Session: May 22, 2019
Appeal
by Permission from the Court of Criminal Appeals Criminal
Court for Knox County No. 105473 G. Scott Green, Judge.
The
State charged the Defendant, Denton Jones, with five separate
misdemeanor thefts aggregated into a single felony count
pursuant to Tennessee Code Annotated section 39-14-105(b)(1)
(2014) which provides that "[i]n a prosecution for theft
of property, . . . the state may charge multiple criminal
acts committed against one (1) or more victims as a single
count if the criminal acts arise from a common scheme,
purpose, intent or enterprise." The Defendant proceeded
to trial, and the jury convicted him as charged. The jury
aggregated the values of the separate misdemeanor thefts as
totaling more than $1, 000 but less than $10, 000.
Accordingly, the Defendant was convicted of a Class D
felony.[1] The Defendant appealed, and the Court of
Criminal Appeals affirmed the trial court's judgment. We
granted the Defendant's application for permission to
appeal in order to determine whether the separate misdemeanor
thefts were properly aggregated into a single felony charge
and whether the evidence sufficiently established that the
separate thefts arose from a common scheme, purpose, intent,
or enterprise. Answering both of these questions in the
affirmative, we affirm the Defendant's conviction.
Tenn.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Affirmed.
Robert
L. Jolley, Jr., and Emma M. Steel (at trial and on appeal),
Knoxville, Tennessee, and Jonathan Harwell and Sarah Parker
(at pretrial motions), Knoxville, Tennessee, for the
appellant, Denton Jones.
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Nicholas W.
Spangler, Senior Assistant Attorney General; Charme P. Allen,
District Attorney General; and Takisha Fitzgerald, Assistant
District Attorney General, for the appellant, the State of
Tennessee.
Jeffrey S. Bivins, C.J., delivered the opinion of the Court,
in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and
Roger A. Page, JJ., joined.
OPINION
JEFFREY S. BIVINS, CHIEF JUSTICE.
Factual
and Procedural Background
The
State indicted the Defendant on two alternative counts of
theft. The first count provides as follows:
The Grand Jurors for the State of Tennessee, upon their
oaths, present that DENTON JONES, ALIAS, heretofore, to-wit:
On or about the 28th day of April, 2014, and on divers and
diverse days between that date and the 12th day of May, 2014,
in the State and County aforesaid, did unlawfully and
knowingly obtain property, to-wit: Electronic Fitness
Monitors, of the value of at least One Thousand and 00/100
($1, 000.00) Dollars but less than Ten Thousand and 00/100
($10, 000.00) Dollars, of Target without their effective
consent, with intent to deprive the said Target thereof, in
violation of T.C.A. 39-14-103, and against the peace and
dignity of the State of Tennessee.
The
second, alternative, count alleged that the Defendant
committed the same thefts by "unlawfully and knowingly
exercis[ing] control over" the property. See
Tenn. Code Ann. § 39-14-103(a) (2014) (providing that a
person commits theft of property by either knowingly
obtaining or knowingly exercising control over another's
property without the owner's consent and with the intent
to deprive the owner of the property).
The
affidavits of complaint filed in general sessions court in
support of these charges alleged that the first theft
occurred at approximately 9:25 a.m. on April 28, 2014, at the
Target store located on Parkside Drive in Knoxville
("the Parkside Drive Target"). The second theft
allegedly occurred at approximately 12:10 p.m. on April 30,
2014, also at the Parkside Drive Target. The third theft
allegedly occurred at approximately 12:31 p.m. on April 30,
2014, at the Target store located on Town Center Boulevard in
Knoxville ("the Town Center Target"). The fourth
theft allegedly occurred at approximately 2:30 p.m. on May
10, 2014, at the Parkside Drive Target. The fifth theft
allegedly occurred at approximately 10:01 a.m. on May 12,
2014, at the Town Center Target. All of the alleged thefts
were of fitness tracking devices.
