State of Tennessee v. Renita Elaine McDonald

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 9, 2014
STATE OF TENNESSEE v. RENITA ELAINE McDONALD
Appeal from the Criminal Court for Davidson County
No. 2013-A-189 Mark J. Fishburn, Judge
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No. M2013-02666-CCA-R3-CD - Filed November 21, 2014
____________________________
Defendant, Renita Elaine McDonald, was convicted by a Davidson County jury of theft of
property valued at $1,000 or more but less than $10,000. As a result, the trial court sentenced
her to eight years as a Range II, multiple offender, and denied all forms of alternative
sentencing. After the denial of a motion for new trial, Defendant appeals, challenging the
trial court’s decision to exclude testimony on the basis that it constituted hearsay, the
sufficiency of the evidence as to the value of the property taken, and the denial of alternative
sentencing. After our full review, we determine: (1) that the trial court did not err in
allowing nontestimonial statements offered by a security officer from another officer while
in pursuit of a shoplifter; (2) that the evidence was sufficient to support the conviction of
theft of property valued at $1,000 or more but less than $10,000 where the testimony of the
store’s loss prevention supervisor regarding identity and value was accredited by the jury;
and (3) that the trial court’s denial of alternative sentencing was appropriate. Accordingly,
the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T IMOTHY L. E ASTER, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.
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.
OPINION
Factual Background
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 whenhe 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
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[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
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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.
Analysis
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.
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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 not events that Mr. Smith
actually observed or saw.
[Trial Court]: I don’t know what it is he’s going to say either, but I’ll overrule
it.
[Mr. Smith]: That was from mall security, and he was just stating that –
[Defense Counsel]: Objection, your Honor.
[Trial Court]: Overrule that, it’s not being offered for the truth of the matter,
asserted, it’s just to explain what he may be doing now.
During the cross-examination of Mr. Smith, the following exchange took place:
[Defense Counsel]: Okay. And then you, based upon conversations, figured
out that [Defendant] had gone to the Walgreens, right?
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[Mr. Smith]: That is correct, they had described what had occurred to me over
the radio, that [Defendant]
[Defense Counsel]: Don’t tell me what somebody else said, that’s okay. But
you went --
[Counsel for the State]: Well I mean, he asked.
[Trial Court]: Yeah, just respond to the question. Again, it’s not offered for
the truth of the matter, it’s to explain mentally his state of his mind where he
went and why he did what he did.
[Defense Counsel]: Well, you saw her at Walgreens, you walked in and spoke
with her?
[Mr. Smith]: Well, can I answer your question?
[Defense Counsel]: Well go ahead, yeah.
[Mr. Smith]: I received radio traffic from mall security, as I stated, they were
at a higher vantage point than I was and could see over the tops of the
buildings and into the parking lots. They had seen a silver Magnum pull in to
the strip lot and [Defendant] get out of the vehicle and a gentleman get into the
vehicle and the vehicle take off, and said that she was now walking towards
Walgreens, and that’s why I went towards Walgreens.
[Defense Counsel]: Okay. Now, you didn’t see any of that, right?
[Mr. Smith]: No, sir, I did not.
[Defense Counsel]: Okay. And you’re not telling us, as a matter of accuracy,
that’s what happened, right?
[Mr. Smith]: That is correct, sir.
[Defense Counsel]: Okay. And so somebody was in a silver Magnum and she
was in a silver Magnum; is that a fair statement?
[Mr. Smith]: Could you rephrase the question, I’m not quite sure I understand it.
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[Defense Counsel]: There was [Defendant] and another individual in a silver
Magnum? Is that what you’re telling us?
[Mr. Smith]: No, no. I’m saying that it had pulled up in front of Domino’s
Pizza, the gentleman, they were saying get up to Domino’s Pizza, the
gentleman is standing there with the handbags. Silver Magnum pulls up,
[Defendant] gets out, the gentleman throws the handbags into the vehicle, and
he takes off in the vehicle and she takes off walking towards Walgreens. And
so then they changed, said we need to get up towards Walgreens, and I was
already headed in that direction.
[Defense Counsel]: Now that’s important, that is important, okay. You didn’t see
that?
[Mr. Smith]: No, sir, I did not.
[Defense Counsel]: Okay. All right, somebody is going to tell us about that,
right, okay?
[Mr. Smith]: Not that I’m aware of.
[Defense Counsel]: No?
