Court of Criminal Appeals of Tennessee, Knoxville
defendant, Denton Jones, appeals his Knox County Criminal
Court jury conviction of theft of property valued at $1, 000
or more, arguing that the State should not have been
permitted to aggregate into a single count of theft the value
of property taken on five separate occasions from two
different locations; that the trial court erred by permitting
testimony concerning evidence that suggested the defendant
had committed other offenses; that the trial court erred by
denying his motions for mistrial, including one based upon an
alleged violation of Brady v. Maryland; that the
evidence was insufficient to support his conviction; and that
the cumulative effect of the errors at trial entitle him to a
new trial. Discerning no error, we affirm.
R. App. P. 3; Judgment of the Criminal Court
January 23, 2018 Session
from the Criminal Court for Knox County No. 105473 Scott
L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for
the appellant, Denton Jones.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Charme P.
Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE.
Knox County Grand Jury charged the defendant with theft of
property valued at $1, 000 or more but less than $10, 000
from Target between April 28 and May 12, 2014.
defendant's December 2016 trial, Frederick Joe Smith,
executive team leader for asset protection at the Parkside
Drive Target in Knoxville testified that on April 28, April
30, and May 10, 2014, the defendant entered the store and
took fitness trackers without paying for them. Mr. Smith said
that because fitness trackers were regarded as high-value,
high-theft items, they were placed on a "perpetual
inventory log" or "PIT log" maintained by the
asset protection department at the Parkside Drive Target. He
explained that the PIT log contained the item numbers,
prices, and building locations of 50 such items and that
items purchased by customers were automatically removed from
the PIT log. In addition to being placed on the PIT log,
fitness trackers were outfitted with spider wrap, hung from
"a locking peg hook," and placed under constant
April 28, 2014, Mr. Smith observed spider wrap for two
fitness trackers "just hanging on the locking peg
hook" in the sporting goods area, so he decided to watch
the video surveillance recording for that area. Mr. Smith
explained that the video, which was exhibited to Mr.
Smith's testimony and played for the jury, showed a man
later identified as the defendant wearing an "Under
Armour hat and hooded sweatshirt." The defendant worked
the fitness trackers free from the spider wrap, placed them
behind other merchandise on a nearby shelf, and then left the
area. He walked back to the area shortly thereafter,
retrieved the items, and concealed them on his person. After
watching the video, Mr. Smith checked the PIT log and
determined that two fitness trackers were missing. Store
records indicated that neither had been purchased by a
customer. The value of the two fitness trackers was $199.98.
April 30, 2014, Mr. Smith again observed empty spider wrap
hanging from a locking peg hook, and, again, video
surveillance showed the defendant, who was "wearing the
same hooded sweatshirt and the same hat," removing the
spider wrap from three fitness trackers and placing each item
behind other merchandise on a nearby shelf before coming back
to retrieve all of the fitness trackers and conceal them on
his person. Again, the PIT log reflected that the defendant
had not purchased the items, which had a total value of
10, 2014, Mr. Smith again observed empty spider wrap hanging
from a locking peg hook, and, again, video surveillance
showed the defendant, who was "wearing basically the
same hat, shorts, and shoes," going through the same
process to take two fitness trackers worth a total of
12, 2014, Mr. Smith had an occasion to observe the defendant
begin his process firsthand. When another customer
interrupted him, the defendant left the store before
completing the process, and Mr. Smith followed him to the
parking lot, where he recorded the license tag number for the
silver sedan that the defendant had been seen entering after
each previous theft.
cross-examination, Mr. Smith acknowledged that he had no
documentation other than his own notes to establish the value
of the items taken from the Target. He also acknowledged that
he did not contact the police at the time of each taking,
stating that he waited until he could positively identify the
Elliott, the former asset protection team leader at the Town
Center Boulevard Target, testified that on April 30, 2014, he
observed fitness trackers "missing off of the peg
hooks." Mr. Elliott watched the video surveillance
footage from the sporting goods area and saw the defendant
"bend down in front of the [fitness trackers], defeat
the spider wraps, take them, put them . . . behind the
weights, and he looked around and made sure nobody was
around, picked them up, concealed them, and left." The
total retail value of the two fitness trackers taken on this
occasion was $259.98.