Prior
to trial, the defense filed a motion to dismiss the
indictment on the basis that it "improperly aggregates
[all five] separate thefts in a single count." Relying
on a 1998 decision by this Court, the defense contended that
the aggregation of separate thefts was proper in only two
scenarios. In the first scenario, the separate thefts are
"(1) from the same owner[s]; (2) from the same location;
and (3) pursuant to a continuing criminal impulse or
a single sustained larcenous scheme." State v.
Byrd, 968 S.W.2d 290, 291 (Tenn. 1998) (citing
Nelson v. State, 344 S.W.2d 540 (Tenn. 1960)). In
the second scenario, "the value of stolen property may
be aggregated . . . when a defendant exercises simultaneous
possession or control over stolen property belonging to
different owners." Id. at 292. Pursuant to this
precedent, the defense asserted, the Defendant's five
alleged thefts could be aggregated into two counts
consistently with the first scenario: three thefts from the
Parkside Drive Target and two thefts from the Town Center
Target. The defense argued that even less aggregation could
be established under the second scenario because the State
was alleging that the Defendant sold the items he stole
shortly after he obtained them. Accordingly, only the two
thefts occurring on a single day, April 30, could be
aggregated consistently with the second scenario. After a
hearing, the trial court denied the motion on the basis that
the grand jury had properly returned an indictment and that
the Defendant was raising, in essence, a challenge to the
sufficiency of the evidence.
The
trial court also suggested to the defense that it had
"the right to move in limine if there are
necessary predicates that have to be shown prior to the
aggregation." The defense thereafter filed a motion
in limine and pursuant to Rule 104 and State v.
Byrd, 968 S.W.2d 290 (Tenn. 1998), to preclude the State
from introducing evidence of two alleged thefts at the Target
on Town Center Boulevard at trial. Under governing law,
evidence of such thefts could be introduced only if it were
properly aggregable with the other three thefts from a
separate location, which would require a showing that the
proceeds of all the thefts were possessed simultaneously.
Otherwise, such thefts are irrelevant but prejudicial prior
bad acts.
(This
text carried a footnote stating that the Defendant
"assumes the State will proceed on the three Parkside
Drive thefts. The same logic, however, applies were the State
to proceed instead on the two Town Center Boulevard thefts.
In that case, evidence of the Parkside Drive thefts would not
be admissible.") Relying on Byrd, the Defendant
argued in this motion that, unless he had simultaneous
possession of all the fitness trackers, "then the State
can introduce only evidence of the thefts from a single
location, and the other thefts are simply not relevant to the
charged offenses. Simultaneous possession is therefore a
necessary predicate fact for admissibility."
The
State filed a response, and the trial court held a hearing.
No proof was presented at the hearing on the Defendant's
motion in limine; however, defense counsel acknowledged to
the court during the hearing that the "sum total of the
evidence" would indicate that the thefts involved
property of an "identical nature" taken from an
"identical owner," "but on multiple occasions
and from two different locations." The State
acknowledged that it could not show that the Defendant had
possessed all of the stolen items at the same time.
The
trial court denied the motion, stating as follows:
I believe the State can properly-under the plain wording of
the [aggregation] statute, if the State can show a common
scheme or plan, and in this instance, at least at this
juncture, the allegation is that [the Defendant] acquired
fitness-very similar fitness equipment for the purpose of-by
way of theft-this device for fraud [sic] from the identical
merchant, albeit in two different locations, but both-all
these thefts stem from Target Stores in Knox County, it's
the same type of property, if the State can show a common
scheme or plan, [2] I believe these are properly aggregated
into one count.
(Footnote added).
The
Defendant then proceeded to a jury trial at which the
following evidence was adduced.