[Mr. Smith]: The person who saw it is not residing in the State of Tennessee currently.
[Defense Counsel]: And you can’t testify to it, right?
[Mr. Smith]: No, sir.
[Defense Counsel]: Okay.
[Trial Court]: And again, ladies and gentlemen of the jury, that information
cannot be used and weighed in this case to determine the guilt or innocence of
[Defendant]. It was only provided to you so that you understand why Mr.
Smith did what he did.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802
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However, this Court has held that statements used to prove the effect on a listener are
not hearsay:
[A]ny time the statement is used to prove the hearer or reader’s mental state
upon hearing the declaration, words repeated from the witness chair do not fall
within the hearsay exclusion. The statement fails the test of hearsay because
it is not used to prove the truth of the matter asserted in the statement.
State v. Carlos Jones, No. W2008-02584-CCA-R3-CD, 2010 WL 3823028, at *14-15 (Tenn.
Crim. App. Sept. 30, 2010) (quoting Neil P. Cohen, et al., Tennessee Law of Evidence, §
8.01[7], at 8-23 (5th ed. 2005)); see generally State v. Venable, 606 S.W.2d 298, 301 (Tenn.
Crim. App .1980) (noting that the victim’s statement was not hearsay because it was offered
for its effect on the hearer, the defendant, and established evidence of his motive in returning
to the scene of the crime later in the day and threatening the victim).
At trial, as outlined above, Mr. Smith testified that he was receiving radio
communication from other security personnel while the male subject and Defendant were
making their getaways. In this case, the trial court determined that the radio communications
testified to by Mr. Smith on direct examination were not hearsay because they were not
offered to prove the truth of the matter asserted. We agree for the most part. Most
statements were offered to explain why Mr. Smith pursued the suspects in the manner that
he did and how he knew to look for Defendant at the Walgreens.
The trial court also determined that the detailed radio communications testified to by
Mr. Smith on cross-examination were not hearsay because they were likewise not offered to
prove the truth of the matter asserted. This is where we disagree. To the extent Mr. Smith
testified that he was informed that Defendant was observed at the Domino’s Pizza before
next walking toward and into the Walgreens, these statements were not offered for the truth
of the matter asserted. Mr. Smith recounted these statements to explain why he first headed
in the direction of the Domino’s and later redirected toward the Walgreens, where he found
Defendant.
However, Mr. Smith’s testimony that mall security saw Defendant drive up to the
male suspect in a silver Dodge Magnum and allow the male to drive away in the vehicle with
the stolen handbags was hearsay. These statements were offered to prove the truth of the
matter asserted—that Defendant provided the male suspect with a getaway vehicle—and
were not offered to show the effect on the listener, Mr. Smith. In his testimony, Mr. Smith
was not explaining how he responded to radio communications about the exchange with the
Dodge Magnum; he was explaining why he gave chase to the specific locations of Domino’s
and Walgreens. Therefore, this portion of Mr. Smith’s testimony contained inadmissible
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hearsay.1
Defendant also claims that the admission of these statements violated her right of
confrontation protected by the federal and Tennessee constitutions. See generally Crawford
v. Washington, 541 U.S. 36 (2004); State v. Maclin, 183 S.W.3d 335 (Tenn. 2006); see also
State v. Jessie Dotson, No. W2011-00815-SC-DDT-DD, ___S.W.3d___, 2014 WL 4825169,
at *52 (Tenn. Sept. 30, 2014) (noting that “the same standards govern both” constitutions).
Crawford brings the Confrontation Clause to bear if a hearsay statement is being introduced
to prove the truth of the matter asserted in a testimonial statement. See 541 U.S. at 59 n.9;
Jessie Dotson, 2014 WL 4825169, at *52. “Thus, the threshold issue for an alleged
confrontation clause violation is ‘whether a challenged statement is testimonial or
nontestimonial.’” State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011) (quoting Maclin, 183
S.W.3d at 345).2
Examining the historical origins of the right, Crawford defined “testimony” as “[a]
solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
541 U.S. at 51 (internal quotation and citation omitted). Crawford indicated several
examples of testimonial statements, including those made in response to “police
interrogations.” Id. at 68. Recognizing an exception for some instances of police
questioning, the Supreme Court has provided the following “primary purpose” test:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is
no such ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal
prosecution.
