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State v. Jones

Court of Criminal Appeals of Tennessee, Knoxville

June 28, 2018

STATE OF TENNESSEE
v.
DENTON JONES

         The 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.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          January 23, 2018 Session

          Appeal from the Criminal Court for Knox County No. 105473 Scott Green, Judge

          Robert 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 of Tennessee.

          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 theft of property valued at $1, 000 or more but less than $10, 000 from Target between April 28 and May 12, 2014.

         At the 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 video surveillance.

         On 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.

         On 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 $329.97.

         On May 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 $259.98.

         On May 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.

         During 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 perpetrator.

         Jim 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.

         On May 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.

         Mike 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 items."

         During 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."

         Knoxville 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.

         Following 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 felony sentence.

         In this 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.

         I. Aggregation

         The 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.

         Because 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).

         The 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 ...


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