Fredrick
Joe Smith testified that he was employed by Target as an
"executive team leader over assets protection" for
loss prevention purposes. He worked at the Parkside Drive
Target in Knox County. Mr. Smith described the methods that
Target used to protect its merchandise from being stolen,
including video cameras that filmed areas both inside the
store and the parking lot, "spider wrap" placed
around merchandise that would cause an alarm to sound
"if it goes out of the building," and "locking
peg hooks" to hold the spider-wrapped merchandise. The
spider wrap and locking peg hooks were used on "[h]igh
dollar, high theft items," including fitness tracking
devices. Mr. Smith explained that, if a person worked at it
hard enough, an item could be removed from spider wrap,
leaving the empty spider wrap hanging from the hook and
avoiding the alarm. Mr. Smith also utilized special inventory
lists to assist in tracking the high dollar, high theft
items.
Mr.
Smith stated that, in 2014, his store carried both Fitbit and
Jawbone fitness tracking devices. These items were located in
the sporting goods department. Mr. Smith explained that there
was a video camera trained on the sporting goods department
because it was a "high theft area." The fitness
tracking devices were wrapped with the spider wrap and also
attached to a locking peg hook. He explained that, if a
person were able to remove the spider wrap and leave the wrap
hanging from the hook, a theft could take place. The video
camera was aimed at the sporting goods department to assist
in identifying anyone removing the spider wrap.
The
State introduced video recordings taken by video cameras
located in Mr. Smith's store on April 28, 2014; April 30,
2014; and May 10, 2014. The April 28 video depicts a bearded
Caucasian male entering the sporting goods area of the store
at approximately 9:20 a.m. He is wearing a dark ball cap
bearing the Under Armor logo, a light blue hooded sweatshirt,
and khaki shorts. He stands and crouches in front of a
display of hanging items, handling one of the items. After
prolonged handling, he removes an item from the display and
places it nearby on a shelf. He repeats these actions,
returns to the shelf where he placed the first item, and
leaves the area with both items at approximately 9:24 a.m. A
man appearing to be the same person exits the store at
approximately 9:25 a.m. When he exits the store, he is not
carrying a bag.
Mr.
Smith testified that, when he checked the sporting goods area
on this day, he found empty spider wrap hanging on the
locking peg hooks. After checking his records, he determined
that, on April 28, 2014, two Fitbit fitness trackers had been
removed from the area and had not been purchased. He further
stated that the value of the two missing items was $199.98.
The
April 30 video depicts a bearded Caucasian male wearing
clothing identical to that in the April 28 video. He enters
the sporting goods area at approximately 12:04 p.m. He stands
and crouches in front of the same display of hanging items as
in the April 28 video and repeats the same actions of
handling and then removing items from the display. He places
the first item on a shelf a short distance away, obtains a
second item from the display and places it with the first,
and then removes a third item from the display. He gathers
all three items and places them in his pockets. He leaves the
area at approximately 12:09 p.m. A man appearing to be the
same person exits the store at approximately 12:10 p.m. When
he exits the store, he is not carrying a bag.
Mr.
Smith determined that, on April 30, 2014, two Fitbit fitness
trackers and one Jawbone fitness tracker had been taken from
the store without having been paid for. Two of these items
were valued at $99.99 each and the third item was valued at
$129.99.
The May
10 video depicts a bearded Caucasian male wearing a dark ball
cap bearing the same logo as in the previous videos, a dark
short-sleeved shirt, and khaki shorts. He enters the sporting
goods area at approximately 2:20 p.m. He goes to the same
display of hanging items as in the April videos and handles
the items. He removes two items from the display, one at a
time, placing each on a nearby shelf. There are numerous
customers in the vicinity and the man intermittently walks
around other portions of the area. Eventually he returns to
the two items he placed on the shelf, moves them a short
distance away on the shelf, and appears to be engaging in
further manipulation. He again walks away from the shelf. The
video ends at 2:30 p.m. with the suspect still in the
sporting goods area near the shelf where he placed the two
items.
Mr.
Smith determined that, on May 10, 2014, two Jawbone fitness
trackers had been taken from the store without having been
paid for. These two items were valued at $129.99 each.