1
The specific statements that constitute hearsay are: (1)“and a gentleman get into the vehicle and the
vehicle take[s] off . . .”; and (2) “the gentleman is standing there with the handbags . . . the gentleman throws
the handbags into the vehicle, and takes off in the vehicle.” Both statements were made in response to
questions asked on cross-examination.
2
Because Crawford did not articulate a “comprehensive definition” of a testimonial statement, 541
U.S. at 68, subsequent Tennessee decisions have struggled with this question in Crawford’s wake. See
Maclin, 183 S.W.3d at 345 (observing that “Courts across the country are grappling with the distinction
between ‘testimonial’ and ‘nontestimonial’ hearsay and coming to different, often conflicting, results”); State
v. Franklin, 308 S.W.3d 799 (Tenn. 2010) (stating “we will continue to define which statements are
‘testimonial’ only to the extent necessary to resolve the case before us”); Parker, 350 S.W.3d at 898
(affirming that “we will continue to define testimonial only to the extent necessary to resolve the case before
us”).
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Davis v. Washington, 547 U.S. 813, 822 (2006). Further,
When determining a statement’s primary purpose, “the relevant inquiry is not
the subjective or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants would have had,
as ascertained from the individuals’ statements and actions and the
circumstances in which the encounter occurred.”
Dotson, 2014 WL 4825169, at *52 (quoting Michigan v. Bryant, 131 S. Ct. 1143, 1156
(2011)).
Relevant for determining “whether the statement’s primary purpose is to establish or
to prove past events potentially relevant to later criminal prosecutions or is to resolve an
ongoing emergency or for some other purpose,” we consider the following “nonexclusive list
of factors”:
(1) whether the declarant was a victim or an observer; (2) whether contact was
initiated by the declarant or by law-enforcement officials; (3) the degree of
formality attending the circumstances in which the statement was made; (4)
whether the statement was given in response to questioning, whether the
questioning was structured, and the scope of such questioning; (5) whether the
statement was recorded (either in writing or by electronic means); (6) the
declarant’s purpose in making the statements; (7) the officer’s purpose in
speaking with the declarant; and (8) whether an objective declarant under the
circumstances would believe that the statements would be used at a trial.
Parker, 350 S.W.3d at 898-99 (quoting State v. Franklin, 308 S.W.3d 799, 813 (Tenn.
2010)).
This inquiry is significant because “[w]hen . . . the primary purpose of an interrogation
is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus
is not within the scope of the [Confrontation] Clause.” Bryant, 131 S. Ct. at 1155. The
Supreme Court has further explained the rationale of the ongoing emergency exception in
this manner:
The existence of an ongoing emergency is relevant to determining the
primary purpose of the interrogation because an emergency focuses the
participants on something other than proving past events potentially relevant
to later criminal prosecution. Rather, it focuses them on ending a threatening
situation. Implicit in Davis is the idea that because the prospect of fabrication
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in statements given for the primary purpose of resolving that emergency is
presumably significantly diminished, the Confrontation Clause does not
require such statements to be subject to the crucible of cross-examination.
This logic is not unlike that justifying the excited utterance exception
in hearsay law. Statements “relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition,” Fed. Rule Evid. 803(2), are considered reliable because the
declarant, in the excitement, presumably cannot form a falsehood. An ongoing
emergency has a similar effect of focusing an individual’s attention on
responding to the emergency.
Id. at 1157 (internal quotations, alterations, citations, and footnotes omitted). Yet, because
nontestimonial statements can later become testimonial statements, trial courts must
“determine in the first instance when any transition from nontestimonial to testimonial
occurs, and exclude ‘the portions of any statement that have become testimonial . . . .’” Id.
at 1159 (quoting Davis, 547 U.S. at 829).
Identifying “whether an emergency exists and is ongoing is a highly
context-dependent inquiry.” Id. at 1158. Ultimately, “whether an ongoing emergency exists
is simply one [important] factor . . . that informs the ultimate inquiry” into a statement’s
primary purpose. Id. at 1160. The existence of an ongoing emergency is not dispositive. Id.
Although the Supreme Court has previously addressed the ongoing emergency
exception in the context of questioning by police officers, the Confrontation Clause is not
limited to police interrogation. It applies equally to elicited and unprompted statements, and
the critical analysis focuses on the nature of the statements, not the questions, if any. Davis,
547 U.S. at 822 n.1. (noting that “statements made in the absence of any interrogation are
[not] necessarily nontestimonial”) Id.