12, 2014, Mr. Elliot again observed a fitness tracker missing
from its spider wrap, and when he watched the video
surveillance footage from the area, he observed the defendant
engage in the same process to take the fitness tracker, which
had a value of $129.99.
Adams, owner of Red Rhino, "a buy, sale, trade second
hand store," testified that part of his business was the
purchase and resale of fitness trackers. He said that those
individuals selling items to Red Rhino were required to
present their driver's licenses and that, after
purchasing an item from an individual, his employees were
required to "enter it into LEIDS online," which Mr.
Adams described as "a database for the police department
to make sure if the item is stolen or something like
that." He explained that the employee would use the
seller's driver's license "to auto-populate
different fields" and then add a description of each
item sold during a particular transaction. Mr. Adams said
that his records indicated that the defendant had sold
fitness trackers to Red Rhino during April and May of 2014.
He said that Red Rhino paid the defendant $30 for each of the
fitness trackers and would have resold them "in the
$60.00 to $70.00 range." He said that, "[b]ased
upon the price paid, those would be new or new in box
cross-examination, Mr. Adams testified that employees were
required by law to record the seller's race into LEIDS
and acknowledged that some of the LEIDS entries for the
defendant indicated his race as African American even though
he is Caucasian, explaining that the entries were "most
likely a clerical error."
Police Department Officer Tom Epps testified that he was
contacted by Target to investigate a series of thefts at the
Parkside Drive and Town Center Boulevard locations. Officer
Epps examined Target's records and reviewed the video
surveillance recordings. He searched the defendant's name
in the LEIDS database, which showed that the defendant had
sold fitness trackers to Red Rhino.
Officer Epps's testimony, the State rested, and,
following a full Momon colloquy, the defendant
elected not to testify and chose not to present any proof.
The jury convicted the defendant of theft of property valued
at $1, 000 or more but less than $10, 000. Following a
January 2017 sentencing hearing, the trial court sentenced
the defendant, a career offender, to a six-year Class E
timely appeal, the defendant challenges the State's
aggregation of the value of the property taken during the
five thefts, the admission of certain evidence, the denial of
his motions for a mistrial, and the sufficiency of the
convicting evidence. He also argues that the cumulative
effect of the errors at trial entitle him to a new trial. We
consider each claim in turn.
defendant contends that the trial court erroneously
determined that Code section 39-14-105 permitted the State to
aggregate the value of the property taken during the separate
thefts in this case. The State asserts that the plain
language of the 2012 amendment to the statute permitted the
aggregation of value in this case.
our determination of the propriety of the aggregation of
value in this case depends upon our interpretation of Code
section 39-14-105, our review is de novo with no presumption
of correctness afforded to the ruling of the trial court.
See, e.g., State v. Howard, 504 S.W.3d 260,
267 (Tenn. 2016).
most basic principle of statutory construction is
"'to ascertain and give effect to the legislative
intent without unduly restricting or expanding a
statute's coverage beyond its intended scope.'"
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676,
678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995)). "Legislative intent is
determined 'from the natural and ordinary meaning of the
statutory language within the context of the entire statute
without any forced or subtle construction that would extend
or limit the statute's meaning.'" Osborn v.
Marr, 127 S.W.3d 737, 740 (Tenn. 2004) (quoting
State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)).
"When the statutory language is clear and unambiguous,
we apply the plain language in its normal and accepted
use." Boarman v. Jaynes, 109 S.W.3d 286, 291
(Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 270,
271 (Tenn. 2000)). "It is only when a statute is
ambiguous that we may reference ...