On
cross-examination, Mr. Smith stated that Target had not
recovered any of these missing items. He also explained that,
at the time of the thefts, Target did not track the serial
numbers of these items while they were in the store. The
serial number would be recorded in a transaction report only
if the item was purchased.
Jim
Elliott testified that, in 2014, he was the asset protection
team leader for the Town Center Target in Knox County. When
he came to work on April 30, 2014, he discovered that there
were two Jawbone fitness trackers missing from their locking
peg hooks. He reviewed the video taken of the sporting goods
area that morning, and the video depicted an individual
taking the Jawbones. Mr. Elliott stated that the total value
of the two missing Jawbones was $259.98.
The
video of the April 30, 2014, incident was admitted into
evidence and played for the jury. The recording shows the
sporting goods area of the store. At 12:28 p.m., a bearded
Caucasian man enters the frame. He is wearing a dark ball cap
bearing the same logo as in the Parkside Target videos, a
dark jacket, and khaki shorts or pants.[3] The man crouches
in front of a display of hanging items, handles an item, and
then takes it from the display area and places it on a shelf
a short distance away. The man returns to the display of
hanging items, crouches, handles another item, and removes it
from the display. The man takes the second item, returns to
the shelf where he placed the first item, and retrieves the
first item. Holding both items, the man walks out of the
frame. At 12:31 p.m., a man who appears to be the same person
is recorded leaving the store. He is not carrying a bag.
Mr.
Elliott also testified that, when he came into work on May
12, 2014, he discovered that one Jawbone fitness tracker was
missing. The spider wrap in which it had been encased was
hanging empty from the peg hook. He reviewed the video, and
the video depicted an individual taking the Jawbone. Mr.
Elliott stated that the value of the missing Jawbone was
$129.99.
The
video of the May 12 incident was admitted into evidence and
played for the jury. The recording depicts the sporting goods
area. At approximately 9:58 a.m., a bearded Caucasian man
wearing a dark ball cap bearing the same logo as in the other
videos, a grey t-shirt, and khaki shorts or pants enters the
frame. The man crouches down in front of the same display of
hanging items as depicted in the April 30 video and begins
handling an item. He takes an item from the display and walks
out of the frame at approximately 9:59 a.m. At 10:01 a.m., a
man who appears to be the same person is recorded leaving the
store. He is not carrying a bag.
Mike
Adams testified that he is the owner of Red Rhino, "a
buy, sale, trade secondhand store." He stated that,
before the store purchased any items from a seller, the
seller would have to produce a driver's license or
state-issued identification. The store would keep a copy of
the identification and the seller would have to sign a form.
The store employee would make sure that the seller matched
the photograph on the identification and that the
seller's signature matched the signature on the
identification. Any item purchased from the seller was then
entered into the LEIDS database. Mr. Adams described this
database as "for the police department to make sure if
the item is stolen or something like that, they have time to
see what the item is and compare it." The store would
also hold the item for "20 plus days" before
offering it for sale.
Mr.
Adams explained that he had gathered records pertaining to
purchases the store had made from the Defendant in April and
May of 2014. These records (and cross-examination)
established that, during the period April 30, 2014, through
May 30, 2014, the Defendant sold four Fitbits and fourteen
Jawbones to Red Rhino: two Fitbits on April 30; two Fitbits
on May 3; three Jawbones on May 7th or 8th; four Jawbones on
May 10; four Jawbones on May 12; and three Jawbones on May
23. Mr. Adams stated that, based on the price that Red Rhino
paid to the Defendant for these items, they "would be
new or new in box items." According to Mr. Adams, all of
these items that Red Rhino purchased from the Defendant had
"long been sold." Red Rhino did not keep the serial
numbers of the items. The items, however, were entered into
the LEIDS database.
Tom
Epps of the Knoxville Police Department testified that, in
June 2014, he investigated a series of thefts from Target.
During the course of his investigation, he reviewed the
videos recorded on April 28, 2014; April 30, 2014; May 10,
2014; and May 12, 2014. He subsequently looked up the
...