We believe that the statements in the radio communications received by Mr. Smith
and testified to during direct and cross-examinations were nontestimonial. When viewed
objectively, the primary purpose of the information relayed to Mr. Smith by a mall security
officer was to stop a crime in progress, i.e., an ongoing emergency. Although not a victim
of the crime, the security officer was actively involved in the attempted apprehension of the
fleeing male suspect by simultaneously narrating his observations of the suspect’s
whereabouts to Mr. Smith. While not actually giving chase himself, the security officer was
physically present at the crime scene and in close proximity to the location of the chase.
Although there was no indication that either the male suspect or Defendant possessed a
weapon, it is not unreasonable to believe that these individuals posed a threat to the safety
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of the surrounding public and to Mr. Smith, as the pursuing officer, be it by firearm, fleeing
vehicle, or otherwise. As described by Mr. Smith, the mall and its immediate surroundings
is a populated and active place with retail stores, boutiques, restaurants, banks, and busy
streets. It strains logic to believe that the mall security guard, under these circumstances, was
offering his comments for the purpose of providing accusatory testimony to develop the
record of evidence for later use at trial. These were not formal or solemn statements made
in the course of an investigation. There is nothing in the record to show that the statements
were recorded and preserved to be used as evidence at a trial. The security officer was
merely providing a reflexive, stream-of-consciousness narration of the male suspect’s, and
later Defendant’s, conduct as a direct means of enabling police assistance to meet an ongoing
emergency. These statements were far more like the statements made in Davis, 547 U.S.
813, 817-18 (finding a 911 recording of a domestic violence victim’s identifying and
descriptive statements to the dispatcher while the incident was still happening to be
nontestimonial), than those made in Crawford, 541 U.S. at 39 (finding the tape-recorded
statements of a witness describing a stabbing as testimonial) or Hammon v. Indiana,3 547
U.S. 813, 819-20 (2006) (finding a handwritten affidavit by a domestic assault victim
describing the incident to be testimonial), or even in Bryant, 131 S. Ct. at 1150 (finding that
a victim’s statements identifying to police the man who shot him, while the victim bled on
the ground at a gas station twenty-five minutes after the shooting, were nontestimonial). But
cf. Wilder v. Virgina, 687 S.E.2d 542, 593 (Va. Ct. App. 2010) (finding that a 911 recording
of a bystander’s statements “providing a narrative report of a larceny in progress” was
testimonial).
We conclude that admission of these nontestimonial statements was not error under
the Confrontation Clause.
Furthermore, we also note that Defendant invited and failed to mitigate the errors of
which she now complains. During its case-in-chief, the State was careful not to elicit any
testimony from Mr. Smith about the exchange of the silver Dodge Magnum at the Domino’s.
However, on cross-examination, defense counsel broached the subject of Mr. Smith’s
knowledge that Defendant was at Walgreens. At one point, defense counsel instructed Mr.
Smith not to provide any details of the radio communications, but the trial court indicated
that any statements not offered to prove the truth of the matter asserted would be admissible.
Subsequently, Mr. Smith gave a non-responsive answer that included the hearsay statements
about the vehicle. Defense counsel did not object to this testimony afterward or ask for a
curative instruction at that point. Instead, defense counsel proceeded to pose additional
questions to the witness about the vehicle, which then elicited the most detailed and
incriminating recollection of the statements about the vehicle exchange. Defense counsel
3
Hammon was consolidated with Davis.
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again failed to object after this answer was given, but the trial court provided a sua sponte
limiting instruction shortly thereafter. Defendant is not entitled to relief now. See State v.
Robinson, 146 S.W.3d 469, 493 (Tenn. 2004); Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”).
In any event, we find that the hearsay error and any resulting Confrontation Clause
error are harmless. Failure to properly exclude inadmissible hearsay may be harmless if it
is shown by a preponderance that the erroneously admitted evidence did not affect the jury’s
verdict. State v. Long, 45 S.W.3d 611, 624 (Tenn. Crim. App. 2000); Tenn. R. App. P. 36(b).
“Whether error in the admission of evidence is prejudicial is gauged by the substance of the
evidence, its relation to other evidence, and the peculiar facts and circumstances of the case,
and whether such admission is sufficient ground for reversal depends on the facts in each
case; and the appellate court will consider the record as a whole in determining the question
of prejudice or reversibility.” State v. Cannon, 254 S.W.3d 287, 299 (Tenn. 2008) (quoting
Blankenship v. State, 410 S.W.2d 159, 161 (Tenn. 1966)). Violations of the Confrontation
Clause are non-structural constitutional errors that are also subject to harmless error review.
