Defendant from a previous occasion. Mr. Smith noticed that it appeared the male subject was looking around "seeing where the associates were [and] if anybody was watching them, who was in the area, [and] where the customers were." He thought that was "kind of peculiar." He observed the pair looking at handbags.
At some point, Mr. Smith zoomed in on the pair with a camera and observed "a few more indicators" that something unusual was happening. He radioed another security officer to perform a walk through. Mr. Smith continued to observe Defendant and the male subject as they made their way to the Brahman's handbag section, which was about fifteen to twenty feet away from the mall entrance door. He also observed a lanyard with a set of keys in Defendant's possession.
Mr. Smith watched as the male subject took wallets and put them into a purse that he had set on a table. Mr. Smith then radioed the other security officer to hurry up because he believed the store was about to experience a theft. According to Mr. Smith, at some point Defendant handed the male subject a purse. The male subject then left the store with "all the purses on his arm, including the one that he had put the wallets in and the purse that [Defendant] had given to him."
At that point, Defendant went back through the store the way she and the male subject entered. Mr. Smith then began pursuing the male subject in the mall area outside Dillard's. At some point the male subject got onto an elevator and eluded Mr. Smith. Mr. Smith went down a fire stairwell and chased the male subject until the suspect began to head toward the traffic.
During this pursuit, Mr. Smith was in radio commination with Officer Cartonel, another security officer. Officer Cartonel had positioned himself on the second floor of the parking garage where he could see the male suspect's direction of travel. Officer Cartonel had lost sight of the male but advised Mr. Smith of the description of a silver Magnum vehicle.
After being advised by Officer Cartonel that Defendant was walking toward Walgreens across the street, Mr. Smith went into the Walgreens and found Defendant looking at candy bars. Mr. Smith identified himself and began questioning Defendant about the male subject and the theft from Dillard's. Defendant denied knowing the male subject and any involvement in the theft. She admitted to saying "hi" to the gentleman but claimed to know nothing else of the matter. Mr. Smith noticed that Defendant no longer had the lanyard and keys in her possession.
Mr. Smith testified the total value of the property taken from Dillard's was $2, 120. He further testified that one purse was recovered across the street. Four purses and three wallets were not recovered. As a result of the recovered purse, on cross-examination he modified the amount of the lost property, stating, "Dillard's was out $1, 825."
The State concluded its case in chief by publishing to the jury the surveillance video captured inside Dillard's, which clearly corroborated Mr. Smith's testimony regarding Defendant's and the male's activities while in the store. Mr. Smith identified Defendant as the female in the video. The store surveillance video was admitted without objection.
On cross-examination, Mr. Smith confirmed there were no "tag switches" or "booster bag" used. He stated that the male subject displayed clues that drew his attention to him. He testified regarding the store's system of keeping track of the purses in the area where Defendant and male subject were located. He confirmed he never saw Defendant leave the store with any merchandise. He testified that he signed the affidavit of complaint which stated that he observed two individuals taking tags off of purses but admitted that was not correct. Further, the affidavit stated that mall security followed the male subject across the street, which was also incorrect.
In response to a question by defense counsel, Mr. Smith responded that he received "radio traffic from mall security" which informed him that they had "seen a silver Magnum pull in to the strip lot and [Defendant] get out of the vehicle and the gentleman get into the vehicle and the vehicle take off." He also responded to defense counsel that he was informed by a security officer that [Defendant] "was walking toward Walgreens, which is why I went towards Walgreens." He later clarified that mall security advised him that the gentleman was "standing there with the handbags. [A] Silver Magnum pulls up, [Defendant] gets out, the gentlemen throws the handbags into the vehicle, and he takes off in the vehicle and she takes off walking towards Walgreens." Mr. Smith confirmed he did not see this activity but was advised of this information by someone else and responded to the received information by going to Walgreens.
The cross-examination of Mr. Smith was concluded with his statement that he saw the white purse which Defendant had picked up in the store on the arm of the male subject after the male subject left the store.
The defense presented no proof.
At the conclusion of the proof, the jury found Defendant guilty of theft of property with a value of $1, 000 or more but less than $10, 000. As a result, the trial court sentenced Defendant to eight years as a Range II, multiple offender, denying any form of alternative sentencing. After the denial of a motion for new trial, Defendant filed a timely notice of appeal.
The following issues have been presented to this Court on appeal: (1) whether the trial court abused its discretion in allowing out-of-court statements made to Mr. Smith by other officers; (2) whether the evidence was sufficient to support the conviction of theft of property valued at $1, 000 or more but less than $10, 000; and (3) whether the trial court erred in denying alternative sentencing.
I. Exclusion of Out-of-Court Statements
On appeal, Defendant argues that the trial court erred in admitting the out-of-court statements of Mall Security Officer Cartonel to Mr. Smith because they were hearsay and also because they were testimonial statements that violated the Confrontation Clause. The State disagrees.
During the direct examination of Mr. Smith, the following exchange occurred:
[Mr. Smith]: Anyways, I continued radioing my location and where I was and where I would like Officer Cartonel to go, as far as direction and location. And I also was in contact with mall security. I was advised of a direction of travel for the subject --
[Defense Counsel]: Objection, your Honor.
[Trial Court]: Overruled.
[Mr. Smith]: And I responded to that direction of travel, which was east on the other side of Abbott Martin, which is where I was, which is the Kroger side, the bank side, et cetera, and was heading up towards the strip mall area. So I respond that way, I let the police know. I also radioed Officer Cartonel to respond to that direction. By the time I had arrived at that location, I had gotten a further update that the subject that I was chasing --
[Defense Counsel]: Objection, Your Honor, I'm not sure I understand where these updates are coming from, and who is supposed to be making these statements. I'm just not at all certain, these are ...