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State v. Jones

Supreme Court of Tennessee, Knoxville

November 13, 2019

STATE OF TENNESSEE
v.
DENTON JONES

          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 ...


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