State v. Antwain Green, No. M2012-00234-CCA-R3-CD, 2013 WL 624128, at *8 (Tenn.
Crim. App. Feb. 20, 2013) (citing State v. Gomez, 163 S.W.3d 632, 648 (Tenn. 2005),
overruled on other grounds by State v. Gomez, 239 S.W.3d 733 (Tenn. 2007)). For this type
of error, “[a]n assessment of harmlessness cannot include consideration of whether the
witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there
been confrontation; such an inquiry would obviously involve pure speculation, and
harmlessness must therefore be determined on the basis of the remaining evidence.” Parker,
350 S.W.3d at 902 (quoting Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988)). The State must
prove that confrontation error was harmless beyond a reasonable doubt. Id.
Not only do we find the evidence in this case sufficient, as discussed below, but we
find it to be ample. Mr. Smith identified Defendant, with whom he was previously familiar,
as the woman that he watched via security camera assisting a male counterpart in stealing
purses and wallets from the department store. Mr. Smith testified, and the video footage
shows, that Defendant and the male subject entered and moved about the store together,
engaging in suspicious behavior that Mr. Smith, as an experienced loss prevention officer,
recognized as common shoplifting techniques. Yet, Defendant is not guilty solely by
association. Mr. Smith testified that he observed Defendant pick up a purse and take it to the
male subject. That purse was seen by Mr. Smith in the possession of the male subject as he
fled the store. This exchange is corroborated by the video footage. Although Mr. Smith’s
hearsay testimony about Defendant providing the male subject with a getaway vehicle further
confirms their criminal partnership, we do not find that the inclusion of that evidence on
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cross-examination impermissibly prejudiced the jury’s decision in light of all the other
evidence. After the hearsay emerged during cross-examination, the trial court gave a limiting
instruction that the jury is presumed to have followed. State v. Jordan, 325 S.W.3d 1, 66
(Tenn. 2010) (citing State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006)).
For the reasons discussed above, we do not find that Defendant is entitled to relief on
this issue.
II. Sufficiency of Evidence
Next, Defendant claims there was insufficient proof of her identity as the person in
Dillard’s on March 5, 2011, and insufficient proof of the value of property taken. In other
words, she challenges the sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A guilty verdict removes the
presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal to
demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court must answer is
whether any rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.” State
v. Elkins, 102 S.W.3d 578, 581 (2003). As such, this Court is precluded from re-weighing
or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn
by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The
standard of review ‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson,
279 S.W.3d 265, 275 (Tenn. 2009)).
“The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.
Apr.19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). The State has
the burden of proving “the identity of the defendant as the perpetrator beyond a reasonable
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doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App. 1995)). The
identity of the defendant as the perpetrator may be established by direct evidence,
circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at 793. “The
credible testimony of one identification witness is sufficient to support a conviction if the
witness viewed the accused under such circumstances as would permit a positive
identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App .1999)
(citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The
identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford,
635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). In addition, “the testimony of a victim, by
itself, is sufficient to support a conviction.” Id. (citing State v. Williams, 623 S.W.2d 118,
120 (Tenn. Crim. App. 1981)); State v. Joshua Smith, W2012-01059-CCA-R3CD, 2013 WL
6095831 (Tenn. Crim. App. Nov. 19, 2013), perm. app. denied, (Tenn. Mar. 17, 2014).
Mr. Smith testified that he observed Defendant pick up a purse and take it to the male
subject. That purse was seen by Mr. Smith in the possession of the male subject as he fled
the store. This exchange is corroborated by the video footage. Defendant was identified by
Mr. Smith as the woman he observed on the surveillance video with the male subject in
Dillard’s. Within four to five minutes he identified her in Walgreens. At Walgreens,
Defendant admitted to being in Dillard’s and saying “hi” to the male subject that left
Dillard’s with the stolen merchandise. Mr. Smith identified Defendant in court to the jury,
and the jury determined from all the relevant proof that Defendant was in fact the perpetrator.
We will not disturb this finding.
Defendant also attacks the proof of value as insufficient. Value of property is defined
as the fair market value of the property at the time and place of the offense, or if the fair
market value cannot be ascertained, the cost of replacing the property. T.C.A.. § 39-11-
106(a)(36)(A). If the value cannot be ascertained using either of these methods, the property
is deemed to have a value of less than fifty dollars. T.C.A.. § 39-11-106(a)(36)(C).
Tennessee Rule of Evidence 701(b) permits the owner of personal property to testify about
the value of that property. See State v. Hamm, 611 S.W.2d 826 (Tenn. 1981); Reaves v.
State, 523 S.W.2d 218, 220 (Tenn. Crim. App. 1975). He or she can testify about either the
fair market value at the time of the offense or the replacement cost. State v. Gene Allen
Logue, No. W1999-01795-CCA-R3-CD, 2000 WL 1843248, at *3 (Tenn. Crim. App. Dec.
15, 2000); State v. Troy D. Ryan, M2000-02142-CCA-R3CD, 2001 WL 1597746, at *3
(Tenn. Crim. App. Dec. 14, 2001). The fair market value of property is a question of fact for
the jury. Hamm, 611 S.W.2d at 829.
Here, Dillard’s loss prevention officer testified from his knowledge regarding the
value of the items stolen sufficiently to allow a reasonable jury to conclude beyond a
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reasonable doubt that the value of the property was over $1,000. There is nothing in the
record to impeach this finding.
III. Sentencing
Defendant lastly claims the trial court abused its discretion by imposing the burden
of proving the appropriateness of probation on her and sentencing her to the maximum
sentence.
Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (extending
presumption of reasonableness to determinations regarding the manner of service of a
sentence). In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the pre-sentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the Administrative Office of the Courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make on the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). The trial court is still
required to place on the record its reasons for imposing the specific sentence, including the
identification of the mitigating and enhancement factors found, the specific facts supporting
each enhancement factor found, and the method by which the mitigating and enhancement
factors have been evaluated and balanced in determining the sentence. See Bise, 380 S.W.3d
at 706 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). Thus, under Bise, a
“sentence should be upheld so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Bise, 380 S.W.3d at 710; State v. Leslie Warren Blevins, M2013-01725-
CCA-R3CD, 2014 WL 3828027, at *4 (Tenn. Crim. App. Aug. 5, 2014)
At the conclusion of the sentencing hearing, the record reflects that the trial court
properly considered all the factors set out in Tennessee Code Annotated section 40-35-210.
Based upon the pre-sentence report, the court found that Defendant had three prior felonies
on her record and properly classified her as a Range II offender.
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The trial court made extensive findings in considering enhancing and mitigating
factors. The court “quit count at about fifteen” other prior convictions, going back some
eighteen years. The court properly applied as mitigation that Defendant’s conduct neither
caused nor threatened serious bodily injury.
The trial court also properly considered all factors which must be considered in
determining if an alternative sentence is appropriate. The trial judge stated his thoughts on
Defendant’s lack of potential for rehabilitation and ability to successfully complete an
alternative sentence. He considered her mental and physical condition. Regarding her
employment and educational histories, the trial judge noted that Defendant is thirty-seven
years old and has “spent since 1995 stealing,” rendering her work and education history
“miserable.” The trial judge further considered Defendant’s character, social history, and her
lack of community and family support. The trial court noted that Defendant had been
arrested and convicted of four other charges while on bond for the current theft charge,
casting a dim light on her history of compliance with Court orders. The trial court concluded
by finding that confinement for Defendant is necessary to “protect society [by] restraining
[Defendant] who has a long history of criminal conduct.” The court recognized that the
sentence imposed should be the least severe measure necessary to achieve the purpose for
which it is being imposed. The record amply supports, and we agree with, all of the trial
judge’s sentencing findings.
Defendant complains that the trial court abused its discretion when it imposed the
burden of proving the appropriateness of probation on Defendant. However, this Court has
previously held that the burden is on the defendant to demonstrate that she is a suitable
candidate for full probation. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);
State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see T.C.A. § 40-35-303(b)
(1997). In order to meet this burden, the defendant “must demonstrate that probation will
‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); accord State v. Donna F. Benson, W2001-
01926-CCA-R3-CD, 2002 WL 31296110, at *6 (Tenn. Crim. App. Oct. 8, 2002).
Defendant’s argument is without support.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed in all respects.
_________________________________
TIMOTHY L. EASTER, JUDGE
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